(EN) Gimmicks, stunts and delays

1 Julai 2004 Print page

The conference usually adopts conventions and recomendations by balloting.
Without the support of the government delegates, it is not easily posssible
to adopt a convention aimed at protecting the workers. However, a number of
governments fail to ratify the conventions. Even if they do, they tend to systematically
impose obstructive clauses in the labour legislation. The Malaysian Gaovernment,
I regret to say, is one of them.

There are presently more than 10 million workers in Malaysia. Fewer than 10
per cent of them are unionised. According to Malaysia’s Industrial Relations
Act 1967, only a registered trade union is permitted to engage in collective
bargaining – and that too after obtaining “recognition” from the employer
concerned. More often than not, seeking recognition is an arduous task and a
frustrating process.

Praising the PM sky-high

In the public sector, there are more than a million employees. They are free
to form trade unions. But their right to collective bargaining, which was granted
by the colonial masters in the 1950s, was abruptly withdrawn by the government
in 1979. Since then, these one million public employees depend solely on the
benevolence of their employer – the government.

As a retired trade unionist of the public sector, I feel sad about their plight.
Immediately after the withdrawal of their right to collective bargainging, the
Congress of Unions of Employees in the Public and Civil Services (CUEPACS) resorted
to some form of protests. But later, they behaved not only like a “poodle”
but started praising the Prime Minister sky-high. Interestingly, if you go to
the CUEPACS website at www.cuepacs.org.my the first thing you will see is a
huge picture of former premier Mahathir followed by current premier Abdullah
Badawi each accompanied by quotations from them.

It is a well-established fact that a trade union without the right to collective
bargaing is no better than a recreation club. Before the 21 Mar 2004 general
election, some of the public sector union leaders praised the Barisan National
government and pledged their support. They did not have the courage of their
convictions to pledge their support on ONE condition: “Give us back our
right to Collective Bargaining and we will call upon the one million public
employees to support the BN.”

Restricting collective bargaining

The Industrial Relations Act (IRA) 1967 deals with the freedom of collective
bargaing in Malaysia. It is aimed at regulating the manner in which industrial
relations should be maintained. Part II of the Act stipulates the protection
of the workers’ right to join or not to join trade unions. It also says
no employer shall victimise an employee for joining or not joining a trade union.
The same part, however, also says an employer may dismiss or demote or transfer
or refuse to promote a worker on other grounds. It is not only a deviation from
the ILO convention, but an unwarranted and uncalled for provision.

Frustrating new unions

Normally a trade union will only seek recognition if it has already enrolled
more than 50 per cent of potential members. And usually employers who value
the cooperation and goodwiil of their workers and their trade union will accord
recognition within the stipulated 21 days. But, unfortunately, such sensible
employers are in short supply in Malaysia. Many of our employers including investors
from western countries are allergic to trade unions. When they refuse recognition,
the rigmarole begins.

At this point, the Director General of Industrial Relations (DGIR) enters the
scene. His officers will try to reconcile the parties involved. The employers
might refer to section 9 of the IRA which says a trade union of workers is prohibited
from accepting membership from those employed in a management or executive capacity
or in a confidential or security capacity. Given such a provision, it is not
surprising to see copy-typists suddenly being converted to a “confidential
capacity” or workers being catergorised as falling under a “security
capacity” or other such gimmicks to enable the employer to reject recognition.

If the DGIR fails to resolve the dispute, he or she shall refer it to the Human
Resources Minister. The minister then goes on with another investigation. In
the event, he makes a decision that is final and cannot be questioned in any
court.

It is a time-consuming process, which can take more than a year. In the meantime,
the workers who had joined the union, having waited so long, might discontinue
their payment of subscriptions and some union leaders would have lost their
jobs by then. At the end of the day, it is quite possible that the union would
have ceased to function. Without recognition, the union cannot proceed with
collective bargaining resulting in frustration among its members.

There are other ways to overcome this problem. Either an independent body could
be authorised by the DGIR to hold a balloting of potential members to determine
whether the union enjoys a majority support from among the workers, or the union
could resort to strike action.

Collective agreements and time-wasting

Part IV of the IRA deals with Collective Bargaing and Collective Agreement.
Having been accorded recognition, the union should submit its proposals for
a collective agreement to the employer. But the proposals cannot include matters
pertaining to promotion, transfers, termination of service, dismissal and retrenchments.
These unjust prohibitions defy common logic. Promotion, transfer, dismissal
etc are part and parcel of the terms and conditions of workers.

If collective bargaining is deadlocked, either party may seek conciliation
through the DGIR. If conciliation fails, the dispute is referred to the minister,
who in turn refers it to the Industrial Court for arbitration.

Actually, there is no need for the matter to be referred to the minister. It
merely results in further delay and a waste of time for the minister, who is
usually a busy politician. Either or both the parties involved in the negotiation
should be advised to refer the dispute to court. It must be done voluntarily
as stipulated in the ILO convention.

Long delays

Once the dispute is referred to the Industrial Court, the parties involved
have no choice but to wait for its decision. It may take a couple of years,
if not more. An award by the court is often challenged in the High Court, the
Appeal Court and the Federal Court by the employers; but very rarely by the
union.

According to the existing laws, workers are entitled to collective agreement
every three years. So, the longer the delay the happier are the employers. The
time consumed from commencing collective bargaining to conciliation, reference
to the minister and the courts and the final decision could be anything from
3 to 5 years. This inevitably delays the submission of the union’s proposals
for the next collective agreement. In the final analysis while the workers stand
to lose, the employer gains substantially.

Strike action

Strike action is the most effective weapon in the armoury of the trade unions
in their pursuit of their immediate objectives and ultimate goals. It is an
inalienable right of workers. It is the last weapon they use in their struggle
not only for an equitable share of the nation’s wealth but also for the
restoration of their dignity and well-being. It involves sacrifice. For instance,
workers involved in strikes are not normally eligible for their wages. They
may even have to face arrests, detention, even ill treatment.

Nevertheless, a successful strike brings long-standing benefits, besides self-satisfaction.
For example, today workers all over the world enjoy an 8-hour workday. This
is actually the outcome of a strike launched by American workers on 1 May 1886.
There was no labour law back then and workers had no legal protection. Instead,
they were treated like slaves and exploitation was the order of the day. Hundreds
of strikers were arrested and assaulted, jailed and tortured. Sadly, quite a
few of them were forced to sacrifice their lives. But the unity and determination
of the downtrodden brought victory.

Back in Malaysia, 9,000 railway workers went on strike in December 1962. Their
main demand was the conversion of daily rated wages to monthly salaries. The
entire union movement under the Malayan Trades Union Congress rendered moral
and material support to the 9,000 railway workers and their union. The strike
lasted 22 days and the government eventually conceded to the workers’ demand.
As a result of the successful strike, all other daily rated workers of the government
were also converted to monthly status. There were several other strikes, including
one by the teachers in 1967 — many of them successful in the past in Malaysia.

Now the situation has changed. Seldom do we hear of strikes. Of course, the
world has progressed and human rights have been enhanced. Workers in many countries
have the freedom to strike, which in a strict sense means the workers’
right to withdraw their labour.

Virtually impossible to strike

But, in Malaysia the situation is different and difficult now. Several provisions
have been enacted to make it virtually impossible for the unions to resort to
strike action. Nowhere in the laws is it stated that workers have the right
to withdraw their labour in pursuit of their demands. The legal definition of
the word “strike” is: “Any act or omission by a body of workers,
which is intended or which does result in any limitation, restriction, reduction,
delatoriness in the performance of their (workers’) duties connected to
their employment is also strike.” This means Work-to-Rule, and Go-Slow
are also deemed as strikes. The laws further stipulate the punishment for those
involved in “illegal strikes”, which is imprisonment and/or fine.

Well, what then is a “legal strike”? First the union must have a
trade dispute. Then, a secret ballot must be carried out. Not less than two
thirds of the workers involved should vote for the strike. The union must submit
the result of the balloting to the Director General. The employer must be informed
of the date of the strike. A union that has fullfilled all these requirements
under the law is set to go on strike.

Suddenly the Minister intervenes and refers the dispute to the Industrial Court.
Immediately, the strike must cease. If it continues, the strike becomes illegal.
This condition is in respect of private sector unions.

As for the public sector union, the minister intervenes and the strike is discontinued.
But he can only refer the dispute to the court with the consent of the Agong
(in the case of national unions) or the State authority (in the case of in-house
or state unions).

Do the workers in this country realise these atrocious laws are being enacted
by our Honourable Members of Parliament elected mostly by workers and their
families? When our MPs enter the august House (Parliament) they tend to become
mute and lose their sense of logic.

Shocking stories

I was shocked to hear from a union leader that his union’s application
for recognition submitted in 1996, is still pending a final decision. The minister
after two years or so ordered the employer to accord recognition to the union.
In spite of the fact that the law says the minister’s decision shall not
be challenged in a court, the employer filed an appeal against the decision
in the High Court. Eight long years have passed and the court’s final decision
is still awaited. Had the employer accorded recognition in 1996, the workers
would have signed at least two collective agreements by now.

My union friend also told me another story: One of his employers refused to
comply with certain provisions of the existing collective agreement such as
annual increments and contractual bonuses. The matter was referred to the Industrial
Courts, which is the only procedure to be followed. The employer argued that
the company was unable to comply with those provisions of the agreement. The
union has since applied to the High Courts.

Equal partners

In another instance the Industrial Court ruled that increments of wages and
fringe benefits should be based on productivity. We have heard of ‘flexi-wages’
and ‘rewards based on productivity’. This is capitalist jargon, beyond
the comprehension of ordinary workers. What actually is the best way to increase
productivity? Treat the workers fairly and justly. Accept them as an equal partner
of the industry.

According to a recent media story our Minister of Human Resources has urged
the Attorney General to sack the Chairman of the Industrial Court in Sarawak
for failing to give any award for the past five years on a number of dismissal
cases. Imagine the miserable plight of a jobless person for five long years.
It is a crime against society. That Chairman must also be investigated by the
Anti- Corruption Agency.

It is time that the capitalist employers, whose only concern is accumulation
of wealth by hook or by crook, realise that without the hand of labour, nothing
will move. Money alone can produce nothing. In any industry, capital, management
and labour are equal partners. It is not a mere slogan but a fact. Governments
must ensure that working people are also treated as human beings. They have
a right to life. There must be social justice, which in effect means equitable
distribution of the nation’s economic wealth.

The remedy

Malaysia’s labour laws must be subjected to drastic amendments. Unwarranted
conditions and restrictions imposed on the formation of trade unions should
be removed. Disputes over recognition must be resolved by ballotting of the
workers concerned. There must be a time frame for settling disputes. Industrial
Court awards should be made available within six months.

There is no need for the involvement of the minister in order to refer a dispute
to the court. If at all necessary, the minister may enter the scene only to
use his good offices to mediate and bring about a mutual settlement. The workers
must have the right to go on strike. This is their inalienable right in a democracy.
Let not anybody forget that during the period while on strike, the workers forgo
their wages and undergo hardship and suffering. That in itself is a great sacrifice.