Union Yes Column @Star

STATEMENT

TRIENEKENS RESPONSE PATHETIC 

Call FOR INDUSTRIAL ACTIONS 

MTUC is not surprised at the pathetic claim that by Trienekens (Sarawak) Sdn Bhd that the dismissal is with just cause just because it has complied with the due inquiry and accorded the sacked employees the right to be heard. 

The right to be heard is of no value if the company did not listen to reason and when the company is judge, jury and prosecutor. 

If the dismissal is not due to their trade union activities, then why only the Secretary and the President of the Union were dismissed when more than 100 other employees also did not attend the family day? 

Why did the dismissal letter reads as follows? 

¨       “On 24 April  2008 you have been involved in writing a circular/written and/or signed a circular  dated the same instigating and/or urging workers to boycott Trienekens (Sarawak) Sdn Bhd Family Day on 27 April 2008.

 

¨       In the circular, among others stated that “Sehubungan dengan itu pihak majlis jawatankuasa kerja (MJK) Kesatuan Pekerja-Pekerja Trienekens menyeru semua ahli memulaukan majlis tersebut dengan tidak menghadir diri pada hari tersebut’.”

 

¨       Between 24 – 27 April 2008 you have been involved in circulating a circular dated 24 April 20008 instigating and/or urging workers to boycott Trienekens ( Sarawak) Sdn Bhd Family Day on 27 August 2008

¨       The wanton action of the company is clearly an attempt to destroy the Union and is a clear violation of Section 59 of the Industrial Relations Act 1967 which makes it an offence for an employer to dismiss a workman or to cause him some employment-related detriment for various matters, inter alia arising out of his membership or leadership of a union.  

MTUC cannot see how writing or involved in writing a union letter ON A NON WORKED RELATED EVENT- FAMILY DAY can be an employee’s misconduct justifying dismissal.  

It is clear therefore that the company is engaged in trade union busting activities. It is sad that in this modern day and age, we still have employers in Sarawak believe that they are masters and workers are slaves. 

EMPLOYEES FORCED TO ATTEND FUNCTIONS ON REST DAYS 

What law has the company complied with when it make it compulsory for employees to attend a family day on a Sunday????? German law??? 

PROSECUTE THE COMPANY AND ITS DIRECTORS 

MTUC call on the authorities and the Government to take appropriate actions against the company, failing which MTUC will take whatever actions necessary to protect the fundamental right of workers and.  We do not rule out public protect and industrial actions.  

MAY TAKE INDUSTRIAL ACTIONS, 

We call on the local councils- DBKU, MBKS and MPPK to direct the company to reinstate the workers failing which it must review the contract given to the company> We may call on all tax and rates payers in the councils to boycott the company. 

The Company now wants the matter should be dealt under the Industrial Relations Act. This is hypocritical when its own action is in violation of the same law and in utter disrespect of Industrial Courts decisions which is handed under the very same act.

ANDREW LO
SECRETARY, MTUC 

23 September 2008

STATEMENT 

TRIENEKENS VIOLATED HUMAN RIGHTS OF ITS EMPLOYEES 

PROSECUTE THE COMPANY AND ITS DIRECTORS 

POLICE REPORT MADE AGAINST COMPANY 

MTUC is shocked that Trienekens (Sarawak) Sdn Bhd a company owned by the State Government and a German Company has violated the fundamental human rights of 2 of its employees by dismissing them because of their trade Union Activities 

The Company has dismissed the President & the Secretary of its own employees’ Union for 

¨       “On 24 April  2008 you have been involved in writing a circular/written and/or signed a circular  dated the same instigating and/or urging workers to boycott Trienekens (Sarawak) Sdn Bhd Family Day on 27 April 2008.

 

¨       In the circular, among others stated that “Sehubungan dengan itu pihak majlis jawatankuasa kerja (MJK) Kesatuan Pekerja-Pekerja Trienekens menyeru semua ahli memulaukan majlis tersebut dengan tidak menghadir diri pada hari tersebut’.”

 

¨       Between 24 – 27 April 2008 you have been involved in circulating a circular dated 24 April 20008 instigating and/or urging workers to boycott Trienekens ( Sarawak) Sdn Bhd Family Day on 27 August 2008

¨       The 2 employees are duly elected officers of a Trade Union registered under the Trades Unions Act 1959. The actions alleged by the company were carried by them in their capacity as Officers of a Trade Union and under the directions and instructions of the Trade union. 

¨       The wanton action of the company is clearly an attempt to destroy the Union and is a clear violation of Section 59 of the Industrial Relations Act 1967 which makes it an offence for an employer to dismiss a workman or to cause him some employment-related detriment for various matters, inter alia arising out of his membership or leadership of a union. Section 59 reads as follows:-

            59.  Injuring a workman on account of certain acts.

(1)        Subject to the provisions of section 5(2), it shall be an offence to dismiss a workman or injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice, by reason of the circumstances that the workman -

(a)        is, or proposes to become, an officer or member of a trade union or of an association that has applied to be registered as a trade union;

(d)       being a member of a trade union which is seeking to improve working conditions, is dissatisfied with such working conditions;

 (2)      An employer who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not exceeding one year or to a fine not exceeding two thousand ringgit or to both.

(5)       Any employer who fails to comply with a direction given under subsection (3) shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not exceeding two years or to a fine not exceeding five thousand ringgit or to both.

MTUC cannot see how writing or involved in writing a union letter ON A NON WORKED RELATED EVENT- FAMILY DAY can be an employee’s misconduct justifying dismissal.  It is clear therefore that the company is engaged in trade union busting activities. It is sad that in this modern day and age, we still have employers in Sarawak believe that they are masters and workers are slaves. 

If the employees chose to listen to a union rather than the Managing Director, it is a sure sign that they are very unhappy with the company. 

EMPLOYEES FORCED TO ATTEND FUNCTIONS ON REST DAYS 

We are also shocked that the Company has been forcing its employees to attend a family day on a Sunday and Rest day - in clear violation of the Sarawak Labour Ordinance. 

It appears that foreign owned companies are exploiting the rights of workers in Sarawak and has adopted labour practices that have long been banned in their home countries. 

 

PROSECUTE THE COMPANY AND ITS DIRECTORS 

MTUC call on the authorities and the Government to take appropriate actions against the company, failing which MTUC will take whatever actions necessary to protect the fundamental right of workers and.  We do not rule out public protect and industrial actions.  

MAY TAKE INDUSTRIAL ACTIONS, 

We call on the local councils- DBKU, MBKS and MPPK to direct the company to reinstate the workers failing which it must review the contract given to the company> We may call on all tax and rates payers in the councils to boycott the company. 

WHAT THE COURTS HAVE SAID 

It is appropriate that we be reminded of the judgment of the Industrial Court in the case of Ladang  Segaria Sdn Bhd  as follows:- 

Before coming to a decision as to the award which this Court ought, in equity, good conscience and the substantial merits of the case, to make, the Court might add that employers are not only lawfully bound to respect a worker's right to engage in unionism and to participate in the lawful activities of a union. They are also morally and ethically constrained to do so. Article 8 of the Code of Conduct for Industrial Harmony dated 9 February 1975 which is a tripartite document signed by the Malayan Council of Employers Organisations, the Malayan Trades Union Congress and the Minister of Labour and Manpower (now the Minister of Human Resources) unequivocally declares that:

Employees further agree not to support or encourage any unfair labour practices such as:  

(a)        interference with the affairs of a trade union and the right of workers to organise;  

(b)        discrimination, restraint or coercion against any worker because of legitimate trade union activities; and  

(c)        abuse of authority in any form.

Employers must recognise the necessity for constructive engagement and positive cooperation with lawful unions and their elected officials. They must refrain from conduct which can be castigated as unfair labour practices and/or victimisation of its employees.

What had transpired in the estate of Ladang Segaria tucked away in the remote south-east region of Sabah might be regarded as something commonplace in a less enlightened past when good industrial relations standards and practices have yet to be established by law and/or codes of conduct. That intolerance of the existence of lawful unions and of their officials and activities is still evident in the industrial relations scene speaks much of the very long distance our society has to traverse before it arrives at the full acceptance of just and equitable structures in industrial relations in which the legitimate rights of workers to unionise is accepted not only in rhetoric but also in reality.

The Court will be failing in its duty if it failed to take the opportunity and occasion presented by this case to reiterate the dire consequences to an employer who chooses to blatantly flout its lawful, ethical and moral obligations pertaining to due respect for the rights of its employees to union membership and to assume leadership roles in unions together with its cluster of associated rights and protection. The Court ought to make an award which reflects not only the injustice done to the claimant but also the seriousness of the estate's wrongful and unlawful conduct. The Court ought to make an award which will serve as a timely reminder to employers to refrain from conduct and activities which undermine the foundational structures of lawfully registered unions consisting of their members and duly elected officials.

The Court has on various occasions seen it fit to express its concern and indeed reprobation of certain practices of the employer which are abhorrent in Industrial Relations. Thus for example, the employer may have acted in a way which is so high-handed and oppressive or may have proceeded with the removal of an employee in a manner which grossly humiliates the employee before his fellow workers or in the presence of others. Other conduct may consists of victimisation, oppression, harassment or unfair labour practice which is tainted by mala fide.  

 

ANDREW LO
SECRETARY, MTUC

18 SEPTEMBER 2008

Malaysian Trades Unions Congress

Sarawak Division 

15 MAY 2008 

POSITION PAPER ON  

Decision by Previous Minister of to the Minister of Human Resources to allow grant request by Sarawak Timber Association (STA)to exempt all workers engaged in Forestry Undertakings in non  urban areas from certain provisions of the Amended Sarawak Labour Ordinance 

1.       MTUC has been made aware that the Ministry of HR has worked hand in hand with the STA to exempt employees timber industry in non-urban areas from certain provisions of the SLO. The relevant sections were

·             S11 - Guaranteed Week

·             S104 – Holidays

·             S 105 - Hours of Work

·             S105A – Shift Work

·             S105B – Rest Day

·             S105C – Work on Rest Day

·             S105D - Annual leave

2.          In Sarawak almost all timber workers are in non urban areas so the Minister’s order means that almost all workers in the industry will be denied protection accorded to them my Parliament.

CONTRACT OF SERVICE/CONTRACT FOR SERVICE/EPF

3.       It must be borne in mind that the SLO only covers workers who are employed under a contract OF service. It has been a prevalent practice for the timber industry to treat workers in the upstream and logging operations as contractors ie. employed under a contract FOR service, thus avoiding EPF contributions. EPF Figures would strongly suggest that the timber industry did not contribute EPF for the vast majority of timber workers.

4.       However for purpose of SOCSO they register these workers as employees because SOCSO is very cheap and the employers do not have to buy insurance once they contribute to SOCSO.  When the workers dies of employment injuries, their families cannot claim SOCSO as they are not deemed to be insured person because they are contractors.  See Batang Balleh and numerous other Industrual Coirt and SOCSi Appellate Board cases

5.       It is indeed strange that STA now wants to exempt these workers from the SLO when they never threat them as employees under a contract OF service. MTUC is more than happy if STA now insist on all timber employers contribute to EPF for all workers in the timber industry. 

STA’S RATIONAL 

6.       STA’s rational for the exemption  are:

·         That certain entrench policies/ practices will be offended by the amended provisions

·         It would be impractical for both employees and employers to implement  the said provisions

·         The implementation of these provisions will have negative impact on employer/employee relationships

7.       The Chairman of STA has now stated ( Borneo Post 8 May 2007) that the request for exemptions were not aim at denying workers their rights but more to allow the industry to come out with a comprehensive remuneration package that is more suited to the industry.

8.       This is indeed amusing as there is nothing in the SO to prevent employers to provide a better remuneration to their employees.   The SLO provide for statutory minimum benefits.  Certainly no employers need to seek exemption to provide better benefits than the provisions of the SLO.

9.       First and foremost let MTUC states that the STA’s arguments that the above sections were not practical to be implemented is nothing more than a cloak to hide the real agenda- i.e. to cut cost of productions by denying their workers basic rights guaranteed by the amended SLO.  By seeking to exempt all workers including those in down stream and trading of timber products only goes to show their real agenda.

10.     Certainly we fail to see how it can be impractical to implement all the said sections in a plywood factory in an industrial estate in Demak Laut, Kemena, Lanang or Baram.

11.     Their argument that there are certain entrenched practices and policies only goes to show that they are unwilling to change these entrenched practices that has served the interests of employers, not workers.

12.     S11 - Guaranteed Week

·         Guaranteed week is a provision to prevent daily workers to be exploited and to enable them to obtain a decent living.   It is to prevent employer who engaged daily paid workers to work on any day and time as they pleased.  By exempting timber workers from S 11, it would mean that daily paid workers will be left without work (AND WITHOUT PAY)   for days and weeks due to bad weather whilst stuck in the timber camps and with no practical means to go back to their longhouses. How can they survive?

 

·         Business risk due to bad weather surely must be borne by millionaires and listed companies, not poor daily paid workers who earn as little as 20 dollars a day.

13.     S104 – Public Holidays

·         For STA to argue that it is inconvenient for workers in timber camps to take public holidays and that they usually take their off day or leave during pay day, is ill informed.

 

·         There is nothing in the current SLO to prevent employers to substitute public holidays (including religious holidays) with another day in lieu. The only Public holidays that cannot be substituted are Labour Day, Merdeka, and birthdays of Agung & TYT. - For good reasons.

·         If timber employers still require workers to work on these 4 Public Holidays, then simply pay them overtime/Public holiday rates. – This is another example of STA wanting to continue to exploit workers.

14.     S 105- Hours of Work

·         This section give workers mandatory rest after 4 hours of work- What employer want to challenge such basic human rights?

·         STA reasons- in timber camps workers work from dawn until sunset to maximize production only goes to shows that workers are treated like slaves to maximize profits.  No wonder workplace accidents and fatalities are the highest in the timber industry.

15.     S105A – Shift Work

·         MTUC again fail to see the ration to exempt for this section that regulates shift work and actually enable employers to manage their employees’ working hours in an orderly manner and to meet exigencies of services where production needs to be continuing.

16.     S105B – Rest Day

·         After working from sunrise to sunset, STA expect timber workers to work everyday without a rest day as long as weather permits clearly shows how such the entrench practices that borders on slavery has been going on in the timber camp for decades.

17.     S105C – Work on Rest Day

·         This clearly showed that STA is only interested in not paying workers for work done on rest day.  It is not an impractical to implement issue.  It is a refusal to pay issue.

18.     S105D - Annual leave,

·         If STA’s argument that workers take leave /off day during pay day, what is the problem with annual leave? It is still the prerogative of employers to determine and approve annual leave, They can schedule it, they can roster it, so long they pay annual leave. Again a question of money and denying annual leave that has been mandated by Parliament.

19.     In conclusion all STA wants is to continue to deny all workers in the timber industry fundamental rights to:

·         Public holidays,

·         Half an hour rest after 4 hours of work,

·         A rest day after working continuous for 6 days,

·         Overtime payment for working in excess of normal hours of work

·         Even annual leave.

20.     Their rational that they need workers to work non stop from sunlight till sundown without break and to work everyday for months is the main reason why the workplace accidents and fatality rate of the timber industry is the highest. Workers are literally paying with their life and blood. Now they even want to deny payments like annual leave and overtime.

21.     For daily paid workers they even want absolute right to determine the number of days work. This means that they can ask a daily paid worker to come only one day a week or if the weather is good.  So in a wet season, the worker cannot even earn any wages at all. Business risk must rest with employers, not poor workers.

22.     This is totally irresponsible from an industry that has made billions of ringgit and has spawned some of the country’s richest billionaires.  It is indicative of an industry that not only exploits the state’s natural resources, but also its employees, who are mainly from kampongs and longhouses.

23.     We failed to understand why timber employers, billionaires and millionaires should be exempted from these provisions, when other employers in other industries are willingly and gracefully granting to their employees. 

·         What is the difference of a worker in a plywood factory in Demak Laut Industrial Estate compared to a metal factory?

 

·         What is the difference between workers in a furniture shop compared to a worker in a Computer shop?

 

·         And what is the difference between the timber industry in Sarawak compared to Sabah and West Malaysia, where employers there never seek exemption??  

 

24.     Please take note that these basic and fundamental provisions are legislated by parliament with the aim to provide protection to workers. The amendment was long overdue for 45 years and only just implemented recently.

Any Minister to even consider to such request can only mean that he is only looking after the interest of employers in an industry that has made billionaires while workers continue to pay with the blood and their lives.

POSITION PAPER  

Amendments to the Trade Unions Act 1959 & Industrial Relations Act 1967 

We would like to place on record that we are generally agreeable to the proposed amendments to the Trade Unions Act. We would like to believe that they would contribute to better running and of trade unions for the benefits of its members and prevent abuse by trade union leaders. 

As for the amendments to the Industrial Relations Act, we have serious concerns and call on the Government to seriously address these concerns: 

A          S5 (2) (b) - Executive & Security Categories 

1.            The amendments to exclude those in executive and security categories to be members of officers of a trade union that caters for other workers is certainly regressive and is a further restriction to the progress and development of trade unions. 

2.            It will further limit much needed competent and knowledgeable employees in managing trades in a professional way. 

3.            It is contrary to the government’s aim to have unions that are properly managed run to protect the interest of its members. 

4.            It is also regressive to modern human resources management in which job empowerment is being practiced to improve productivity.  Employees will be more reluctant to go on job empowerment for fear that employers will now consider them executive and deny them union membership.   

5.            There is certainly no justification, 50 years after independence to continue to segregate the trade unions movement in almost a thousand unions. 

6.            Further there is clear definition of executives which has resulted in employers abusing the situation where executives are paid no higher than unionized employees and who do not have executive powers but your Ministry has regarded as executives for example Junior Bank officers. 

B          Section 9 Claim for Recognition 

1.    The deeming provisions that a Union has withdrawn its claim if it did not report within 14 days is discriminatory against Trade Unions of workers as there are no concurrent provisions for employers who did not repose or comply with subsection 3 or 3A. 

2.    To be fair, there must be also a similar deeming clause that if employers failed to response to a claim for recognition with 21 days, recognition must be deemed to be accorded. 

3.    There must also be a time limitation for the Director General to take steps under (4A) (a)  or (b) Secret Ballot otherwise the original employees who wish to promote the Trade Union may  no longer in the employment. 

C          Section 30 -Second Schedule 

1.            This appears to only take into account the interest of employers only and discriminates against employees especially those earning low wages. 

2.            Now all an employer has to do is to pay a maximum of 24 x $500 = $12,000 to get rid of workers whose only misconduct may be to promote or participate in a trade union in the workplace. 

3.            As the poor worker has to earn a living while waiting for up to 7 years for his case in the industrial court he may end up with nothing!  He also cannot claim cost.  This is surely not conducive to industrial harmony. 

4.            In all fairness there must be another provision for the court to take into account the pain and suffering of the poor worker when he was dismissed. 

5.            There must also be provisions for punitive damages where employers acted wantonly and in dismissing their employees. 

6.            To punish the poor worker because the Ministry takes more than 1 year to refer dispute to the court and for court to take years to resolve the case is beyond decency. 

7.            Damages and remedy must be left to the discretion of the courts. Just because of one or two cases of highly paid directors/general managers being awarded huge sum by the industrial court does not justify the law to be amended to discriminate against poor workers. 

8.            If at all there must be a limit that a global sum like in England is more effective and fair. 

9.            To limit to one year for probationers please note that probationers could have left secure jobs to take up new employment on probations. The amendments are contrary to the government aim to create a highly mobile and productive workforce and to encourage employability instead of job security- people are now reluctant to change jobs. 

10.          The real priority is to remove the back log of cases ensure that cases are disposed off speedily. If cases are disposed off within 24 months that the limit is no longer an issue. 

11.           In this regard MTUC suggest that: 

·                 To provide for an Industrial Appellate Tribunal or an Industrial Division of the High Court to hear appeals/judicial reviews of Industrial Court cases. 

·                 TO remove the Conciliation proceedings for dismissal cases filed under Section 20 as these are individual disputes. The Human Resources Minister shouldnot bec concerned withindividual disputes 

·                 Cases should go direct to the Industrial Court which will have the power to screen cases through summary judgements, mediations before adjudicating the dismissal. 

MTUC also urge that they should be amendments : 

·                     To 30(7) IRA to increase the 6 months limitation to at least one year.

·                     To amend the Companies Act to provide priority of Industrial Court Awards over other debts 

·                     To Introduce Penalties for employers who failed to comply with Industrial Court Awards 

·                     To remove the need to have a non compliance order to enforce Awards

  

 

ANDREW LO
SECRETARY 

1 May 2008