Friday, August 21, 2015

MADPET & 65 Groups - Repeal MAS Law That Suspends Or Deny Existing Worker And Trade Union Rights And Access To Justice

Media Statement-    4 August 2015 (now 66)
The statement was reported by Rakyat Post and also carried in Malaysiakini

Repeal MAS Law That Suspends Or Deny Existing Worker And Trade Union Rights And Access To Justice – Laws that deny worker rights to assist businesses should never be enacted

We, the undersigned 66 civil society organizations, trade unions and concerned groups, are disturbed by the Malaysian government’s unjust use of an Act of Parliament to suspend and/or deny existing worker rights in law, including also access to justice mechanisms, for the benefit of a private business and employer, being the Malaysian Airlines System Berhad(MAS Bhd), now wholly owned private company by Malaysia’s sovereign wealth fund, Khazanah Nasional Berhad, a company.

Malaysia tabled and passed speedily the Malaysian Airline System Berhad (Administration) Act 2015 [Act 765], which came into force on 20/2/2015. This Act is most unjust to workers and trade unions of employees of the airline.

The Act, in section 11, states that “…on the appointment of the Administrator, a moratorium shall take effect during which… (e) no proceedings and no execution or other legal process in any court or tribunal may be commenced or continued with, and no distress may be levied, against the Administered Companies or their property except with the prior written consent of the Administrator;” – whereby the Administered company includes MAS Bhd, its wholly owned subsidiaries and some partially owned subsidiaries. The Administrator was appointed on or about 25/5/2015, and the period of administration could last for a maximum period of 2 years commencing from the date of the appointment of the Administrator. 

What is disturbing is that when administration and moratorium ends, all monies, assets and business of MAS Bhd would most likely be transferred to a new legal entity Malaysian Airline Berhad(MAB). MAS Bhd would most likely be left an empty shell.

Worker Claiming Rights Cases Against MAS Bhd – Stopped and May Not Proceed

There are currently many cases initiated and filed, now pending before access to justice mechanisms, including tribunals and courts between workers and MAS Bhd, the employer,   claiming wrongful dismissal and/or other worker rights, or between trade unions and MAS Bhd. The effect of the moratorium is that all these actions and cases will stop, and not proceed further until administration of MAS Bhd ends.  

At the end, when moratorium is lifted, MAS Bhd would most likely be an empty shell – with no work and no money. Hence, it will be workers and trade unions that will suffer. Workers and Trade Unions do not just lose their right to justice, but also will have to shoulder additional loses, including all the monies utilized for lawyer and court fees,  time and others. For many workers, it may also mean loss of wages for the days they could not work because they had to attend at relevant departments, tribunal or court in their pursuit for justice. Hence, not only will workers and trade unions be denied justice, but will suffer even more injustice by reason of this anti-worker legislation.

Right To Join Parties To Satisfy Worker Claims Against MAS Bhd Denied

Normally, when the employer has lost the ability to provide remedies, damages or compensation to satisfy the claims of the worker, to ensure justice, the worker can proceed with an application to join third parties to the suit, possibly the owners (Khazanah Nasional) or others.

This MAS Act now unjustly prevents this ability to join parties, in amongst others, in section 25(2), which states that “ The Malaysia Airlines Berhad, the appointer and the Administrator shall not be named as a party in any claim or application made or joined as a party in any proceeding commenced or continued by or on behalf of any employees or former employees of the Administered Companies pursuant to the Industrial Relations Act 1967 [Act 177], Employment Act 1955 [Act 265], Sabah Labour Ordinance 1950 [Sabah Cap. 67], Sarawak Labour Ordinance 1952 [Sarawak Cap. 76] or the Trade Unions Act 1959 [Act 262].’
In fact, section 25(1) says clearly, amongst others, that ‘…the Administered Companies, the Administrator, appointer or the Malaysia Airlines Berhad shall not—(a) be regarded as the successor, assignee or transferee or a successor employer to the Administered Companies; (b) be liable for any obligation relating to any retirement plan or other post-employment benefit plans in respect of the employees or former employees of the Administered Companies or any predecessor of the Administered Companies that exists prior to the assumption of control or appointment; or (c) be liable for any sum which is calculated by reference to a period of time prior to the Malaysia Airlines Berhad becoming the employer of the person in question…’

Same Owner of both MAS Bhd and new Malaysian Airline Berhad(MAB)

Considering that the it is Khazanah Nasional that is the sole owner of MAS Bhd, and also the new company MAB, clearly all that is happening is really nothing other than the ‘same person changing shirts’ – and justice would demand that the new entity MAB or the owner, Khazanah, should be justly taking over the obligation and responsibility of MAS Bhd especially for cases involving worker and trade union rights.

The new MAB and MAS Bhd, both owned by Khazanah, really is nothing other that the same owner forming a new company to escape responsibility and liability to workers, is also supported by the following:-
  1. Christoph Mueller, the new chief executive of MAS Bhd was appointed on 1/5/2015, would later assume the same position with MAB. Same CEO for MAS Bhd, and new MAB?
  2. When the employees of MAS Bhd received their termination letters in early June 2015, those that were offered employment by the new MAB, were offered a different termination package from those not offered employment in MAB. Those offered employment in MAB, which was to take effect from 1/9/2015, were asked to continue coming in to work in MAS Bhd, while the others, about 6,000, were asked to stop coming in to work with the assurance they will continue to receive normal salary but could not commence employment with another employer before 31/8/2015 unless they first get approval of MAS Bhd’s Human Resource Department. For many airline employees, other than basic wages, income from allowances and such if they are working makes up sometimes 50% or more of their monthly take home income. Rightly, all employees of MAS Bhd, irrespective of whether they will be later employed in MAB, should have received the same benefits and ex-gratia on termination by MAS Bhd.
In the name of justice, MAB or Khazanah or the Malaysian government should really take over the obligation of any or all claims of employees and trade unions against MAS Bhd.

Avoiding Just Principles of Lay-Off and Termination

When an employer wants to reduce staff, they would justly retrench the number of workers they no longer need – and there are just  requirements that need to be complied in any retrenchment exercise like the ‘Last In First Out’(LIFO) principle. Here, this is avoided by MAS Bhd simply terminating all employees on 31/8/2015. Justly, the about 6,000 who were no longer required to come into work since June, should have been laid off then and there and paid all their entitlements.

Union Busting?

With the termination of all employees of Malaysia Airlines Systems Bhd (MAS Bhd), it would also mean the demise of about 7 in-house trade unions.

The only national trade union, the National Union of Flight Attendants Malaysia, managed to  show support of 62.73% of the qualified employees, and obtain the Minister’s order that made it  a recognized union in MAS Bhd. Rather than accept this, MAS Bhd  went  for judicial review challenging the Minister’s decision. NUFAM alleges that only 2 out 10 executive committee members of the Union, who are employees in MAS Bhd have been offered employment in the new MAB.

As such, this ‘restructuring exercise of the airline’ and this new law can also be considered a means of union busting.

Loss of Regular Employment Until Retirement

Many workers who are regular employees until retirement in MAS Bhd, who have been offered employment in the new MAB find that they will now become precarious employees on short-term contracts, some even on 3 or 6 months employment contracts. There is no law in Malaysia that stipulates that short-term contract employees will continue as employees if the work they were hired to do still exist. Short-term and other precarious forms of employment also would likely deter union formation or involvement, deter workers from claiming rights and facilitate easier exploitation of workers.

Ignoring Worker and Families Financial Security and Wellbeing

Workers in Malaysia have families and dependents, and also many now have monthly loan-repayment obligations, and justly they should be provided secure regular employment until retirement, whereby they still could be terminated for misconducts, or laid off where the employers has to reduce jobs.

Whilst Malaysia says that it is concerned about the airline business, it has demonstrated a serious lack of concern for the welfare and wellbeing of workers.

We therefore urge:-

That the said Malaysian Airline System Berhad(Administration) Act 2015 be repealed, and the effect this Act has had on workers and trade unions be reversed. No law should be enacted to suspend/deny worker rights for selected employers;

That all pending cases with regard to labour matters, be it with workers or unions, shall be justly resolved or settled forthwith by MAS Bhd, and its owners Khazanah Nasional;

That for all worker and trade union cases against MAS Bhd,  MAB and Khazanah Nasional shall agree to be joined in as parties and assume obligations of MAS Bhd to workers;

That if the Malaysian Airlines is desirous of reducing the number of employees, it be done by letting go employees in compliance with the Last In First Out(LIFO) principle and other established just legal principles;

That if the Malaysian Airlines is to be taken over by another entity, like the Malaysian Airlines Berhad(MAB), workers should be employed by MAB as secure regular employees and not by means of precarious forms of employment like short-term contracts;

That Malaysia considers the rights, welfare and wellbeing of workers and their families are just as important, if not more, than the wellbeing and profits of government-owned or linked businesses.  

Charles Hector
Syed Shahir bin Syed Mohamud
Mohd Roszeli bin Majid
Pranom Somwong

For and on behalf the 66 organisations, trade unions and groups listed below

Airlines Workers' Union Sarawak
Alternative ASEAN Network on Burma (Altsean-Burma)
Asia Monitor Resource Centre(AMRC), Hong Kong
Centro de Reflexión y Acción Laboral, CEREAL (Labour Studies and Action Centre), México
Center for Orang  Asli Concerns (COAC), Malaysia
Clean Clothes Campaign
Club Employees Union Peninsular Malaysia
Committee for Asian Women
CWI Malaysia (Committee For Workers’ International, Malaysia)

Daeduck Employees Union-Ind., CEPZ, Rosario, Cavite, Philippines
Eagle Ridge Golf Course and Residential Estate Employees Union, Cavite, Philippines
Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia
Electronic Industry Employees Union(EIEU) Northern Region, Peninsular Malaysia
Garment and Allied Workers Union, Haryana, India
Globalization Monitor
Hye Sung Workers Union, CEPZ, Rosario, Cavite, Philippines
Institut PEREMPUAN (Indonesia)
Jaringan Kampung Orang Asli Semenanjung Malaysia(JKOASM)
Kesatuan Pekerja-Pekerja Perodua

Kesatuan Pekerja-Pekerja Mitsui Copper Foil(MCFEU)
Kesatuan Pekerja-Pekerja MHS Aviation Berhad(MHSEU)
Kesatuan Eksekutif AIROD
Kesatuan Pekerja-pekerja Perodua Engine Manufacturing Sdn. Bhd
Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)
Knights For Peace, International
MADPET (Malaysians Against Death Penalty and Torture)
Network of Action for Migrants in Malaysia(NAMM)
Nagkakaisang Manggagawa ng Keyrin(trade union), CEPZ, Rosario, Cavite, Philippines
North South Initiative

Malaysian Humanist and Rationalist Movement ("myHARAM")
Malaysian Trade Union Congress(MTUC)
Metal Industry Employees' Union(MIEU), Malaysia
MAP Foundation, Chiangmai, Thailand
Masyarakat Akar Rumput (MAKAR Indonesia)
Migrante International
Myanmar Ethnic Rohingya Human Rights Organization Malaysia (MERHROM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Hotel, Bar and Restaurant Workers (NUHBRW)

National Union of Journalist (NUJ) Cawangan Utusan Melayu
National Union of Tobacco Industry Workers(NUTIW)
National Union Employees in Companies Manufacturing Rubber Products(NUECMRP)
Non-Metallic Mineral Products Manufacturing Employees Union (NMMPMEU)
NUBE (National Union of Banking Employees)
Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)
Parti Rakyat Malaysia (PRM)
Peoples Service Organization (PSO)
Perak Women for Women Society (PWW)
PERMAS (Persatuan Masyarakat Selangor & Wilayah Persekutuan)

Persatuan Sahabat Wanita Selangor
Persatuan Kesedaran Komuniti Selangor
Persatuan Komuniti Prihatin Selangor dan Kuala Lumpur
PINAY (Filipino Women's Organization in Quebec), Canada
Railwaymen's Union of Malaysia (RUM)
Sahabat Rakyat (人民之友)
School of Acting Justly, Loving Tenderly and Treading humbly (SALT)
Solidarity of Cavite Workers, Cavite, Philippines
Tenaga National  Berhad Junior Officers Union (TNBJOU)

Workers Assistance Center, Inc (WAC),
WH4C (Workers Hub For Change)
Yayasan LINTAS NUSA Batam – Indonesia
Kesatuan Pekerja-Pekerja AIROD Sdn Bhd
PROHAM - Society for the Promotion of Human Rights, Malaysia

Wednesday, August 12, 2015

Do away with state-sponsored killing – Amy Maguire (Malaysian Insider)

Do away with state-sponsored killing – Amy Maguire

The execution by firing squad of Australian nationals Andrew Chan and Myuran Sukumaran in April this year brought the issue of capital punishment to the forefront of Australia’s consciousness and reignited debate over the practice on a global scale.

The two young men were executed alongside six others in Bali after being convicted of drug offences in Indonesia. In light of this we must ask what sort of crimes – if any – justify state-sanctioned killings.

Public opinion in Australia in relation to the executions was hard to discern. Polls reflected conflicting sentiments on the death penalty. In January 2015, a Roy Morgan poll found 52% supported the penalty for those convicted of drug trafficking overseas. A month later, a conflicting Lowy Institute Poll found 62% of Australian adults opposed the executions of Chan and Sukumaran.

The mixed public opinion in relation to these executions echoed that in evidence when Australians Kevin Barlow and Brian Chambers were hanged in Malaysia in 1986. A historical report from the Australian Institute of Criminology suggested public support for capital punishment at the time ranged from 43% to 70%, depending on the crimes. A national survey in May 1986, however, revealed only 17% supported the death penalty for persons convicted of serious drug trafficking. 
Despite the variance in public sentiment, in both cases the Australian government response was strongly stated and in definite opposition to the death penalty. The then prime minister Bob Hawke called the execution of Barlow and Chambers “barbaric”, sparking outrage in Malaysia. The remark drove a wedge between Australia and Malaysia. Relations were only rebuilt after the 2003 retirement of former prime minister, Tun Dr Mahathir Mohamad.

In response to the execution of Sukumaran and Chan, Australia’s prime minister, Tony Abbott, and foreign minister, Julie Bishop, labelled the killings “cruel and unnecessary”. Australia’s official response emphasised the men’s rehabilitation during their ten years on death row.

Hours after their deaths were confirmed, Tony Abbott announced the “unprecedented step” of recalling Australia’s ambassador to Indonesia. As many guessed, however, this move was only short-lived. The ambassador returned quietly about five weeks later.

Although ultimately ineffective, there is no doubt Australia lobbied strongly against the death penalty in the case of Chan and Sukumaran. Australia’s response to the executions reflected the official and well-established view that Australia is opposed to capital punishment in law and policy.

Yet the death penalty is imposed thousands of times each year and in many cases Australia and other abolitionist countries do not lobby strongly in protest. At a time when the issue is fresh in the public mind, an examination of the worldwide practice is warranted.

Which countries execute – and why?
Amnesty International reports annually on the imposition of the death penalty globally. It provides only minimum figures, because it only reports figures where reasonable confirmation exists. China, North Korea and some other states treat capital punishment as a state secret. The numbers executed in those states are not reported, although it is estimated that China executes and sentences to death thousands of people each year. Published reports of capital punishment statistics therefore exclude practices in China and North Korea.

In 2014, at least 22 countries carried out the executions of 607 people or more. At least 2,466 people were sentenced to death around the world. The five countries responsible for the most executions, according to confirmed data, were Iran (289), Saudi Arabia (90), Iraq (61), the US (35) and Sudan (23). In the US, 3,035 people were living on death row.

The death penalty is imposed in some countries for “crimes” which are not even regarded as such in many other countries. The Cornell University Law School Project Death Penalty Worldwide charts the practice of capital punishment in all retentionist countries. Australian observers of the death penalty are arguably most familiar with the punishment as it has been applied to drug offenders in some Southeast Asian countries.

However, in Afghanistan, it is legal for the state to execute a person convicted of apostasy, adultery or consensual homosexual sex. In Iran, the death penalty may be imposed for recidivist theft. In Saudi Arabia, executions are carried out as punishment for “crimes” including sorcery, witchcraft and repeat partaking of alcohol.

Although official statistics are unavailable, it is known that Chinese law permits capital punishment for serious graft or bribery offences involving large sums of money.

In 2014, executions were carried out in various countries by beheading, hanging, lethal injection and shooting. In the United Arab Emirates it is legal to execute by stoning. In 2014 all executions in the US were carried out by lethal injection – but some states retain other methods as legal options, including hanging, shooting, the gas chamber and the electric chair.

Amnesty International is currently campaigning to prevent the execution of people with mental or intellectual disabilities. Capital punishment continues to be imposed against people who lack the capacity to adequately understand their actions or punishment.

In January this year, the US states of Texas and Georgia executed intellectually disabled men. This contravened federal court bans on imposing the death penalty in such cases. Texas defines intellectual disability in relation to a character in the John Steinbeck novel Of Mice and Men rather than according to the standards set by medical science.

Globally, and notably in the US, the death penalty is also imposed disproportionately against the poor and those from minority racial and ethnic groups. In violation of international law, Egypt, Iran, Sri Lanka, Maldives, Nigeria, Pakistan, Saudi Arabia, Yemen and other countries continue to execute juveniles.

Barbaric and ineffective
Even the most pragmatic analysis must reject the death penalty as ineffectual and unreliable. In the US since 1973, more than 150 death row inmates have been exonerated, often based on DNA evidence. There is no evidence that capital punishment is any more effective at deterring crime than life imprisonment.

States that carry out capital punishment debase their justice systems and devalue human life. The practice is indefensible regardless of the severity of the crime for which it is meted out. When imposed against the mentally ill, intellectually disabled people or children – or disproportionately against racial minorities and the poor – capital punishment is barbaric. Abolitionist countries are obliged to lobby against the practice, whether or not it affects their nationals. – The Conversation, August 10, 2015.

* Amy Maguire is lecturer in International Law at University of Newcastle.
  * This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.