Workers, know your rights

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workersK George points out that Malaysian workers are often unaware of labour law provisions and goes on to enlighten them about their basic rights.

In the past, I have written articles highlighting the problems faced by workers in Malaysia and their trade unions and the restrictive provisions in labour laws.  Having done a survey, however, I discovered that most ordinary workers are not fully aware of their rights as stipulated in labour laws.  Surprisingly, even some of the unionised workers are not sufficiently aware of their rights.  

In this country, out of nine million private sector workers, fewer than 10 per cent are members of trade unions.  There are certain important reasons for this pathetic situation.  Since Independence in 1957, an UMNO-led ruling coalition has been in power, influenced by capitalism.  Employers, including foreign ones, are by and large not supporting trade unions. Believe me, trade unions are the only organisations that are capable of safeguarding and protecting workers’ rights.
 
Rights of workers

In this article, I wish to enumerate the rights of private sector workers whose monthly salary is not more than RM2,000.  (At another time, I will elaborate on the rights of public sector employees and on the unforgivable exploitation of migrant workers.)
    
The most important legislation that stipulates the rights of workers is the Employment Act 1955.  This Act consists of more than 101 sections as well as several regulations and schedules. But I will list out only the rights of workers as briefly as possible:

• Right to join trade unions

According to Section 8 of the Act, you are free to join a trade union and if necessary to form unions.

• Contract of service

Under Section 10, there must be a written contract of service, which should also include provision for termination of service.

According to Section 12, the notice of termination of contract is as follows:
a)    If the length of employment is less than two years, the period of notice is four weeks.
b)    If it is more than two years but less than five years, the period of notice is six weeks.
c)    If it is more than five years of service, the period of notice is eight weeks.

Please take note that  what is mentioned above is the minimum notice of termination according years of service.

While an employee is absolutely free to terminate his employment, an employer has no absolute right to terminate your service.  If you have reason to believe that the termination was unreasonable or motivated by an act of victimisation, you can challenge the employer under Section 20 of the Industrial Relations Act.

Remuneration

• Payment of Wages

Section 18 says payment of wages should not be later than seven days after the end of the month.  It must be paid in legal tender (ringgit) or through a bank.

• Remuneration other than wages

The employer may agree to provide you with accommodation, food, fuel, electricity, water, medical facilities and any amenity approved by the Director General.  The employer may also pay bonus, transport allowances, vehicle loans, and housing loans.  These contributions cannot be regarded as your right.  It is, in fact, one of the ways adopted by sensible employers to establish cordial relations between the employer and the employees.  The net result will be industrial harmony and an increase in productivity – which in turn will enhance profit.

Employment of women

Sections 34 to 44 in Part VIII of the Employment Act refers to the employment of women.

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• Prohibition of night work

No employer shall require a female employee to work in any industrial or agricultural undertaking between 10 pm and 5 am or commence work for the day within a period of 11 consecutive hours free from such work.  The Director General, however, may allow exemption from the above practice.  If the employee is dissatisfied with the exemption, she has the right to appeal to the Human Resources Minister within 30 days.  The minister’s decision shall be final.

• Prohibition of underground work

No female employee shall be employed in any underground work.  Not withstanding the above provisions, the minister is empowered to introduce changes.

Maternity protection

• Maternity leave

Every female employee shall be entitled to maternity leave for a period of 60 days.  The government is now considering whether to extend it to more than 80 days. The granting of maternity leave is practised all over the world; only the period varies from one country to another.

In Malaysia, there is yet another condition in order to be eligible for maternity leave; that is, the employee should be in employment for a period of 90 days before the confinement

• Maternity allowance

All female employees are entitled to maternity allowance, which is normally the monthly salary.  Nonetheless, the minister has the authority to decide on the quantum of the allowance.  

There is another condition for eligibility.  If the employee already has five surviving natural children, then she is not entitled to the allowance (though she would still be entitled to maternity leave).

• Dismissal of a pregnant employee

If an employer dismisses a female employee during the period in which she is entitled to maternity leave – which starts one month before the date of expected confinement – he commits an offence.  All women employees must bear in mind this legal protection accorded to them for there are some unscrupulous, merciless employers out there who would violate the law to save some money.

• Conditions contrary to Part Vlll

Any condition in a contract of service whereby a female employee relinquishes any right under this part shall be void and of no effect.  Consequently, she shall be entitled to all the rights granted to her in this part.

Part XII – Rest days, hours of work, holidays and other conditions of work

• Day of rest (Rest day)

You are allowed a rest day of one whole day in each week.  Where you are allowed more than one rest day in a week, the last of such rest days shall be the rest day for the purpose of this Part.

• Work on rest day

If you are a daily rated worker, you are entitled to one day’s wages for work that does not exceed half a day.  If you work the whole day, you are entitled to two days’ wages.

In the case of monthly rated employees, the entitlement is half pay for work that does not exceed half the normal hours of work.  But if you work more than half the normal hours (and not beyond the normal hours), you are entitled to one day’s salary.  (Note: unlike daily rated employees, monthly rated employees are already getting paid for rest days and holidays.)

Further, whether you are daily rated or monthly rated, if you work beyond normal hours on a rest day, you will be paid at least double the hourly rate for the extra hours.

• Hours of work

Normally, you should not be required to work more than eight hours a day or 48 hours a week.  During the eight hours, you are entitled to 45 minutes as meal break. The eight hours is to be spread out within 10 hours.  If you are required to work more than eight hours a day or more than 48 hours a week, the extra time you worked should be treated as overtime for which you are entitled to an extra payment of one and a half times of your hourly pay.  Usually, no employer is expected to require you to work more than 12 hours a day, although he or she could apply to the government to grant an extension.

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• Holidays

In Malaysia, there are about 16 holidays in a year.  Private sector employees, however, are entitled to only 10 days in a year with pay.  Of course, some private sector employers close their business on all the holidays or allow more than 10 days with pay.  If any holiday falls on a rest day, the next working day following the rest day must be regarded as a paid holiday.

If you happen to be on sick leave or annual leave, you are entitled to another day with pay as a substitution.

• Work on paid public holidays

If you are required to work on a public holiday, you are entitled to two days’ wages, even if the period of work done on that day is less than the normal hours of work.  Further, if you went on to work overtime, you are entitled to three times your hourly rate of pay.

• Annual Leave

You are entitled to eight days of paid annual leave for every 12 months’ service if you are in continuous service for less than two years; 12 days paid annual leave if you have been in service for more than two years but less than five years; 16 days annual leave if you have been in service for more than five years.  The annual leave shall be on top of rest days and holidays.

• Prohibition

Section 60 M prohibits an employer from terminating the service of a local employee for the purpose of employing a foreign employee.  I am not very sure that our employers have been strictly following this reasonable and justified prohibition.

• Sick Leave

Section 60 F stipulates that you shall, after examination at the expense of the employers, by a registered medical practitioner or medical officer, be entitled to paid sick leave of 14 days in a calendar year, if you have been in service for less than two years; 18 days in each calendar year if you have been in service for more than two years but less than five years; 22 days in each calendar year if you have been in service for more than five years.  

But if you are hospitalised, then you are entitled to 60 days’ sick leave in each calendar year. This paid sick leave is inclusive of any sick leave recommended by a dental surgeon.

• Termination and lay-off payments

Advances in technology and computerisation have become unstoppable and, as a result, opportunities for employment have become increasingly scarce. Employers have resorted to various devices to retrench their employees.

According to the Employment Regulations 1980, if you are terminated and laid-off, you are entitled to the following benefits:  

  • 10 days’ wages for every year of employment if you have been employed for less than two years.  
  • 15 days’ wages for every year if you have been employed for more than two years but less than five years.
  • 20 days’ wages for every year of service if you have been in employment for five years or more.  
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The Employment Act makes no mention of gratuities, bonuses and other fringe benefits.  I wish to reiterate that a vast majority of workers depend entirely on the rewards for their labour. Once they are deprived of it, poverty grips them and their families.  Our country has no law for unemployment benefits or for old age pensions. Our nation is sufficiently wealthy with petrol, gas, tin mines, palm oil, rubber and billions of ringgit of foreign investment.  Still, poverty is endemic and corruption is rampant.
    
In this article, I have very briefly listed out the rights of private sector workers whose monthly salary is not more than RM2,000.  Many employers are motivated by greed.  To accumulate wealth, they would resort to exploiting workers.  Individual workers are not strong enough to fight for their rights.  The solution is to form trade unions.  Unions can not only protect your rights but are also in a position to negotiate salary increases (as well as other perks and fringe benefits) once every three years.  Unfortunately, millions of workers are being deprived of union protection by the pro-capitalist Barisan Nasional government.

Sometimes, we hear very pleasing tributes to workers.  Our prime minister recently declared: “The workers are the most vital assets.”  His deputy called on workers “to be progressive, productive, disciplined, honest and trustworthy.”  The president of the Malaysian Employers Federation (MEF) called on employers “to spread their wealth”.  

Nice words to hear, indeed. But they ring hollow.  I have spent the best part of my life struggling for the emancipation of workers.  I know what I am saying.  When the Malaysian Trades Union Congress (MTUC) asked Mahathir in August 1998 for RM 900 as the minimum wage, his reply was RM900 was too little; it had to be at least RM1,200 a month!  The MTUC has been asking for a minimum wage for 42 years. It submitted a memorandum to Prime Minister Abdullah Badawi many months ago listing out the workers’ problems and asking for a minimum wage of RM900 (not RM 1,200).  There has been no reaction from the PM, I understand.

Watch out for your EPF

You are entitled to 12 per cent of your salary (not allowances) as Employees Provident Fund contribution by your employer every month.  It accumulates with interest until you retire.  This is the only compulsory saving for your old age.  I strongly advise you not to allow your employer to reduce the quantum of the contribution and you must never agree to reduce your salary by increasing or introducing new allowances.  It is illegal and an offence and it happens only where workers have no unions.

The remedy

Nine million workers and their families form more than 80 per cent of the electorate.  The MTUC must guide them to vote for parties that are committed to social justice, poverty eradication, zero corruption, and freedom.

Our struggle should be aimed at establishing an egalitarian society, in which there is prosperity, unity, harmony and the equitable distribution of wealth for all.

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