German subsidiary’s action in Malaysia amounts to ‘union busting’, claim 55 groups

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Fifty-five NGOs and unions have called for the reinstatement of Infineon Technologies’ union president Muhammad Zulfadlee Thye bin Abdullah, who they claim was wrongfully dismissed.

We, the 55 undersigned organisations and trade unions, are shocked to hear about the wrongful termination of Muhammad Zulfadlee Thye bin Abdullah, the president of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) at Infineon in Malacca, which is said to be the largest assembly of Infineon with a workforce of about 8,000 people.

Zulfadlee, an employee since 1998, has been the president of the union since 2005.

Infineon, a German company that produces, amongst others, electronic and auto components, which are said to be used by major brands including Apple, Bosch, Philips, Microsoft, Hewlette Packard, Dell and Continental.

On 13 December 2016, Zulfadlee was terminated on the grounds that he “committed the act of malingering”, with reference to sick leave obtained on 18 October from a doctor, Dr Aw Cheng Yew, of Klinlk Melaka, which is a panel clinic of the employer.

The basis of the allegation seems to be because he was present at an activity of the Selangor division of the Malaysian Trade Union Congress (MTUC) in Putrajaya on the same date when he was on sick leave. As such, one may assume that maybe the charge was simply pretending to be sick (or faking illness) for the purpose of avoiding work or duty.

It must be stated that the reason for termination used was not an employment misconduct stated in Infineon Technologies (Malaysia) Sdn Bhd’s document entitled Policy for Misconduct and Disciplinary.

Further, the word malingering is not a commonly used word, and as such many are unaware of the meaning of that word. To compound matters, in this case, the word malingering allegedly was never even clearly explained to Zulfadlee, whose mother tongue is the Malay language. When such English words are used in a charges levied against a worker, and then not explained clearly, it will have a tendency to be confusing and may result in injustice.

In law, Zulfadlee was entitled to 22 days of paid sick leave every year, and it must be pointed out that he was examined by a qualified doctor who concluded that he was entitled to sick leave, and a medical certificate was signed and issued by the doctor. Sick leave is given only when the doctor, after examining, decides a worker is not medically fit to perform his/her duties at work.

There was no question of Zulfadlee lying or pretending to be sick, for on the subsequent day he went to see a specialist doctor, who allegedly discovered that he had a stone in his bladder, and he was then given further sick leave for three days on 19-21 October.

Despite being on sick leave, Zulfadlee did come to the office for a few hours to do some urgent work on two of these days but he was not charged for committing the “act of malingering” for these days.

Being on a sick leave does not mean that one is to be confined at home and rest in bed and cannot do any other things including attending some union meeting or activity. Sick leave only means that he is not medically fit for work on the day, and in law he becomes entitled to paid sick leave.

On 18 October 2016, Zulfadlee said that he had no plans whatsoever to go to the Putrajaya union activity with his union members who planned to go. It was only after he had obtained medical leave whilst he was sending off the union members heading to Putrajaya, that he was convinced by his fellow union members and suddenly decided to follow them in the bus.

Now, even if an employer disputes the medical certificate issued by the doctor, then the employer should reasonably have taken action against the doctor and/or the clinic – not with the employee. It must be pointed out that generally a clinic on the panel of the employer is less likely to simply issue medical certificates to employees unless the doctor is convinced that the worker is entitled to sick leave.

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In this case, the employer really had no reasonable basis to even suggest that Zulfadlee was ‘malingering’ or lied to obtain the sick leave. In such health matters, the employer is certainly not competent – only the qualified doctor is.

We do not believe that any failings of a doctor, if there even is, should ever be blamed on a worker, and certainly should not be used as justification for termination.

Further, attending or participating in a union activity cannot and should never be an employment misconduct and/or a breach of the employment contract.

Anti-union action and discriminatory action against union president

As such, we are of the opinion that the termination of the union president may really not be because of an ‘act of malingering’ by an employee, but simply a unionbusting action targeting the union president and the union.

In Infineon’s letter dated 6 January 2017 rejecting Zulfadlee’s appeal against the termination, it was stated amongst others, “The basis of our decision was premised on the fact that the Management could not condone nor mitigate punishments for a serious act of misconduct committed by a Union President leading the employees of Kesatuan Pekerja – Pekerja lnfineon Technologies Malaysia itwu.”’

This letter was signed by Lee Cheong Chee, the president and managing director of lnfineon Technologies Melaka.

The letter also stated “your illustrious career and contributions to the Company has been well acknowledged through your progress during your tenure. While that may ordinarily be a mitigating factor in considering any appeal, the Management has decided that the your act of malingering is deemed to be unacceptable and is aggravated in view of you being the Union President at the point the act of misconduct was committed…”

Besides Zulfadlee, six other members of the executive committee of the union, including the vice president and the secretary, were also targeted and subjected to disciplinary action – and some of this had ended with a stern warning, whilst only the union president was terminated.

Considering the fact that out of the over 40 employees that participated in the union programme on 18 October 2016, and only the president and six of the union leaders have been subjected to disciplinary action, it certainly looks that Infineon may be discriminating against employees who are leaders of the union, and it may be reasonably said to be an act of ‘union busting’.

The timing of these disciplinary actions and the termination of the union president, when the union and Infineon is starting negotiations concerning the next collective bargaining agreement, whereby the first meeting was scheduled for 23 January 2017, is most disturbing. Members of the union will most likely be prejudiced by this.

It looks like the employer’s actions in this case was maybe to instil fear in the union, its members and other employees, which may affect the effectiveness of the trade union. These actions of the employer would impact on the duty and obligation of unions to fight for better rights and working conditions, highlight future wrongdoings, and fight against violation of the workers’ rights. It is a failure to recognise and respect the freedom of association.

The failure of this union and/or its members to openly protest the wrongful dismissal of the union president indicates that the employer’s strategy to create a docile and compliant union may be working. It may also seriously affect the upcoming collective bargaining agreement to the detriment of employees and union members.

Obligation to uphold worker and union rights and freedom of association

Infineon Technologies (Malaysia) Sdn Bhd, a subsidiary of Infineon, a German company, in this case seems to have acted contrary to Infineon’s own policy and Code of Conduct, Organisation for Economic Co-operation and Development (OECD) Guidelines, the Electronic Industry Citizenship Coalition’s Code of Conduct, UN standards and principles; and other relevant standards and good practices.

Brands and corporations that have Infineon in their supply chain have the obligation to ensure that justice be done, and that codes of conduct or policies not be violated by reason of these action/s of Infineon, via its Malaysian subsidiary, Infineon Technologies (Malaysia) Sdn Bhd, including the discrimination and the wrongful termination of the union leader.

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Justice demands that Infineon Technologies (Malaysia) Sdn Bhd should immediately reinstate Zulfadlee without electing to simply just wait for a long drawn out court process in Malaysia that could take even five to nine years before the court may award victory to a wrongfully terminated worker.

As such, unless Infineon immediately reinstates Zulfadlee, an employee of Infineon for 18 years, great injustice would be done to this worker who has wrongfully been deprived of his employment and income that is so needed for him and his family to survive.

Unjust Malaysian laws at present state that if a worker cannot be reinstated, he or she would be awarded compensation in lieu of reinstatement for just a maximum of 24 months – whereas previously this compensation would have been payment of all income the worker would have earned from the date of wrongful dismissal until the date of judgment (or reinstatement).

The new amended limit is not anymore a deterrent for employers seeking to wrongfully get rid of employees, especially worker leaders.

Further, in the case of a union leader, the chances of getting employment with any other employer, especially in the same sector, is also most difficult compared to other workers. Termination of strong union leaders is grossly unjust to the union and its members. Without immediate reinstatement, great injustice will be done.

Therefore, we

  • call for the  immediate reinstatement of Zulfadlee Thye Bin Abdullah, the president of the InfineonTechnologies Workers Union;
  • call for the immediate withdrawal of disciplinary action/s against other union leaders and/or members, and/or for the revocation of any punishment that has already been handed out;
  • call on Infineon and its subsidiary, Infineon Technologies (Malaysia) Sdn Bhd, to respect and promote worker and trade union rights and cease discrimination against union leaders, and also cease union-busting activities;
  • call on Apple, Bosch, Philips and other companies that has Inineon in its supply chain to immediately ensure that Infineon respect the freedom of association of workers and workers’ and trade union rights;
  • call on Germany to ensure that Infineon complies with OECD guidelines; United Nations and International Labour Organisation (ILO) standards, principles and best practices; and other similar obligations to ensure that human rights and workers’ rights are respected, protected and promoted;
  • call on Infineon and Infineon Technologies Melaka to respect and promote human rights, including workers’ and trade union rights

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

For and on behalf of the 55 organisations, trade unions and groups listed below:

Aliran
Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–Atrahdom, Guatemala CA
Association of Human Rights Defenders and Promoters (HRDP)
Building and Wood Workers’ International (BWI) Asia Pacific
Cereal Centro De Reflexión Y Acción Laboral (Cereal), México
Center for Alliance of Labor and Human Rights (Central), Cambodia
Christian Development Alternative (CDA), Bangladesh
Clean Clothes Campaign International Office (CCC)
Club Employees Union Peninsular Malaysia
Committee for Workers International (CWI) Malaysia
Electrical Industry Workers’ Union (EIWU)
Electronics Industry Employees Union Southern Region Peninsular Malaysia (EIEUSR)
Electronic Industry Employees Union Northern Region Peninsular Malaysia
GoodElectronics Thailand
IndustriALL Global Union
Institute for Development of Alternative Living (Ideal)
Kesatuan Eksekutif Airod
Kesatuan Pekerja-Pekerja Mitsui Copper Foil (MCFEU)
Kesatuan Pekerja-pekerja Perodua Engine Manufacturing Sdn Bhd
Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)
Malaysians Against Death Penalty and Torture (Madpet)
Malaysian Trade Union Congress (MTUC)
Movimentu Kamponezes Timor Leste-Mokatil
National Union of Bank Employees (Nube)
National Union Employees in Companies Manufacturing Rubber Products (NUECMRP)
National Union of Flight Attendants Malaysia (Nufam)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative (NSI)
Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)
Parti Rakyat Malaysia (PRM)
Pertubuhan Angkatan Bahaman, Temerloh, Pahang, Malaysia
Persatuan Komuniti Prihation Selangor & KL
Persatuan Sahabat Wanita Selangor (PSWS)
PINAY (The Filipino Women’s Organisation in Quebec), Canada
Progressive Voice, Myanmar
Persatuan Promosi Hak Asasi Manusia (Proham)
Sawit Watch, Indonesia
Solidarity of Cavite Workers (SCW), Philippines
Suara Rakyat Malaysia (Suaram)
Tenaga Nasional Junior Officers Union (TNBJOU)
Workers Hub for Change (WH4C)
Workers Assistance Centre, Inc, Philippines
Yayasan Lintaas Nusa, Batam-Indonesia
Global Women’s Strike UK
Legal Action for Women UK
Women of Colour GWS
Pusat Komas
MTUC Selangor & Wilayah Persekutuan
SHARPS, South Korea
GoodElectronics International Network
Cividep, India
Students & Scholars Against Corporate Misbehaviour (Sacom), Hong Kong
Parti Sosialis Malaysia (PSM)
Jaringan Rakyat Tertindas (Jerit)
Community Development Centre (CDC)

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Infineon’s response:

(published on the website of the Business and Human Rights Resource Centre)

Infineon employs ca. 8,000 employees in Malacca, Malaysia. The plant is Infineon’s biggest semiconductor production site worldwide. Infineon is well respected as a good and responsible employer in Malacca, and has been cultivating long-term and trusting relationships with employee representatives. Infineon enjoys an excellent reputation in Malaysia.

The report of 31 January by Good Electronics is known to us. Unfortunately the report contains factually incorrect and subjective conclusions. There is no truth to the allegation that Infineon is “union busting” or discriminating against union leaders and officers.

The insinuation that Infineon is taking these steps shortly before negotiations for the next Collective Agreement begin, just to prejudice union members, is ignoble. That the events drove the timing of Infineon’s dismissal/disciplinary action; Infineon was not in control of these events.

What is true is that Infineon does not tolerate or condone misconduct by its employees at any time; whether or not they are union leaders and officers is irrelevant.

Infineon is committed to human rights and workers’ rights. Infineon does not impinge on its employees’ freedom of association or participation in union activities. Union members (and union leaders/officers) are entitled to attend union activities when they are free (e.g. while on annual leave or on non-working days).

However, the company has an obligation to investigate cases of apparent misconduct, even if those cases involve union leaders and officers. There is neither preferential treatment nor discriminatory treatment for union leaders and officers.

Infineon gave notice to an employee at the Malacca production site, who has been president of a local trade union since 2005. Reason for the dismissal was a case of misconduct by that employee in autumn 2016.

The employee did admit his misconduct towards the company and the case is well documented. Infineon does not want to go into more details until the administrative/judicial process brought by the employee is completed.

We can assure you that Infineon did not make that decision easily and has carried out an in-depth examination of the case. Considering compliance guidelines and in accordance with Malaysian labour laws, the local management has hereby concluded that this form of misconduct cannot be tolerated. Also Infineon has taken decisions and dismissed employees for clear cases of misconduct – in compliance with the common application of Malaysian law.

Infineon also investigated six other union leaders for misconduct and discovered that they acted contrary to Malaysia’s Industrial Relations Act and contrary to the existing collective agreement between the union and Infineon Malaysia. Therefore, the disciplinary action against them was justified by law. It was not done as an act of union busting, nor in violation of any of Infineon’s internal policies or the employees’ freedom of association.

Integrity is our guiding principle in dealings with our customers, shareholders, business partners, employees and the general public. We expect from all employees on all levels – especially high-ranking colleagues – a professional conduct according to the rules.

Outlining the important regulations and providing support in legal and ethical questions, the Infineon business conduct guidelines apply to all persons employed at Infineon and members of corporate bodies of Infineon Technologies AG and its affiliates worldwide. We are absolutely bound by it.

The business conduct guidelines is available on our website.

Please contact me if you have further questions.

Yours sincerely,

Alexander Trost
Vice President, Human Resources
Infineon Technologies Asia Pacific Pte Ltd, Singapore

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