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8 Chapter Labor
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Latest News & Updates
[Case Concerning Renewal of Fixed Term Employment]
Mr. Z, a Singaporean national, worked at C Company since 2009. In the first offer letter issued on May 27, 2009 before joining the company, fixed term employment contract was not mentioned. He was in the position Vice President in the Product & Development division.
However, on August 26, 2009, an offer letter was issued stating a fixed term employment for one year from October 1 of the same year. Company C explained to Mr. Z that by making it a fixed term employment, it will beeasier to obtain a visa for him. But Mr. Z has already obtained a visa and appealed that it is not necessary. However, it was explained and accepted as "formal fixed term employment contract for management."
I started working on October 1, 2009, the actual position was Vice President of the business development department. After that, the company has offered an offer of fixed term employment for the three consecutive year. These contract renewals were not due to the request of Mr. Z. In addition, it was stated that there is no change in position and employment conditions in those offer letters.
With the merger of companies in January 2013, the organization was reorganized.
On September 10, the same year, a term called Vice President of the Product & Solution division issued a one-year offer for a fixed term employment starting February 10, 2013. However, Mr. Z orally told that he would not accept this offer as there was no bonus on this position.
Meeting between the CEO and Mr. Z was held on September 13 the same year, the company decided to offer a fixed term employment for three months. Mr. Z orally agreed to consider whether the management will give him a one-year offer during the three months. On September 18 same time, in a meeting, an offer of 3 months was submitted by Company C.
However, on October 1 of the same year, an e- mail from Mr. Z to HR personnel was sent. This is to inform personnel officials that they will refuse either the offer of 3 months or offer of 1 year, "We are dissatisfied with the disappearance of bonus. If the conditions were not change and the bonus was not terminated, we are ready to work for the growth of the company, "Mr. Z told the Human Resources Department.
On the 18th of October in the same year, Company C issued a letter stating that the three-month fixed term employment contract has expired and that it will not renew it anymore. Originally, a notice period of two months had to be set up, but it was stated that it will pay amount for two months' worth in order to become a dismissal on October 19.
For this letter, Mr. Z does not remember agreeing to a three-month fixed term employment contract, and from October 2012 it is said that employment contracts in September 2013 have also expired. Since it was automatically updated even without his approval, his claim is to treat him as regular employee, not a fixed term one. This dismissal appealed for reinstatement because of unfair dismissal.
I do not remember agreeing to a fixed term employment contract of three months or a fixed term employment contract without bonus for one year. The company C insists that Mr. Z has agreed to a three-month offer at the meeting on September 13, 2013, but there is no evidence of it. Moreover, the refusal of the offer on October 1, 2013 has email as clear evidence.Therefore, what was effective at the time of dismissal was a contract renewal letter issued on October 18, 2012. Also, the letter was supposed to have no change in working conditions. Therefore, it is natural that he will not accept employment offers without bonuses.
The company thinks that if an employee who has a fixed term employment contract can be terminated without any reason at the same time as the expiration of the contract, there is no need to make a fixed term employment contract. . As long as it is a regular employee, dismissal without reason is unfair dismissal.
The fixed term employment contract so far was automatically updated even without request from Mr. Z. In addition, the actual job is a job as Vice President of the business development department, and so is written in business cards. This business development is not a job that ends only in one year. It was practically a regular employee.
It is not a regular employee because it is stated clearly as a fixed term employment in the offer letter. Also, at a meeting on September 13, 2013, Mr. Z orally agreed to accept a three-month offer. For dismissal without establishing a notice period as well, as the company have paid salaries for two months as stated in the employment contract, the dismissal due to the expiration of this term contract is not unjust.
Mr. Z shall be deemed to be a permanent employee, not a fixed term employment contract because dismissal without a justifiable reason for permanent employment is an unfair dismissal, we regard this case as an unfair dismissal.
Initially, Mr. Z wanted a reinstatement, but since the judgment is two years since Mr. Z's dismissal, and since Mr. Z has already succeeded in his position, he decided that reinstatement would disturb harmony. Instead, C is ordered to pay damages within 30 days. The amount of compensation is calculated as follows.
① Unpaid Wages
After being dismissed, Mr. Z was paid for his unpaid wages for 24 months because he did not get a job and had no income.
Mr. Z's last monthly salary was RM 19,400.00.
RM 19, 400.00 × 24 months = RM 465, 600.00
② As a retirement fund instead of reinstatement, pay monthly wage × length of service.
The length of years of service was four years from October 2009 to October 2013.
RM 19, 400.00 × 4 years = RM 77, 600.00
①RM 465, 600.00 + ②RM 77, 600.00 = RM 533.200.00
Total RM 533, 200.00
Based on hearing and evidence, the following items below was found out andit was decide that Mr. Z was a regular employee based on them.
① About work contents
In terms of employment contracts, Mr. Z was in charge as Vice President in Product & Development, but in fact it was Vice President in the business development department. This is evident from Mr. Z and his colleagues' testimony, and also written on the business card. As Mr. Z's testimonials, business development work does not end in a specific period because the period of completion of the work is unknown, therefore you should not be hired as a fixed term employee.
② About update of fixed term employment
Mr. Z's employment contract was automatically updated even without request from Mr. Z. Also, the offer that was first presented was not a fixed term employment but a regular employee. Mr. Z decided to make an offer as a fixed term employee because it is for the purpose of getting a visa and as explained as being formal, it means that it is practically a regular employee.
③ About employment conditions
The fact that the raise took place on the 25th of April 2013 during the contract period and the items other than the contract term on the contract document were described about the trial period, salary increase and bonus are common with those with other full-time contracts. As a result, Mr. Z's employment terms are considered to be the same as regular employees.
Also, company C says that Mr. Z agreed to a three-month offer at the meeting, but without the minutes of the meeting, there is no evidence for such as a signed agreement. It is obvious that Mr. Z has not signed a fixed term employment contract because it has been submitted as an evidence that an offer for three months and an offer without a bonus for one year is being offered.
In this ruling, the issue was whether the employees were fixed-term employees (Fixed-term Employees) or permanent employees (Permanent Employees). Instead of judging whether the name of the contract is "fixed term employment contract" or not. The judgement of the court was focused on the following points:
① Whether the business or work to which the employee engages is to be done indefinitely or only for a fixed period
② What was actually done (whether employment contracts are regularly updated, etc.)
④ Does the employment condition differ from regular employees?
What greatly influenced the judgment is that the first letter issued was a full-time employee rather than a fixed-term employment, and the reason for changing to an offer of fixed term employment is that "the former thing for getting a visa". In this case, Mr.Z is essentially regarded in employment as a regular employee, and the employee side sees it as such. Even though the contract name is "fixed-term employment contract", it was judged that a legitimate reason is necessary if he was essentially working as a regular employee.
In order for employees not to be misunderstood as regular employees, it is important to avoid such confusing behavior and to explain the relevance of work contents and contract term. There is no obligation to legally explain the reason when the fixed term employment contract expires and does not renew. But you need to explain the reason in order to avoid confusion when the person who regularly do the updates stopped updating it.
【Case on Employment Form】
In this case, two types of contracts, Contract of service and Contract for service are points of issue. The former refers to a contract (employment contract) connected between an employee and an employer, and the latter refers to a contract (service contract) in which one is a service supplier and the other becomes a customer. Even if the company intends to have "Contract for service", if the employee recognizes that it has entered "Contract of service", what point does the court need to pay attention to judge? I will look it along with this case example.
Mr. G served as the department head of the Customer Service division of D, a logistics company since 2008. Company D had a merger with a foreign-funded enterprise and was reorganizing its organization. On September 2, 2009, Company D announced to integrate the Customer Service and Commercial divisions as CS / Commercial division. On September 10, 2009, Company D issued a dismissal notice to Mr. G with the 4th November of the same year as the last working day. The cause was that Mr. G's position was to be reduced due to the reorganization of the organization. Received the retirement payment, Mr. G retired.
On November 5, 2009, Mr. G received an offer from D Company as a consultant of the CS / Commercial division with a monthly salary of RM 16,000. This contract was a fixed term contract from November 5, 2009 to December 31, 2009. In the letter on January 1, 2010, Company D extended Mr. G's contract for six months, from January 1, 2010 to June 30 that year.
On March 26, 2010, Company D notified in writing that the contract with Mr. G will be terminated on April 2, 2010. Mr. G complained to D company on the assumption that he had dismissed without any reason despite the fact that the term of fixed term employment has not yet expired.
D company claims that he has not concluded an employment contract and has claimed that it was a "Contract for service", and the name of the contract itself is certainly "Contract for service". However, the content of the contract is for employment. It was the same thing as I thought it was a "fixed term employment contract" but the work is for a regular employee..
The contract end notice did not state the reason for terminating the contract before the expiration of the contract term. It is not a relationship between a consultant and a customer, but as a relationship between an employer and an employee, the reason for the termination (dismissal) of the contract should be specified, and if there is no reason it is an unfair dismissal.
Mr. G was only a "contract for service" as a consultant and a customer, it was not an employment contract. He is not an employee because he did not have a "contract of service". As Company D is a customer, Company D has the right to terminate the contract.
As evidence that Mr. G is not an employee, the remuneration was based on a bill for "consulting service" submitted by Mr. G. Mr. G only provided consulting services on a regular basis. Also, he did not pay the EPF and he was not also instructed to pay, so Mr. G cannot be said to be an employee.
Mr. G was an employee of Company D and Mr. G had a fixed term employment contract. Also, because the reason for terminating the contract before the expiration date was not stated in the contract completion notice, it is judged that it is an unfair dismissal without a reason. Therefore, the court decided on the following:
From the time of dismissal, payment will be to Mr. G within 30 days, RM 48,000 which is 3 months of monthly salary, because there is still remaining3 months until the term of the fixed term employment contract end.
Expression) RM 16,000 × 3 months worth = RM 48,000
In judging whether Mr. G was an employee or not, the court decided based on the contents of the agreement between. D Company and Mr. G rather than judging with the nominal "consultant" or "Contract of service". If the following three conditions are satisfied, it is regarded as "employment contract".
1) In the case that the worker engaged considers wages or other remuneration and provides labor or technology for the employer side
2) In the case that the party engaged in work recognizes that the performance of the service is regulated sufficiently enough to call the contractor "employer", either explicitly or implicitly
3) The provisions of other contracts are consistent with the contents of the employment contract
The following matters stated in the contract of Mr. G and D Company are consistent with the content of an employment contract and because D can be sufficiently called "employer", obviously Mr. G is "employee" of company D.
· Under the contract, Mr. G is prohibited from doing business with other companies other than D, and D has monopolized Mr. G's service during the contract period
· Mr. G worked according to fixed working hours (Monday - Friday 8: 30 ~ 17: 30)
· Mr. G had to report to the Director of the CS / Commercial division
· From the manager's superior or department head, the performance was subject to evaluation
· Mr. G was appropriately given a task designed by Company D Mr. G · Mr. G was given a laptop computer from the company to do the work as payment
The company argues that not having paid the EPF is one proof that it is not an employer-employee relationship., But it does not matter whether or not the EPF was paid. What’s important is that Mr. G should pay the EPF. No evidence EPF payment was submitted.
Mr. G said that the invoice was issued for monthly remuneration but the format of the invoice was provided by D's Finance division and the department who prepare a bill for Mr. G was instructed. For this reason, Mr. G is not "external consultant" but "employee".
The notice of the termination of contract did not state the reason for terminating the contract before the maturity date. Despite a fixed term employment contract, when dismissing before the expiration of the term, the reason shall be stated. If there is no reason, it is judged that there is no reasonable dismissal, that is, an unfair dismissal. Therefore, this case is unfair dismissal by Company D.
In this case, in judging whether Mr. G is an employee or a consultant, the content of the contract was emphasized rather than whether the contract name is "Contract FOR service" or "Contract OF service".The following points were applied, in particular to conditions 2 and 3 in the court's judgment criteria.
· Point that Mr. G was forbidden to trade with other companies other than company D
· Point that the working hours were decided as 8: 30 ~ 17: 30
· Point that Mr. G is subject to evaluation on performance from direct manager or department head
· Mr. G was given a laptop computer from the company to do the work as payment
For these, the court strongly imply that Mr. G is engaged in company D as a full time employee. Under the fact that he worked under these conditions, it is very difficult to argue that he is a "consultant, not an employee". If you are working under such conditions, you need to sign a contract as an employment contract and follow the provisions of the Labor Law and Employment Rules to take dismissal procedures. If you do not want to conclude an employment contract by all means, I think that it is better not to restrict the limitation of working hours, etc., and incorporate the text into the contract so as not to be regarded as an employee.
Also, if you have a fixed term employment contract, you cannot dismiss in the middle of the contract period basically just like regular layoffs. Please note that when you dismiss during the contract period, a valid reason is required and the reason must be specified in the notice of dismissal.
[Case on Deemed Dismissal]
Mr. N worked at the Kota Kinabalu base of Company M from 2010 to 2013 in the role of a Club Manager. In 2013, he was demoted to F & B Manager, and six months later he was transferred to Sandakan base.
On 23rd July 2014, Mr. N requested the director in writing to transfer him to Kota Kinabalu to take care of his sick father. However, there was no reply from the director. Afterwards, Mr. N told his immediate boss that he will take a holiday from 1st September the same year.
On September 2, the same year, he tried to talk with the director, but he could not get the time of the director until 9th September the same year. On 9th September, at the meeting with the director, Mr. N was told that it was meaningless to move to other bases without achieving the goal, and urged to retire receiving a salary for two months.
However, after Mr. N hired a lawyer to make it to the trial, after having reported M Company, subsequent meeting was held. The company denied that Mr. N was dismissed and agreed with Mr. N's request from the humanitarian background. At the letter dated September 12, the company made a transfer offer to the base in Kota Kinabalu. However, the relationship of Mr. N with his direct supervisor Mr. W was bad.
Because the company knows that Mr. W and Mr. N had disagreements, it can be said that this personnel arrangement is unreasonable. Mr. N sued M as a deemed dismissal.
For many years, Mr. N has fulfilled his obligation to expand the business of the company. In 2013, despite knowing the company well, I was transferred to Sandakan knowing that I had to take care of my sick father in Kota Kinabalu. The company's action of demoting is a malicious thing that degrades Mr. N's reputation and dignity.
The monthly sales target of 116,000 RM at Sandakan determined by the company is irrational. The company said that he was dismissed because Mr. N did not achieve the company’s goal, but when Mr. N took over as F & B Manager, sales for the previous month (August 2013) was 69,921 RM, but during the off season even in March 2014, we maintain sales of 86,188 RM, moreover there is a record that in March and May 2014 sales reached 120,435 RM. Sales from Mr. N's succession never dropped below the sales so far and we’re growing steadily. In spite of the peak hours, there were occasions when the store was short because of lack of manpower because the store budget was insufficient to hire people.
I was told to receive a salary for two months at the same time as retirement pay but I was not given the opportunity to ask appropriate questions about this. Ignoring this important problem means to disobey natural justice. Because of the unfounded dismissal by the company, I was shammed in front of my colleagues, stakeholders, friends, suffered mental pains, lost my belief and trust in the management of the company.
The company decided to transfer Mr. N to Kota Kinabalu on September 12 after telling the company that he hired a lawyer to solve this problem and issued an order to work under Mr. W's supervisory. However, the company should know well that Mr. W and Mr. N are not in good terms. This arrangement is the company's hindsight.
Mr. N stopped to work in the company because he lost his trust to the company and all these events gave Mr. N anxiety, pressure and stress. Appeal the company as deemed dismissal.
It was certain that he could not achieve the monthly sales target of 116,000 RM at Sandakan and it was decided that he cannot transfer to Kota Kinabalu only for that reason. If he wishes to change hisr request, he urged retirement because his request will not be granted.
Ultimately, we respected the opinion of Mr. N and issued a change offer. It is neither deemed dismissal nor unreasonable dismissal.
Although this case is not deemed dismissal, it is deemed to be fraudulent dismissal due to unfair reason.
Because Mr. N is already working in another company, reinstatement is not suitable, I order the company M to pay Mr. N within 30 days. The method of calculating the compensation money is as follows.
① Unpaid wages
a) The monthly salary of Mr. N that was withdrawn last was 6,426 RM. From September 9, 2014, which was dismissed until November 10, 2016 when the final hearing of the case was made, originally unpaid wages are 26 months, but because they are too long, it will be up to 24 months.
6,426 RM × 24 months = 154, 224 RM
b) Since Mr. N has found a new job in three months after being dismissed, 20% is deducted considering its income.
154, 224 RM - (154, 224 RM x 20%) = 123, 379.20 RM
② Retirement allowance
Monthly salary 6,426 RM x number of years of service 15 years = 96,390 RM
Total ① 123, 379.20 RM + ② 96, 360 RM = 219, 769.20 RM
The court focused on the following two points this time.
Whether it is deemed dismissal or a layoff with a good reason First of all it is about 1, but if an unreasonable act is done by the employer, the employee has the right to unilaterally terminate the contract, this is regarded as "deemed dismissal". If you make a serious breach involving a fundamental part of an employment contract or if you do not intend to obey an important provision anymore, the employee does not need to carry out work anymore and with the employer's behavior, the contract can be terminated for this reason.
However, in this case there is no evidence that he informed first the company to correct the points of dissatisfaction before appealing to the court, after informing the company that Mr. N consulted with the lawyer, the company must correct the points of dissatisfaction. There was also no evidence that the company was making a serious breach of the fundamental part of the contract. For this reason, it is not allowed to be called deemed dismissed this time.
About 2, although the sales target set by the company was passed to Mr. N through three notes, the addressee was Mr. Y, the Senior Manager, not directly addressed to Mr. N. From this, it can be said that achieving the sales target responsibility is not only given to Mr. N.
In addition, I could not find any evidence that I had talked with Mr. N with a warning letter on performance and performance evaluation. There was no evidence to confirm how it was evaluated, even if it was evaluated accurately in the first place. For this reason, we regard this case as arbitrary dismissal.
When judging that it is deemed dismissal, it is noteworthy that "Whether it seems that there is no intention to observe important provisions". In this event, the action of accepting the opinions of employees eventually and issuing a transfer offer rather than a dismissal is an appeal, stated "I will continue to respect the opinions of employees and act on contracts". It seems that it was one of the reasons why it was not judged as deemed dismissal.
Also, in judging whether it was unfair dismissal or not, attention was paid to whether the correct evaluation was being conducted. It was a problem on the part of the company that they did not clearly clarify what kind of responsibility is to whom and what kind of numerical evaluation of employee's work towards it. It is important to communicate politely and clearly the items on the evaluation criteria, evaluate, talk with employees based on the result, why he cannot make a change in achieving the goal, promotion / increase in salary, what is missing, how to improve achieving the goal.
【Case on Employee's Violation】
Mr. M worked as a Tractor Driver at a company that runs a farm. At 3:45 on February 25, 2011, Mr. A and Mr. B, farmers witnessed an attempted theft of 13 batches of Palm on the site and instantly reported it to Mr. F, the assistant manager orally. On the same day, Mr. M submitted a report to the police.
On February 28, 2011, Company S issued a cause presentation letter for Mr. M for the attempted theft. He was told "to explain in writing in regard to the matter of trying to steal the fruit of the Palm which is the property of the company."
On the same day, as a reply to the reason presentation order, he denied theft attempt in writing. Company S which was not convinced by Mr. M's explanation said in a letter dated March 17, 2011, "It was about 3:45 on February 25 the same year, on trying to steal 13 palms at block X, Domestic Inquiry will be held on 25th March of the same year. " Mr. M was notified.
On March 25, 2011, an internal investigation meeting was held with Mr. H as chairman. The members of the other two investigation committee members were unrelated employees who were neither witness nor responsible for this case. Mr. M was judged to have committed a serious violation as a result of the investigation meeting.
On 16th of May of the same year, Company S, which decided not to continue employment anymore, issued a dismissal notice to inform Mr. M of dismissal on the same day. He was ordered to withdraw from the company house within seven days after receiving the notice.
M still denied attempted theft, the internal investigation group was made in an unfair way, sued S for the dismissal judged for unfair reasons.
Denying the attempted theft, on February 25, 2011, which is said to have been the date of the case, Mr. M took a vacation to attend the National Farmers' Labor Union meeting held in Klang, and arrived at 15:10 in the afternoon. Mr. M then went to the X block to cut grass for the goat. Mr. P (a worker on the farm) working near the X block saw Mr. M having a bag and a grass cutter and also saw some of the fruit of the palm at the same place. After grass cutting, Mr. M returned to the house on a motorcycle. On the way back home, he passed security guard A and security guard B, but they did not stop or ask questions.
Despite these facts, in the internal investigation meeting, Mr. M was judged to have committed an attempt to steal with only Mr. A and Mr. B's testimonies as evidence. The investigation meeting was carried out in an unfair way.
The evidence that there was an attempted theft is only the testimony of Mr. A, Mr. B and Assistant Manager F, and no other evidence is presented against Mr. M or Mr. M at all. Also, the testimonies of Mr. A and Mr. B are inconsistent and there are contradictions.
We acknowledge that an inappropriate judgment was made at the internal investigation meeting and hope to reinstate.
This case is a legitimate dismissal based on the results of the internal investigation meeting. A thorough investigation that there was theft before the issuance of the reason presentation order has been done. Mr. M's testimony that "I was in that place for grass cutting" was nothing more than a continuation. Mr. M betrayed the trust of the company. The penalty of dismissal is a fair judgment that takes into consideration the weight of sin.
This case shall be deemed to have been an unreasonable dismissal. S Company regarded Mr. M for an act of violation despite inadequate evidence and investigation. The dismissal made for this reason is fraudulent dismissal. At the same time, I will not condemn Mr. M to any crime anymore. Mr. M hopes for reinstatement, but now that the relationship between Mr. M and the other company is getting worse, the court believe that reinstatement is not appropriate. Therefore, the court order the company to compensate in cash within thirty days after this judgment comes out. Calculation of the compensation amount is carried out as follows:
① Unpaid wages
a) More than four years have passed since the dismissal (May 16, 2011) until the last hearing in the court (July 31, 2015). From the date of dismissal, you can claim unpaid wages if it is within 24 months. The last salary paid by Mr. S's company is 26 RM daily (780 RM with monthly salary).
780 RM × 24 months = 18, 720 RM
b) After dismissal, if wages for the period of unemployment are paid in full, and if you already have the next income, calculate by deducting the percentage specified by the court on the assumption that it is not necessary to pay the full amount. Mr. M has been in the current position from May 2012 with 22 rpm daily. Taking this into account, 10% is deducted from the unpaid wages.
18, 720 RM - (18, 720 RM × 10%) = 16, 848 RM
② Compensation for substitution for reinstatement (retirement allowance)
Retirement allowance is calculated with salary of service length × month. Mr. M's employment at S company began on December 1, 1997 and since the dismissal was May 16, 2011, he was in service for 13 years.
780 RM × 13 months = 10, 140 RM
total
① 16, 848 RM + ② 10, 140 RM = 26, 988 RM
[About the effectiveness of the internal investigation meeting]
Even if an internal investigation meeting had been held, the court decided to review this matter further. Based on the evidence presented by both sides, we have to confirm the truth of whether Mr. M has violated the truth whether there was any act or omission. If Mr. M is not proved to have been involved in a violation, he shall be deemed to be an unfairly dismissed.
Just because you did an internal investigation meeting, you cannot do unfair dismissal. What I learned from the internal investigation team is that there is no any binding force in the law. However, the fact that the internal investigation committee was made is taken into account in determining whether the employee was properly dismissed.
This time, only the testimony of Mr. A and Mr. B was the basis in the internal investigation meeting. There was no evidence or the fact that a report of the incident was presented. In addition, Mr. F, the assistant manager witnessed, said that he conducted a thorough investigation before issuing the reason presentation order, but this "sufficient investigation" is also only the verbal testimony by Mr. A, Mr. B. So this investigation method is not sufficient. Therefore, ignore the judgment at the internal investigation meeting and hear about the case in the court.
On the testimony by Mr. A and Mr. B
There is inconsistency and contradiction in the testimony in the Court of the guards A and B who are witnesses of the company side. If Mr. M's testimonies are true, Mr. M would have done an unusual acrobatic stunt. In addition, security guard B admitted in opposition examination that it is impossible to carry 13 bundles of palm fruit by motorcycle.
Both of them said that a hoe and a sickle were left after M fled, but they are not presented to the court as proofs, even the actual thing and even the picture.
Therefore, it is judged that credibility will be applied to the witnesses Mr. A and Mr. B.
About the documentary evidence
A report to the company by the security guards A and B concerning this theft case has not been submitted. The report has been testified that he was instructed to assist Mr. F, Assistant Manager. A report was not submitted in the court neither to Mr. M.
There was no convincing evidence in the company's complain that Mr. M committed an attempted theft. For this reason, Mr. M is deemed to have been fired for unfair reasons.
This time the court referred to the effectiveness of the Internal Study Group (Domestic Inquiry). According to Article 14 of the Labor Law, when employers violate and dismiss employees without dismissal notice, demote and give other disciplinary measures, be sure to hold an internal investigation meeting before such punishment. Even employees not covered by the Labor Law (such as those with a monthly salary of 2,000 RM or more), the employee must be given the opportunity to protect himself before any disciplinary action.
The purpose of the internal investigation meeting is to clarify the truth, to give employees the opportunity to say their own words, to ask witnesses, to confirm the evidence, to determine whether the employee is guilty or not of the judgement and to submit a report to management.
It is not proper to take any disciplinary action without holding an internal investigation meeting. The point is whether or not that way was fair. It is important to use physical evidence and evaluate whether the judgement by the person who is not involved in the project in the company is fair. If so, even if the decision of the company is different from the judgment made by the court, the company's attitude that it investigated fairly to employees can be appealed.
[Case on Personnel Evaluation]
From May 5, 2014, Ms. C began his employment as Finance Sub Manager at Senawang base of P Company. Initially, the trial period is three months and her boss is Mr. S who is Senawang base general manager and Mr. L of Finance Manager who is managing the entire company at KL head office.
In Ms. C's first personnel evaluation conducted on 24th July 2014, Mr. L was evaluated as "average". On the form of personnel evaluation, Mr. L said, "It is suitable for Confirmation (to finish the trial period and to start employment formally)" without extending the trial period, "Recommend raise of 400 RM after the trial period" the comment was attached. However, there was no signature from anyone in the "approval column".
On September 12, 2014, a letter titled "Extension of trial period" was sent. It is stated that Ms. C will be extended until the end of September, along with a list containing Ms. C's remediation points. The recommendation has been signed by Mr. S, Senawang's boss. However, Ms. C did not accept this extension and did not sign the Letter of Acknowledgment.
On October 14, 2014, Mr. S requested Ms. C orally to submit a retirement letter on 31 December, Ms. C refused. Regularly during the month of October, I was pressured to quit, but I continued to refuse.
However, on November 3, 2014, P issued a letter of "termination of employment" and announced that December 4 of the same year was the last of Ms. C's working day. Ms. C was preparing for childbirth, but she wanted to work as much as possible. So she requested P Company not to work until December 4, 2014, but at least to work until February 2015. The company said that there was room for sympathy, but it is difficult until February, but by the end of December she stretched her employment and agreed to pay salary until December.
Although she was decided to be dismissed at the end of December 2014, Ms. C, which was dismissed despite the fact that once the Confirmation was accepted in the evaluation on July 24, 2014, it is worthy of unfair dismissal.
In the evaluation on July 24, 2014, formal employment was accepted from Mr. L, and a raise of 400 RM was also promised. However, on 14th October the company forced Ms. C to file a resignation.
In the mail sent by Mr. L on July 22, 2014, the result of KPI is attached. The evaluation form is sent to Mr. S who is the boss of Human Resources Department and Senawang base for formality purposes.
However Mr. L and the person in charge of personnel department avoided to answer our inquiry about the situation afterwards and was told to ask Mr. S, the General Manager of Senawang base. We asked Mr. S on August 15th and August 22nd 2014, but Mr. S did not give me the answer and was told to ask Mr. L. On September 12, 2014, one month and a half after the evaluation, I received a letter extending the trial period of two weeks from P company. But that content was denied in the first evaluation. On October 13 of the same year, when Mr. M asked Mr. S about the status of Confirmation, Mr. S answered that Ms. C's performance and KPI had no problem. However, he was asserted that he was willing to terminate the contract, judging that she did not meet the company's expectation because she did not fulfill her duties described in the job description.
Mr. M says that he was informed that formal employment will start in the first evaluation, but this is invalid because no approval has been received from that evaluation paper.
Thereafter, at the meeting held between Ms. C and Mr. L on August 14, the reason why Ms. C was decided not suitable for Confirmation is that Mr. C must improve her performance and make a friendly relationship with her colleagues, this is to to build a company, as Mr. L said. In that meeting, Mr. L orally told Mr. C that the trial period had been extended until the end of September 2014, and if the improvement could not be completed, the employment contract would be terminated. Therefore, formal employment was not done, it was a trial period until dismissal.
Also, based on the company's personnel evaluation, I judged that it is not suitable for formal employment. In the second evaluation, the item for achievement degree of major ability was evaluated as "less than expected", and the item of personal contribution degree to department was also evaluated as "average or less". The comment by Mr. S that was stated in the evaluation form was not preferable. I also did not meet KPI. Mr. S also saw Ms. C's day-to-day work and determined that there was a serious problem with attitudes towards her subordinates and consultants, the quality of leadership, and the performance capability as a finance manager. He notified Mr. L about this. Mr. M did not receive a good evaluation even at 360 degree evaluation with Ms. C and his subordinates and other departments. Whether to hire or not is judged based on such evaluation.
As indicated in the notice of dismissal, nothing changed even after various discussions with the personnel department and Mr. S from September. The dismissal was not due to unfair reasons, and was done by formal procedures.
We dismiss employee's actions and make this case a legitimate dismissal. Confirmation to regular employees was not done, and it is understood that dismissal was also judged on the basis of legitimate evaluation. Also, because it is formal procedures, it cannot be said that the employee is unfairly dismissed by the company.
In the Letter of Appointment (recruitment notice), it is clearly stated that a written notice will be given at the end of the trial period or at the end of the Confirmation to regular employees. There is a signature from Mr. S. although Confirmation Letter has not been issued. Ms. C appealed that he was formally hired by P Company, but from the fact that he did not receive a raise since July and that no official letter was issued, It cannot be said that Ms. C was officially hired.
There was no signature or approval by Mr. S hiring Ms. C on the initial evaluation done during the trial period. Mr. S is a qualified person who has authority to decide on Ms. C's evaluation separately from Mr. L because he signed on employment contract as Mr. C's boss in Senawang. Therefore, the first evaluation without approval from Mr. S is incomplete.
Employees cannot claim Confirmation unless there is formal written evidence. Also, it was based on Mr. L's individual judgment that Ms. C initially could start employment, and the management of the company could not reliably agree. Ms. C herself also has not provided evidence that he is suitable for Confirmation. For this reason, Ms. C is cannot be considered as being formally employed until the dismissal, but instead she can be considered as in trial period.
Regarding the evaluation, Ms. C said that she achieved her own annual KPI, but as seen from the completed evaluation at the time the measurement of the company in December 2014, the KPI achieved shows she has worked only for 7 months.
Ms. C says that he was forced to voluntarily retire, but Ms. C has not submitted any evidence in addition to her own testimony. In any case unapproved Confirmation will end the contract, so there is no reason for Mr. S to enforce voluntary retirement in the first place. Because there is a possibility that she may have testified because of a bad relationship with Mr. S, it is thought that she brought it to such a trial.
This time Ms. C's action was rejected because the document submitted by the company as evidence was officially recognized as effective and conversely there was no evidence from her side.
After the trial period, it was proved that Confirmation is notified in writing and it is stated in the recruitment notice. Whether or not Confirmation is possible or whether or not payment will be raised is based on fair evaluation. It is important to formally establish the KPI and evaluate from the surroundings, leave it in writing, and use it to communicate with employees.
In this case, the employees appeal is connected with the fact that the person responsible for the decision and evaluation of Confirmation was unclear, and that the possibility of approval of Confirmation and the content of evaluation to the employee before approval got down. By notifying the results to the employees taking precise steps, it is necessary to eliminate the distrust of employees in the company to avoid such troubles.
【Case Judged on Working Hours】
The labor union of Company P reported and appealed the facts to the court that P Company did not comply with the labor agreement.
P Company has violated labor agreements and labor laws in the following three points.
Without prior agreement with the labor union side, the company changed the working hours of factory employees as follows:
Before change: Monday to Saturday 8:30 am - 4:30 pm
After change: Monday - Thursday, Saturday 8:30 am - 4:30 pm
In the labor agreement, there were some holidays in a week given by the company, but some worked continuously for more than seven days and no holidays were given. The calculation method of overtime work changed due to auditing. Until August 2014, overtime work allowances on regular working days were calculated at twice for hourly wages per hour. However, after the audit, it was calculated 1.5 times per hour.
About the three points that the union side is appealing, there are the following items respectively.
On August 27, 2014, I am notified when I changed working hours from September 1 of the same year as follows.
(1) Holidays are Friday and Sunday
(2) One week from Wednesday to the next Tuesday
Actually, employees were given Fridays and Sundays as holidays, but employees just went to work without noticing changes in working hours. In the labor agreement, the allowance is calculated as follows. In case of overtime work on ordinary work day
Time worked outside of working hours × 1.5
In the case of overtime work on holidays
First 8 hours: hours worked outside of working hours × 2
For 8 hours or more: Time worked outside of working hours × 3
In the audit conducted in 2014, it was found that there was a mistake in the calculation method of overtime work. Until now, even if you work overtime on your regular work day, you calculated it twice the hourly wage. Therefore, after the audit, the company decided to calculate it based in the labor agreement.
Dismiss the labor union's allegation.
Regarding three points of appeal from the labor union side, both companies proved that the company did not violate labor laws and labor agreements.
Regarding the change of working hours, written notice was made in advance, and since the reply was received from the labor union side, it was proved in writing that things were notified beforehand. From this fact, it is cleared that the appeal of the labor union side "There was no prior notification" is a lie. Notice that the working hours have been changed as indicated in 1 as well, this time the employee misunderstood the notice and went to work. Therefore, the company did not violate the labor agreement. The company has done an erroneous calculation method so far, and it became clear that it overpaid the amount stipulated in the labor agreement. It is not a breach of labor agreement to rectify the calculation method with an audit.
In this case, from documentary evidence, it was acknowledged that there was no violation of the labor agreement on the company side, and that no labor law provision was violated as a result. However, miscommunication with the labor side in terms of notifying employees about changes in the labor agreement and following labor agreements led to this complains. In particular, when applying the provisions of the Japanese corporate headquarters in Malaysia, it is necessary to sufficiently confirm that it is not misleading as well as whether it is in compliance with Malaysian labor law. It is necessary to firmly explain the contents to the worker side to eliminate miscommunication.[Case Concerning the Effectiveness of the Internal Investigation Group (Domestic Inquiry)]
In this case, Ms. V who worked as a nurse at a dialysis center operated by a charity organization (M company) complained that she was unfairly dismissed by M company. The flow to dismissal is as follows:
M Company was dissatisfied with Ms. V's three behavior problems.
① On 4th March 2002, Ms. V did not follow the direction of Mr. S, the chief nurse who is her direct supervisor, and later became an argument.
① On March 4, 2002, despite after failing intubation of 4 to 5 hemodialysis, asking assistance from a colleague or instructing the patient to go home without obtaining permission from chief nurse, etc. happened.
② After being transferred from Kajang on February 26, 2001 to the present, she is not following the instructions written in the rules and direct reports. She is unable to cooperate with other colleagues, works as a member of the team, and unable to support the daily work of the facility.
On March 5, 2002, Company M issued a reason presentation letter for actions ① and ②, and Ms. V responded in writing 4 days later. Six days after replying, Company M issued a letter stating that "Ms. V's explanation cannot be accepted." Thereafter, however, there was no action taken against Ms. V. On March 25, 2002, Company M announced in writing that Ms. V had three problematic behaviors and inquired about them, the Internal Investigation Committee (Domestic Inquiry) was announced to be held two days later. At the internal investigation meeting, M’s managing the company decided to dismiss Ms. V for she was responsible for all three problem behaviors. On 3 May 2002, M Company notified Ms. V a layoff on the same day.
There was no appropriate written warning before the dismissal and the reason for dismissal was not clearly indicated in the notice. Ms. V quickly tried to ask the CEO about the reason for dismissal, but she could not meet him. This means that Ms. V was refused to be given the right to know the reason for dismissal. Also, the day of dismissal was the day she was taking medical leave, therefore Ms. V could not work.
Therefore, this dismissal was made without a positive reason. The company was asked to let Ms. V to return to work and to pay her salary from the date of dismissal.
Ms. V has three problematic behaviors. To the contrary, the company issued a reason presentation order. Since Ms. V's response to it was not acceptable either, we held an internal investigation meeting and it was decided that Ms. V was responsible for any problem behavior. Although the company have not issued a warning letter, the reasoning order form issued before opening the internal investigation meeting is equivalent to the warning letter, and the problem behavior of Ms. V was described ① to ③ However, it is the factor that must cause Ms. V to be disciplined. Ms. V should have known that after the internal investigation meeting, all responsibilities regarding these behavior must be dealt with Ms. V.
Take this case as an unfair dismissal and order the company side to pay compensation. Amounts are as follows:
(a) Unpaid wages from the day of dismissal (May 3, 2002) to the final witness examination (February 24, 2016), but up to 24 months, monthly salary calculated based on monthly salary paid last .
RM 1, 900 × 24 months = RM 45, 600
However, taking into consideration that Ms. V worked for another company after his retirement, 10% (= RM 4,560) of them was subtracted.
(b) Instead of returning, the number of years from the initial employment (April 1, 1999) to the dismissal (March 5, 2002) salary for one month per year
RM 1, 900 × 3 months = RM 5, 700
Total RM 46, 740
As a result of the internal investigation meeting, the company has decided that all responsibilities are in Ms. V. However, the internal investigation meeting is not fair and formal. The main reasons are as follows.
(a) About the execution of the internal investigation meeting, when notifying the employee in advance, the notice was not stated as "an internal investigation meeting". Employees did not notice that it was an internal investigation group, and she can participate as a "conference". This means that the company did not give the employee opportunity to prepare, therefore, it cannot be said that it was not a fair investigation group.
(b) The CEO who served as the only member and chairman of the investigation committee was originally a person concerned with providing business guidance to Ms. V, who also commented personal opinions during the investigation. For this reason, this CEO is fair, and it is assumed that there is a possibility of writing a survey report with a subjective opinion.
For that reason, the case in the three problematic behavior of Ms. C was lifted up to the court. But from the following results, it can be judged that not everything was Ms. V's responsibility.
① Concrete information such as the name of the patient and the time and place where the problem occurred is not clearly indicated. In addition, Company M does not call Mr. J, a witness who is important to the company side, as a witness to the trial. Since the company pursues responsibility to Ms. V, they should call Mr. J because he must submit enough evidence regarding Ms. V’s responsibilities. M is saying that Mr. J is not already an employee of M Company and cannot be called to the trial, but that is not a convincing reason. Because there is insufficient evidence, therefore, Ms. V is not responsible.
② Like ①, specific information such as the name of the patient and time and place where the problem occurred is not clearly indicated. In this case also, Ms. V is not responsible because evidence is insufficient.
③ The complaint "She did not follow the instructions given" is a comprehensive statement and there is no detail on which rules were specifically broken or when and where they were violated. In addition, the reason presentation order about this case was not mentioned. Therefore, Ms. V is not responsible because evidence is insufficient.
Since it is not possible to prove that Ms. V is responsible for the three problem behaviors the company was arguing, the company should take Ms. V’s request. But, since the initial request of Ms. V to return to work is not appropriate given the atmosphere of the workplace, it was decided that it will be replaced in the form of compensation.
What was emphasized this time was whether or not the internal investigation group (Domestic Inquiry) was in effect. Whether the investigation were to be held in advance by the parties, what was the content of the investigation meeting in writing, whether they notified the parties for the opportunities of preparation for the investigation committee by notice sufficiently and whether the evidence were officially recorded, for example, you are confirming in writing with employees that there is no difference in content when you transfer records from recording to writing. Members of the Internal Investigation Committee must have an objective and impartial viewpoint, s they should not be a personnel department, a person whose managerial position is higher than the employee, or who is not directly involved in the problem. If the internal investigation meeting is conducted fairly and but not recorded correctly, it is said that it will have no effect.
Also, if the company wants to dismiss an employee due to a problem behavior, they must be able to explain details such as the specific date and time, location, and content that it is said to happened. If there is no concrete and enough evidence, the complaint will be invalid and the possibility of being considered as an unfair dismissal like this time will be high.
Not having issued a warning letter of dismissal is also a big disadvantage on the company side. Even if the company issued a reason presentation order or conducted an internal investigation meeting, they must issue a warning clarifying the reason for dismissal.
Also, because there was no precedent that the dismissal notice does not include the reason for dismissal, it would not be an unfair dismissal, so this point it was not regarded as a problem. But if the employees concerns areabout anxiety / dissatisfaction, it is recommended to specify the reasons. -
Working Environment
■ "Multi-ethnic State" Malaysia
The population of Malaysia is about 29.95 million (2013 Malaysian Bureau of Statistics), the 43rd place in the world (United Nations "World Population Estimation (2011 Edition)"), and the working population is about 12.25 million people. The fact that the working population of Malaysia is slightly higher in proportion than the actual population is because it adopts the "foreign worker acceptance system" as a policy. This will be described later.
Malaysia is a "multi ethnic country". The people are roughly divided into Bumiputera and non Bumiputera. Bumiputera refers to Malay and Indigenous People and non Bumiputera refers to other non-native Malaysian citizens (Chinese, Indian, Caucasian and other ethnic groups).
The ethnic composition of the Malaysian population is about 65% of Malay, about 26% of Chinese, about 8% of Indian and the remaining 1% are other groups (each proportion of residents of Malaysian citizenship, foreign residents not included). Among them, the workers at the manufacturing site are primarily Malay-based, and are from secondary education level such as junior high and high school. Meanwhile, the staffs of the office are graduates of higher education such as university, and other ethnic group exists in this job category in certain degree. But in private enterprises, there is a tendency that the ratio in management or the same category of Chinese people will increase.
The reason why the ratio of Malay handling managerial position is low is because of the large opinion among Japanese seconded employees that there is "difference in ethnic qualities". Roughly, the depiction of the reality of the composition of a private company is shown in pyramid type: Foreigner +Japanese (TOP), Chinese (MIDDLE), Malay, Indonesian and others (BOTTOM).
Malaysian Bureau of Statistics
http://www.statistics.gov.my/portal/index.php?lang=en
Malaysia Population Ranking
http://10rank.blog.fc2.com/blog-entry-246.html
United Nations
http://esa.un.org/wpp/
Malaysia 2013 working population
http://www.jil.go.jp/foreign/basic_information/malaysia/2013/mys-1.html#mys_1-2
■ The Unemployment Rate in Recent Years
The unemployment rate increased from 6.89% to 8.26% from 1985 to 1986, but since 1993 it decreased to 3% and almost unchanged for the following years. In 1996 the unemployment rate is 2.52% and even decrease during 1997 with 2.45%, the decrease for both years is one third from one quarter of the previous year. This continues until 2012. The Malaysian Commonwealth was established in 1963, Malaysia began in 1965 when Singapore, one of its states, was separated and gained independence. In the same year, the "First Malaysia Project (1966 - 1970)" was created, followed by the "First Long - term Comprehensive Development Plan (1971 - 1990)" to develop a new development policy towards the new century. From the 1970s Malaysian economy was sluggish due to the effect by the global recession. But in the first half of 1980s we can see the economic development like a "miracle". In particular, it is characterized by a sharp decline in the unemployment rate.
Malaysia Unemployment Rate
http://www.jetro.go.jp/world/asia/my/stat_01/
Malaysian public employment placement office is taking online job placement system at Ministry of Human Resources Labor Bureau. The Jobs Malaysia Center (Jobs Malaysia Center) set up throughout the country provides career counseling, vocational training and educational institution collaboration, career guidance to match job seekers and employment at a one-stop center. Private employment introduction is prescribed in the Private Employment Agencies Act 1981 in 1981. Person (or company) who introduced job placement are required to register with the Ministry of Human Resources Labor Bureau.
Looking at the proportion of unemployed people, the unemployment rate of young people from 15 to 24 years of age, women, and elderly people is high, the former is due to implementation of higher education reform, second is the female worker protection measures and measures against irregular labor, the latter is due to raise of retirement age from 55 (public officials 58 years old) to 60 years old. In addition, as a very important step to hire persons with disabilities, Ministry of Human Resources take up rehabilitation of persons with disabilities due to occupational accidents to let them return to work..png)
Malaysia Economic Activity Population (labor force population)
http://www.mhlw.go.jp/wp/hakusyo/kaigai/13/dl/04.pdf#search='%E3%83%9E%E3% 83% AC% E3% 83% BC% E 3% 82% B 7% E 3% 82% A 2 +% E 5% 8 A% B 4% E 5% 83% 8 D% E 5% 8 A% 9 B% E 4% BA% BA% E 5% 8 F% A 3 '
Number of Workers in Malaysia
http://tradingeconomics.jp/malaysia/employed-persons
Malaysian Unemployment Rate Transition
http://ecodb.net/country/MY/imf_persons.html
■ Working Population by Industry
Looking at the employment structure of general workers by industry, the manufacturing industry (18.8 million people) is the most common, followed by the wholesale and retail industry (1.86 million people),then agriculture and forestry industry (17.45 million people), hotel and restaurant (8.1 million people), public service and education (both 7.02 million people), transportation, warehouse, communication (5.31 million people) and medical and social services (2.76 million ). The overall employment population has rising statistically.
According to country statistics, more than 2 million foreign workers live in the country, mainly working in the construction department and the plantation department. The number of foreign workers is increasing year by year and the government is protecting those workers because foreign workers legally entering the country are more likely to be exploited.
As of 2015, the unemployment rate is 3.0% and the informal sector is gradually expanding. However, it seems that it is caused by the low wage given to migrant workers..png)
■Industry wages by occupation
The average monthly income by industry and occupation in 2008 is as shown in the graph below.
Overall, water supply and sewerage, waste management, restoration business and manufacturing industry have the highest, followed by construction industry, accommodation industry, warehouse industry, finance, insurance industry. The primary industry has the lowest. It is said that there is a disparity in monthly income with different occupations in the same industry..png)
■ Comparison of Wages with Other Countries
The average wage in Malaysia tends to be relatively high in any class compared to the surrounding countries in the Asian region. Taiwan and Singapore are on top, followed by Malaysia. Also, since wages are rising year by year, the labor cost in Malaysia is higher than in other countries.
However, the level of education in Malaysia is high, and in particular the number of college graduates in science and engineering is boasting with high standards in the world. Therefore, being able to acquire excellent talent for R & D, software design, etc. is an advantage in doing business in Malaysia.
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■ Talents in Corporation in Malaysia
In January 2011, in order to prevent the outflows of high-skilled workers from the country, to callback Malaysian working overseas and to attract highly skilled foreign workers, "Talent · corporation · Malaysia" was launched. It is a human resource corporation under the umbrella of the Prime Minister's Office.
In April 2012, government announced "Talent Roadmap 2020". In this road map the main axis are these three points:
1) Malaysian personnel training
2) Attracting global human resources
3) Network construction with overseas top talent
In addition, students who went abroad to study through government expenses are obliged to return to Malaysia after graduation and be employed in public institutions and specified private enterprises. In addition, measures were also proposed for domestic college graduates such as to thoroughly disseminate jobs and employment opportunities and to expand the internship system.
However, on April 30, 2013, CEO Johan Mahmoud Merikan of Talent Corporation stated, "I will not do anything like giving citizenship to attract overseas talent to Malaysia."
In addition, the CEO explained, "There are three reasons for overseas spillage of Malaysian talent", one is "overseas people get higher annual income than Malaysia", the second and third is "I want to change my living environment, or I want to study abroad".
On the question of the mass media that there are many human resources who went overseas for hating the partly unfair policies of the Malaysian government, the allocation system by ethnicity, etc., the CEO of Talent Corporation said, "I am not doing buddy calls, it is mandated to call specialists in a specific area, many of private and government enterprises are talented and Talent Corporation thinks the same way." -
Labor Disputes with Labor Unions
■ Characteristics of Labor Union
The Malaysian labor union stipulates in 1967 the Labor Union Act "Formation and operation of labor unions, formation of union of labor unions, accession to international labor organizations" etc. There are agricultural workers union associations and school teachers union from the British colonial period (about 1920 to 1930's), but it is characterized by industry union. It is formed only by occupation, by function, by business location or by industry.
Workers can only join labor unions formed by occupation, function, business, industry in which they belong. National Center (The labor union of the national central organization is a coalition of trade unions affiliated, was placed in the focus of the coordinator and joint action of member union organization) is MUTC: at (Malaysia Trade Union Congress Malaysia Trades Union Congress) The government acknowledges MTUC as a representative of workers at the three-party conference on labor and management concerning labor issues.
If the union does not organize a majority of the workers it is trying to represent, it may receive limited approval. Only registered labor unions can conduct collective bargaining and unorganized labor union conduct collective bargaining only on specific issues. Registration given once will not be cancelled even if the organization rate of the union is declining. Registered labor union must submit an audited financial report to trade union registrar by the end of March every year. This is to confirm that the Registrar oversees the union and to confirm that the registered union is working under the law.
The Labor Union Act also prohibits non Malaysian citizens and political party officials from becoming union leaders.
The Labor Union Act allows the union of two or more unions from the same industry to form a federation, but the union's National Center does not admit. For this reason, the Malaysia Labor Union Conference, which is a practical labor union National Center, is a juridical person registered under the Organization Act and is not legally a labor union.
■ Trends in the Number of Labor Unions and the Number of Members
The number of unit labor unions is 710 organizations as of 2012 as shown in the table below while the number of members is 892 273 people. Among them, 456 are private labor union, 141 labor union are from government agencies and 99 labor union are legal institutions. In addition to this, there are 14 user associations. The definition of the trade union prescribed in the Labor Union Act includes not only the organization of workers but also associations of employers. As for the number of members, the private sector and public officials (total of statutory bodies of government agencies) are almost the same number. It can be said here that it is one of the characteristics of the Malaysian labor union..png)
Labor Policy Research Institute, National Institute of Advanced Industrial Science and Technologyhttp://www.jil.go.jp/foreign/basic_information/malaysia/2013/mys-6.html#mys_6-2
■User Organization
There are 14 organizations (groups organized by industry, region, nationwide level etc. of employers / companies etc.) as follows. All are registered under the Trade Union Act. These user groups are mainly based on industries. 9 others excluding the subsequent ones mainly engage in activities related to labor relations.
1) Malaysia User Federation (MEF)
2) Malaya Agricultural Producers Association (MAPA)
3) Malaysian Commercial Bankers Association (MCBA)
4) Malaya Regional Insurance Association (SMIS)
5) Malaysia Automobile Dealers Association (MMTA)
6) Mackerel employee council (SECA)
7) Sarawak User Association (SEA)
8) Malaysia Mining Industry Association (MMEA)
9) Malaysian Manufacturers Association (FMM)
10) Association of Contractors Association (MBA)
11) Malaysia Unified Plantation Association (UPAM)
12) Rubber grower association (RGA)
13) Malaysia · Oil · Palm grower Association (MOGC)
14) Housing Developer Association (HDA)
■ Conditions of Labor Disputes and Resolution Procedures
In Malaysia in recent years, the number of labor disputes has gradually increased without significant changes. But in 2009, the number of participating strikes and the number of days of labor shortage have increased sharply..png)
Overall, the number of labor disputes is on a downward trend, but inversely, the number of employees participating is increasing. The main reasons for labor disputes are two types: a break in collective bargaining and a condition struggle due to collective bargaining.
If labor dispute is not settled, the union may enter a strike. Normally, strikes are rare in Malaysia and strikes reported to the industrial affairs department occurred only in 3 cases, 3 cases, 1 case, 2 cases, and 2 cases each year from 2004 to 2008 respectively. In 2008, a strike of 170 participants participated in 2 cases, resulting in a labor loss of 273 persons per day, but it was resolved by direct negotiation. This situation is relatively lighter compared with 2004 (3 strikes, 279 participants, 3,262 people losses per day due to that) and 2005 (3 strikes, 1,020 participants, resulting in 4,793 losses per day). However, it was said that the two cases were also solved.
■ Limitation of Labor Union Rights
· Restriction on Organization Right
In Malaysian law, they allow workers to engage in trade union activities, but imposes many restrictions.
For example, in the electronic industry, Malaysia's largest industry, workers are prohibited from forming industry-specific labor unions, and the activities of labor unions are limited only within the company. This policy is consideredto stimulate foreign investment and maintain international competitiveness.
In addition, 2.5 million foreign immigrant workers, accounting for about 25% of the labor force, cannot join labor unions under the provision of the Ministry of Home Affairs that "migrant workers prohibit any group membership". Therefore, currently the situation is that the manager abuses the advantage of this provision conveniently for himself.
· Restrictions on Collective Bargaining Rights
According to the labor relations law, (1) recruitment (2) dismissal (3) reinstatement (4) relocation (5) promotion is excluded from collective bargaining matters as "management side's exclusive matters". Furthermore, the scope is limited amd restricted to only three items of training for skill improvement, annual review of wage system, and performance-based system.
On the other hand, in the public service sector, the government uses a joint council instead of collective bargaining. In this council, labor unions play only an advisory role. Furthermore, the "Labor Relations Act" permits compulsory arbitration by the Minister of Labor on its own will, which violates the principle of arbitrary negotiation of labor agreements prescribed by the ILO Convention.
The law prohibits the management side from taking retaliatory measures due to participation in legal trade union activities. The discriminated members can appeal complaints to the Ministry of Human Resources or the Labor Court. However, both institutions are criticized strictly by labor unions due to their inefficiency.
· Restriction on Strike Right
The strike right has not been approved in the form specified, it is virtually impossible to conduct legal strikes. According to the MTUC report, during 2008, eight protest rites of lunch time or days of lazy behavior happened. However, no strike was done.
Since it is prohibited to trade unions to cause a strike, general strike and solidarity strikes, the further approval and dismissal of the union depends on their compliance with the prohibition. Also for the prohibition for the trade union leaders to guide the illegal strike, if violated, fines and various penalties, and detention for up to one year may be imposed. For the participating members, they can lose their membership qualification. Essential tasks are widely defined and applied to education, transportation and other tasks that do not fit the strict definition in the ILO. Dispute acts in indispensable work are subject to forced arbitration.
Declaration of the strike is done in the following flow:
· According to the provisions of the "Labor Union Act", labor unions need two-thirds votes for approval in favor through secret vote of members
· Voting results will be sent to the government for confirmation
· "Cooling period" will be started and will notify the Ministry of Human Resources that there is a dispute.
· The Ministry of Human Resources sometimes hopes to mediate during the cooling period, and if the mediation fails, the case will be referred to the Labor Court
· Pickets, strikes, lockouts are prohibited during cooling period
In addition, the Malaysian Criminal Law requires that the assembly of more than five people require prior authorization from the police.
■ Labor Union Actions in Labor Disputes
First of all, it is important to meet with the employer (company) side, discuss, negotiate, and solve it through them. The labor union is a spokesman for the workers side and an intermediary between workers and users.
In the negotiation process between the management and the labor union, a Win-Win model must be developed (in which I win and also the opponent win, the situation where both parties concerned benefit are considered). However, in actual situation the company always has greater advantage. Conclusion that must be arrived must base on the nature of the business being done. In order to ensure talks and models on a sustainable basis, the essential points are as follows.
1. The data provided to the union side should truly reflect the business performance and workers' efforts.
2. These data should be reliable, transparent, and easy to obtain.
3. The factors such as remuneration, stability, potential increase in income, etc. are included.
4. Having a properly structured and coordinated feedback system so that consistent review and correction can be carried out.
5. To solve difficult problems faced by labor unions, to work on some parliamentarians etc.
6. Continually carry out campaign activities on the importance of labor unions.
7. Presentation of memorandum to stakeholders.
8. Social dialogue among stakeholders.
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