Joint Statement – Halt Hiring of Migrant Workers until Safety can be Ensured

We the undersigned civil society would like to express our condolences for the family and friends of Adelina Lisao and call for the Government of Malaysia to immediately implement the recommendations by the Migrant Workers Right to Redress Coalition by civil society on the protection of migrant workers.

The issue of domestic workers subjected to abuse by unconscionable and despicable employers have plagued Malaysia for the longest time. Prior to Adelina’s untimely demise, Malaysia has witnessed and heard incidences of severe abuse of domestic helpers from Indonesia and other neighbouring countries.

Continue reading “Joint Statement – Halt Hiring of Migrant Workers until Safety can be Ensured”

Joint Statement: INFINEON MUST STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION LEADERS

INFINEON MUST STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION LEADERS
Reinstate Zulfadlee Thye Abdullah, President of Infineon Technologies Melaka Workers Union

We, the 54 undersigned organisations and trade union 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 8000 people.  Zulfadlee, an employee since 1998, has been the President of the Union  since 2005.

INFINEON is 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 13/12/2016, Zulfadlee was terminated on the grounds that he ‘committed the act of malingering’, with reference to a sick leave obtained on 18/10/2016 from a doctor, Dr Aw Cheng Yew  of  Kllnlk 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 said doctor. A 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 3 days on 19/10/2016, 20/10/2016 and 21/10/2016. Despite being on sick leave, Zulfadlee did come to the office for a few hours to do some urgent work on 2 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 bed rest, and cannot do any other things including also attending some union meeting or activity – a sick leave only means that he is not medically fit for work on the said day, and in law he becomes entitled to paid sick leave.

On 18/10/2016, 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 panel clinic of the employer, are less likely to simply issue Medical Certificates to employees unless the doctor is convinced that the said worker is entitled to sick leave. 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 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 & 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 union busting action targeting the Union President and the Union.

In INFINEON’s letter dated 6/1/2017, 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 & Managing Director of lnfineon Technologies Melaka.

The said letter, also did state, ‘…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, 6 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 40 over employees that participated in the Union program on 18/10/2016, and only the President and 6 of the Union leaders have been subjected to disciplinary action, it certainly looks that  INFINEON  maybe discriminating against employees who are leaders of the Union, and maybe 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 is scheduled for 23/1/2017 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 instill 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 worker rights. It is failure to recognize 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 maybe 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 seem to have acted contrary to the INFINEON’s own policy and Code of Conduct,Organisation for Economic Co-operation and Development (OECD) Guidelines, Electronic Industry Citizenship Coalition Code of Conduct, UN standards and principles; and other relevant standards and good practices.

Brands and corporations that do have INFINEON in their supply chain also have the obligation to ensure that justice be done, and that Codes of Conducts or Policies not be violated by reason of these action/s of INFINEON, vide it’s Malaysian subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, including the discrimination and the wrongful termination of the Union leader.

Justice demands that INFINEON Technologies (Malaysia) Sdn. Bhd should immediately reinstate Zulfadlee without electing to simply just wait for the long drawn out court process in Malaysia, that could take even 5 – 9 years before 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, states that if the worker cannot be reinstated, he will be awarded compensation in lieu of reinstatement for just a maximum of 24 months, when previously this compensation would have been payment of all income worker would have earned from date of wrong 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 INFINEON Technologies 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 INFINEON in its supply chain to immediately  ensure that INFINEON respect the Freedom of Association of Workers, Worker and Trade Union Rights;

Call on Germany to ensure that INFINEON comply with the OECD Guidelines, United Nations and International Labour Organisation (ILO) standards, principles and best practices, and other similar obligations to ensure that human rights and worker rights are respected, protected and promoted;

Call on INFINEON and INFINEON Technologies Melaka to respect and promote human rights, including worker and trade union rights

Charles Hector

Syed Shahir bin Syed Mohamud

Mohd Roszeli bin Majid

Pranom Somwong

For and on behalf of the 54 organisations, trade unions and groups listed below

ALIRAN

Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–ATRAHDOM,Guatemala C.A.

Association of Human Rights Defenders and Promoters- HRDP

Building and Wood Worker’s 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

CWI (Committe For Workers International) 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 EngineManufacturing Sdn. Bhd

Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)

MADPET [Malaysians Against Death Penalty and Torture]

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 Organization in Quebec), Canada

Progressive Voice, Myanmar

PROHAM -Persatuan Promosi Hak Asasi Manusia

Sawit Watch, Indonesia

Solidarity of Cavite Workers (SCW), Philippines

SUARAM (Suara Rakyat Malaysia)

Tenaga Nasional Junior Officers Union (TNBJOU)

WH4C(Workers Hub For Change)

Workers Assistance Center, Inc., Philippines

Yayasan LINTAS NUSA, Batam-Indonesia

Global Women’s Strike UK

Legal Action for Women UK

Women of Colour GWS

Pusat Komas

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)

THREE VITAL REASONS WE OPPOSE THE TPPA

Press statement by Kua Kia Soong, SUARAM Adviser 14 Jan 2016

The Malaysian government insists that there are no good arguments for opposing the TPPA. For six years, very few knew the contents of the TPPA except for the corporate lobbyists that had been drafting it in total secrecy. All they said was that it was good for you, good for “free trade” and they just wanted you to support it. Critics were told to shut up on the grounds that they knew nothing about it. Meanwhile, the neo-liberal ideologues have maintained that the opponents of the US-inspired trade agreement do so based on “ideological” rather than substantive reasons.

This is surprising when we bear in mind that among the people who oppose the TPPA are a Nobel laureate economist Joseph Stiglitz and the world’s most notable public intellectual Noam Chomsky. Let us look at just three good reasons why we oppose the TPPA.

  1. US imperialistic design and MNCs’ domination

Lest anyone has any doubts, the main purpose of US President Obama’s two visits to Malaysia within the last year was to try and speed up the signing of the Trans Pacific Partnership Agreement that is so critical to US capitalism in its effort to check the growth of China’s trade relations in the region. It is naïve for neo-liberals to claim that this TPPA is in the interest of promoting free trade in the Asia Pacific when they blithely ignore the elephant in the region, namely China! The TPPA’s blatant exclusion of China from this trade agreement is clearly the next stage of the US’ ‘Pivot to Asia’ after their military encirclement of China with a noose of military bases and warships.

This article is by no means a defence of China or China’s interests in the region; rather, it is a condemnation of US imperialistic designs which are not in the interest of free trade and harmonious co-existence in the region. US imperialistic designs do not just take a military form; they stretch into strategic economic forays by US-based Multi Nationals in an effort to exclude China from this so-called “free trade” agreement.

The TPPA is clearly more than just a trade deal; it also imposes parameters on non-trade areas. This is the point stressed by Joseph Stiglitz. It sets new rules for everything from food safety and financial markets to medicine prices and internet freedom, requiring countries to maintain compatible regulatory regimes; facilitate corporate financial transactions; establish copyright and patent protections to govern intellectual property rights and to safeguard foreign investors.

The Investor State Dispute Settlement (ISDS) mechanism is the extrajudicial process written into the TPP (Chapter 28), whereby governments can be dragged before tribunals by corporate lawyers if they think national (health, environmental, public policy) laws violate their TPP rights or limit the MNCs’ expected profits.   These corporate lawyers can decide whether our national environmental laws, safety regulations, public policy, or labor laws get in the way of the MNCs’ profits. Thus, it has been pointed out that when Egypt attempted to raise its minimum wage recently, a French water concessionaire operating in the country lodged an Investor-State Dispute Settlement (ISDS) suit against the Egyptian government.

Under the agreement, pharmaceutical companies, which are among those enjoying access to negotiators as “advisers” can challenge any attempt to make generic drugs more affordable by claiming that such measures undermine their new rights granted by the (TPPA) deal. In the financial sector, the agreement will water down regulatory safeguards put in place after the 2008 financial crisis and block any ban placed on risky financial products, including those toxic derivatives that contributed to the crisis in the first place.

Chapters 9, 10, 11 of the TPPA provide a free rein to the operations of international finance capital via the dismantling of capital controls, prohibition on financial taxation and by undoing the stabilizing tools set up in certain economies to counter the 2008 financial meltdown. Nobel Prize-winning economist Joseph Stiglitz has warned that the TPPA presents “grave risks” as it “serves the interests of the wealthiest”.

  1. Negative impact on Malaysian SMEs

According to the Price Waterhouse Coopers (PWC) study of the impact of the TPPA on the Malaysian economy and society,

“there is potential for negative impacts on Bumiputera businesses and SMEs but these impacts appear to be largely mitigated based on the concessions secured by Malaysia. The potential negative impacts are mainly due to Bumiputera businesses being domestic oriented, and dependent on Government contracts and vendor programmes. However, there is a need to transform Bumiputera businesses and SMEs to reap the full benefit of the TPPA…Despite the concessions; there is a need for programmes to increase the competitiveness of Bumiputera businesses and SMEs, especially in the areas that will be open to foreign competition.”

According to the same study, only 38 % of the SMEs in Malaysia are Bumiputera owned while the majority are Non-Bumiputera owned and operated. While it is not clear how Bumiputera businesses which are not dependent on Government contracts and vendor programmes are expected to cope, as usual the Government does not elaborate on how, if any, the 62% of the Non-Bumiputera-owned SMEs will be assisted during the onslaught by these multi-national corporations after the TPPA is in place.

In recent years, SMEs in the services sector have been affected by increasing international competition. This is a major concern for SMEs which have not been able to develop their capabilities or to grow when the sub-sectors were liberalised. It is therefore surprising that the Chinese community, especially the mainly Chinese-operated SME sector has not been more vocal in their response to the TPPA.

  1. Erosion of democracy and human rights

The TPPA does not look good for democracy and human rights in the participating countries. First of all, the secrecy of the TPPA negotiation process itself was an affront to the principles and practice of democratic governance.

It has been claimed by the US government that the TPPA will be in the interest of Malaysian workers because the Malaysian government will have to abide by the stipulations relating to labour standards. Organized labour in the United States has criticized the TPPA, arguing that the trade deal would largely benefit big business at the expense of workers in the manufacturing and service industries. Noam Chomsky has also warned that the TPPA is “designed to carry forward the neoliberal project to maximize profit and domination and to set the working people in the world in competition with one another so as to lower wages”.

The White House has said that the TPPA is “a high standard trade agreement that levels the playing field for American workers, and businesses, supporting more made in America exports and higher paying American jobs”. In fact the logic of neoliberal trade agreements like TPPA is to drive jobs to wherever they are the cheapest without a care for labor rights and labor protections as has been clearly evident in the record of MNCs all these years.

Since when have the MNCs championed international standards for workers’ rights throughout the world? Have MNCs suddenly developed a soft spot for “Trans-Pacific” workers compared to workers in the rest of the world? Would the Malaysian Government and MNCs like us to believe that the anti-union laws and policies that have been in place in this country since the Free Trade Zones were established in the seventies will give way to a new deal for all workers in Malaysia once the TPPA is ratified? Can the government spell out in no uncertain terms what workers can expect in terms of organization and workers’ rights when we ratify the TPPA?

The chapter on Labor and labor rights (Chapter 19) offers nothing substantive or meaningful, merely fluffy minimal enforcement of worker’s rights, and mandated “cooperation” to diffuse adversarial relations between workers and employers. It also contains provisions that allow foreign companies to bypass Malaysia’s industrial courts during labour disputes by the setting up of a ‘labour council’ to mediate such disputes, and if a resolution is not reached in 60 days, the case can be referred for arbitration through the ISDS system.

It has also been pointed out that the TPPA will facilitate corporations’ control and possession over what people all over the world have come to expect as their “commons”. Hence, the internet will be increasingly privatized and subject to surveillance while the right to privacy, open communication, reporting, comment, teaching and research will be curtailed. The restrictive interpretation of US Copyright and Intellectual Property laws would become the global standard. This has grave consequences for the freedom of expression and right to information.

The human right to health will be curtailed when the TPPA reduces access to basic life-saving generic medicines and medical procedures while public health measures will be privatised and medicines and medical services become unaffordable. And according to Food & Water Watch, under a TPPA regime, “agribusiness and biotech seed companies can now more easily use trade rules to challenge countries that ban GMO imports, test for GMO contamination, do not promptly approve new GMO crops or even require GMO labeling.”

Thus, the human right to a safe environment and the sovereignty of our nation will be curtailed when the MNCs can sue the local government that tries to put a moratorium on mining or other resource extraction that are hazardous to health of the local community.

We demand full public consultation on TPPA

It is instructive that with the election of the reform-minded Prime Minister Justin Trudeau in Canada, the Council of Canadians has demanded a full public consultation before Trudeau goes any further with the deal. They have cited concerns over how the TPPA would impact human rights, health, employment, environment, and democracy. Since our Prime Minister has often professed to be likewise concerned about reform and transformation, we call on the Government to undertake a full public consultation on this potentially disastrous treaty and to answer the questions we have raised.