contracts employment agency in malaysia and role 马来西亚市就业中介机构和角色

Bruno Periera,1,Current Labour situation in MalaysiaMalaysia - 2010,Bruno Periera,2,“place of employment” means any place where work is carried on for an employer by an employee;“employee” means any person or class of personsincluded in any category in the First Schedule to the extent specified therein; or (b) in respect of whom the Minister makes an order under subsection (3) or section 2A;,EMPLOYMENT ACT 1955,Bruno Periera,3,EMPLOYMENT SENARIO Place of employment,Types of EMPLOYERSTypes of WORKERSTypes of CONTRACTS,Bruno Periera,4,Types of EMPLOYERS,“employer” means any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first mentioned person, and the word “employ”, with its grammatical variations and cognate expressions, shall be construed accordingly;,EMPLOYMENT ACT 1955,Bruno Periera,5,“Principal” means any person who in the course of or for the purposes of his trade or business contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal;“Contractor” means any person who contracts with a principal to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principals trade or business;EMPLOYMENT ACT 1955,Bruno Periera,6,“Sub-contractor” means any person who contracts with a contractor for the execution by or under the sub-contractor of the whole or any part of any work undertaken by the contractor for his principal, and includes any person who contracts with a sub-contractor to carry out the whole or any part of any work undertaken by the subcontractor for a contractor;“Sub-contractor for labour” means any person who contracts with a contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be;EMPLOYMENT ACT 1955,Bruno Periera,7,LocalWORKERS,Direct Application (or walk-in),Job MalaysiaMOHR JTK,Private EmploymentAgency,PLACEMENT,PROBATION followed byPERMANENTContract,Temporary (FIX TERM)contract,LOCAL Workers seeking employment,PRIVATE EMPLOYMENT AGENCY ACT 198120% commission of 1st Months wage charged on placement. Paid either by employer or the worker.,Bruno Periera,8,MigrantWORKERS,Contract of Service/Temporary (FIX TERM)contract,FACTORY (Principle Employer),MIGRANT Workers employment,EMPLOYMENT (RESTRICTION) ACT 1968Non-citizen shall not be employed unless there has been issued valid employment permit.,Bruno Periera,9,MigrantWORKERS,Contract of Service/Contract for ServiceTemporary (FIX TERM)contract,Labour Contractors (Outsource Company),FACTORY (Principle Employer),FACTORY (Principle Employer),FACTORY (Principle Employer),TODAY,TOMORROW,THE DAY AFTER,MIGRANT Workers employment,No Law to regulate? Outsourcing License No., Recruitment No. KHEDN.,Labour Contractors (Outsource Company),Labour Contractors (Outsource Company),NOW.LOCAL Workers also follow the same flow!,LocalWORKERS,PROBATION followed byPERMANENTContract,Temporary (FIX TERM)contract,FACTORY (Principle Employer),Job MalaysiaMOHR JTR,CONTRACTOR(Outsource Company),Direct application,Private EmploymentAgency,Placement,Contract of Service/Contract for ServiceTemporary (FIX TERM)contract,RM $ wages,RM $ wages,Workers seeking employment,MigrantWORKERS,FACTORY (Principle Employer),FACTORY (Principle Employer),FACTORY (Principle Employer),“NEW” EMPLOYER,Workers seeking employment in Malaysia,TODAY,THE DAY AFTER,TOMORROW,Bruno Periera,11,Types of WORKERS,Employed directly by Employer or Principal :Permanent workersLocal contract workers(Fix-term)Foreign contract workers (Fix-term)- Supplied by Labour Contractors but work for Principal employer PAID BY Labour Contractor:Local contract workers (Fix-term)Foreign contract workers (Fix-term),Bruno Periera,12,Types of CONTRACTS,1. Employment Contract is a CONTRACT OF SERVICE(Kontrak Perkhidmatan)2. Service Contract is a CONTRACT FOR SERVICE (Kontrak untuk Perkhidmatan) (not an employment contract),Bruno Periera,13,Contract OF Service (Kontrak Perkhidmatan),Any agreement between two parties an employer and an employee, where by:The employer agrees to employ another as an employee; and the employeeagrees to undertake certain duties under the direction and control of the employer.agrees, in return for a specified wage or salary and benefits under a terms & conditions of employment from employer.,Bruno Periera,14,Terms and Conditions of Employment,The employer cannot change the terms and conditions of employment unless employee agrees to it. Any terms and conditions, in a contract of service, that is less favourable than the relevant provision under the Employment Act (1955) is illegal, null and void. Provision in the Act will take precedence over a particular contractual term that is less favourable.,Bruno Periera,15,An apprenticeship contract or agreement is also considered a contract of serviceAgreement, whether oral or in writing and whether express or implied.Oral contract in writing? How?,Bruno Periera,16,Employment Act in 1955,With the introduction of the EA, the then British Administration effectively abolished the indenture labour, bonded labour and the “kanggani” system in Malaya, as it was known then. The totality of the Employment Act 1955 established two very important principles of law. They are:Security of tenure ensuring permanence of job andProprietary right to the job where termination of worker, shall be with just cause and excuse & by due process.These principles are trite law and are considered sacrosanct.MUST be protected at all cost!,Bruno Periera,17,Permanent Contract (permanent workers)Direct hire (Company workers)- local workersFixed Term Contract - (temporary or contract workers)Direct hire (Company workers) - Locals & Foreign workers,Types ofContract OF Service (Kontrak Perkhidmatan),Bruno Periera,18,engaged as an independent contractor (such as a self-employed person or vendor) .engaged for a fee to carry out an assignment, duty or a project for the company. there is no employer- employee relationship, therefore, NOT covered by the Employment Act,contract FOR service (not an employment contract) (Kontrak untuk Perkhidmatan),Bruno Periera,19,TERMS & CONDITIONS of work for CONTRACT workers,Hours of Work: 1 Shift 12HoursWages: basic RM 400 RM 450Overtime: fixed amount, does not follow rates for normal days, rest days & public holidays OR none.Annual leave, Public holidays pay, Sick leave, Maternity leave - Not mandatory.No payment for legally mandated breaks.Pay cut for absent or late for work or on sick leave or on annual leave.Toilet breaks monitored 2x for 12 hour shiftAccommodation & Transport provided FoC.,Bruno Periera,20,Fixed Term Contract - (temporary or contract workers) workers hired by Outsourced Company to work in the principle company.- Locals & Foreign workers,Types of contract FOR service (Kontrak untuk Perkhidmatan),Bruno Periera,21,There is no single conclusive test to distinguish a contract of employment from a contract for services. Some of the factors to be considered in identifying a contract of employment include: i)ControlWho decides on the recruitment and dismissal of employees?Who pays for the employees wages and in what ways?Who determines the production process, timing andmethod of production?Who is responsible for the provision of work? ii)Ownership of Factors of ProductionWho provides the tools and equipment?Who provides the working place and materials? iii)Economic ConsiderationsDoes he carry on business on his own account or carry on the business for the employer?Does he involve in any prospect of profit or is he liable to any riskofloss?How are his earnings calculated and profits derived?,Bruno Periera,22,Essential Clauses of Contract of Service :Commencement of employment;Appointment job title and job scope;Hours of work;Probation period, if any;Remuneration;Employees benefits (e.g. sick leave, annual leave, maternity leave);Termination of contract notice period; andCode of conduct (e.g. punctuality, no fighting at work).,Bruno Periera,23,LAWS ON PROTECTION OF RIGHTS OF WORKERS,STATUTEEmployment Act 1955Industrial Relations Act 1969Trade Unions Act 1959Workmens Compensation Act 1952Occupational Safety and Health Act 1994Social Security Act 1969Immigration Act 1959/63 Contract of Employment The contract of employment stipulates terms and conditions on duration, wages, work shift, days off, sick leave, medical fees, payment of levy, visa, medical and travel.,Bruno Periera,24,Companies advertise job vacancies in front of their factory gates.Companys own Human Resource officer interviews and identify potential candidates. Identified candidates - sent to sign a contract with an outsource company, usually without receiving a copy. Is the contract a contract for service or contract of service?,Modus operandi in getting permit for foreign workers.,Bruno Periera,25,The “successful” candidate Handed over to company Human Resource officer. Provided with the company badge with a unique Number to denote “contract workers”. One week orientation and work process training. Successful candidates sent to the Assembly line supervisor to start work as contract labour.Workers not aware of the type of contract!,Bruno Periera,26,Not wanting to be exploited.Locals QUITin PROTEST! (albeit SILENTLY !)Applying for PERMITDue to the high attrition of contract labour. company applies to the government agencies (MOHR & KDN) for permit to bring in foreign workers.The reasons often cited local workers are not keen on menial jobs, that they are pampered and like to “lepak”. TREATEN to relocate operation to third country,Bruno Periera,27,Tidak berminat berkerja lebih masa dan syifTerlalu memilih kerjaMinat ganjaran yang tidak setimpal dengan produktivitiTidak bersedia belajar kemahiran baru dan kerja pelbagai tugasSukar menerima sistem kerja baruMementingkan masa untuk riadah dan keluarga,Sikap Pekerja Tempatan,Bruno Periera,28,Facts not mentioned are: that the wages and benefits are intentional made unattractive, with unfair and archaic terms and conditions of service (Pre-Employment Act era).The silent protest.,Bruno Periera,29,Breakdown of types of Employment contract in an American Semiconductor Assembly Plant of semi-skilled workers and Production Operators in Dec 2007,Breakdown of types of Employment contract in an American Semiconductor Assembly Plant of semi-skilled workers and Production Operators in Dec 2007,Bruno Periera,30,Cost Comparison - Local vs Migrant worker/per month (RM),Bruno Periera,31,PURPOSE OF COMPANY,to make profit.Corporate headquarters sets target that labour cost should not exceed 6% of the manufacturing cost. Hiring foreign workers will escalate cost of labour by 30%.,Bruno Periera,32,Local Management to achieve the target Wages & benefits are controlled : to subsidise the 30% additional labour cost in hiring foreign labour. maintain the 6% labour cost. without affecting the companys bottom line profit.,Bruno Periera,33,Race to the Bottomunabated,Leading to current reality. wages & benefits of the local workers are depressed artificially.type of employment contracts have deteriorated progressively replace local permanent contract with foreign contract labour. substitute with local contract labour Standard of living deteriorates while cost of living escalates.,Bruno Periera,34,Company achieves:,Low wage cost. Disposable labour - hire & fire. Flexi-labour Multi-skilling/Multi-tasking. Plug & play workers. (minimal training) No union (No negotiation powers) Subservient workforce. Convert workers wages into profits. Huge wages & bonus payout- Top Mgmt,Perlumbaan menuju ke dasar .,Bruno Periera,35,High contract labour % improves NAV (Net Asset Value) of company. by transferring labour cost to overhead / operation cost putting Companys stock price looking good to shareholders.Creative accounting.,Bruno Periera,36,Q&ADiscussion,Bruno Periera,37,Problem solving technique.,INVESTIGATE (Past): How did the problem start?Who started the problem?When did the problem start?Why did the problem start?Where did the problem start?-PLAN OF ACTION (Future):How to overcome the problem? Who overcome the problem?When to overcome the problem?Why should we overcome the problem? Where to begin the change?,Bruno Periera,38,HOW IT ALL STARTED?It always starts small.and grows . and grows finally accepted as NORMAL,Bruno Periera,39,PEKERJA ASING (PA),LATAR BELAKANG1992 - Kerajaan meluluskan PA daripada ASEAN, Bangladesh, India dan Sri Lanka untuk sektor pembinaan dan perladangan.2000 - Diperluaskan kepada sektor perkilangan dan perkhidmatan (hotel dan restoran).2002 - Meliputi semua sector,Sumber: Laporan Pesidangan Meja Bulat Mengenai Penggajian PA Di Msia - 5-Apr 2007 ISMK - KSM,Bruno Periera,40,OUTSOURCING(MEMBEKAL & MENGURUS),2005 Mesyuarat Jawatankuasa Kabinet mengenai Pekerja Asing (JKK-PA) ke-33 Bil. 2/2005 pada 5 Julai 2005 telah BERSETUJU untuk menggaji PA melalui konsep OUTSOURCING.,Sumber: Laporan Pesidangan Meja Bulat Mengenai Penggajian PA Di Msia - 5-Apr 2007 ISMK - KSM,Bruno Periera,41,Outsourcing concept:Outsourcing is a concept where the management and supply services are undertaken by companies selected by the government. The government shall select and supervise these companies who are reliable to be responsible to recruit, supervise and manage foreign workers and present the workers to customers who need them under the outsourcing concept.Aim:The implementation of outsourcing aims to assist to overcome the problems of shortage of workers and small companies who do not have the resources to manage foreign workers full time will save cost. It will also help companies/management who needs large workforce from time to time especially to fulfill additional increase in contractual obligations, for peak seasonal collection of harvest and so on. Management:The management of foreign workers shall be managed in an orderly and systematic manner. Accommodation, transportation, payment of wages of RM400, medical examination including insurance coverage shall be under the outsourcing company.,Sumber: Laporan Pesidangan Meja Bulat Mengenai Penggajian PA Di Msia - 5-Apr 2007 ISMK - KSM,Bruno Periera,42,2006 Terdapat jumlah 1,800,000 PANegara sumber utama:Indonesia 1,174,000 (63%)Nepal 214,000 (11%)India 138,000 ( 7%)Myanmar 109,000 ( 6%)Vietnam 106,000 ( 6%)Bangladesh 63,000 ( 3%)Lain-lain 64,000 ( 4%),Bruno Periera,43,Pembahagian PA mengikut sektorPembuatan - 646,000 (35%)Perladangan - 354,000 (19%)Pembantu Rumah - 311,000 (17%)Pembinaan - 268,000 (14%)Perkhidmatan - 167,000 ( 9%)Pertanian - 123,000 ( 7%) Jumlah PA = 1,800,000 (100%),Bruno Periera,44,IMPAK Pekeja Asing,Dari Segi Ekonomi:Kesan Positif:Menyumbang RM 17b (5.1%) kepada KDNKRM 8.3b (5.2%) kepada perbelanjaan persendirianRM 1.2b levi kepada hasil kerajaan (2004),Sumber: Laporan Pesidangan Meja Bulat Mengenai Penggajian PA Di Msia - 5-Apr 2007 ISMK - KSM,Bruno Periera,45,Kesan Negatif:Remit RM 5-7b setahun ke negara asalKos perkhidmatan kesihatan RM117jKemunculan semula penyakit tibi, malaria dan untut serta membawa penyakit baru seperti kala azar (Leishmaniasis).Mengurangkan tekanan kepada majikan bagi memperkenalkan automasi dan mekanisasiMengurangkan tekanan ke atas kenaikan gaji,Sumber: Laporan Pesidangan Meja Bulat Mengenai Penggajian PA Di Msia - 5-Apr 2007 ISMK - KSM,Bruno Periera,46,Dari Segi Sosial:Kesatuan sekerja terancamMengekang kadar upah dan jejas peningkatan taraf hidup rakyatMenjejaskan kerukunan sosial,Sumber: Laporan Pesidangan Meja Bulat Mengenai Penggajian PA Di Msia - 5-Apr 2007 ISMK - KSM,Bruno Periera,47,Keselamatan Negara:Peningkatan kes jenayah dari 1333 (1992) kepada 3113 (2002) 133%Kos menjaga PA di penjara dan pusat tahananKos menghantar pulang PA,Sumber: Laporan Pesidangan Meja Bulat Mengenai Penggajian PA Di Msia - 5-Apr 2007 ISMK - KSM,Bruno Periera,48,Demographics (Dept. of Statistics, 2006),POPULATION 26.63m - Women 13.07m - Men 13.56mEMPLOYMENT 10.9m - Private sector 5.2m - Public sector 1.1m - Informal sector 4.6mLabour Participation rate: - Women 46% 4.0m - Men 86% 6.9mUNEMPLOYMENT 3.5%,Bruno Periera,49,Percentage of Foreign Workers against Private sector employees: 1.8m/5.2m = 34.6%,Sumber: Laporan Pesidangan Meja Bulat Mengenai Penggajian PA Di Msia - 5-Apr 2007 ISMK - KSM,Bruno Periera,50,NOW it grows to take over employment from locals!,Bruno Periera,51,New Straits Time - July 20, 2008interview with Datuk Ishak Mohamed,Enforcement Director Immigration Department Q: Should foreign labour outsourcing be banned?A: Outsourcing is the best solution for the government to manage foreign workers.Q: Why?A: There are two scenarios One is that as companies get bigger, they will need more manpower and with outsourcing they can get workers in a more organized way.Two, outsourcing is good as it will attract foreign direct investment. Investors will not want unions to be formed in their establishments.Through outsourcing, it would be difficult for unions to be formed as outsourcing company, and not the factory, would be the employer.,Malaysian Tr