Hari ini hari terakhir tahun 2002. Terlalu banyak kenangan tahun ini untuk aku ingati, atau kalau boleh lupakan.
Hari ini aku akan menghadiri satu majlis pengkebumian.Aku berpakaian serba hitam hari ini. Sudah hampir lima tahun aku bersamanya. Hari ini tiba saat untuk berpisah. Lima tahun bukan satu jangkamasa yang singkat. Aku membesar bersamanya. Aku berada di sisinya tatkala ia dilahirkan. Aku yang mengajarnya bertatih. Aku yang cuba menyuapkan makanan ke mulutnya. Hampir lima tahun aku bersamanya. Aku hidup bersamanya tatkala susah dan senang. Terlalu setia aku bersamanya. Aku ada di sisinya tatkala ia meniti zaman kegemilangannya. Aku juga berada di sisinya tatkala ia dilanda kemelut perubahan pengurusan yang besar. Aku tetap berada di sisinya kerana aku yakin. Hari ini aku perlu berpisah dengannya. Aku sendiri tak pasti dimana silapnya.
Andai aku boleh menuding jari, beban kesalahan di atas kematiannya aku letakkan di bahu Perdana Menteri. Keadaan ekonomi semasa yang meruncing (tetapi di dalam media digembar-gemburkan akan kepesatan ekonomi negara) itu punca sebenar. Ekonomi negara tidak menentu.Terlalu banyak syarikat ditutup. Terlalu banyak gejala sosial yang melanda. Along wujud kerana apa ? Bukahkah kerana kesempitan hidup serta masalah wang ringgit ? Terlalu banyak pengangguran di kalangan lulusan universiti. Inilah salah satu sebab mengapa cadangan MTUC untuk melanjutkan umur persaraan kepada 57 tahun ditolak.
Kerajaan Malaysia, tolonglah berterus terang ! Jangan takut dengan bayang-bayang sendiri.
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Easing The Pain Of Retrenchment
Alfred Charles, Managing Consultant
Retrenchment is the discharge of the surplus employees due to a downturn in business, the installation of labour-saving machinery, the standardisation or improvement of plants and techniques. This will result in the reorganisation of the employer's undertaking; consequently, some employees may be redundant and may have to be retrenched. However, the retrenchment must be bona fide and not for the purpose of victimising employees in order to get rid of their services.
When redundancy becomes imminent, employers have to adhere to the provisions relating to redundancy and retrenchment in the Code of Conduct for Industrial Harmony. Conditions precedent to retrenchment are the employer should, in consultation with the employees' representatives or their trade union, or with the Ministry of Human Resources, take positive steps to minimise the reduction of the workforce by adopting appropriate measures such as:
- limiting recruitment
- restricting overtime work
- restricting work on the weekly day of rest
- reducing the number of shifts or working days in a week
- reducing working hours
- retraining including transfer to other departments and reassignment of duties
Where retrenchment becomes inevitable, the employer must undertake the following
- give as much advance as possible to affected employees
- introduce voluntary retrenchment and early retirement schemes and the payment of compensation
- retire employees who are over the normal retirement age
- offer help to employees in finding alternative employment, in collaboration with the Ministry of Human Resources
- ensure a phased rundown of employment
- do not publicise the impending retrenchment until the union and employees have been informed
Criteria for selecting employees to be retrenched may include:
- the need for the efficient operation of the establishment
- the ability, experience, skill and occupational qualifications of workers required by the establishment
- length of service and status (non-citizens, casual, temporary, permanent)
- age
- family situation
- any other criteria formulated in the context of national policies
The principle "last in, first out" (LIFO) when retrenching employees must be adhered to by the employer unless there are valid, acceptable reasons for a departure from this principle. The LIFO principle is subject to two limitations: first, the rule operates only within the establishment in which the retrenchment is to be made; second, the rule applies only to the category to which the retrenched workmen belong.
Departure from the LIFO principle may include the following. For instance, the employer may take into account the efficiency and trustworthiness of an employee with substantive and reliable evidence (recorded history) showing the inefficiency or unreliability of the employee. If poor performance is to be asserted, it is vital for the employer to maintain a proper and transparent appraisal system. An employee who is less productive due to long absences through medical leave may be selected for retrenchment in the interest of operational efficiency. Staff possessing special qualifications pertinent to the business may be retained over a senior employee with longer years of service.
If retrenchment s inevitable, advance notice must be given to affected employees and the union, so the criteria for selection can be worked out between the company and the union. Employees who come within the purview of the Employment Act 1955 must be given notice before retrenchment. The notice period ranges from four to eight weeks, depending on years of service with the company. serving this notice to retrenched employees is mandatory. Where there is a collective agreement, the union must be served with the notice before serving notices to employees.
Faced with redundancy, a reasonable employer must consider the alternatives before embarking on retrenchment, as this is provided for in the Code. It becomes imperative for the Industrial Court to examine the measures adopted and the consideration of alternatives by the company before it contemplated retrenchment. If there is evidence before the court that the company did not adopt cost-containment or cost-control measures and did not consider alternatives before embarking on retrenchment, it becomes imperative for the court to declare the retrenchment of employees mala fide and an unfair labour practice.
Industrial law in Malaysia has developed to a level at which employees have security of tenure of employment. Once an employee has been inducted into the permanent service of an organisation, the employee is said to have acquired proprietary rights. Thus the employee cannot be terminated, dismissed or retrenched, unless there is just cause for doing so.
Published in The New Straits Times February 28, 1998
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The Law in Relation to Retrenchment in Malaysia
Asiah Bidin, UUM
The world was plunged into a global economic recession some two years now, and is still coping with trying to stay afloat. While some countries have remained buoyant throughout the crisis, others are already seeing signs of drowning.
This global infection has also affected Malaysia. And, as prove of the extensive reach of the downturn, many have been struck down as retrenched casualties.
Hundreds and hundreds of employees have been laid-off in what companies call 'reorganizations'. This word is used widely now and is now commonly known among the local workforce.
This brings us to the question, what is retrenchment? What are the conditions for laying-off an employee?
One would expect that such a word as retrenchment might have its specified definition. However, there is no definition of the word in any local labour legislation.
By norm, retrenchment refers to a surplus of labour as a result of reorganization in a company [in any manner for the purpose of economy or convenience (award 342/1992)]. An employer is generally justified in retrenching his employee when his or her service is in excess of requirements. In other cases, a certain posts might become obsolete, thus resulting in a reduction, diminution or cessation on the type of work the employee has been performing.
In Malaysia, the employer is required to report to the Labour Department under the Ministry of Human Resource before any retrenchment can take place.
The Labour Department has been empowered to administer and enforce labour standards as well as lay down protection measures under stipulated labour laws.
Apart from that, there is also the Department of Manpower, which functions are to undertake the registration and placement of job seekers in vacancies reported by employers. This department also provides career guidance services to job seekers, administers the Private Employment Agencies Act 1981 and regulates private employment agencies.
It is also responsible for establishing effective labour market information services to facilitate labour market clearing, job placements and many others.
Despite the existence of all these departments to stand guard over employees' welfare, many employers are still taking unfair advantage of the current economic situation, by retrenching their employees without paying due redundancy benefit.
As far as retrenchment is concerned, an employment can only be terminated in bona fide instances, or in true cases. An employer cannot actuate retrenchment by victimization or resorting to unfair labour practices.
In Credit Corp.(M) Bhd v. Rahime Muhamed (1997) 2 ILR, it was held that the company has to show absolute transparency and honesty so as to ensure that retrenchment was carried out in a genuine context.
In the case of Radio & General Trading Sdn. Bhd and Pui Cheng Teck & Ors (award 243/1990), two main factors were laid down in considering if the employer did act bona fide when retrenching the employee.
The landmark factors in dispute were if there was a surplus of service of an employee, and whether a redundancy situation truly did exist. And, these two factors will have to be aligned with labour laws for laying-off.
The law provides that in exercising retrenchment, the employer must comply with the 'last in first out' principle (LIFO).
Apart from acting bona fide, the other element to be adhered to by the employer is whether the retrenchment is within the ambit of the Code of Conduct for Industrial Harmony.
Initially, this code was set up to provide detailed provisions regarding redundancy. It lays down principles, guidelines and conditions, preceding retrenchment in order to achieve industrial harmony.
Among them, the code requires the employer to give a proper warning of impending redundancy and to consult the employee concerned. The code also suggests that the employer should make a reasonable effort to look for an alternate employment for the employee before he is retrenched. The employer can also make an offer to the employee concerned to opt for voluntary retirement and pay him retrenchment and retirement benefits.
In this regard section 30(5A), Industrial Relations Act, 1967, in approving the existence of the code, mentions that in when making a decision or award, the Industrial Court may take into account any code or agreement to the employment practices. However, there are cases, where the provision in section remained as a code and was not adhered in the court.
In the case of Malaysia Shipyard & Engineering Sdn. Bhd. Johore Bharu v. Mukhtiar Singh (1991) 1 ILR 627, the court held that there is no legal obligation on the part of the company to consult its employee before retrenchment. In other words, it is not the legal duty of an employer to have to give advance warning to his employee on the possibility of retrenchment.
Generally, the court will rule that any retrenchment practice is unfair if it is either mala fide, actuated by victimization, or carried out under unfair labour practices (award 245/1986).
Failure to follow the LIFO principle can also constitute unfair retrenchment, unless the employer has a very valid reason to depart from it. Since the LIFO principle is not a statutory provision, it serves merely as a guideline to be followed in order to avoid unfair retrenchment.
In Supreme Corporation Bhd and Doreen Daniel & Ong Kheng Liat (award 349/1987), the court pointed out that the LIFO is not a mandatory rule which can be departed from by an employer when retrenching staff.
If the employer fails to comply with the law, relating to redundancy and retrenchment in the Code of Conduct for Industrial Harmony, the employee has the right to seek judgement for unfair retrenchment under section 20 of the Industrial Relations Act, 1967.
Di mana-mana hari ini tatkala hujung tahun saban kali kita mendengar jargon-jargon popular seperti retrenchment, VSS, bonus, naik pangkat, SSM, SSB heboh diperkatakan. Sudah hampir sebulan tatkala saya menyepikan diri, perkataan-perkataan itu berlegar di dalam kepala. Kadang-kadang tidur yang amat diperlukan jadi tidak lena kerana perkataan-perkataan itu sering bermain dalam fikiran. Rumours atau khabar angin sudah menjadi mainan mulut bila isu-isu seperti ini dihangatkan. Keadaan pejabat yang tenteram jadi ribut, keadaan kerja yang teratur jadi kelam-kabut angkara penyebar khabar angin. Saya turut menjadi mangsa. Penjelasan perlu sewaktu saat-saat sebegini agar dapat menjernihkan yang keruh. Apa yang pasti saya sebagai manusia berakal mahupun pilihan dan bukan mengikut membuta-tuli.
"Relocate me to different department or else I resign", itu kata dua dari saya. Muktamad. Saya tahu sayang mereka terhadap saya terlalu kuat.
SuaraAnum.com. Artikel Weblog Menjerit Bhg 1 keluar kat suaraAnum.com. Aku happy. Sempena tersiarnya article tersebut aku memaparkan semula arkib weblog aku. Biar orang tahu.
Sempena hari baik bulan baik ini, aku mengucapkan Selamat Hari Raya Aidil Fitri kepada semua khalayak sultanmuzaffar. Terima kasih di atas sokongan anda.
