Friday, November 21, 2014

JCY worker-Employer Dispute? JCY did no wrong? Do we need an independent investigation?

Most disturbing when the Malaysian government can come out and say that the Employer has done no wrong.  Would anyone believe that workers will come out and protest for no reason?

Were there no 'torture'  -alleged forcing workers to play volleyball with stones...?

I believe that it was all a matter between workers and their employer   - it should not have involved the police....let alone the Home Minister....it should have been an issue under the ambit of the Minister of Human Resources.

Good that MTUC has come out challenging the statement of the Deputy Minister in Parliament....


Is gov't sweeping JCY riots under the carpet

COMMENT The Malaysian Trades Union Congress is alarmed at the manner in which the issue of JCY HDD Technology Sdn Bhd (JCY) foreign workers' industrial action is being swept under the carpets by the police.

MTUC is disappointed with Deputy Home Minister Wan Junaidi Wan Jaafar's statement in the Dewan Rakyat that industrial action taken by JCY foreign workers was due to misunderstanding among the foreign workers themselves, especially since this claim is not supported by any facts.

On Sep 4, 2014, we wrote to the Human Resources Ministry to hold a tripartite meeting to discuss the issues raised by JCY’s workers. However, despite several follow-up calls to the ministry, to date our request has fallen on deaf ears.

Our Johor division officers on the ground, who have been following the case closely with some of JCY’s migrant workers, have been informed by the workers that their protest escalated when one of JCY’s staff provoked them by throwing stones at the workers when they refused to engage in a game of throwing stones at one another at their workplace at Kulaijaya.

Initially a group of about 20 workers were forcefully moved to Kulaijaya for participating in the industrial action in Tebrau over the death of their coworker who had complained of having difficulty in breathing.

In Kulaijaya, they were forced to play a game of “volleyball with stones” as a form of punishment for taking part in the said incident.

'Management ignored concerns'

According to the workers, they resorted to industrial action as they were dissatisfied with the manner in which the management handled their grievances.

Their concerns regarding their health, work conditions, poor hostel facilities, calculation of overtime, not adhering to off days entitlement, unfair deductions in their salaries and low compensation for accident and injuries, were ignored by the management.

Furthermore, the workers were also displeased with the attitude of the management, such as for beating them for minor mistakes, and not treating them with dignity and respect.

The workers claimed that their concerns at the workplace worsened over the years and therefore they were left with no other option but to resort to industrial action.

Clearly the police had failed to address and neglected the issues concerning the workers at their workplace.

The police investigation only concentrated on one side of the incident.

This not only raises concerns on the confidence in and the credibility of the police investigation but also raises the issues of bias in the investigation process, especially in the absence of a  transparent and independent inquiry.

On Nov 11, a separate meeting was held at the Johor Bahru Labour Department with JCY's management to discuss the repatriation process and unpaid salary for the 55 workers who were arrested.

MTUC was also informed that five out of 55 workers arrested have been wrongfully charged under Section 6(3) of the Immigration Act for entry into the country without proper documents, as all of them have valid work permits with JCY.

They were scheduled to return to their homeland after the clearance made at Immigration Department.

Unfortunately during the police raid this group of workers was picked up.

Permits expired during detention

At the time of arrest, these workers were documented but during the process of investigation their work permits expired. As such, they were charged under the Immigration offences.

MTUC has engaged the assistance of the Johor Bar Council to represent these workers.

Nevertheless we are deeply concerned with the bureaucracy that is taking place in amending the charge at the expense of these workers, who have been detained since Sept 9, 2014.

These workers did not take part in the industrial action as they were scheduled to return home after completing their contract with JCY.

MTUC is very concerned with the continuous lack of political will by the government in addressing the issues and concerns of migrant workers.

The Home Ministry should not shoot their mouth off without consulting all stakeholders especially when workers’ rights are adversely affected.

Internationally, Malaysia has been continuously criticised for forced labour practices especially as highlighted in the recent Verite report on the electronics industry. The government should no longer ignore this report.

MTUC urges the Human Resources Ministry to step in and take proactive measure in addressing these concerns.

MTUC urges the Human Resources Ministry not to delay any longer our proposal for a tripartite meeting to discuss JCY’s case.

N GOPAL KISHNAM is MTUC secretary-general.  -Malaysiakini, 21/11/2014

Factory in Kulai riots did no wrong, say police

PARLIAMENT Police have cleared JCY HDD Technology of any wrongdoing in their investigations into the massive Kulai factory riots involving hundreds of foreign workers that took place in August.

Deputy Home Minister Wan Junaidi Wan Jaafar told the Dewan Rakyat during Question Time today that the riots took place due to misunderstanding among the foreign workers themselves.

This is despite claims that the workers torched the factory as they were unhappy with the treatment from the employers.

"It was a misunderstanding among the workers, caused by the language barrier," Wan Junaidi (left) said in response to Teo Nie Ching (DAP-Kulai).

He denied that the riots involved 800 workers as alleged. Instead, he said, only 55 workers were guilty of being part of it.

"Fifty-two of them are Nepalese, two Bangladeshis, and one from Vietnam," he said.

Of that amount, 15 of them had been imprisoned for four months after being charged under Section 145 of the Penal Code and admitting their guilt.

Five were charged under the Immigration Act while another 35 were "chased" to their countries of origin, Wan Junaidi said.

"The fight took place because of misunderstanding among the workers and there is no element of mistreatment by the employers," he added. - Malaysiakini, 18/11/2014

Thursday, November 13, 2014

Unjust to compel Migrant Workers in Malaysia to pay higher rates for healthcare in government hospitals?

As it is foreigners, including migrant workers, are paying 1st class rates at hospitals - which is already too much especially for migrant workers. This policy and practice is not right since we are talking about healthcare. See Migrant Workers should not be charged 1st class rates at government hospitals in Malaysia

Wrong for Malaysia toeven further increase healthcare charges for foreigners - migrant workers? foreign spouse? students?

Migrant workers should only be paying normal rates just like any other worker. After all, are they not already helping the economy of Malaysia -  as workers. 

Further, there is annual LEVY collected for every migrant worker, which the employer naturally  pays since the object was also to 'deter' employers from hiring migrant workers. But alas, special permissions was given to some employers on their applications for them them to recover these levy monies (and sometimes other monies) from migrant workers themselves - usually by means of 'wage deductions' or 'advancements'. This unjust and unscrupulous practice after much complaints was finally stopped in April 2009.
The rationale behind getting employers to bear the levy was to discourage them from employing foreigners, he Labour Director-General Datuk Ismail Abdul Rahim] said.
- Bernama- Star, 16/4/2009, Employers can deduct levy from wages, again
But, then in  '...The Cabinet today decided that payment of foreign worker levy should be fully borne by the worker, and not the employer, with immediate effect....' - - BERNAMA, 30/1/2013,  Foreign Workers To Bear Levy Payment With Immediate Effect {See All workers entitled to Minimum Wages, that is Basic Wages - if employers can deduct levy, allowances, etc - Workers lose)

Why this shift in policy? Well, the employers complaint that they forking out more money if they are now required to pay migrant workers minimum wages...  This is so lame. It was even sadder that the obligation of payment of minimum wages by certain employers was delayed until 1/1/2014 - hence there would have been a case of discrimination at the workplace, when local workers were being paid at a higher rate compared to the fellow workers who were foreigner for doing the same work. Now, with the imposition of Levy Payment, obligation to pay premiums for that Foreign Workers Hospitalisation Insurance scheme, etc ... migrant workers, I would say, are being discriminated.

Well, many employers get their migrant workers to work long hours - even up to 12 hours per day far above international standard. Normal hours of work is 8 hours per day, but then the employers use overtime. Malaysia's law sets the overtime limit at 104 hours per month - and that allows employers to compel workers to work an additional 4 hours per day. This is draconian - since the limit a worker is required to work should not be more than 48 hours a week, and certainly no more than 60 hours a week (i.e. including 12 hours overtime). By international standards, the overtime limit should not exceed 48 hours a month - but Malaysia's limit is now 104 hours? The reality today, is that when an employer tells a worker that he has to work overtime, the worker really has no choice in the matter but has to work...  So, the employer's assertion that he has to pay so much more when he has to pay migrant workers minimum wages was also to linked to the much longer workers that his migrant workers were already working...

Sector levy per person/ year levy per person/ year (in RM)
  Peninsular Malaysia Sabah/ Sarawak/ Labuan
  Old New Old New
Manufacturing & Construction 1200 1250 960 1010
Plantation 540 590 540 590
Agriculture 360 410 360 410
Services in:
- Restaurant, Washing & Cleaning, Cargo Handling, Launderette, Caddy, Hair Dresser, Wholesale & Retail Business, Textile Business, Scrap and Used Metal 1800 1850 1440 1490
- Welfare Home 600 650 600 650
- Resort Island 1200 1250 960 1010
Domestic Maids
- First maid 360 410 360 410
- Second maid and so forth 540 590 540 590

(Note, the above rates are as per September 2011) 
Now, levy payments give the Malaysian government an annual revenue of more than RM2.5 billion - is that not enough to justify migrant workers FREE or at  least at the same rate as other Malaysian workers?  

Then, we also have social security legislations in place which is supposed to take care of healthcare of these workers - All medical and healthcare charges should already have been borne by the   Workmen’s Compensation Act 1952 (amended 1996) that now provides 24 hour coverage to the migrant worker. [For local workers, the have the Social Security Act (SOCSO)]. Now, this Act should be covering ALL the medical and healthcare cost of migrant workers - and if is is inadequate, then reasonably the government should have increased the Employer's contribution, noting that here unlike the SOCSO, where both employees and employers contribute monthly, only employers pay. Rightly, I believe, that both the migrant workers and employer should also be making similar contributions like the SOCSO and accorded similar benefits.

In any event, despite the fact that the Workmen Compensation Act 1952, covers all obligations of medical and healthcare charges, the government introduced Foreign Workers Hospitalisation and Surgical Insurance Scheme which started on 1/1/2011, whereby the premium was RM120 per year - whereby the obligation to pay is placed on the migrant worker, save for domestic workers and plantation workers sectors where here the employer pays these annual premium.

Malaysia can make foreigners pay higher rates for medical treatment - but really this should certainly not be imposed for the about 2.9 million migrant workers(documented) in Malaysia... 

What about people from ASEAN? Will they also be forced to pay this higher rates?

Published: Thursday November 13, 2014 MYT 12:00:00 AM
Updated: Thursday November 13, 2014 MYT 9:57:45 AM

Foreigners to pay medical treatment in full by 2017

FOREIGNERS will have to pay the full cost of medical treatment at government hospitals and clinics by 2017, says Health Minister Datuk Seri Dr S. Subramaniam.
He said this was following the Cabinet’s decision to remove the medical subsidy given to foreigners in phases beginning January.

“In the next three years, foreigners will be charged the full sum, meaning that the medical costs for foreigners next year will be increased by 30%.

“In 2016, it will be increased by another 30% and by 40% in 2017,” he said when responding to points raised in the Budget 2015 debate for the ministry.

Dr Subramaniam said by the end of 2017, foreigners will be paying 100% of the costs without any subsidy.

“This amount would be about twice the current fees,” he added.

Last year, Deputy Health Minister Datuk Seri Dr Hilmi Yahaya announced a plan to get foreigners, including students, to pay for their actual cost of medical treatment in government hospitals, and not at a subsidised rate.

Dr Subramaniam had said the plan required some amendments to the Fees Act (Medical) 1951 for Foreigners. - Star, 13/11/2013, Foreigners to pay medical treatment in full by 2017

Thursday, November 06, 2014

Should liability for workers of companies be extended to personal liability of Directors and owners?

The company suddenly closed its doors and workers, about over 500 migrant workers and other local workers, finds themselves with no job and income - and worse they seem to have not been paid for months.

Well, most likely this was a COMPANY - and, in such cases there is no personal liability on Directors or shareholders. The Directors surely knew the financial difficulties facing the company - but one wonders whether it had any impact of their allowances, the salaries of the upper management, etc ... Probably not. Now when in comes to companies taking Bank Loans, banks are smart and they insist on a personal guarantee from the Directors. What this means is that if there insufficient monies in the company to settle debts owed to the bank, the Bank can very easily go after these Directors for the balance.

Maybe, it is time for laws to be amended, so that when it comes to monies owing to workers including also necessary compensation for early termination of workers on fixed term contracts, these Directors will also be personally liable to these worker claims. 

Most of these people like the CEOs, Directors and owners may still be living happily with all their monies and wealth when their company goes down. Is this just? I think not - it is time for personal liability of all Directors, Shareholders and even CEOs (and upper management) for monies due to workers. 

For migrant workers, it is even worse - because they expend a lot of monies coming to Malaysia, and if they have to prematurely be forced to return to Malaysia especially before 3 years of employment - they may really be in a worse state of affairs. They come on the basis that they will be able to work for 3-5 years - so let's talk about compensation for remaining duration of their agreed period of work. 

What is Malaysia doing for these migrant workers? The Malaysian Immigration Department has the power to amend these worker passes to enable them to stay and work legally with another employer - this is what should be done for those workers at least for the remaining of period they had agreed to come to Malaysia to work with this factory. Ask the workers what they want. But alas, the solution now is to just send them back to their country of origin... 

Sending them back to their country of origin also ends their right to access to justice at the HR Department, etc - for all these channels demand the presence of the Claimant in Malaysia. Will they get more than this August and September pay? What about October? I am sure that the company would be owing them more - what about the balance? Will they get it...OR will it be 'out of Malaysia and forget about all the other claims..." Will the other monies due to the workers be remitted to them in the country of origin? Or they will just be cheated...out of their entitlements for work done...and for the breach of contract that arises by this 'shut down'...

Will these Directors, Owners and CEOs be 'blacklisted' - or have they already opened another company and are continuing to 'make money'? Partnerships and sole proprietors are different because there the owners have personal liability - and this will make them more responsible, I believe.

Worker solidarity - means sometimes coming forward and helping in times of need. As with flood and fire victims, people need to also step forward to help fellow workers fellow human beings through times of trouble and here MTUC and the Unions should have played a leading role.


Relief for hungry workers as they get paid

1 November 2014 By Alyaa Azhar

Foreign workers in Johor who had previously been unpaid and were in starving conditions have finally received their long overdue salaries.

Johor Malaysian Trade Union Congress (MTUC) migrant workers’ support centre coordinator Mohd Salleh Ahmad told Malaysiakini that the workers started receiving their pay yesterday.

The factory went into receivership on Oct 30.

However, the salaries, which were for the months of August and September, were paid by the receiver and not the factory owner.

The workers were abandoned when the furniture factory, located in Ledang, Johor, went bankrupt.

Penniless since August, they were forced to sell their personal belongings such as bicycles and motorbikes to buy food.

Mohd Salleh said the workers were told they will only receive their salaries and will not be compensated for what they had to sell to feed themselves.

He also told Malaysiakini the workers’ passports are still in the hands of the factory owner, under the supervision of the receiver, as they are worried that the employees will run away.

The workers, over 500 of them, will be sent back home in stages.

“After the receiver has paid all the workers in a week’s time, they will be sent back to their countries of origin,” he said.

Factory goes bust, 500 migrants abandoned

More than 500 factory migrant workers are now in a limbo because the factory that hired them has gone bankrupt and the owners are allegedly holding to their passports.
Johor Malaysian Trade Union Congress (MTUC) secretary Mohanandas Krishnan said that the furniture factory in Ledang, closed its operations on Oct 1, without any prior notice to the workers. 
“50 workers from Pakistan, more than 100 from Bangladesh, 40 from Myanmar, 300 from Nepal, 10 from Indonesia, 1 Sri Lankan and 50 Malaysians,” Mohanandas estimated there may be more than this in a statement. 
“The company did not pay the salary for the month of August and September to all the workers. On the 1.10.2014 the company closed its operation without notice. The workers demanded their unpaid salary from the employer but till to-date there is no answer from the employer. They also in the dark as to their status of employement,” said Mohanandas. 
One of the Bangladeshi migrant workers had lodged a police report at Grisek Police station.
“The migrant workers have no money to buy their daily meals. They even sold their posessions like bicycles, motorbikes, gas stoves and personal belongings so that they can get some money to buy food.
“Some of the workers were given the choice to work with other employers in different locations to which the workers refused,” said Mohanandas. 
MTUC said that workers fear the legal implication if they take the offer to work elsewhere, because the present employer is silent when asked on transfer status if they work for other employers.
“These workers are vulnerable to legal, social, welfare, health and mental conditions. Some of the workers’ permits have expired since 2.10.14. The employer has abandoned them in this undesirable condition.
Even when they were employed, MTUC said that the hostel the workers were housed in was cramped with more than 20 workers per house
“RM  50 per person deducted for the hostel and RM30 plus for electricity and water. Despite the monthly salary deduction of the electricity and water the water bill shows employer has  not paying the water bill which amounts to more than RM10,000.
“This causes concern what if the water and electricity is disconnected , it would worsen their conditions.
“The migrant workers’ passports are in the employers’ possession and some of the migrants’ permits already expired . What choice do they have now?
“The employer must take responsibility on the workers’ plight. Pay their arrears, sort out their permits and look into their welfare,” said Mohanandas, who appealed to the relevant authorities to expedite their efforts to sort out these migrants’ problems. - Malaysiakini, 13/10/2014, Factory goes bust, 500 migrants abandoned

Do Malaysian Union-Employer Collective Bargaining Agreement contain all these provisions respecting Freedom of Association?

The Freedom of Association Protocol supports the rights of women and men producing for global brands in Indonesia to join unions and bargain collectively for better working conditions making a change 

On June 7th 2011 an historic protocol on freedom of association was signed by Indonesian trade unions, employers and multinational sportswear brands including Adidas, Nike, Puma, Pentland, New Balance and Asics. The Freedom of Association protocol gives companies a practical set of guidelines on how to uphold and respect the rights of workers to join together to achieve decent pay and better working conditions. 

In Malaysia, does your own Collective Bargaining(CBA) agreement contains these rights of workers and unions? 

Freedom of Association Protocol, 7 June 2011 — English translation
1 Freedom of Association Protocol


The Parties recognise and affirm a  joint  commitment to uphold the right to freedom of association as part of the body of universal human rights.

The Parties recognise the  existence  of issues and problems in the implementation of freedom of association for workers in Indonesia  which impact  upon workers’ other rights.

The Parties recognise and are aware that as a result of the violations and problems that arise in the implementation of freedom of association,  it is not uncommon for union representatives and members to experience victimisation.

The Parties are aware that production processes have continually developed and have become  part  of  global  production  chains  involving  workers  and  companies  in numerous different nations.

The  Parties  recognise  the  need  for  fair  rules  of  play  in  conducting  business, especially regarding implementation of the right to freedom of association. For that reason,  it  is  very  important  that  there  is  joint  u nderstanding  and  commitment between  workers  and  companies  regarding  the  implementation  of  freedom  of association within industrial  relations.

The  Parties  acknowledge  that  a  commitment  to  uphold  the  right  to  freedom  of association requires  transparency and  accountability  between workers, suppliers and brands, which will in the long run be beneficial to all parties.

The Parties agree to uphold the right to freedom  of association  in accordance with the operation of Indonesia n  laws in the region where the compa ny operates,  as well as international laws.

To this end, the Parties agree as follows:



Article 1 


a.  The  parties  are  those  who  sign  this  protocol.  They  comprise  of  Unions, Brands and Suppliers.
b.  Workers are all those who carry out waged work.
c.  Suppliers are companies that provide goods or services to the brands.
d.  Brands are legal  persons  or entities  that  are registered as  owning  trademark rights.
e.  Unions are organisations formed from, by and for workers, whether within or outside  of companies,  with  the aim to promote,  defend and protect  workers’ rights  and  interests  as  well  as  to  increase  the  welfare  of  workers  and  their families.
f.   This protocol is  an agreement entered into  by the Parties concerning freedom of association.
g.  A  collective  bargaining  agreement  (CBA)  is an agreement  made  between a union  or several unions  that are  registered with the authority responsible for workplace  relations,  with  the  employer,  or  several  employers  or  an employers’ association and is legally binding  for those who create it.
h.  Company regulations are regulations made in written form by industrialists in all companies  that  produce brand goods and/or services in the total chain of  production in Indonesia, which cover work requirements and procedures.
i.   A code of conduct  is a  guideline for conduct which is made by brands to be implemented in suppliers.

Article 2

(1)  This protocol binds the parties in the matter of upholding the right to  freedom of association, in all companies which produce  brand goods and/or  services throughout supply  chains  in Indonesia. For the initial phase this protocol will apply to Suppliers that:
(i)  Produce finished goods for the Brands, and
(ii)  Have a direct legal manufacturing contract with the Brands, and
(iii)  Have  workplace auditing conducted by the Brand’s compliance team, or
(iv)  Have a system whereby all auditing of  Codes of Conduct  or  supplier company workplace standards are conducted by a third party auditor.

(2) Suppliers  have an  obligation  to  disseminate  the contents of this  protocol and encourage its  implementation  amongst sub-contractors in accordance with the  strategy  put  in  place  by  the  National  Level  Supervision  and  Dispute Resolution Committee.

Article 3
Protocol Application

(1)  The application of this Protocol does not negate the rights and responsibilities of  the  parties  as  prescribed  by  legislation,  codes  of  conduct,  and  other international  standards.
(2)  Parties are obligated to  implement this  Protocol in suppliers  covered by the scope  set forth by  Article 2 above, including both suppliers that have CBAs as well as those that do not.
(3)  In the event that  the CBA  conditions are inferior  to those in the Protocol, the Protocol shall prevail.
(4)  In the event that  the CBA conditions are  superior to those in the Protocol, the CBA shall prevail.
(5)  Suppliers  (see  Article  2,  ―Scope‖)  are  obliged  to  produce  CBAs  which encompass the provisions of this Protocol.
(6)  In the  event  that the company does not yet have a CBA but has a  union  or union members, the Protocol shall apply.
(7)  Brands  must  supervise  and  ensure  the  implementation  of  the  provisions within this article.



Article 4

Suppliers (in accordance with the scope as defined under Article 2, section 1, subsections (a) (b) (c) and (d) above) are obliged to implement  freedom of association
including,  inter alia:
1.  Give workers freedom to form unions within the company premises.

2.  Acknowledge the existence of the various unions in the company without discrimination.

3.  Not interfere  in any way with unions carrying out their organisational activities provided that these activities do not contravene protocol determinations, the CBA or other applicable  laws and regulations.

4.  Release  union  representatives  or  members  from  their  work  duties  for  the purpose of undertaking union organisational activities, with continued provision of all rights to which the particular worker is  normally entitled.

5.  A release  from duties  for union representatives and/or members as referred to in section (4) above  is to be given:
a.  Throughout the period of organisational leadership, and
b.  In accordance with a duty officers’ schedule, and/or
c.  From time to time as appropriate to union activities.

6.  Release  from  duties  as  intended  in  section  5  (a)  and   (b)  above  is  to  be implemented as follows:
a.  For unions with 10 – 500 members, at least 1 worker is to be released from duties along with at least 1 additional duty officer;
b.For unions with 501 – 1,000 members, at least 1 worker is to be released from duties along with at least 2 additional duty officers;
c.  For unions with 1,001 – 2,500 members, at least 1 worker is to be released from duties along with at least  3 additional duty officers;
d.For unions with 2,501 – 10,000 members, at least 2 worker is to be released from duties along w ith at least 3 additional duty officers;
e.  For unions with more than 10,001 members, the number to be released from duty should be negotiated internally between the union and the company but should not be  less than the number stated in 6 (d).

7.  Release from duties as defined  in  Article 4 section 5 (c) is to be applied to union representatives  and/or  members  who  obtain  a  mandate  to  implement  union activities with co-ordination and agreement from management, and  taking into consideration that this does not interfere with production processes.

8.  If regulations concerning release from duties in suppliers surpass the  provisions in this Protocol, then those previous  regulations still apply.

9.  Union representatives  who are released  from duties as intended  in  section 5  (a) must be placed back with the position and job title that they  originally  held, or an  equivalent  work  position,  within  seven  days  of  the  completion  of  their leadership period.

10.  There  must  be  no  intimidation  in  any  form  whatsoever,  including  demotions, transfers, wage reductions, criminalisation, provision of a work load outside of the  worker’s  capabilities,  suspension  or  sacking  of  members  and/or  union organisers,  perpetrated  against  union  members  or  representatives  undertaking organisational activities throughout the period of their leadership.

Article 5
(1)  Suppliers  shall  facilitate  the  implementation  of  union  activities  within  the company in such ways as:

a.  Unions may  make use of company meeting space if requested at least 3 days in advance provided that such a meeting space is available. For urgent needs, companies are obliged to provide a meeting room as long as such a room is available (and not in current use).

b.  Unions may  make use of communication facilities such as telephones, fax and internet within the company as long as such facilities are  available and in accordance with regulations and procedures as applies to other users within the company.

c.  Unions may  make use of company vehicles if requested 3 days in advance provided that such a vehicle is available. For urgent needs, the company can loan out a vehicle if such a vehicle is available on that day and not in current use.

d.  Unions may display their organisation’s flag at the same level with the national flag, the company flag and the workplace health and safety flag. 

e.  Unions may display a union signboard around the location of the union secretariat or in another place provided for such purposes within the company’s premises, such as beside the gates or an alternative strategic  and appropriate position where it is easily visible to others.

f.   Unions shall be given freedom to receive visitors from union organisations outside the company who are guests of the union in accordance with the regulations in effect within the factory.

g.  The company must assist in deducting union fees from the wages of union members every month and within a period of time jointly agreed upon or at the latest within 10 work days the amount must be given to the relevant union leader depending on the administration processes within the company.

h.  Wage deductions as intended in  subsection (g) are to be implemented upon receipt of a  letter of authorisation from the union  member. The letter of authorisation does not need to be officially stamped.
(2) a.  Suppliers are obliged to provide a space or room that is appropriate, hygienic and strategic within the company premises to be used as a union secretariat together with furnishings to support the union’s activities, including two sets of desks and desk chairs, filing cabinets or cupboards and a table and chairs  for guests.
b.  In the case that the company is limited in its ability to  provide  for the above facilities and fittings, then the company is obligated to  make a refurbishment plan with the union’s agreement within a timeframe of 6 months.

(3) Suppliers have the obligation to support and facilitate union  activities during working hours including:

a.  Routine scheduled meetings, such as meetings between union representatives, as well as between union representatives and members.

b.  Ad hoc meetings as may be required, both between union representatives and between union representatives and members, providing three days’ prior notice to the company.

c.  Union educational activities, both scheduled and unscheduled, providing three days’ prior notice to the company.

(4) Suppliers have the obligation to support and facilitate union  activities outside the company premises, including:

a.  Attendance at both routine and occasional discussions and  meetings, with organisational officials, both at company level or affiliates, with three days’ prior notice.

b.  Attendance at seminars or education from union organisations, affiliates, other connected organisations, and/or government agencies.

Article 6

(1)  Companies and unions  have the obligation to produce a Collective Bargaining Agreement (CBA) within a time frame of not more than six months after the formation of a union in accordance with applicable legal requirements.

(2)  In negotiating a CBA, Unions and Companies shall  adhere to the following:

a.  Companies shall  not reject an invitation from unions to negotiate to produce or renew an agreement.
b.Companies  shall  not  undertake  any  form  of  intimidation  against  the  union delegates in the CBA negotiating team.
c.  During CBA  negotiations, union delegates  in the negotiation team  are to be relieved  of  their  daily  work  load  in  accordance  with  a  jointly  agreed  upon schedule.
d.During CBA  negotiations, union delegates  in the negotiating team  are to be given  freedom  to  carry  out  surveys  so  as  to  gather  data  to  support  the negotiations.
e.  The  negotiating  team  must  be  given  access  to  information  concerning company conditions so as to obtain supportive data, as far as that access  does not breach  confidentiality  provisions as provided by  law or by contract with a third party.

Article 7
(1) Suppliers are forbidden to impede in any way the distribution of information by unions.

(2) The distribution of  information mentioned in section (1)  is to be  be carried out, inter alia, as follows:

a.  Unions  can  freely  attach  information  to  public  notice  boards.  Prior  permission from the company is not required but copies of the information may  be provided.

b.   Information distributed must not contravene applicable regulations or laws.

(3)a.  Suppliers have an obligation to provide announcement boards specifically for union information, with a minimum of one board situated in a strategic public space, such as the canteen, the employee rest area or another location used by the company to place announcements or information for employees. If there is more than one union, then arrangements should be made between those unions.

b.  If there is a greater need for announcement boards (there is a large number of employees and / or the location is large), then the union is permitted to use existing information board facilities that  are specifically for employees  following the stipulations contained in Section 2(a) and 2(b) above and with agreement between other unions (where there is more than one union).


Article 8

(1)  To  supervise  implementation  of  this  FOA  Protocol,  the  parties  are  obligated  to form  an  FOA  Protocol  Supervision  and  Dispute  Settlement  Committee  no  later than 90 working days after the signing of this Protocol. 

(2)  FOA  Protocol  Supervision  and  Dispute  Settlement  Committees  will  be established at company and national levels.

(3)  The  FOA  Protocol  Supervision  and  Dispute  Settlement  Committees  at  the company  level  will  have  members  from  company  level  unions  and  company management.

(4)  The FOA Protocol Supervision and Dispute Settlement Committee at the  national level  will  have  members  from  national  level  unions,  Non-Government Organisations, Brands and Suppliers.

(5)  The Standard Operational Procedures of the FOA Protocol Supervision and Dispute Settlement Committee will be determined within 90 working days after the formation of the Committee as intended in section (1).

Article 9

(1)  Violations of the determinations in this protocol constitute actions that infringe freedom of association and redress may be sought  in accordance with legislation, Codes of Conduct and other international regulations .

(2)  Efforts should be made to resolve violations via consensus building deliberations. If these deliberations do not reach a consensus then the dispute should be resolved with reference to legal regulations. If a dispute concerning an  infringement cannot be resolved via such negotiations, then the matter should be referred to a court of law.


Article 10

1.The language used in this Protocol is Bahasa Indonesia.
2. In  the  case  that  a  problem  arises  in  the  interpretation  of  a  Protocol  that  has been translated into another language, then the interpretation should refer to the  Protocol in Bahasa Indonesia.

Article 11
Amendments of Regulations

In the instance where freedom of association conditions  in a company  are better than the  provisions  set out in this protocol, then those pre-existing  provisions  continue to operate.

Article 12
Concluding Determinations

1.  This Protocol shall be effective from the signing thereof by the Parties.
2.  This Protocol is open for signature by other parties that are prepared to adopt the Protocol provisions.
3.  The procedure to become  a signatory as intended in  section (2) is by making a written statement which  is presented to the  National  Level  FOA Protocol Supervision and Dispute Settlement Committee.
4.   Other  matters  which  are  yet  to  be  agreed  upon  in  the  first  stage  of  negotiations by the FOA  Committee  will be revisited and renegotiated  in the second stage of negotiations 12 months after the FOA Protocol takes effect.

Codified in Jakarta, 7 July 2011.


Article 1 (a)
With consideration to the large number of suppliers, a letter of acknowledgement will be created as an appendix for signature by the suppliers who adopt this Protocol.

Article 3 (2)

[In response to question: only a small proportion of suppliers have been directly involved in protocol negotiations, so how can  it be effectively socialised?]

At initial stages a limited number of supplier companies were involved in the negation and signing of this protocol. For this reason parties who are signatories of this Protocol are tasked with its socialis ation and to invite other suppliers, brands and unions to sign the protocol.

Where a union who has not signed the Protocol considers that the regulations in their collective bargaining agreement are more favourable than the regulations in this Protocol, the union can choose between their collective bargaining agreement and the Protocol.

Additionally, where a union has not signed the Protocol, suppliers and brands who have signed will remain bound by all the protocol regulations which are nonreciprocal in nature. In fact, many supplier factories producing brand goods do not yet have workplace unions. Provided that suppliers have signed the protocol with the brands, its implementation should not be effected by the absence of a union. For instance, brands are still obliged to conduct monitoring on the implementation of the Protocol.Where the union hasn’t signed the Protocol its regulations still apply as long as they relate to the obligations of brands or suppliers. This includes  workplaces where only one party has signed, in which case that the signatory becomes responsible for socialising the Protocol that amongst other unions, suppliers or brands.The parties have had the experience that the establishment of unions is frequently impeded, with many union leaders or members experiencing criminalisation. These experiences have provided the rationale  for this particular provision.

This provision is intended to ensure that brands take responsibility in protecting freedom of association.

Article 3 (3)
In the case that the union of a company prefers the provisions in the collective bargaining agreement, than the union can choose between the protocol and the collective bargaining agreement provisions.

Art i cle 3 (4)

The Supervision and Dispute Settlement Committee will determine whether a provi si on  in the Protocol   is superi or or inferior to a provisi on  in a CBA.

Article 3 (5)
In the case where a uni on who has  not si gned the protocol  considers that the provi si ons regulated under the CBA are superi or to those in the Protocol , then the uni on can choose which determinat i ons will   be governed  by the CBA and the Protocol .

Article 4 (5) (b)

Unions are obliged to hand over the duty officers’ schedule (which  is  based on a rotation system) to supplier company management pri or to implementation, so that the supplier company management can  inform the  relevant section.

Article 4 (5) (c)

Refer to the implementation of Article 5 subsections (3) (b) and (c) as well as subsections (4) (a) and (b).

Article 4 (6)

The union representative released is decided upon by the relevant trade union. Duty officers are union representatives who takes turns at working in the secretariat to carry out union activities.

Article 4 (7)

Provided this does not interfere with production processes in terms of avoiding work position vacancies.

Article 4 (10)

Outside the context of carrying out organisational  activities as provided for under freedom of association, union representatives may still be subject to disciplinary actions if they violate company regulations or laws.

The definition of criminalisation  in this provision is in reference to the situation where reports are made to legal authorities against union representatives or members on the basis of their union activities.

Article 5 (1) (a)

Routine union meeting schedules are to be submitted to suppliers.

Article 5 (1) (c)

Suppliers are obliged to loan out a vehicle if there is one provided and it is not in current use.

Article 5 (1) (e)
This provision is based on the principle of fairness.

Article 5 (3)
This provision applies to the improvements of secretariat facilities which fall under the responsibility of suppliers.

Article 5(4)
To support and facilitate refers to giving permission or dispensations and the provision of facilities including a secretariat, the loan of vehicles and so on, as provided for within this Protocol.

Article 6 (1)
The creation of a collective bargaining agreement does not depend upon the number of unions as per the 115/PUU-VII/2009 Constitutional Court decision.

Article 7 (1)
Information as referred to in this provision  must not conflict with applicable legal regulations.

Article 8 (1)
The committee only handle cases which are in accordance with the criteria in the Supervision and Dispute Settlement Committee Standard Operational Procedures which will be later discussed and reconciled with the implementation of this protocol.

Article 8 (2)
Brands are not included in the company level Supervision and Dispute Settlement Committees.

Article 8 (5)
The scope and criteria for disputes to be resolved by the Supervision and Dispute Settlement Committee will be clarified in the Supervision and Dispute Settlement Committee Standard Operational Procedures which will which will be later discussed and reconciled with the implementation of this protocol.

Article 9 (2)
The consensus building deliberations referred to in this provision are bipartite negotiations at the supplier level.

Letter of Acknowledgement

Herewith the parties sign the Freedom of Association Protocol Jakarta, June 7th 2011.
William Anderson
Head of Asia Pacific Social & Environmental Affairs - adidas Group
Elly Rosita Silaban
President of GARTEKS KSBSI
Amanda Tucker
Sustainable Manufacturing Performance Director - Nike Inc.
Rudi HB. Daman
Chair Person of GSBI
Dr. Reiner Hengstmann
Global Director, SAFE Supply Chain –PUMA
Lilis Mahmudah
Head of Program Division on behalf of Chairman of SPN
Lilian Kuo
Vice President, PT Nikomas Gemilang 

General Secretary of KASBI

Sebastianus Yeo
HR Director, PT Panarub Industry

Franky Tan
Secretary on behalf of the Chairman of FSP TSK

Steven Hung
Deputy GM, PT Tuntex Garment Indonesia

HR Director, PT Adis Dimension Footwear

Lack of action by relevant authorities DETERS concerned citizens from lodging complaints or bringing to attention suspected wrong-doings?

Is it not odd that a Developer is granted permission to build houses right up to the boundary of their property? Normally, there is a requirement to leave 15 ft or 20 ft from the boundary, is there not? Normally in an housing development, is there not a requirement is that there is a road and a drain in the said property? So, if the developer is building houses right up to the boundary, with no roads and drains on his own property (on the property of the owner of the land), can one assume that something is amiss?

Adjacent to the said property is government land reserve for road, that is adjacent a kampung road beginning from the main road and going on for more than a kilometer of the road. Now the housing development has been approved right in the middle of a kampung. Oddly, the government authority has 'given' the road reserve land or approved that the developer use and build roads here, but only for the portion adjacent to the housing development and for a short distance exiting to some nearby housing estate, i.e. not building the road all the way up to the mainroad(which will mean extending the width of the kampung road? And now, it seems like since he has been allowed to used the 'road reserve', he may be building houses right to the boundary of the property - maybe no roads/drains/fences that separates the Taman from the new extended road. Was this approved? The Local Council says yes this was approved?

But, the question is why? Was there some 'wrongdoing' here? Logically, I would have expected if one of the conditions was for the Developer to use the road reserve land and expand the existing kampung road, it rightly should have been logically to do so for the entire road or maybe just from the road adjacent to this future Taman right up to the junction of the main road. 

Before any big development project like this, we used to have a Notice Board inviting comments and objections from the people before the approval was granted. There would also be a public hearing allowing objectors and supporters to voice their opinions to the Local Council - but there was no such notice board before the approval was granted. Some say the law has changed and the right to object is now only given to people owning adjacent Lots - but alas, people in the kampung even the ones having ownership of lots beside it was not given this right. Was it because of the government 'road reserve' - hence Lots adjacent were no more lots adjacent because of the government road reserve - hence only the government had the right to object? Questions...questions,,,

The law governing such matters as this must all be available online on the Local Council websites - so people will know their rights when it comes to development projects. In fact, all relevant laws must be available online.

I had my suspicions, and I send a letter with all my concerns to the Local Council dated 2nd August 2014, and also by email attachment on around the same day. The receipt of the letter was acknowledged - but to date, I have yet to receive a reply by post, or a reply by email. I have been requesting for a reply - and a few weeks ago, they said that a letter is ready and will be sent to me....and till this day, almost 3 months later no letter - no letter attached to email. 

Have I wasted my time raising these concerns and suspected wrongdoings to the relevant authority - The Local Council and the District Office? Such lackadaisical and slowness will only DETER people from bringing to the attention wrongdoings and suspected breaches of the law.

Then, I saw people digging into the road reserve and transporting away lorry load of soil - possibly for sale. It was government land - how could they do it? Further, there was no logic in digging and removing soil since naturally roads should be higher than the Taman - what should have been happening was the raising of the level of the said land. When the tractor was there and lorry was carting away soil, I called 911 - the police came and saw - but alas since then nothing seems to have been done. They did not even take pictures or identity details of the alleged perpetrators... 


Speedy response to all complaints and persons who highlight possible wrongdoings - speedy investigation - send back the complainant a letter addressing each and every concerns - the findings and what will be done if it was alleged wrongdoings.

All laws applicable should be made available on the websites of the Local Council - procedures in obtaining approvals must also be there - including rights of objections.

Notice Board inviting objections and concerns of the people is the best way - it should be placed, and this right of the people need to be restored. Approval shall only be granted after all the objections/concerns of the people are taken into consideration.

911 - when the police responds to such calls, and if it concerns any possible wrong doing or crime, then the police must immediately make a police report and commence investigation. There should be no need for the people to go again to the Balai and make a further police report. Now, in this case, it is the allegation of encroachment and soil theft from government or State land, police who came must lodge the report and investigation must proceed. People, if it was their own property or being being violated may want to go make their own police report - but alas when it is just government property - they have done their part by calling and informing the police...