KUCHING, March 18: Malaysian Trade Union Congress (MTUC) has criticised irresponsible employers which were not part of the ‘essential services’ for breaching the Movement Control Order by forcing workers to work as usual.
MTUC secretary-general J. Solomon, in a statement today, claimed that some employers even barter trade workers for unpaid leave and reducing their annual leave or off days.
“These employers are attempting to claim that the Order is a situation of ‘force majeure’ which refers to events that happened outside the reasonable control of a party which then prevents that party from performing its obligations under a contract.
“However, force majeure is by and large applicable for commercial contracts and not social employment contracts because force mejeure must have clearly drawn up terms and conditions in a contract. If there are no such terms and conditions, then the employer cannot rely on force mejeure,” he asserted.
The employer also cannot relied on the doctrine of frustration of contract, Solomon added, because this doctrine relied on the conscious and deliberate refusal by the employer to provide work to the worker where the worker has the option to either stay in the contract without work and continue to receive his or her salary or the worker has the right to go on constructive dismissal.
He explained that where there was deliberate and conscious refusal by the worker to complete the work provided by the employer, then the employer can dismiss the worker for frustration of contract.
However, he said this was not the case for the Order and thus the doctrine of frustration of contract cannot be used here.
“The employer also cannot rely on termination and lay-off benefits because the Order is not a situation where the employer does not provide work to the worker for at least 12 normal working days within four consecutive weeks.
“Instead, this is a situation where the employer is ordered by government to close its business for health and safety reasons. Therefore, the employer cannot rely on that term to terminate workers.
“Therefore, strictly, there should not be any salary deduction or repayment by doing overtime for free, deduction of annual leave or off day in view of the 14 days compulsory closure of business in view of the Order to contain the coronavirus and sustain the lives of Malaysians,” he stressed.
Solomon also reminded employers that it was crucial for the later to exhibit acts of patriotism amid the Covid-19 Order.
He warned that those who did not comply with the Order will face prosecution under the Prevention and Control of Infection Diseases Act 1988 (PCIDA) and the Police Act 1967 (PA) and upon conviction, face a fine and or imprisonment for a term not exceeding two years for breaching the Order.
“It is a moral obligation for the private sector employers who are not in the essential services to close from March 18 to 31 in order to assist the government to contain the deadly Covid-19.
“The faster they (employer) comply, the faster we will be able to move on. Otherwise, their actions will only be construed as a subversion or sabotaging the noble initiative of the government to keep Malaysians and their families afloat in this global crisis,” he said.
MTUC strongly urged employers not to take advantage of the vulnerable workers in order to protect their profits at the expense of extreme hardship caused to workers during this globally tragic and difficult moment when they were in dire need of help and empathy who have already started losing overtime income and commissions.
Solomon emphasised that workers should be treated like partners and the employers should complement government efforts to maintain social security and harmony.
Meanwhile, MTUC lauded all the hard working frontliners such as the health services, banking, security services and many others in the essential services who have been working hard to protect the lives of people, in multifaceted ways.— DayakDaily
