THE Malaysia Trades Union Congress (MTUC) has urged the Government to end outsourcing of work exercise conducted by several companies, claiming it deprives workers of their rights.
“Outsourcing jobs and services, not only in the banking and financial sectors but elsewhere, is against the basic principles of security of employment.
“The outrage, by the National Union of Bank Employees (Nube) with regards to the outsourcing exercise by HSBC, being a case for concern.
“We are of the view that it is immoral for employers to deprive workers of their constitutional and contractual right to tenure of employment,” its Penang MTUC chapter secretary K Veeriah told FocusM.
In November last year, HSBC Bank Malaysia Bhd assured the public that it will not be retrenching employees following its decision to outsource bank functions to India, Sri Lanka and vendors within the country, in a move that triggered criticism from Nube.
On the global scale, HSBC announced on June 17 that it was resuming a redundancy plan it put on ice after the COVID-19 outbreak, and will cut around 35,000 jobs over the medium term.
The bank will also maintain a freeze on almost all external recruitment, its chief executive Noel Quinn said a memo sent to HSBC’s 235,000 staff worldwide.
“We could not pause the job losses indefinitely — it was always a question of ‘not if, but when’.
“Impacted employees who decide not to apply for the voluntary separation scheme will be provided with alternative employment options,” he was reported saying.
Veeriah noted that when a staff enters into an employment contract with an employer, it is explicitly done so on the basis that both parties agree to the terms of the said contract.
He added that the contract cannot be, unilaterally, varied or breached by either party.
“A contract of employment is premised upon the employer’s obligation to guarantee security of tenure unless, and until, there occurs a breach of the essential terms of the contract on the part of the staff.
“In such instances, the employer can proceed to institute appropriate course of action subject always to the principles of equity, good conscience and the substantial merits of the case,” Veeriah said.
Employers use loopholes to get away
On the reverse side, the MTUC leader said where an employer breaches the contract, the employee has an option to seek redress to the breach though the existing labour legislations, adding it did not provide adequate support on the matter.
“In a worst case scenario, where an employer’s actions destroy the root of the contract, an aggrieved employee has the choice of putting the employer on notice of a plea of ‘constructive dismissal’.
“However, we have to emphasise that, such a plea is not an easy passage, as it places the burden of proof on the worker and is fraught with many a legal challenge,” said Veeriah.
Veeriah said that many unscrupulous employers have taken advantage of the loophole to devise schemes to deprive workers of their constitutional right to employment, citing so-called prerogative to reorganise their operations.
“To absolve themselves from the basic tenets of the employment contract entered between them and the staff, they seek refuge under the guise of voluntary or mutual separation offers to entice workers to leave on their own accord.
“In the process, employers sought immunity from a challenge to a claim of unfair dismissal, pursuant to Section 20(1) of the Industrial Relations Act, 1967,” he said.
Veeriah opined that outsourcing jobs and services also fall under the category, of which staff are played out with the employer breaching the contract of employment.
“If an employer, contrary to enticing workers to accept a voluntary or mutual separation scheme, has the gall to retrench workers on account of an outsourcing exercise, they should be prepared to face their actions tested before the Industrial Court,” he added. – Dec 31, 2020.
