They are like regular workers, required to clock in for regular 'office hours' even when they don't have any work. Yet, these people don't get the benefits a normal worker would. MARC LOURDES has the who and the why
They work for big companies, transporting goods and people around the country.
Yet, many of the thousands of drivers around the country, including hauliers, tanker drivers, airport limousine chauffeurs and car transporters, are denied the same basic benefits that almost every other worker in Malaysia enjoys.
The reason? They are officially classified as "contractors" and "entrepreneurs", instead of "workers".
While regular workers are given a contract of service (COS) upon employment, this unfortunate lot are given a contract for service (CFS) instead.
"A COS is a typical employment contract. It includes certain benefits to the employee, like EPF and Socso contributions and ensures that salaries are paid in a timely manner. Employees are protected under the Employment Act 1955.
"However, a CFS is issued when the law distinguishes a typical employer/employee relationship from an independent contractor, like your air-conditioning unit serviceman or neighbourhood grass-cutter, for example," says labour lawyer V. K. Raj.
He says a CFS means none of the benefits and protection under the Employment and Industrial Relations Act apply.
Raj says lumping industrial drivers under a CFS does not make sense because all the elements in their contracts indicate that the worker merely carries out the duty of "driving" for his employer.
"Unlike a genuine independent contractor, he does not bring his own vehicle or his own tools, and only presents himself for work.
"This is exactly the same as a company hiring a driver for its chairman or managing director."
Examples of drivers who are independent contractors, he says are the one-tonne lorry owners whom we hire to help us move house.
When the New Straits Times showed copies of several typical contracts drivers are made to sign, he immediately pointed out several glaring inconsistencies in the documents.
"Some of these contracts use the word usahawan (entrepreneur) to suggest these men are not employees," he says, before whipping out a copy of the New Shorter Oxford English Dictionary and pointing out that "entrepreneur" is defined as "a person who undertakes or controls a business or enterprise and bears the risk of profit and loss".
"Those who drive these vehicles don't control the business and neither do they bear any risk of profit or loss. The driver gets a fixed amount. So, how can you call him an entrepreneur? It's unacceptable.
"What these companies are doing is wrong. It's unfair and deceptive but, unfortunately, still a contract.
"The companies are trying to avoid giving benefits by classifying a driver under a CFS. The contract is worded to expressly say so and people sign it without knowing."
Raj says drivers, if they know their rights, could insist on their benefits, especially the Socso disability insurance which is crucial in their line of work.
However, he says, resolving this problem does not come down to drivers alone.
According to him, the authorities should be taking a closer look at the matter and hauling up companies that are skirting the issue.
"I feel the authorities who do not do anything about the problem are as guilty as the perpetrating companies."
Malaysian Trades Union Congress (MTUC) vice-president A. Balasubramaniam does not mince his words either.
"It's unethical. The vehicles belong to the company and these men merely drive them. The companies are hoodwinking gullible workers to get an unfair benefit."
Balasubramaniam says MTUC first heard about cases like these three years ago.
Since then, he adds, it has been getting a steady stream of drivers complaining about their rotten deals.
"We have had about 40 complaints this year alone."
He says most complainants earn about RM1,600 a month.
Though their working hours are not set, making it seem like they are independent contractors, it is made compulsory that they report to work every day.
In fact, the company can immediately terminate a driver who does not come to work for three days continuously.
"We shouldn't be allowing such unfair practices to take place. The Human Resources Ministry should intervene in the matter as this makes a mockery of employment laws."
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