Background of alleged violations at Asahi Kosei and retaliatory lawsuit
Despite being notified about these serious developments affecting workers, who are working at Asahi Kosei, the company took no action to hinder them. Instead, AsahiKosei has filed a three-million dollar defamation lawsuit against a lawyer and humanrights defender – Mr. Charles Hector in retaliation for notifying the company and thepublic about the ongoing concerns of serious human rights violations in defense forthese workers’ rights.Mr.Charles Hector is a Malaysian lawyer. He has previously been a member of theMalaysian Bar Council. For many years, Mr. Hector has represented workers,migrants in various cases. Mr. Hector runs a blog, which details many of the abusesthat migrant workers are facing, and he advocates for legal changes to improve thesituation of the several million migrant workers in Malaysia. After having received the complaint from the workers, Mr. Hector proceeded tocommunicate to Asahi Kosei on February 8, 9, 2011 to seek the clarification fromcompany on all alleged threats of terminations and deportations of workers, urgingthe company to ensure that the Burmese workers rights were respected. When hereceived no reply from the company, Mr. Hector began to document the allegationson his blog and advocate for protection of the 31 workers in general and the workersfacing immediate deportation in particular. It has been previously documented that when migrant workers begin to exercise their rights they face immediate deportation back the country of origin. For instance three workers at Sinometal were sent back toBurma on January 19, 2011 after they had protested their working conditions.
The source of the Information was the affected migrant workers from Burma. Beforeany posting, an email was sent to Asahi Kosei, giving the company the opportunity torespond to the allegations of the workers, which contained also the words, “If thereare anything that you would like to correct, kindly revert to me immediately. …Anurgent response would be appreciated. Failing to hear from you, I would take it thatthe allegations of the workers are true.”The company did not respond, and subsequently commenced a legal suit 6 days lateron 14/2/2011. The company’s main argument is that the said workers are not their workers, but are workers supplied by an ‘outsourcing agent’, and as such they are notresponsible for the said workers. Asahi Kosei said that “all payments of salaries wereduly paid to the said agent as per their agreement”. The workers, they said were notunder their direct payroll. Asahi Kosei tries to avoid employment relationship with workers working at their factories under their control and supervision, using thetools of the factory producing the products of the factory. They claim they have noresponsibility to these workers, even when information that these worker’s rights are being violated comes to their notice.This avoidance of employment relationships, and responsibility to workers who are working in the factory have been frowned upon by human rights and worker rightsadvocates, and today even the International Labour Organisations(ILO) is of a
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similar position, and has come out with Guidelines and Recommendations towardsending such avoidance of an employment relationship by some companies.
Note also that there have been discussions, Government studies and even JapaneseCourt decisions on the said subject, and in brief the court will actually look at thefacts of the case – not just the words of any contract. The Japanese courts have judged that there exits an employment relationship when the actual work circumstance lends itself to an employment relationship regardless of the provisionsof the contract
who actually hands over the salary is also less important, comparedto who really you work for, and where you work producing whose products under whose control and supervision, and all this factors, when considered clearly showsthat Asahi Kosei is indeed the employer and is responsible for the said 31 migrant workers. When informed about violations affecting these workers, the proper causeof action was to investigate and respond accordingly to ensure that injustice and violations end and the workers get justice, not going after the Human RightsDefender that highlighted these violations.It must also be pointed out that in Malaysia; these practices are against current law.Malaysian law does not allow for ‘contractors of labour’ who can supply to principalslike Asahi Kosei. Workers could be obtained through private employment agencies,created and regulated by the Private Employment Agencies Act, but sadly these‘outsourcing agents’ which Asahi Kosei got these workers from are not privateemployment agencies. Hence, the only thing that could be are really agents of AsahiKosei – and as such Asahi Kosei is certainly liable for the actions of their agents, andall the said 31 migrant workers are employees of Asahi Kosei.In Malaysia, being migrant workers, the employer’s responsibility extends beyond working hours, to include all the time the workers are in Malaysia. They also have to be responsible for board and lodging, including the general security and welfare of these workers.Some of the complaints/grievances of these 31 workers, and the anti-justiceresponses that have visited them, that have been highlighted include:-a)Non-payment of wages, as what was agreed when the migrant workers agreedto come to Malaysia to work for Asahi Kosei; b)Wrongful Deduction from Wages, where deductions permissible are all statedin law, and these wrongful deductions include RM50 for accommodation,RM50 penalty for a days absence(when they already do not get paid wages forthe day, where normal wages is about RM20), and several other deductionsc)Forcibly trying to immediately send back 2 of the migrant workers on7/2/2011 to Burma, without even trying to resolve matters or using availablelegal avenues of access of justice.d)Depriving the workers who raised grievances of cooking utensils, electricity and even accommodation,
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See THE EMPLOYMENT RELATIONSHIP: An annotated guide to ILO Recommendation No. 198(http://www.ilo.org/public/libdoc/ilo/2007/107B09_141_engl.pdf
), the said ILO Recommendation No. 198 is also annexed tothis document]
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(SAGA TV Case: Fukuoka High Court Judgment 7 July 1983, Hanrei Jiho No.1084, p.126; SEN-EI Case: Saga District CourtTakeo Branch Judgment 28 March 1997, Rodo Hanrei No.719, p.38).
e)Taking away of another 2 other workers to be processed to be send back toBurma on or about 9/2/2011 and 10/2/2011, when they refused to agree to thenew ‘agreement’, when these 2 were workers that did go to the NationalHuman Rights Commission and Labour Department to lodge complaints on behalf of the 31. We would also like to refer to the code of conduct of the Electronics Industry Citizenship Coalition EICC, which calls “to uphold the human rights of workers andto treat them with dignity” and refers to Universal Declaration of Human Rights andInternational Labour Standards. In particular, we would like to stress that it has become internationally recognized that a company is responsible for the workers who work in its production sites, even if they are not directly employed but hired throughan employment agency. Asahi Kosei (M) Sdn Bhd, a subsidiary of Asahi Kosei Japan Co. Ltd., which makesDie-Cast Aluminium Parts for HDD(Computer Parts), VTR, and Automotive partsfor different well know Japanese brands
and international brands, most (if not all),including Hitachi as an example, have codes of conduct that imposes obligations toensure protection of human rights and worker rights, including anti discriminationnot just with regard to workers in Asahi Kosei factory – but also workers incompanies that supply Asahi Kosei the requirements for what ismanufactured/produced in Asahi Kosei.The most recent
“Guiding Principles on Business and Human Rights:Implementing the United Nations “Protect, Respect and Remedy
”Framework by the Special Representative of the UN Secretary- General on the issueof human rights and transnational corporations and other business enterprises, which was accepted by the Human Rights Council, also clearly recognized the humanrights defender and their rights. As such the commencement and the continuation of a legal action against Human Rights Defender by this Japanese company isdeplorable and contrary to universal human rights standards, and certainly againstthe promotion and protection of rights.It is sad that some companies with declared Code of Conducts and Standards areseen to be hypocrites by reason of their continued association with companies where worker and human rights have been violated, and after five months, Human RightsDefender Charles Hector is still facing a trial, that is now fixed for thecommencement of full trial at the end of August 2011.It must be pointed out that the worst violation by Asahi Kosei, has been thethreatening, commencing and still continuing the legal action claiming USD3.2million against Human Rights Defender, Charles Hector – and this has resulted inmany calls from various quarters for the immediate withdrawal of the suit, and that Asahi Kosei focuses its attention in trying to ensure justice for the said 31 migrant workers.
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Hitachi Ltd Automotive Systems, Hitachi Seisakusho, Denso(Toyota), Kawasaki Heavy Industry, Hitachi(Thai), Modenas ,Seiko Instrument, Hitachi Global Storage, Matsushita Kotobuki, Matsushita Electronics, Toshiba, Maxtor, Seiko Epson,Kanematsu Device, Sony, Hitachi, Matsushita, JVC, Mitsubishi Electric, Philips, Sharp, Sanyo, Toshiba, Thomson, Yaskawaand Hitachi Mexico.
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