Criminal Case for unfair labour practice or/and antiunion discrimination

According to the Industrial Relations Act, no one is allowed to interfere, restrain, or coerce you from exercising your rights, to form and join a trade union and participate in its lawful activities. The employer is prohibited from dismissing or threatening to dismiss workers due to the latter’s participation in the trade union. If your employer engages in retaliatory and malicious activity because he is annoyed of your membership to the trade union, this might amount to unfair labour practice or/and antiunion discrimination, which are both illegal under the Industrial Relations act. For both of them, you can pursue a criminal remedy or civil redress.

If the actions of an unknown person amount to unfair labour practise or/and anti-union discrimination, you should file a criminal complaint under Section 59 of the Industrial Relations Act to the Magistrates Court. The Magistrate, after relevant inquiry, should order the police station to initiate an investigation. If the Magistrate dismissed the complaint and does not order an investigation, then he/she has to record the reasons for that.

Filing a criminal complaint under Section 59 of the Industrial Relations Act precludes the jurisdiction of the Industrial Court to inquire into a civil complaint.

Who is responsible for the offence against you? 

The responsibility for the offence against you lies with the person who perpetrated it.

Beyond the specific person, the business entity can also be brought before criminal courts, if the act of a specific businessperson can be imputed to the business entity and provided that the specific circumstances of your case so allow. This is because the Penal Code provides that every “person shall be liable to punishment under this Code” and Section 11 defines “person” to include “any Company or Association or      body of persons, whether incorporated or not.” Therefore, in theory, business entities can be prosecuted for offences with the exception of those that can only be committed by a human being (such as rape). However, practice is not so clear, unless the offence concerns corruption or environmental offences.

Lastly, you should be aware that the manager or director of a company can usually be held liable for the wrongdoings of the company, depending on the specificities stipulated in each respective law.

What can you expect? 

The authorities will investigate your case, interview witnesses and suspects and might ask you to give further statements. If there is enough evidence, the investigation officer will bring the case before the Deputy Public Prosecutor to decide on the charges. If there is not enough evidence the case will be closed. If the Prosecutor presses charges, the case will go on to the ,trial stage. The court will hear the prosecution’s case, examine the accused, and allow him to present their case. Then, it will make its judgment, either convicting the accused, if the case was proven beyond a reasonable doubt or acquitting him/her for lack of evidence. The burden of proving the case lies with the prosecutor.

What if you are not satisfied with the outcome? 

As a victim, you are not allowed to file an appeal if you are not satisfied with the judgment of the court. This is a right of the prosecution and the accused. The only case that you might be allowed to file for appeal is if you have launched a private prosecution.

What is the Victim’s Impact Statement? 

As a victim of the offence, you have the right to appear in court and participate in the criminal trial, by giving a statement on the impact that the offence had on you or your family, such as trauma or harm, economic loss or damages suffered by yourself or your family. Your statement will be taken into consideration in passing the judgment.

How can you get compensation? 

In criminal proceedings, Malaysian courts may award compensation to victims. Section 426 (1A) of the Code of Criminal Procedure requires the Court, to order the convict (or the parent or guardian, in the case of a child convict) to pay monetary compensation to the victim or the deceased victim’s family. Compensation is granted by the Court, upon application by the Prosecutor.  In assessing the amount of compensation, the Court is empowered to hold an inquiry, and several factors must be considered including the nature of the offence, the injury sustained by the victim, expenses, and losses (including loss of income) suffered by the victim, and the convict’s financial capability to meet the compensation.

Enforcement Agency Integrity Commission

If an unknown enforcement officer unduly restricted your freedom of association, you can approach the Enforcement Agency Integrity Commission. Enforcement officers are mainly police officers, but it can also be officers of the immigration department, the anti-drug agency, the Labour Departments, and the Department of the Environment.

For what kind of situations can you file a complaint? 

You can file a complaint if an enforcement officer committed a criminal offence, failed to follow the law, or carried out an action that was contrary to the law, or unjustified, unreasonable, unjust, oppressive or improperly discriminatory.

By way of indication, you can file a complaint if your case is similar to the ones below:

• Complaints are not taken properly by an enforcement officer, failure to record the details given by the complainant.
• The investigation took too long, and the complainant was not informed about the status of the investigation.
• Delayed investigation by an enforcement officer.
• Charges imposed without facts or legal basis.
• Instructions or actions taken by an enforcement officer in favour of certain parties.
• The investigation papers closed too fast, e.g. in 1-3 days.
• No action taken by enforcement agency despite crime has been reported and criminal are identified

What can you expect? 

The Commission will investigate your complaint. If the complaint is of disciplinary nature, it will refer it to the appropriate Disciplinary Authority. If it is of criminal nature, it will refer it to the public prosecutor, whereas if it concerns corruption, it will refer it to the Malaysian Anti-Corruption Commission.

How do you complain? 

All complaints must be made ​​in writing, by

*         Going personally to the Commission;

*         Sending a letter or email to aduan@eaic.gov.my;

*         Contacting the Operations Division (Complaints ) at  03 8880 5651/ 5625; or

*          Filing an e-complaint form on the website http://www.eaic.gov.my/en/aduan/misconduct-complaint.

Public Complaints Bureau

If an unknown public officer unduly restricted your freedom of association, you can approach the Public Complaints Bureau.

What type of complaints can you file to the Bureau? 

You can file complaints, when there is action by an unknown state official that is unjust, not in accordance with existing laws and regulations, based on abuse of power, and also when there is misconduct of public servants, delay or non-delivery of services, lack of public facilities and other inefficiencies. Indicatively, your complaint might refer to:

How can you file the complaint? 

You can file your complaint by telephone, email, and online form at the following website: http://www.pcb.gov.my

National Human Rights Commission (SUKAHAM)

If an unknown person has violated your rights to freedom of assembly engaged in activity that violates your fundamental rights, you can file a complaint with the National Human Rights Commission (SUKAHAM). The National Human Rights Commission accepts and investigates complaints of human rights violations, unless there is a related court case pending or the case has been fully determined by the Court.

What can you expect? 

SUKAHAM, upon receiving your complaint, will communicate with the relevant government agency and/or the parties to the complaint, to enquire into the subject matter of the complaint. When the Commission identifies a pattern of human rights violations, it engages into national inquiries, instead of examining the complaints one by one.

It also has the power to make appropriate recommendations, such as proposing new legislation, revisions of existing legislation or new policy measures or suggesting any remedies it deems necessary to the affected party or the complainants. However, SUHAKAM does not have the authority to enforce those recommendations.

Building a Strategic Campaign

The first thing you may want to consider is building a strategic campaign. A strategic campaign aims to exert pressure on the different strategic relationships of a business or state actor. To develop a strategic campaign, you should carefully analyse your situation and decide which actions will have the most positive impact for your case. 

For example, you will have to decide whether you want to deal with your case publicly or privately, loudly or quietly, in a manner that takes into account the political and other sensitivities that exist in your country. The purpose of the strategic campaign is for you to get a clear picture of the situation, the direction you want to take your case and the concrete actions you can attempt to take to achieve this result. 

This whole process will be demanding on your resources and your mental and physical health so do not hesitate to reach out and ask for help from organisations that are used to dealing with similar cases! There is no shame in doing so and they can provide you with valuable expertise. See Resource Hub.

To build a strategic campaign you and your collaborators can follow these five steps:

1- Identify your objectives and overall goal: You can do this by asking yourself questions such as What do I want to happen? What do I hope to achieve?

Your overall goal will be the long term and general outcome that you want to achieve. To reach this goal you will need to identify smaller steps and specific milestones that need to take place, these will be your objectives. 

! When deciding on your objectives, make sure that they are SMART:

• Specific - well detailed, well defined and action oriented;
• Measurable- meaning that you can quantify and have an indicator of progress;
• Achievable- meaning that they can be realistically accomplished in the proposed time-frame and with the resources you possess;
• Relevant- meaning that they are relevant to your overall goal and work;
• Time-Bound- meaning that you have set a clear deadline. 

2- Take the time to do a policy analysis and identify your audience: You can identify the policies and regulations that need to change, the key actions and stakeholders who can influence decisions and understand the overall political context that will influence your overall goal. You will further need to identify the stakeholders that can help you achieve your objectives. For example, who are the decision makers involved in the issue? What are the power dynamics at play? You should understand why and how each audience you approach can play a role in reaching your goal or can hinder it. Do not forget, when considering actors that could hinder your goal, to be as specific as possible and write down all details you can find on them including their names and functions. 

! Note that if some corporate actors can hinder your goal, other business representatives might help you achieve it! Businesses do not all have the same policies and attitudes when it comes to the respect of human rights and the environment. By interacting with business representatives and industry groups you might find valuable allies that can provide you with support in a variety of ways including testifying on your behalf, paying for bail and fines, or speaking up on your behalf. 

3- Identify your strengths, weaknesses and your message: It will be helpful for you to reflect on your internal strengths - skills, knowledge, resources, past experience - and weaknesses - missing networks, capacity for lobbying, contacts in the media or funding. Once you have identified these, you can search for opportunities that exist around you and will enable you to tackle your weaknesses and achieve your objectives. You should further consider the threats that could prevent you from achieving your objectives by asking yourself who are your opponents? Is there a negative political climate around your objective? Identifying them early will enable you to minimise the damage and safety risks they can present.

Once you have reflected on your strengths and weaknesses, you will need to identify what your audience needs to hear and present your message in a persuasive and appealing way. At their core, your messages should be the same, however, depending on the audience you will target, you will need to adapt the way they are framed. Most of the time, advocacy messages have two major components: (1) a calling for what is right and (2) a calling for the audience’s self-interest. You can find different methods to develop advocacy messages by using the key words “advocacy message” and “effective” on google.

4- Identify your tactics and activities: Depending on your situation and objectives, you will have to use different strategies and tactics to reach your goal. To choose the appropriate tactics for you to use, you can develop a ‘results chain’. The chain will start with your overall goal and outline the small steps you will need to take to get there. In your chain you can describe the assumptions you are making about the impact of the activities you plan on doing. This will help you reflect on your logic and might show you missing activities. It will further help you understand the kind of resources, be it financial or volunteers, that you will need to put your campaign into action. There are various organisations that you can reach out to for financial support. See Resource Hub. 

A few examples of activities include one-to-one meetings with high level representatives, the organisation of workshops and conferences, the drafting of a letter to international civil servants, a mass participation event engaging members of the community, social media posts or petitions. 

5- Monitor and Evaluate: Finally, you want to make sure that you are keeping track of the efforts you are putting into your campaign to ensure that they are working. You will also want to organise meetings to monitor the campaign and make sure it is going in the direction you want. 

Grassroots Mobilisation

Grassroots mobilisation is about bringing together individuals - in your district, region, or community - to influence a specific outcome. It is one of the key elements in successful campaign strategies. Grassroots mobilisation can be highly effective, as we have seen with the #SaveAru movement, because it uses collective action at a local level to influence outcomes at the national level. When every member of the community is participating in ways that they can, and are equally responsible and invested in the cause, the movement is truly powered by collective leadership. The costs of the movement are further distributed between all members of the community and thereby become more affordable. 

To build grassroots mobilisation, you and your collaborators can follow five simple steps: 

1- Identify the cause you want to address and make a plan of action;

2- Find supporters and volunteers to join your campaign; 

3- Reach out and partner with local organisations and community leaders;

4- Implement your plan of action; and

5- Regularly evaluate your progress. 

! Do not forget that, when it comes to mobilising members of a community, listening and understanding is more important than influencing and persuading. Having several short conversations will be more efficient than a one-off long speech to a general audience! 

To get started, you should identify the cause you want to address 

(1). The problem that you want to tackle most probably has a root cause. For example, it can be the lack of respect for human rights and the environment by a company which operates in proximity to your village and has threatened you; the absence of legislation by the government to protect people defending the environment; or the inefficiency of local government officials to implement a law, among other potential root causes. You need to identify the root cause you want to tackle so that you can clearly define the actions and steps you want to take to resolve the issue. Defining the outcome, you are looking to achieve will also be crucial to give your movement a clear direction. 

Once you have identified the cause you want to address, you can start creating awareness about your campaign and get interest from individuals in the community 

(2). Communication will play a key role here and you can use different approaches such as door-to-door canvassing, face-to-face conversations, emails, phone calls or social media to reach as many community members as possible. Having a campaign website or a Facebook page can be a useful tool to speed up this process and will make you gain important visibility online! It will further constitute a good opportunity to start building the next step by building a list of potential partner organisations. 

Using your website and the networks of members from the community you can approach like-minded local organisations and community leaders. See Resource Hub.

(3). To reach out to them you could offer to give a short presentation about your campaign during their events or simply provide your help during their rallies to get to know like-minded people and talk about your campaign. Usually, civil society organisations have dealt with or assisted defenders in similar contexts in the past. They can share their valuable experience with you, guide you on what to do, explain the law and your rights, guide you on where to find support and identify pro bono lawyers that can help you plead your case or provide support in building an advocacy campaign. 

! You should not ignore community leaders! Community leaders can be valuable allies that you can collaborate with to convey important messages of your campaign. If a community leader endorses the changes and propositions you raise, they will be more likely to be accepted and followed by the community and your movement will gain traction. Examples of community leaders that can help you are religious leaders, local political office holders or village figureheads. 

Once you have built a solid basis of supporters you can start implementing your plan of action 

(4). You can take a variety of actions as part of your plan including rallies, outdoor events, in-house groups, training sessions, organising for a group of volunteers to exchange with the local representative or staging a demonstration. No matter the activity that you choose to conduct, the key to success will be having successful communication. You can keep your supporters up to date on actions conducted through SMS, WhatsApp, and encrypted apps such as Telegram and/or post your announcements for events on your campaign website and Facebook page. Do not forget to communicate with your organisers and volunteer team to make sure everyone has the same information including the date, time, and place of the events. 

During your campaign, you can organise regular meetings with your supporters to evaluate the success of your actions 

(5). This will enable you to reflect on what went well and what did not and give you avenues for improving your upcoming events. At the end of the campaign, it will also enable you to see if you have reached your objectives.

Coalition Building

Reaching out to other organisations and talking about your case will give you the opportunity to build coalitions. A coalition is a temporary alliance of individuals, groups or organisations that want to achieve a common goal. Forming a coalition with other organisations that have similar values, interests, and goals as your own will allow you to combine your resources and thereby have more impact than if you acted alone. It can be of great help to shift the balance of power and increase the impact of each of your organisation's efforts.^[1] Actions taken by the coalition can be focused towards bringing attention to your and other human rights defender cases in the media, requesting for a motion filed by lawyers to be considered or request the international community to act. 

To successfully build a coalition you need to take a series of steps.

1. Before anything else, you should define what your main goal is. Your main goal will be at the centre of the initiative and organisations that you are going to approach are going to ask about it regularly. Ideally, you want to be able to present your goal in a manner that is easy to understand and appears attainable. To do so, you can present it through bullet points illustrating the key ideas and goals and condense it to one sentence. 
2. Then you should identify your key stakeholders, leaders, and players. You should be strategic when choosing the organisations to enrol in your coalitions, recognising compatible interests between you, your organisation and other groups or organisations. Stakeholders may include local civil society organisations, international non-governmental organisations and national or international trade unions. 
3. Once you have identified who you want to be a part of your coalition, you can start approaching and trying to mobilise them. You may need to demonstrate to the organisations that your goals are similar and compatible. You can also show them how working together will have a positive impact on everyone’s ability to reach their objectives and that the benefits from building a coalition will outweigh the costs. 
4. While attempting to mobilise partner organisations, you must keep in mind that building a coalition can be a long process and that your short-term goals might transform into longer-term battles. Keep committed to your objectives, with a little flexibility, so you can take advantage of new and innovative opportunities to reach your goals. Also take into account that the level of commitment of your partner organisations will differ, and although it is perfectly normal, you should hold tight to the organisations that are in it for the long haul. To do so you can see them as a steering committee for your coalition and regularly require their inputs. 
5. Once you have gathered all members of your coalition, you can host an event to bring all of them together and connect with one another, collaboratively discuss your goals, and show them the actions you had in mind. Adding value to your event can help attract participants. For example, you could invite a guest speaker, provide training, or build the event around a known human rights celebration. 
6. As you will move forward with your coalition, keep in mind to follow up with your members. Regularly thanking them for their input and recognising their efforts will keep everyone motivated and encourage initiatives. You can achieve that by using email newsletters, posts on social media or SMS channels and face-to-face meetings.

Bring media attention to your case

Another complementary strategy for your case may be to gain visibility and attention by getting media coverage. Before deciding if you want to use this strategy, you should ask yourself whether you want your case to be publicly known and talked about or if you would rather go about, it quietly. Gaining media coverage can play a pivotal role in presenting your case, promoting it in public debate and positively shaping public opinion in your favour. However, this may expose you to further retaliation, as companies may use strategic lawsuits against public participation (See Section on SLAPPs) to try to silence you. For example, the company could bring a defamation suit against you, the journalist who interviewed you and/or the organisation that published the article. Importantly, you must be careful that the journalist does not reveal your current location so as not to compromise your safety.

To attract media coverage, your story should be prepared in such a way as to catch the attention of readers. You can do this by highlighting why your organisation exists, how important your work is to society and by providing details about the abuse that you have suffered. If you can, try to link your story to an issue that is currently talked about in the public space as this will be more likely to interest the media. Finally, if you can show how your story affects other people and has an impact on wider society, this will increase the interest of newspapers. 

Once your story is ready, you can use social media to promote it by publishing blog posts, Instagram stories, Facebook posts and/or tweets. This will enable you to gain public attention and establish your cause before getting traditional media interested in what you have to say. 

If you want the attention of mainstream media, you can collaborate with other national and international organisations to contact reporters. You can reach journalists by email, through their social networks (such as LinkedIn, Facebook or Twitter) or through partner organisations. You will have a better chance of getting your interview request accepted if you choose journalists who are used to covering the same kind of story as yours. 

! Be aware that journalists can receive a lot of requests so keep your emails short and to the point! 

If you don't get a response to your first contact request, you can follow up by tweeting the reporter or trying to contact them by phone. Don't get discouraged as getting media attention can be a long process during which you may end up sending your story to twenty journalists before one responds. 

When a journalist becomes interested in your story, they will most likely want to talk to you in person. To make sure you are well prepared for the interview, keep in mind three key points you want to make and practice answering questions with a colleague. 

Once the interview is over, do not forget to thank the journalist for his or her time. Following the publication of the article, you can forward it to regional or national newspapers thereby gaining exposure and/or circulate it among your partner organisations.

Bring attention to your case to other businesses and industry groups

Although business-related human rights abuses find corporate actors at the heart of the human rights abuses, you should not forget that businesses and industry groups do not all have the same policies, attitudes, and views when it comes to the respect for human rights and the environment. 

You might want to look for allies in the private sector by reaching out to business representatives and industry groups and explain the issues you are facing. Private actors might become valuable allies who can provide you with support in a variety of ways including by testifying on your behalf, paying for bail and fines, or speaking up on your behalf.

Bring attention to your case at the international level

Equally important is to make your case known at international level. 

National and international non-governmental organisations are allies in your strategic campaign and have a fundamental role to play in channelling information to relevant institutions abroad. One of their main tasks is to submit the so-called shadow reports to international bodies or during the Universal Periodic Review Process. Those reports analyse how and if the government is realising human rights at the national level and provide the necessary background information to international organisations. In turn, if the shadow reports reveal information on serious and systematic violations of the rights protected by the conventions in the country concerned, international institutions can initiate inquiries or visits to the territory of a State Party. By making your case known to NGOs and INGOs, it can be included in their shadow report. Although this will not give you a tangible remedy, you will have added your brick to the wall of human rights in your country. 

You can also bring international attention to your case through the various organisations worldwide that work to protect human rights defenders - including Frontline Defenders, Protect Defenders and Peace Brigades International. You can register your case with one of them, and they will identify the best ways to support you internationally. Be aware that they may publish something on their website or link you with other victims or experts worldwide. If your case is widely known, the offenders might hesitate to retaliate against you in the future. There are also many organisations that work on business and human rights issues that can share legal resources with you, both domestically and internationally. Most importantly, both kinds of organisations can direct you on where to find funding and donors to continue your legal case and to propose other resources necessary for your work as a human rights defender.

Bring attention to your case in political spheres

You can also contact political figures to draw attention to your case. For example, you can ask a foreign diplomat - by contacting the foreign ministry of the country in question or the embassy - to listen to your story, to come to your trial or simply to have a photo taken with you. This will show your abuser that your case is being taken seriously at the international level and may make them think carefully about retaliatory actions in the future. 

If you are uncomfortable with contacting diplomats of foreign countries, you can contact international civil servants instead. International civil servants are not linked to a specific country but rather to an organisation. To contact them, you can look up the offices of OHCHR, UNDP or the ILO in your country. These organisations often organise informal events such as consultations and webinars during which you can have the opportunity to raise your concerns and build a support network. 

Use shareholders accountability strategies 

Another strategy you may consider if a business or a business actor has attacked you for your work as a human rights defender is to inform the shareholders or the investors of that company. 

Given the different structure of each company, this can be a difficult process. By carrying out the steps listed in the “mapping the corporate chain” of the Documentation section of this website, you may be able to identify the major shareholders of that company. Once you have identified the shareholders, you can send them a letter explaining your situation. It is important to note that shareholders are increasingly vigilant about the actions of the companies in which they invest with regard to human rights and can use their power and influence to make  companies’ change their practices. 

In addition, various investors have set up the Principles for Responsible Investment (PRI). If the investors of the company targeting you have signed those principles, then you can also inform the PRI Executive. You can check whether the investors at issue are signatories here Signatory directory | PRI (unpri.org and draft your letter according to the criteria listed in the website https://www.unpri.org/about-us/governance/serious-violations-policy