(A) Background

 

Tharani Kutty is a hospital cleaner employed by Edgenta UEMS, a subsidiary of UEM Edgenta. Tharani earns a monthly salary of RM920. She successfully sued her employer for overtime pay for the total sum of RM1,211. Edgenta UEMS has since appealed this decision at the Ipoh High Court.

 

Prior to the suit, the management that oversees Tharani’s employment placed non-stop pressure on her, including demanding that she remove her earrings and cut her hair short. Despite Tharani’s explanation that she is a transgender woman, and such markers are important to her gender identity, she was placed under constant pressure to comply.

 

Following the successful lawsuit, the pressure from Tharani’s immediate supervisors and managers became constant. In her words, she said it was this persistent pressure that led her to feeling suicidal. She placed a complaint with the Sitiawan Labour Office following the non-stop pressure from her management.

 

A day before the visit by the officer investigating the complaint, Tharani was issued a warning letter and was asked to attend counselling. She stated that even trivial matters are blown out of proportion, and she is often at the centre of the issues. She is uncertain as to why there is constant pressure, and why any issues that might exist have not yet been resolved. Tharani stated that there is no need for this level of pressure from the management to the point of causing her to feel suicidal.

 

(B) Situational Analysis

 

The issues in respect of Tharani’s situation are twofold: the first is discrimination in respect of fair wages, and the second is discrimination against her gender identity.

 

Tharani primarily faced discrimination in respect of wages where she was not paid the sum of RM1,211 for overtime work she had performed. She was contracted to work for a total of eight hours per day with a one-hour break. However, Edgenta UEMS — unilaterally and without the agreement of the workers — changed the number of working hours per day from eight hours to nine hours with a one-hour break, without additional pay. She successfully sued her employer, Edgenta UEMS for RM1,211, and Edgenta UEMS has since appealed.

 

In terms of her gender identity, Tharani’s manager required her to wear men’s clothing during work, cut her hair short, and remove all her jewellery. Other transgender individuals working alongside Tharani were told to quit if they could not comply, which was what they did.

 

The primary contributory factors to this were the national privatisation policy introduced in 1983, and inadequate protection under the Employment Act 1955.

 

Before 1983, hospital cleaners were part of the civil service. In 1983, then-Prime Minister Dr. Mahathir Mohamad introduced the national privatisation policy, which led to the privatisation of the hospital cleaners’ employment under government-linked corporations. The main objective of the privatisation policy in 1983 was “to lessen the financial and administrative burden of the Government, improve skills and production, accelerate economic growth, reduce the size and involvement of the public sector in the economy, and assist in reaching the country’s economic policy’s goal[1].” This privatisation policy was extended to hospital cleaners in 1997.

 

The company that currently holds the contract to clean public hospitals is Edgenta UEMS. It is owned by UEM Edgenta, which is in turn owned by UEM Group, which is owned by Khazanah. It is reported that this privatisation exercise appears to be the bane of many hospital cleaners. In Tharani’s case, this meant that Edgenta UEMS unilaterally altered terms of the contract without any consultation or agreement. This unjust act was set right by the Labour Court’s decision, which is unfortunately now being appealed at the Ipoh High Court.

 

Apart from the above, it is worth noting that hospital cleaners often work long hours to meet the higher hygiene and sanitisation standards that are required of a hospital. During the current COVID-19 pandemic, in particular, their workloads may have increased to ensure that the hospitals do not become hotbeds of infection. Furthermore, hospital cleaners are still regarded as contract workers due to this privatisation exercise — even if they have worked for an extended number of years — and are excluded from any benefits and job security that Government employees might receive. In light of the above, the privatisation exercise that has led to these hospital cleaners being employed at very low and unfair wages for such essential jobs needs to be revisited and revised.

 

In respect of the discrimination against Tharani’s gender identity, there is no legislative framework in Malaysia that recognises transgender identity or expressions of transgender identity. There also does not appear to be any regulatory guidelines by the employer that recognise these, and protect Tharani from the discriminatory actions by her manager.

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(C) Status of State Interventions

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In Tharani’s case, the judicial intervention by the Labour Court in upholding the justice of the matter is to be lauded. It is yet to be seen what the outcome of the appeal at the High Court will be.

 

There appears to be little to no state intervention despite the mobilisation and traction of the efforts by Tharani and her fellow hospital cleaners to raise awareness. In fact, in late 2020 the then-Minister in the Prime Minister’s Office stated that hospital cleaners were not eligible for the one-off payment of RM300 because it was earmarked for personnel who were at higher risk, such as those dealing directly with at-risk groups or patients.[2]

 

The #CleanerJugaFrontliner campaign included a peaceful demonstration on 22 April 2021 by the National Union of Workers in Hospital Support and Allied Services outside the hospital where Tharani works, which culminated in an Edgenta UEMS representative (Head of Client Consult) receiving the Union’s complaint. The campaign is ongoing nationwide. Despite hospital cleaners being vital to the management of the COVID-19 pandemic, they are the least protected and have been denied basic necessities and benefits.

 

In terms of transgender identity, it is a fundamental right for every human being to be able to live with dignity, regardless of their gender identity. Article 1 of the Universal Declaration of Human Rights (UDHR) states: “All human beings are born free and equal in dignity and rights.” In a study on discrimination against transgender persons based in Kuala Lumpur and Selangor conducted by the Human Rights Commission of Malaysia (SUHAKAM), 93 respondents shared that they have experienced violence because of their gender identity and gender expression. The types of violence included physical, emotional, verbal, and sexual violence, committed by various actors including authorities, family members, partners, and members of the public.

 

It was reported that many of the respondents had experienced the same level of discrimination as Tharani — such as being pressured to cut their hair short, remove ‘feminine’ jewellery etc. However, the discrimination did not end there, but extended to the transgender individuals being denied access to basic public services such as healthcare and education.

 

There are various international instruments that create obligations on the States Parties to prevent violence and discrimination based on gender, including:

 

(1) International Covenant on Civil and Political Rights (ICCPR);

(2) International Covenant on Economic, Social and Cultural Rights (ICESCR); and

(3) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

 

Of the three above-mentioned international human rights treaties, Malaysia is a party to only CEDAW, with strong reservations.

 

In addition, UDHR and the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (referred to as the ‘Yogyakarta Principles’) are two sets of international norms / principles that serve as additional standards for the protection of rights and freedoms.

 

However, it is worth noting that owing to the religious and cultural sensitivities in Malaysia, it is challenging to put forth recognition and respect for the rights and dignity of the transgender community. However, it is not challenging to uphold their rights as human beings and protect them against any violence, harm, and discrimination.

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(D) Recommendations

 

(1) Implement fair wages that correspond with the workload and not only the hours of work;

(2) Absorb all hospital cleaners as government employees and not privatised contractors;

(3) Provide hospital cleaners with the allowances that frontliners are eligible for; and

(4) Formulate and implement policies against harassment, discrimination, and violence perpetrated at work and in the workplace, with a focus on gender expression.

 

 

Endnotes

[1] “Public Private Partnerships of Malaysia”. www.commonwealthgovernance.org/countries/asia/malaysia/public-private-partnerships/.

[2] @KesatuanPSHK. “Kesatuan amat kecewa dengan kenyataan Datuk Seri Mohd Redzuan Md Yusof yang menafikan…”. Twitter, 2 December 2020. 1.21 pm. https://twitter.com/KesatuanPSHK/status/1334004724404678657.

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