Seven sacked players need help to fight their case
mainA court in Malaysia has tweaked the law to deny basic rights to seven foreign players who were summarily dismissed by the Malaysian Philharmonic. The orchestra remains under an international musicians boycott. This appeal comes from one of the disenfranchised seven. Please help if you can.
I am one of the seven musicians fired three years ago by the Malaysian Philharmonic. After an interminably long wait, the judge has finally delivered her verdict: despite our many years of dedicated work with the orchestra, including long service bonuses and contractual retirement clauses, and despite our unblemished employment records, we were all in fact fixed-term, temporary employees, and had no right to expect continued employment. She decided that the Malaysian Philharmonic Orchestra had every right to terminate our employment at the end of our current contracts, without giving any notice or reason.
From all the legal advice we have since received, and the case readings we have done, this decision goes completely against the Malaysian Industrial Relations Act, and against just about every precedent that has been set by previous cases. If allowed to stand unchallenged, it will affect every current and future employee of the Malaysian Philharmonic, and seems to give Malaysian employers the right to terminate any employee at will as long as they have implied their “intention” to use a fixed-term contract. Up until this case, under Malaysian law, the burden of proof was always on the employer to establish that the recourse to the fixed-term engagement of the workers was genuinely related to their establishment or undertaking. That appears to be the case no longer.
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This is a very sad case and it is right that the international musicians’ organisations continue their boycott of the orchestra.
Yet despite precedent, despite length of service, despite unblemished records, the fact remains that the musicians concerned signed fixed term contracts. In the west some element of tenure may be implied. In Malaysia clearly it does not.
But then Malaysia has never treated all citizens equally. Malays are given preference over Chinese and other ethnic native groups. Nor does the rule of law apply equally. The former Deputy Prime Minister and successor to the previous Prime Minister Mahatir Mohammed is in jail for the umpteenth time on trumped up sodomy charges. His wife leads the opposition parties. And in any country where during the summer the Prime Minister was found to have an unexplained US$700 million in his accounts and then sacked HIS deputy and the Attorney General, there is clearly something rotten at the core.
Petronas rules the roost at the MPO. Fighting a case like this is tea money and they can continue for many more years if necessary. I really wish I could be optimistic about the musicians changing the judge’s ruling. Having lived in Asia for many years, sadly I am not.
Even if chances might be slim in this corrupt environment it is a worthy cause to support!
If this ruling stands a lot of foreign MPO musicians might lose their jobs soon.
Nick, your comment is simply wrong.
The law is clear about the obligation for employers to justify their recourse to fixed-term contracts, and the musicians did not in fact sign fixed-term contracts. In 1998 they signed a renewable contract, for up to 12 years. It was only in 2010 that the MPO introduced the claim that they were working under so-called fixed-term contracts.
All Malaysian Industrial Court cases are in the public record:
http://www.mp.gov.my/index.php/en/
If you look through the judgements, you will find that the law protects employees from abusive employers, and it does so regardless of the employee’s national or ethnic origin. This case is clearly a gross miscarriage of natural justice.
I understand your sentiments Nick, and we ourselves are not overly optimistic about the impartiality of the judicial system, but we have no other recourse but to put our faith in the rule of law. Walking away from the decision would be simply wrong.
The whole case rests on the definition of “Fixed Term” – you are correct – and even in Malaysia, this limit has been exceeded to the extreme in the case of the MPO musicians. There are case precedents in the past that have thrown out the use of fixed term as being “not genuine” – ruled as basic employment. The Malaysian Employers Federation itself, warns employers that “Industrial jurisprudence in Malaysia do not recognize fixed term contracts other than those which are genuine and conform to the needs of the business.” – It goes on further, to indicate that most countries recognize 24 months as a maximum in this regard, and renewals past that point will be deemed to be EMPLOYMENT. 4 of the musicians in this dispute were full-time for 14 years, another 12, another 9… renewed again and again without any hiccup whatsoever from visas, etc. These clearly were not “genuine fixed term contracts”. These people were employees – full stop. Any arguments to the contrary haven’t got a shred of legality behind them. Industrial Relations Courts (even here) are not about contract law – they are about decency and ethics in the treatment of employees. You are correct – there is a long way to go on many issues in this country – but one cannot simply give up. Not everyone is corrupt or devoid of a moral compass. We are holding out hope – and please join us. 🙂
Brian. Former Chairman of the Orchestra Committee. MPO.
Why were they sacked?
I have no first hand knowledge, but piecing together comments from earlier SD threads as well as news and other second-hand reports I have received, I suggest there were several reasons.
1. The founding of the orchestra goes back to the long 22-year premiership of the often-dictatorial Dr. Mahatir Mohammed. He came up with a grand development plan to help put the country on the map. Major infrastructure projects included the construction of a track to host a Malaysian FI Grand Prix and the construction of what was at the time the world’s tallest building, the Kuala Lumpur Twin Towers. Mahatir pressured private sector companies to fund much of these projects. Thus the twin towers became the Petronas Twin Towers named after the national energy company. Someone decided there should be world-class concert hall sited in the space between the towers and a professional western orchestra to play there. Since they were on Petronas property, Petronas agreed to fund them.
2. Money initially was no object. Acknowledging it had no expertise in orchestral and concert hall management, Petronas gave a generous contract to IMG Artists Consultancy division in London to do this for them. The concert hall looks gorgeous and has wonderful acoustics (designed by Kirkegaard). A 105-member orchestra was recruited from worldwide auditions which soon was arguably the finest in the region. The first concert was given in mid-1998 under MD Kees Bakels who stayed for 7 years.
3. After IMG Artists eventually disappeared from the scene, Petronas placed one of its own executives as the orchestra’s CEO, someone with little or no knowledge of running orchestras. This was the start of a slippery slope.
4. With Mahatir now long since out of office and an experience vacuum in the management of the orchestra, clearly Petronas decided that the orchestra was costing them far too much money. With less than 900 seats in the hall, increasing ticket prices would have minimal results on the bottom line. So numbers in the orchestra had to be reduced.
5. All players seem to be on fixed term contracts. There is no tenure.
6. There is no musicians’ union in Malaysia. Negotiations/discussions with the orchestra’s management are channeled through a Musicians’ Committee. Such direct negotiations with a clueless CEO were always bound to result in tension with all-but zero chance of success. The contract clearly describes a master/slave relationship skewed totally in favour of Petronas. It is perhaps no surprise that two of those who were not offered new contracts (note: if a contract is merely not renewed, it can not be described as a sacking) were the Chair and Co-chair of the Musicians’ Committee.
7. There is a suggestion that some or all of the affected musicians may have been in breach of Malaysia’s stiff work visa regulations by taking on second jobs. If this is the case, it is ridiculous! All orchestral musicians earn additional income through teaching. But there are allegations that some musicians missed orchestra services in order to teach or take part in concerts elsewhere. I cannot vouch for the accuracy of these allegations.
With management executives who are clearly incompetent and should be nowhere near a professional orchestra, it is hard to predict what the future of the MPO might be. Petronas has had problems in other related areas, especially Music Directors. In 2003 James Judd was appointed to succeed Bakels when his contract ended in 2005. Less than 9 months later Petronas cancelled the agreement without explanation. In 2014 the Brazilian Fabio Mechetti was appointed. He walked out before even arriving, citing he had been treated “unprofessionally, unethically and with disrespect” by the orchestra’s management.
No conductor can speak out against Petronas’ treatment of the musicians because it seems their contracts all have lifetime non-disclosure clauses. Who would dare speak out and risk a lawsuit he could not possibly win?
What makes this whole mess so unfortunate is that there are several individuals very experienced in orchestra management and based in the region who could have been brought in as consultants at minimal cost to help Petronas achieve its goals in a far more professional and understanding manner. As long as Petronas relies only on its own in-house lack of expertise, I fear the orchestra’s future will not be a happy one.
Briefly – in regards to your point #7 : “…suggestion that some or all of the affected musicians may have been in breach of Malaysia’s stiff work visa regulations by taking on second jobs.”
This is not the situation in this particular case, and that point or concern was never raised about any one of the 7 musicians in this dispute. It became an issue in the few years following the departure of these seven, and was definitely a factor in the dismissal of the Principal Viola (2013?) and resignation of the Principal 2nd Violin (also 2013?).
Why were they sacked?
No reason given and the MPO would even avoid the terms “sacked” or “dismissed”
If there would have been any breach of contract they would have been fired with cause right away.
There are plenty of clauses in the contracts to deal with it.
So you can only speculate what was the reason behind it and how much the former MD Claus Peter Flor was involved in this decision.
Regarding the comments by Tan and Brian, let me say straight away I do not know Malaysian employment law. I have some knowledge of such laws in some other parts of Asia but that is clearly not relevant in this case.
Secondly, I would certainly be on the side of the musicians. Not to provide tenure after so many years of service is in my view appalling. Yet, whatever the basis in law and whatever the precedents, I find it difficult to believe a Malaysian court with all the ethnic bias that exists in that country would find in favour of a group of expatriates against one of the biggest corporate entities in the country. I really do hope I am wrong. I also just cannot see a company like Petronas being prepared to accept such a court ruling without continuing to fight it ad infinitum if necessary. Again I hope I am wrong.
Tan – I looked briefly at that site but just do not have the time to look up specific related cases. All I can say is that you use the adjective “abusive”. If that is in fact what you mean, I also find it difficult to think that any court would consider the MPO/Petronas action as being abusive. Immoral, unjustified, against the spirit of a contract perhaps. But abusive?
You also say the contract was renewable between 1998 and 2010. Do you mean by that the option to renew lay with the musicians? Can you be more specific re the wording of that clause? Since the case has already been heard in court, I assume this is therefore on the public record. And do you mean that the wording of the contracts from 2010 onwards was identical to those issued in earlier years and did not have any changes that might reflect the MPO management’s implied changes re fixed terms? Or were there actual changes which members of the orchestra signed – albeit with a pistol at their heads?
I am merely curious to know more of the facts.