Effect given to the recommendations of the committee and the Governing Body - REPORT_NO349, March 2008

Effect given to the recommendations of the Committee and the Governing Body

1. 165. This case concerns the Malaysian labour legislation and its application which, for many years, have resulted in serious violations of the right to organize and bargain collectively, including: discretionary and excessive powers granted to authorities as regards trade unions’ registration and scope of membership; denial of workers’ right to establish and join organizations of their own choosing, including federations and confederations; refusal to recognize independent trade unions; interference of authorities in internal unions’ activities, including free elections of trade unions’ representatives; establishment of employer-dominated unions; arbitrary denial of collective bargaining. The Committee formulated extensive recommendations at its March 2004 meeting [see 333rd Report, para. 599] and last examined the follow-up to this case at its March 2007 meeting [see 344th Report, paras 118–126].
2. 166. In its communication of 19 September 2007, the Government states that its industrial relations system has enabled the country to move forward in creating employment and stabilizing socio-economic growth. Under the present laws, employees may join unions and unions may represent their members’ interests in the collective bargaining process; the system furthermore forbids employers from interfering with the right of workers to form and join trade unions and participate in lawful trade union activities. Its system of establishment unions, the Government adds, was modelled after the Japanese experience after noting the latter’s success in promoting harmonious employer–employee relationships.
3. 167. The Government states that checks and balances are built into the system, under which a hierarchical process of redress is available to aggrieved parties. Persons dissatisfied with a decision of the Director-General of Trade Unions (DGTU), for instance, may seek redress at the ministerial platform or through judicial review by the Malaysian High Court. Public sector employees also enjoy the right to collective bargaining, and in practice collective negotiations are carried out at the department and ministerial levels, with representatives of the unions concerned and all levels and categories of employee, at department or ministry joint council meetings held every three month. In these meetings representatives raise any issues regarding terms and conditions of employment, the welfare of public sector employees, and even the determination of wages in the public sector. The outcome of the National Joint Council (NJC) meeting will then be tabled at meetings between the NJC and the Congress of Unions of Employees in the Public and Civil Services (CUEPACS), an umbrella organization of public sector employees that has been granted the role of negotiating with the authorities on the overall aspects of terms and conditions of employment in the public sector.
4. 168. As regards the nine court challenges filed by several employers after the DGTU had ruled in favour of the unions in cases concerning collective bargaining rights, the Government attaches a table containing information (parties, year, subject, decision and status) on these cases and indicates that six of them have been resolved. For the remaining three cases, once they were resolved in the civil courts the Department would take the necessary steps to resolve the issues contained therein on the request of the trade unions.
5. 169. The Government indicates, with respect to the Committee’s previous recommendation that workers and their organizations enjoy appropriate recourse to judicial redress with regard to decisions of the minister or administrative authorities affecting them, that such redress exists in the form of judicial review by the high courts. The Government further states that amendments to the Industrial Relations Act of 1967 and the Trade Unions Act of 1959 have been passed by the House of Representatives and were waiting to be tabled in the Senate. The Committee’s previous recommendations on the legislation were not within the planned parameters of the proposed amendments to the Trade Unions Act of 1959; one of the proposed amendments, however, concerns the removal of a restrictive clause in the Trade Unions Act of 1959 that requires a member to have at least one year of experience in the establishment, trade, occupation or industry with which her trade union is connected.
6. 170. The Committee recalls that it has commented upon the serious matters arising out of fundamental deficiencies in the legislation on many occasions, over a period spanning 16 years. It notes with deep concern that, in spite of its most recent request that the ongoing process of amending the industrial relations legislation take fully into account its recommendations, the proposed amendments to the Industrial Relations Act of 1967 and the Trade Unions Act of 1959 have been passed by the House of Representatives without consideration of those recommendations. Noting that the proposed amendments were waiting to be tabled in the Senate, the Committee once again urges the Government to fully incorporate its longstanding recommendations concerning the need to ensure that:
   • – all workers without distinction whatsoever enjoy the right to establish and join organizations of their own choosing, both at primary and other levels, and for the establishment of federations and confederations;
   • – no obstacles are placed, in law or in practice, to the recognition and registration of workers’ organizations, in particular through the granting of discretionary powers to the responsible official;
   • – workers’ organizations have the right to adopt freely their internal rules, including the right to elect their representatives in full freedom;
   • – workers and their organizations enjoy appropriate judicial redress avenues over the decisions of the minister or administrative authorities affecting them; and
   • – the full development and utilization of machinery for voluntary negotiation between employers or employers’ and workers’ organizations, with a view to regulating terms and conditions of employment by means of collective agreements is encouraged and promoted by the Government.
7. 171. The Committee once again reminds the Government that it may avail itself of the ILO’s technical assistance in the framework of the abovementioned project so as to bring its law and practice into full conformity with freedom of association principles.
8. 172. The Committee notes the information regarding the court challenges filed by several employers after the authorities had ruled in favour of the unions in cases concerning collective bargaining rights. The Committee notes in particular that one case concluded in the signing of a collective agreement, and another with the employer voluntarily recognizing the union concerned; several other cases concluded with the Court overturning the Minister’s decision to accord recognition to the union concerned. The Committee once again requests the Government to provide copies of the judgements handed down, so that it may examine the grounds on which the said decisions were made, and to take the necessary measures to ensure that final decisions in the cases still pending may be reached without further delay.
9. 173. The Committee notes with regret that the Government provides no information concerning the 8,000 workers in 23 companies whose representational and collective bargaining rights were denied [see 333rd Report, para. 570]. The Committee once again urges the Government to rapidly take appropriate measures and give instructions to the competent authorities so that these workers may effectively enjoy rights to representation and collective bargaining, in accordance with freedom of association principles.