Effect given to the recommendations of the committee and the Governing Body - REPORT_NO356, March 2010

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

1. 76. The Committee last examined this case, which 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 union’s registration and scope of membership; denial of workers’ rights 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; and 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 2009 meeting. On that occasion, the Committee deplored that amendments to the Industrial Relations Act, 1967 and the Trade Unions Act, 1959 had been passed by Parliament and had entered into force, without addressing the issues raised by the Committee, and once again urged the Government to fully incorporate its long-standing recommendations with respect to the legislation. The Committee further requested the Government to transmit copies of the amended legislation to itself and the Committee of Experts on the Application of the Conventions and Recommendations (CEACR), and once again reminded the Government that it may avail itself of the ILO’s technical assistance so as to bring its law and practice into full conformity with freedom of association principles. Finally, the Committee once again urged the Government to rapidly take appropriate measures and give instructions to the competent authorities so that the 8,000 workers in 23 companies whose representational and collective bargaining rights were denied may effectively enjoy rights to representation and collective bargaining, in accordance with freedom of association principles [see 353rd Report, paras 133–140].
2. 77. In a communication dated 6 August 2008, the Government indicates that even though Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the principles and concepts on the right to organize have been provided for in the law as the legislation explicitly prohibits employers’ interference in the right of the workers to form or join unions and participate in its legal activities. With regard to the amended Industrial Relations Act, 1967, the Government indicates that the law provides a fast and efficient process of union recognition as a recognition claim is necessary for collective bargaining. In particular, the Government indicates that the trade union must be competent to represent the workers and obtain a majority in order for it to commence collective bargaining. The Government adds that the recognition cannot be withdrawn by the employer once it has been accorded.
3. 78. In a communication dated 14 October 2009, the Government indicates that it fully and continuously supports the efforts to allow workers to organize and establish trade unions, as it has successfully assisted a healthy growth of trade unions, preserved industrial harmony in the country and continuously reviewed the labour laws in order to facilitate the establishment of trade unions. The Government also indicates that the Trade Union Act, 1959 and the Trade Union Regulations, 1959 do not have specific provisions concerning the election of trade union’s representatives and that the conduct of the latter is left to the election committee of the trade union. The Government attaches to its communication a copy of the Industrial Relations Act, as amended in 2007.
4. 79. With regard to the 8,000 workers’ representational and collective bargaining rights, the Government indicates that the Director-General of Trade Unions (DGTU) decided that the unions representing the workers were not competent due to a misfit between the nature of industry or business ventured by the employer and the membership scope of the union. The Government adds that the trade unions aggrieved by this decision had the right to seek legal redress by means of judicial review at the High Court and that the workers had the right to join any other union or form a union to represent them. The Government finally indicates that it would not interfere with the formation of the trade union and its recruitment but that the trade union would have to go through the recognition process as provided by law before it could exercise the right to collectively bargain.
5. 80. The Committee recalls, in respect of the present case, that it has commented upon the extremely serious matters arising out of the fundamental deficiencies in the legislation on many occasions, over a period spanning 18 years. The Committee takes note of the Industrial Relations Act, 1967, as amended in 2007. It notes, in particular and with regret, that those provisions of the Industrial Relations Act that it has been commenting upon over the years (sections 9(5) and 9(6), providing for the Minister’s power to make a decision on trade union recognition which cannot be questioned in court, and section 13, which provides that collective bargaining can only start where a trade union has been accorded recognition by the employer), have not been amended. As in its previous examination of the present case, the Committee once again deplores that amendments to the industrial relations legislation had been passed and had entered into force, without addressing the issues raised by the Committee. In these circumstances, the Committee, noting that the Government has not provided a copy of the amended Trade Unions Act, once again requests the Government to do so and once again urges the Government to take the necessary measures without delay to fully incorporate its long-standing 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;
   • – employers do not express opinions which would intimidate workers in the exercise of their organizational rights, such as claiming that the establishment of an association is unlawful, or warning against application with a higher level organization, or encouraging workers to withdraw their membership;
   • – 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.
6. 81. As regards the 8,000 workers whose representational and collective bargaining rights have been denied, the Committee can only note with regret that the Government repeats the information it had previously submitted, to the effect that persons dissatisfied with a decision of the DGTU, for instance, may seek redress at the ministerial platform or through judicial review by the Malaysian High Court. 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.