Effect given to the recommendations of the committee and the Governing Body - REPORT_NO360, June 2011

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

1. 62. 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 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 union activities, including free elections of trade union representatives; establishment of employer-dominated unions; and arbitrary denial of collective bargaining, at its March 2010 meeting [see 356th Report, paras 76–81].
2. 63. On that occasion, the Committee recalled 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 noted with regret that the Industrial Relations Act, 1967, as amended in 2007, had not yet addressed the points upon which it had been commenting for many years (sections 9(5) and 9(6), providing that the Minister’s power to make a decision on trade union recognition 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). In these circumstances, the Committee, noting further that the Government had not provided a copy of the amended Trade Unions Act, 1959, once again requested the Government to do so and urged the Government to take the necessary measures without delay 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;
   • – 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.
3. 64. Finally, as regards the 8,000 workers whose representational and collective bargaining rights have been denied, the Committee once again urged 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.
4. 65. In its communication dated 20 October 2010, the Government indicates that it is within the Government’s right and privileges not to ratify ILO Convention No. 87 and that it is within the right of each and every independent and sovereign country to choose, retain and practise the system of trade unionism which can best serve its interests so as to ensure its continuous peace and secure society.
5. 66. As concerns union recognition and collective bargaining, the Government indicates that workers in Malaysia have not been denied their rights to enjoy representation and collective bargaining since there is a healthy growth in trade union membership and an increase in the number of collective agreements. It further indicates that, in order to successfully maintain a healthy growth of trade unions and industrial harmony in the country, it proposes to amend certain provisions in the relevant labour laws in order to make it easier and faster to establish trade unions and expedite claims for recognition, and thus facilitate the process of collective bargaining. The Government further indicates that it has taken steps to amend the Industrial Relations Act and the Trade Union Act. Finally, the Government states that the cause of delay in union recognition is mainly due to legal proceedings (judicial review) against the Minister’s decision and that the power conferred to the Director General of Trade Unions (DGTU) is intended to facilitate and enable it to have the general supervision, direction and control of all matters relating to trade unions, including deregistration of a trade union.
6. 67. As regards sections 9(5) and 9(6) of the Industrial Relations Act, the Government states that it is not necessary to amend those sections since any aggrieved party has the right to seek legal redress by means of judicial review at the High Court and a right of appeal to the Federal Court. As for the other recommendations made by the Committee, the Government indicates that they may be taken into consideration in the next amendment of the Industrial Relations Act and that the amended copy of the Trade Union Act will be forwarded once the authoritative text is made available.
7. 68. With regard to the 8,000 workers’ representational and collective bargaining rights, the Government once again reiterates that these workers involved through their respective trade union may seek legal redress via the proper channel as provided for under the laws of the country.
8. 69. The Committee takes due note of the above information provided by the Government. In particular, the Committee notes with interest the Government’s indication that it has taken steps to amend the Industrial Relations Act 1967 and the Trade Union Act 1959, and that it proposes to amend certain provisions in the relevant labour laws in order to make it easier and faster to establish trade unions and expedite claims for recognition, thus facilitating the process of collective bargaining. The Committee once again urges the Government to address rapidly the issues raised in its previous examination and summarized above and invites the Government to have recourse to the technical assistance of the ILO in this regard, should it so desire. The Committee recalls that when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 15], and further firmly recalls the obligation of all member States to respect and promote freedom of association and the effective recognition of the right to collective bargaining, as fundamental rights under the 1998 ILO Declaration on Fundamental Principles and Rights at Work. It considers that this assistance can facilitate the steps the Government is envisaging to bring its law and practice into full conformity with freedom of association principles and Convention No. 98, ratified by Malaysia.
9. 70. As regards sections 9(5) and 9(6) of the Industrial Relations Act providing that the Minister’s decision on trade union recognition “shall be final and shall not be questioned in any court”, the Committee notes that the Government states that it is not necessary to amend those sections since any aggrieved party has the right to seek legal redress by means of judicial review at the High Court and a right of appeal to the Federal Court. Notwithstanding the foregoing, the Committee is bound to once again recall that, where a registrar has to form his own judgement as to whether the conditions for the registration of a trade union have been fulfilled, although an appeal lies against the decisions to the courts, it has considered that the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect, this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal would only be able to ensure that the legislation has been correctly applied. The Committee has drawn attention to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and on the basis of which the registrar may refuse or cancel registration, and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not [see Digest, op. cit., para. 302]. Judges should be able to deal with the substance of a case concerning a refusal to register so that they can determine whether the provisions on which the administrative measures in question are based constitute a violation of principles of freedom of association [see Digest, op. cit., para. 304]. The Committee therefore expects the Government to introduce without delay legislation to amend the Trade Unions Act and the Industrial Relations Act, to bring it into full conformity with freedom of association principles, by ensuring that the appeals to the courts against all decisions made by administrative authorities allow a substantive examination of the issues raised.
10. 71. Finally, in its first examination of the case [see 333rd Report, para. 570], the Committee took note of the situation of 8,000 workers in 23 manufacturing companies whose representational and collective bargaining rights were allegedly denied (in these companies, unions had accepted members but, based on objections raised by the companies, the DGTU ruled that the unions were not permitted to represent the workers; as a result the unions’ right to bargain collectively was denied). In this regard, the Committee notes 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 through their respective trade union at the ministerial platform or through judicial review by the Malaysian High Court. The Committee recalls that it considers the decisions of the DGTU to be rooted in the legislative framework’s restrictions on trade union rights that it has extensively commented upon. Recalling that questions of trade union structure and organization are matters for the workers themselves and that it sees the situation faced by these workers as a concrete example of the fundamental deficiencies of the legislation which, in the end, prevent these workers from exercising their organizational and collective bargaining rights, the Committee, considering the time that has elapsed since its first examination of the case, requests the Government and the complainant to indicate if these workers are currently represented by one or more trade unions and, if so, if they are able to exercise their rights to collective bargaining and conclude collective agreements.