Effect given to the recommendations of the committee and the Governing Body - Report No 340, March 2006

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

1. 124. 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: 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 June 2005 meeting [see 337th Report, paras. 87-90].
2. 125. In a communication dated 2 September 2005, the Government stated that the project to modify the Industrial Relations Act, 1967, and the Trade Union Act, 1959, was in its final stage of discussion with representatives from the employers and trade unions, in the spirit of tripartite consultation. It further stated that these amendments were expected to be tabled in Parliament during its September-December 2005 sitting. Among others, the following major amendments were contemplated:
3. – When a claim for recognition is served on the employers, they must respond within 21 days and a secret ballot is the only process for determining membership strength. This is expected to shorten the period required for recognition.
4. – Repealing of section 28(1)(b) of the Trade Unions Act, 1959, which prohibits a person from becoming a trade union officer if he has not been engaged or employed for at least one year in the establishment, trade, occupation or industry with which the trade union or federation is connected. With this amendment, a person can act as an officer of a trade union or federation of trade unions as soon as his membership has been approved by the registered trade union.
5. 126. The Government added that:
6. – Under the Industrial Relations Act, 1967, a decision taken by the Honourable Minister is final. However, a process of judicial review is available to employers and trade unions. According to the Government, both parties availed themselves of this form of judicial review.
7. – The Industrial Relations Act affords voluntary negotiation between employers’ and workers’ organizations; they are free to set up their own machinery to settle disputes. Conciliating services are only provided by the Industrial Relations Department when a deadlock arises.
8. – Section 13(3) of the Industrial Relations Act lays down some terms that cannot be negotiated, as they are management prerogatives (promotion, transfer, appointment, termination by reason of redundancy, dismissal, reinstatement and allocation of duties). This does not prevent the parties from discussing these issues in a general manner.
9. 127. In addition, the Government stated that the claims of 8,000 workers for representational and collective bargaining rights in 23 companies were processed according to the Act and the unions concerned were found not to be competent to represent the group of workers. The Government added that when a trade union is found not competent and the management does not accord recognition, the claim is deemed resolved. The Government further stated with regard to the court challenges filed by some employers and affecting 2,000 workers, after the Director-General had ruled in favour of the unions in a case concerning collective bargaining rights, that there are a total of nine companies affecting 2,000 workers which have challenged the decision of the Honourable Minister in this respect. Most of these decisions are still pending. The Government attached an analytical table with the information on these cases (parties, year, subject, decision).
10. 128. The Committee recalls that it has been called to comment upon the extremely serious matters dealt within the present case on no less than seven occasions over a period of more than 15 years. The Committee notes with interest from the Government’s reply that a project to make major amendments to the Industrial Relations Act, 1967, and the Trade Union Act, 1959, is in its final stage of discussion with representatives from the employers and trade unions. The amendments were expected to be tabled in Parliament during its September-December 2005 sitting. The Committee requests the Government to keep it informed of developments in this regard and to send the text of the project. While observing that States are free to provide certain formalities in their legislation in order to ensure the normal functioning of organizations and in conformity with freedom of association principles, the Committee trusts that the envisaged amendments will take fully into account its longstanding recommendations concerning the need to ensure that:
11. – 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;
12. – 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;
13. – workers’ organizations have the right to adopt freely their internal rules, including the right to elect their representatives in full freedom;
14. – workers and their organizations enjoy appropriate judicial redress avenues over the decisions of the minister or administrative authorities affecting them; and
15. – the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations 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.
16. The Committee recalls that the Government 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.
17. 129. The Committee also notes with regard to the 8,000 workers who claimed representational and collective bargaining rights in 23 companies, that the Government reiterates previously provided information according to which the recognition claims of these workers were processed according to the Act, and the unions were all found not competent to represent the group of workers concerned. The Committee notes once again that the Government provides no other information on the reasons why such a decision was made or whether the trade unions in question were given an opportunity to present their views in contradictory proceedings, etc. The Committee therefore once again reiterates its previous recommendation on this point and requests the Government rapidly to take appropriate measures and give instructions to the competent authorities so that the 8,000 workers denied representational and collective bargaining rights in the 23 named companies may effectively enjoy these rights, in accordance with freedom of association principles.
18. 130. With regard to the court challenges filed by some employers and affecting 2,000 workers after the Director-General had ruled in favour of the unions in a case concerning collective bargaining rights in nine companies, the Committee takes note of the information provided by the Government. The Committee notes in particular, that only one case seems to have been decided by the High Court which, in a judgement handed down in 2003, quashed the decision to grant representative status to the Non-Metallic Mineral Products Manufacturing Employees’ Union in the Top Thermo Manufacturers Sdn. Bhd. Company. The Committee requests the Government to provide information on the grounds on which this decision was based and to transmit the relevant text.
19. 131. With regard to the other pending cases, which concern court challenges filed by employers against the decision granting representative status to trade unions in eight companies (Syarikat Murulee (M) Sdn. Bhd.; Dipsol Chemicals Sdn. Bhd.; Senju Metal Industries Sdn. Bhd.; Pacific Quest (M) Sdn. Bhd.; Great Wall Plastics Sdn. Bhd.; White Horse Ceramic Industries Sdn. Bhd.; Kiswire Malaysia Sdn. Bhd.; and Silverstone Bhd.), the Committee observes that some of them date as far back as 1998 and recalls that justice delayed is justice denied [see Digest of decisions and principles of Freedom of Association Committee, 4th edition, 1996, para. 105]. The Committee requests the Government to continue to transmit information on these cases and to take all necessary measures to ensure that final decisions may be reached on them without further delay.
20. 132. The Committee urges the Government to address all these issues rapidly and to keep it informed of developments.