Rapport intérimaire - Rapport No. 281, Mars 1992

1. 311. The Committee has already examined the substance of this case on one previous occasion, at which it presented interim conclusions to the Governing Body (see 277th Report, paras. 406-419, approved in February-March 1991).
2. 312. The Government supplied certain further information on this case in a communication dated 10 January 1992.
3. 313. Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 314. The International Metalworkers' Federation (IMF) alleged that electronics workers who had formed a union in the Harris Solid State Sdn. Bhd. (HSS), a wholly owned subsidiary of the multinational Harris Corporation, were facing intimidation aimed at eliminating the only in-house union in the industry. Although they had secured registration in January 1990, the parent company decided to wind up HSS and absorb it into Harris Advanced Technology Sdn. Bhd. (HAT); 23 union activists at the HSS plant were dismissed without being given the option to transfer to HAT.
2. 315. The Government replied that workers in the electronics industry were not denied the right to associate and that, in the Malaysian system, in-house unions are truly independent bodies able to pursue claims against their employers and free to affiliate to national and international workers' bodies. It added that there were four other in-house unions in the industry, two in companies which manufacture purely electronic products and two in companies which manufacture a mixture of electronic and electrical products. It did not comment on the 23 dismissals allegedly linked to trade union activities.
3. 316. At its February-March 1991 Session, the Governing Body, in the light of the conclusions of the Committee, approved - inter alia - the following interim recommendation:
4. ... That the Government provide its detailed observations on the alleged victimisation of 23 union activists, and the destruction of the union, in the context of a further restructuring in 1990. These observations should be provided as soon as possible so as to enable the Committee further to examine this case at its next meeting.
5. B. The Government's observations
6. 317. In a letter of 10 January 1992, the Government states that Harris Corporation had two other subsidiaries operating within the same vicinity as HSS, namely Harris Semiconductor (M) Sdn. Bhd. (HSM) and Harris Advanced Technology Sdn. Bhd. (HAT), each a separate entity. In January 1990, Harris Corporation proceeded with its consolidated plan by concentrating its operations in HAT in order to achieve economies of scale. HAT subsequently offered employment to 2,700 employees of HSS. Virtually all of them accepted the offer, with the exception of 22 workers, mainly union office-bearers, who turned down the offer. The 22 who refused to accept employment in HAT continued to be employed by HSS. One of them later resigned. The 23 workers mentioned in the complaint include two workers who were seconded from HAT.
7. 318. According to the Government, on 21 September 1990 all the said 21 employees were terminated as a result of HSS's decision to cease operation with effect from 22 September 1990. Representations against wrongful dismissal under the Industrial Relations Act, 1967 were received from all the 21 workers involved. The representations are being arbitrated by the Industrial Court. The two workers who had been seconded from HAT to HSS were posted back to HAT when HSS ceased operations. In addition, a complaint from the HSS Employees' Union that the dismissal of the 21 workers was an act of victimisation and an unfair labour practice is being heard by the Industrial Court, which is tripartite in its composition.
8. 319. The Government maintains that in the light of the above it would be premature to suggest that the action taken by HSS in terminating the services of the employees amounted to victimisation of union activists or was aimed at destroying the union. It also points out that the HSS Employees' Union is not the only union in the electronics industry in existence, as alleged: there are four other such unions in this industry. This system of in-house unions is not only peculiar to the electronics sector alone. In fact, there are a total of 127 other in-house unions in the private sector in Malaysia.
9. 320. With regard to compliance with Convention No. 98, the Government wishes to inform the Committee that it may not be prudent to continue to apply international labour standards on the basis of equality when there is such great disparity in economic and social development, terms of trade, technology and other conditions among member States. In the Government's opinion, in a situation of increasing global disparities, the Committee on Freedom of Association must not be seen to impose conditions which may come into conflict with the countries' interests.
10. 321. Finally, the Government wishes to categorically state that measures appropriate to Malaysia's conditions have been adopted to protect the rights of workers to form or join trade unions of their choice subject to the provisions of the Trade Union Act, 1959. This machinery is operating satisfactorily and has led to the growth of trade unions and trade union membership in Malaysia. The current procedures are working well and the Government states categorically that the allegations in this case are clearly unfounded.

C. The Committee's conclusions

1. 322. The Committee notes that, according to the Government, two of the 23 workers referred to in the complaint had been seconded from HAT to HSS and were not dismissed but posted back to their former company when HSS ceased operations. It appears that the remaining 21 dismissed workers have brought individual claims of wrongful dismissal under the Industrial Relations Act, 1967 currently being heard before the tripartite Industrial Court, and that the HSS Employees' Union itself has made a claim before the Industrial Court that the dismissals amounted to victimisation and an unfair labour practice.
2. 323. While noting that the Government considers it premature to suggest that the dismissals victimised union activists or were aimed at destroying the union, the Committee would recall in general that, as it is often difficult, if not impossible, for a worker to prove that he or she has been subjected to an act of anti-union discrimination, protection should be ensured by having effective and speedy machinery against such acts. Recalling that tribunals should issue their decisions rapidly in cases of dismissals for trade union activities, the Committee requests the Government to inform it as soon as possible of the outcome of all proceedings before the Industrial Court concerning the 21 dismissed workers.
3. 324. The Committee notes the Government's general doubts expressed on the usefulness of universal application of standards, in particular mentioning Convention No. 98, among member States having widely disparate economic and social conditions, terms of trade, levels of technology and so forth, as well as its statement that the Committee "must not be seen to impose conditions which may come into conflict with the countries' interests". In this connection, the Committee believes it should recall the principle according to which trade union rights, like other basic human rights, should be respected no matter what the level of development of the country concerned (279th Report, Case No. 1581 (Thailand), para. 462). It would also recall that the function of the Committee is to secure and promote the right of association of workers and employers and it does not level charges at or condemn governments (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 23).