Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 363, Mars 2012

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

1. 178. The Committee last examined this case at its June 2011 meeting [see 360th Report, paras 845–859]. On that occasion, the Committee made the following recommendations:
   • (a) The Committee, recalling once again that all measures should be taken so as to ensure that: (1) the definition of managerial and supervisory staff is limited to those persons who genuinely represent the interests of employers, including, for example, those who have the authority to appoint or dismiss; and (2) managerial and supervisory staff have the right to establish their own associations for the purpose of engaging in collective bargaining, and expects the Government to inform it in the near future of concrete measures taken to amend the IRA in view of the above principles.
   • (b) The Committee requests the Government to make every effort to consult with the company and the trade union concerned so as to determine the supervisory staff genuinely representing the interests of employers which could be excluded from BATEU’s union membership, pending the introduction of the legislative reform which would clarify the different categories of workers falling under union representation. The Committee requests the Government to keep it informed of the outcome of such consultations. In the meantime, the Committee expects that the trade union will be able to work and function freely.
   • (c) The Committee expects the Government to inform it without delay of concrete amendments to the TUA that 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.
   • (d) The Committee expects that workers in BAT Malaysia’s wholly owned subsidiaries are able to exercise the right to form and join the organization of their own choosing, whether at primary level or by grouping together workers from different workplaces or cities.
   • (e) The Committee invites the Government to have recourse to the technical assistance of the ILO with regard to the legislative reforms under way, should it so desire.
2. 179. The Government submitted its observations in a communication dated 20 October 2011. With regard to the Committee’s requests to amend the Industrial Relations Act (IRA) so as to ensure that the definition of managerial and supervisory staff is limited to those persons who genuinely represent the interests of employers and to ensure that managerial and supervisory staff have the right to establish their own associations for the purpose of engaging in collective bargaining, the Government indicates that the process of determining the excluded categories is done by way of a thorough investigation by the Director-General of Industrial Relations (DGIR) and guidelines provided in case laws. It is feared that defining the excluded categories in the Act may result in rigidity as the issue of determining scope of unions to represent workers is complex and very technical in nature. Thus, the Government is not in favour of defining the four categories of employment excluded from being represented by trade unions (other than their own trade union). The Government adds that the Ministry has consulted the social partners and received inputs from them on the definition of the four categories of workers. However, further discussions with the social partners reveal that not all of them are keen on defining the “excluded categories” in the Act. Further to this, a decision has been made to maintain the present arrangement as status quo.
3. 180. With regard to the Committee’s request to inform it without delay of concrete amendments to the Trade Union Act of 1959 (TUA) 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, the Government indicates that it is of the position that the TUA is adequate and suitable within the peculiarities of the Malaysian environment and pivotal in sustaining industrial harmony as well as facilitating growth for the country. With regard to the right of workers in British American Tobacco (BAT) Malaysia’s wholly owned subsidiaries to form and join the organization of their own choosing, whether at primary level or by grouping together workers from different workplaces or cities, the Government indicates that the TUA does not in any way deny the right to form and join trade unions except that the trade unions must confine themselves to particular establishment, trade, industry, or occupations, within Peninsular Malaysia, Sabah or Sarawak. The Government indicates that the Court of Appeal, on 27 July 2011, has affirmed and upheld the High Court’s decision that the British American Tobacco (Malaysia) Employees Union (BATEU) cannot represent workers employed by the subsidiaries of BAT Malaysia. These trade unions must still go through the recognition process in order to be able to exercise the right to begin the collective bargaining process. Finally, the Government indicates that it declines the technical assistance offered by the Office.
4. 181. Concerning the request for measures to be taken to amend the IRA so as to ensure that: (1) the definition of managerial and supervisory staff is limited to those persons who genuinely represent the interests of employers, including, for example, those who have the authority to appoint or dismiss; and (2) managerial and supervisory staff have the right to establish their own associations for the purpose of engaging in collective bargaining, the Committee notes the Government’s indication that the Ministry has consulted the social partners and received inputs from them on the definition of the four categories of workers. However, further discussions with the social partners revealed that not all of them were keen on defining the “excluded categories” in the Act. Further to this, a decision has been made to maintain the present arrangement as status quo. The Committee notes with regret that the Government has decided to maintain the present arrangement (section 9 of the IRA: process of determining the excluded categories is done by way of a thorough investigation by the DGIR and guidelines provided in case laws) as status quo. In these circumstances, the Committee urges the Government to take the necessary measures so as to ensure that: (1) the definition of managerial and supervisory staff is limited to those persons who genuinely represent the interests of employers, including, for example, those who have the authority to appoint or dismiss; and (2) managerial and supervisory staff have the right to establish their own associations for the purpose of engaging in collective bargaining, and firmly expects the Government to inform it in the near future of concrete measures taken to amend the IRA in view of the above principles.
5. 182. As concerns the consultations with the company and the trade union concerned so as to determine the supervisory staff genuinely representing the interests of employers which could be excluded from BATEU’s union membership, the Committee notes with regret that the Government did not provide any information in this regard. The Committee urges the Government to make every effort to consult with the company and the trade union concerned so as to determine the supervisory staff genuinely representing the interests of employers which could be excluded from BATEU’s union membership.
6. 183. With regard to its long-standing recommendations on legislative reform (previously raised in Case No. 2301), the Committee notes with regret that despite previous indication that it had taken steps to amend the IRA and the TUA, and that it had proposed 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 Government now indicates that it is of the position that the TUA is adequate and does not in any way deny the right to form and join trade unions, except that the trade unions must confine themselves to particular establishment, trade, industry, or occupations, within Peninsular Malaysia, Sabah or Sarawak. The Committee further notes that the Court of Appeal, on 27 July 2011, has affirmed and upheld the High Court’s decision that BATEU cannot represent workers employed by the subsidiaries of British American Tobacco (Malaysia) Berhard. The Committee considers the decisions of the Courts to be rooted in the legislative framework’s restrictions on trade union rights that it has extensively commented upon in Case No. 2301. 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 once again urges the Government to take the measures to amend the TUA so as to ensure that all workers, without distinction whatsoever, enjoy the right to establish and join organizations of their own choosing, whether at primary level or by grouping together workers from different workplaces or cities. In the meantime, the Committee expects that the trade union will be able to work and function freely.