Effect given to the recommendations of the committee and the Governing Body - Report No 344, March 2007

Case No 2301 (Malaysia) - Complaint date: 22-SEP-03 - Closed

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

1. 118. 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 March 2006 meeting [see 340th Report, paras 124–132].
2. 119. In a communication dated 16 August 2006, the Government stated that it is not able to bring its law and practice into full conformity with freedom of association principles, as doing so would enable the formation of general trade unions and could lead to inter-trade union rivalry in the workplace, which is not conducive to industrial harmony and unproductive.
3. 120. With regard to the 8,000 workers who claimed representational and collective bargaining rights in 23 companies, the Government indicated that the Director-General of Trade Unions (DGTU) had decided for each company that the petitioning trade union was not competent to represent the workers concerned, since the union represented workers in a different industry from the company and its employees. The Government attached an analytical table listing 21 companies, the nature of their respective businesses, the DGTU’s decision with regard to each company and the reason for each decision. The Government adds that even though the above-noted workers could not be represented by the trade unions, they were free to join any trade union and in the absence of any union, could form an establishment, or “in-house” trade union to represent them vis-à-vis their respective employers.
4. 121. With respect to the court challenges filed by several employers and affecting 2,000 workers, after the DGTU had ruled in favour of the unions in cases concerning collective bargaining rights, the Government attached an analytical table with the information on these cases (parties, year, subject, decision). It added that in the case involving the Metal Industry Employees Union in Top Thermo Manufacturing (Malaysia) Sdn. Bhd., the said union had appealed the judgement of the High Court quashing a decision to grant the union representative status; the appeal was still pending.
5. 122. The Government also indicated that the discussion on the amendments to the Industrial Relations Act 1967 and the Trade Union Act 1959 was completed in March 2006; the bill is in the final stages of vetting by the Attorney-General’s Office before being tabled in Parliament.
6. 123. As regards the 8,000 workers whose claims for representational and bargaining rights in 23 companies were denied, the Committee notes, from the information submitted by the Government, that in 21 of these company-specific claims the DGTU had deemed the petitioning union not competent as it possessed constituencies in industries different from those of the employees it sought representative status for.
7. 124. While not calling into question the approach of setting up broad bands of classification relating to branches of activity for the purpose of clarifying the nature and scope of industrial-level unions, the Committee does consider the decisions of the DGTU to be rooted in the legislative framework’s restrictions on trade union rights that it had extensively commented upon in its first examination of this case. Moreover, the Committee recalls once again that it has commented upon the extremely serious matters arising out of fundamental deficiencies in the legislation on several occasions, over a period spanning 15 years. In this regard the Committee must express its deep concern with the Government’s statement that it is unable to bring its law and practice into conformity with freedom of association principles and recalls that questions of trade union structure and organization are matters for the workers themselves. Noting that the bill to amend the Industrial Relations and Trade Unions Acts was in the final stages of vetting before being tabled in Parliament, the Committee once again urges the Government to take fully into account its longstanding recommendations concerning the need to ensure that:
8. – 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;
9. – 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;
10. – workers’ organizations have the right to adopt freely their internal rules, including the right to elect their representatives in full freedom;
11. – workers and their organizations enjoy appropriate judicial redress avenues over the decisions of the minister or administrative authorities affecting them; and
12. – 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.
13. The Committee once again reminds the Government that it 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.
14. 125. As regards the 8,000 workers themselves whose freedom of association rights were denied, the Committee urges the Government rapidly to 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.
15. 126. As regards the nine court challenges filed by several employers and affecting 2,000 workers after the DGTU had ruled in favour of the unions in cases concerning collective bargaining rights, the Committee notes that the Metal Industry Employees Union (MIEU) was appealing the High Court’s 2003 judgement quashing the decision to grant it representative status. As for the other eight decisions, the challenge of one company (Syarikat Marulee (M) Sdn. Bhd.) was quashed and is now being appealed; another company (Pacific Quest (M) Sdn. Bhd.) had its challenge dismissed and was ordered to pay costs. Noting that the other decisions, with one exception, were being appealed or are still pending before the High Court, the Committee recalls once again that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 105] and once again requests the Government to continue to transmit information on these cases, including the grounds on which the judgements were made, and to take all necessary measures to ensure that the final decisions may be reached without further delay.