Effect given to the recommendations of the committee and the Governing Body - Report No 393, March 2021

Case No 3334 (Malaysia) - Complaint date: 16-JUL-18 - Closed

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

1. 25. The Committee last examined this case, which was submitted in July 2018 and which concerns allegations that a hotel  has been exploiting the weaknesses of the industrial relations system to prevent its workers from legally forming and registering a trade union, as well as allegations of systemic violations of freedom of association due to the existing legislation and practice, at its October 2019 meeting [see 391st Report, paras 349–384]. On that occasion, the Committee made the following recommendations [see 391st Report, para. 384]:
   • (a) The Committee expects that the necessary legislative amendments aimed at ensuring that 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, will be prepared in consultation with the social partners and adopted without further delay. It requests the Government to keep it informed of the developments in this regard.
   • (b) The Committee requests the Government to take the necessary measures to ensure that the secret ballot for the recognition of the NUHBRW as the collective bargaining agent of the workers in question is held without delay, either on the basis of an updated employee list or on agreement that the status of the contested employees will be resolved subsequently. It requests the Government to keep it informed in this respect.
   • (c) The Committee requests the Government to review in the framework of the above-mentioned legislative reform and in consultation with the social partners, the existing secret ballot system. It requests the Government to keep it informed in this regard.
2. 26. The Government provides its observations in a communication dated 31 January 2021. It indicates that, on the basis of consultations with the social partners and views from ILO experts, it has decided to maintain the current provision of the Industrial Relations Act, 1967 (IRA) concerning the definition of managerial and supervisory staff, as it seems sufficient in determining the scope of representation of trade unions.
3. 27. The Government further states that it took the necessary measures to ensure that a secret ballot for the recognition of the National Union of Hotel, Bar and Restaurant Workers (NUHBRW) was held at the hotel. In particular, after the High Court dismissed the hotel’s application for judicial review against the decision of the Director General for Industrial Relations who had decided to hold a secret ballot in November 2017, the Department of Industrial Relations informed the parties about the intention to proceed with a secret ballot in June 2020 but the union requested to postpone the ballot. In July 2020, the union informed the Department that its council had decided to withdraw their claim for recognition. According to the Government, as a result of the withdrawal of the claim for recognition, the matter has been resolved.
4. 28. Finally, the Government indicates that the provision on recognition of trade unions, including the secret ballot system, was amended in consultation with the social partners and with guidance from ILO experts. Indeed, the IRA was amended in 2019 and entered into force in January 2021 and the provision on recognition of trade unions will be enforced once amendments to the Trade Unions Act, 1959 are passed by the Parliament.
5. 29. The Committee takes note of the information provided by the Government. With regard to the definition of managerial and supervisory staff (recommendation (a)), the Committee notes the Government’s indication that after consultations with the social partners and the ILO, it has decided to maintain the relevant provision of the IRA. While taking due note of the reported consultations on this issue, the Committee recalls that it had previously requested the Government to amend the IRA in this regard, both in the present case and in Case No. 2717 [see 356th Report, para. 841]. In line with the above, the Committee trusts that the Government will ensure that the legislation concerning union recognition is applied in line with the principle of freedom of association.
6. 30. As to the conduct of a secret ballot for the recognition of the NUHBRW as the collective bargaining agent of the workers at the hotel (recommendation (b)), the Committee notes that in June 2020, the Department of Industrial Relations informed the parties about the intention to proceed with a secret ballot but the union first requested to postpone the ballot, before informing the Department that it had decided to withdraw its claim for recognition. The Committee takes due note of this development and trusts that both parties will cooperate in good faith.
7. 31. Concerning the review of the existing secret ballot system (recommendation (c)), the Committee notes the Government’s indication that the provisions on recognition of trade unions, including the secret ballot system, have been amended in consultation with the social partners and the ILO, that the amendments of the IRA entered into force in January 2021 and that the provisions relating to trade union recognition will be enforced when the amendments to the Trade Unions Act, 1959 are passed by the Parliament. Taking due note of these developments, the Committee understands from the text of the IRA that the amendments aim at expediting dispute resolution processes relating to disputes arising from a claim for recognition of a trade union for collective bargaining purposes, in particular by replacing the power of the Minister of Human Resources with the power of the Director General for Industrial Relations to resolve the dispute. The amended provision also provides that union membership is assessed at the time of the claim and a secret ballot is used to ascertain the percentage of workers who show support for the union seeking recognition. The Committee trusts that these and other amendments to the IRA will effectively address the complainant’s concerns and refers the legislative aspect of this case to the Committee of Experts on the Application of Conventions and Recommendations. In view of the above, the Committee considers this case closed and will not pursue its examination.