Informe provisional - Informe núm. 356, Marzo 2010

Caso núm. 2717 (Malasia) - Fecha de presentación de la queja:: 22-MAY-09 - Cerrado

Allegations: The complainant organization alleges that the British American Tobacco Company (Malaysia) Berhad (BAT Malaysia) reclassified existing posts within the company in order to prevent employees who were members of the British American Tobacco Employees Union (BATEU) from retaining their union membership. Following this re-designation exercise, a 2007 decision of the Director-General of the Department of Trade Union Affairs and Industrial Relations ruled that the BATEU could represent only 15 employees out of the company’s total workforce of 1,000, rendering the union effectively unable to function.

1. 803. The complaint is set out in a communication of 22 May 2009 from the Malaysian Trades Union Congress (MTUC).
2. 804. The Government submitted its observations in a communication of 8 September 2009.
3. 805. Malaysia has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 806. In its communication of 22 May 2009, the complainant states that, on 28 August 2006, the British American Tobacco (Malaysia) Berhad (BAT Malaysia) announced vacancies for the new position of “process specialist” in the management category of employees. The weekend following this announcement, members of the British American Tobacco Employees Union (BATEU) holding the position of process technician were harassed to apply for the newly created positions.
2. 807. Subsequently, the union met with the employer’s Human Resource Director and expressed its disappointment over these developments. It also raised the following concerns: (1) despite the existence of a collective agreement, the union was not notified of any job creations; (2) the new job positions are supplanting positions within the union’s scope and denying the rights of the union to represent this group of employees; (3) the “process specialist” and “process technician” occupations are similar, i.e. they entail the operation of machinery and do not have managerial, executive or supervisory functions, and as such should be within the union’s scope; and (4) the implementation of this new job category, under the pretext of career promotion, was intended to eliminate 60 per cent of the total union membership. The complainant indicates that although the employer made a feeble attempt to justify the actions referred to, the union was not convinced that any significant differences between the two job descriptions existed.
3. 808. The employer subsequently went through with the re-categorization of the posts of 31 out of 175 process technicians, all of whom were members of the union, and insisted that they could no longer be represented by the union. It further threatened to dismiss those employees who refused to accept the new designation. On 29 December 2006, the employer issued a letter announcing its intent to eliminate 109 positions through the voluntary separation scheme (VSS) exercise, or if need be through forced terminations.
4. 809. On 9 January 2007 the employer, having successfully removed a large number of employees from trade union membership, initiated another exercise to remove all trade marketing and distribution representatives from trade union membership and the collective agreement’s coverage. Although these practices were brought to the attention of the Director-General of Industrial Relations, the latter concurred with the employer’s actions.
5. 810. The complainant adds that on 29 October 2007 the Director-General of the Department of Trade Union Affairs (DGTU), on the urging of the employer, arbitrarily ruled that the 46year-old BATEU could no longer represent the employees of the two wholly owned subsidiary companies of BAT Malaysia, namely the Tobacco Importers and Manufacturers Sdn Bhd (TIM) and the Commercial Marketing and Distributors Sdn Bhd (CMD). The registered rules of the union explicitly state that its membership is “open to all employees of British American Tobacco (BAT) [Malaysia] Bhd and its subsidiaries”. The complainant states that as a result of this ruling and the company’s actions, the BATEU’s membership now stands at 15 out of the total workforce of 1,000.

B. The Government’s reply

1. 811. In its communication of 8 September 2009, the Government states that BAT Malaysia is one of the largest companies in the country in the manufacture, sale, import and distribution of tobacco products, and also owns two subsidiaries, TIM and the CMD.
2. 812. In 2006, BAT Malaysia announced a restructuring exercise whereby three new positions were created: the process specialist position, to replace the process technician position at TIM and which the employer states is an executive position; and the sales and distribution representative (SDR) and trade marketing representative (TMR) positions, both within the CMD and both of which are, according to the employer, executive positions.
3. 813. The Government states that according to BAT Malaysia the restructuring was necessary and intended to upgrade employees’ personal development and provide career enhancement, as well as to remain competitive in a rapidly changing business environment. BAT Malaysia also maintains that many employees, including ordinary BATEU members were attracted to the positions and none of them were forced to apply, particularly to the process specialist positions. BAT Malaysia claims that better terms and conditions of work are attached to the three newly created positions, so that they cannot fall within the scope of the union’s representation. As BATEU was against this position, BAT Malaysia through their letter of 6 September 2006, filed an application under section 9(1A), Industrial Relations Act, 1967 (IRA 1967) to determine the classification of the TMR and SDR positions.
4. 814. The Government states that the restructuring exercise and its implementation was strongly opposed by the BATEU, especially the creation of 38 process specialist positions as it would eliminate 60 per cent of the union membership. The union claimed that the new posts created were a pretext to exclude the employees from union membership, and also contended that the process specialist position did not possess the necessary executive authority and functions and should therefore still fall within the membership scope of the union. Accordingly, the union lodged applications under the IRA 1967 to determine the classification of the process specialist, TMR and SDR positions.
5. 815. The Government indicates that BAT Malaysia then filed an application with the Department of Trade Union Affairs (DTU) to determine the union’s competence to represent all employees in the two subsidiary companies. The DGTU, with the powers vested in him under the Trade Union Act, 1959 (TUA), and after examining the statute and the relevant case law, made a decision on 29 October 2007 that the BATEU was “not competent” to represent employees employed in the subsidiary companies of BAT Malaysia. The decision made by the DGTU was based on the membership scope of BATEU which is not in line with the definition of a trade union as stipulated in section 2(1) and section 26(1A) of TUA, which provides that a trade union can only represent workers who are employed within a particular establishment.
6. 816. The Government states that the Department of Industrial Relations (DIR) categorically denies the allegation by the MTUC or BATEU that it, “in collusion with BAT Malaysia and the Department of Trade Union Affairs has crippled the 47-year-old BATEU”. The 29 October 2007 ruling of the DGTU that the BATEU is not competent to represent employees in TIM and the CMD was based on the interpretation of both statute and the prevailing case law; the BATEU’s membership scope was not consonant with the trade union law, notwithstanding the fact that there had been a practice where the BATEU had employees from both TIM and the CMD since its constitution was erroneously approved by the DGTU in 2000. Furthermore, the DIR was never involved in any manner whatsoever in the DGTU’s ruling.
7. 817. The Government adds that verification of the process specialist position was conducted through visits at the workplace by the DIR. Based on the DIR’s report, the Minister of Human Resources, on 7 March 2007, decided that the process specialist position falls within the managerial, executive, confidential or security category, hence employees holding the process specialist position fall outside of the scope of union representation. Dissatisfied with the Minister’s decision, the union appealed to the High Court on 20 April 2007. The matter is still pending; the union has also obtained a conditional stay order from the High Court to enable it to continue managing its affairs.
8. 818. The Government maintains that the BATEU has not been crippled since the recognition accorded by BAT Malaysia to it remains intact and therefore it is still competent in law to conduct collective bargaining with the company, albeit with less members now. The union, nevertheless, has not taken any positive steps to pursue a new collective agreement with the employer for the benefit of the workers it currently represents.
9. 819. According to the Government, it is the right of the employer to reorganize its business in the way it sees fit, provided it acts in good faith. BAT Malaysia is therefore free to create the necessary positions, assign the required responsibility for the job and fix the rates of pay. Many employees, including members of the BATEU, voluntarily took up the process specialist position as it is a promotion for them that comes with higher pay and better benefits. The Government adds that it is a common practice for companies intending to consolidate the workforce in turbulent times to do so by way of the VSS, which makes termination of employment less painful by offering a higher rate of redundancy benefits to employees. All employees, including BATEU members, were free to make their choice to leave the company in consideration for a retrenchment sum over and above the statutory rate; there is not an iota of evidence that BATEU members had been forced to accept the VSS.
10. 820. A communication of 27 July 2009 from the employer BAT Malaysia is attached to the Government’s communication. The employer states that it has not violated ILO conventions and allows its employees the freedom to join and form trade unions. As a responsible corporate citizen in Malaysia, BAT Malaysia has strictly complied with all relevant ILO Conventions and all relevant legislation and labour practices in Malaysia. BAT Malaysia is a holding company which is not involved in manufacturing or marketing activities; manufacturing activities are carried out by a company known as TIM, a wholly owned subsidiary of BAT Malaysia, while marketing and distribution activities are carried out by a company known as the CMD, also a wholly owned subsidiary of BAT Malaysia. The union, the BATEU, was formally known as the Rothmans Employees Union (REU) and represented employees in all three companies stated above.
11. 821. The employer indicates that, formerly, its manufacturing operations were carried out by process technicians who were essentially machine operators; each machine had to be manned by a process technician. Over the years, the company had looked into the prospect of enhancing production efficiency and introduced more sophisticated machines to enhance efficiency, given the changing and challenging environment. Pursuant thereto, there was a need to replace process technicians with a smaller group of more highly skilled specialists who would not be purely machine operators, but would manage the entire process: thus the evolution of the concept of process specialist, which has been implemented in many developed countries. Process specialists are highly skilled specialists who constitute a self-managing team.
12. 822. According to the employer, the role profile for process specialist had been evaluated via the Hays Methodology and the said position was deemed to carry executive functions and responsibilities pursuant to the evaluation. On 28 August 2006, the position of process specialist was advertised through the company’s internal email. The employer states that it is not true that members of the BATEU were harassed to apply for this position nor that no information had been given to the BATEU earlier.
13. 823. About 150 process technicians, including members of the Executive Committee of the BATEU, applied for the position as process specialists. About 70 of them who possessed specialized technical knowledge (holders of certificates and diplomas) were deemed suitable for the new position, were appointed as process specialists and subsequently given specialized training. With the implementation of the new production process and the appointment of process specialists, the company had seen an improvement of 17 per cent in productivity, a reduction by 25 per cent of wastage and rejects, no drop in quality and an enhanced continuous plan.
14. 824. The employer states that the BATEU was not officially notified of the process specialist position, as it was a management position that falls outside the scope of the collective agreement. The specialist role carries executive functions and responsibilities, and the wages and terms and conditions of employment offered for the said position are much higher than that provided for in the collective agreement between itself and the BATEU.
15. 825. The employer indicates that immediately after the announcement of this position via internal email, its management had a meeting with the BATEU, in September 2006. The BATEU had refused to discuss the issue and, instead, made allegations of union busting by the company and issued circulars to all its members alleging the same with false information. The BATEU had also insisted that there was no difference between the functions of process technicians and process specialists.
16. 826. Under the Malaysian IRA 1967, a dispute over the capacity in which a person is employed may be referred to the Director-General for Industrial Relations (DGIR) for investigation. The result of his investigation would be referred to the Minister of Human Resources for a decision. The BATEU had reported this issue to the DGIR; pursuant thereto, the Minister of Human Resources held on 8 March 2007 that the position of process specialist was an executive position falling outside the scope of the collective agreement. The BATEU was unhappy with the decision of the Minister of Human Resources and, together with the MTUC, has accused the Minister of Human Resources of conspiring with the company to bust the union. The employer maintains that since this decision had never been challenged by the BATEU, they should not now question its legality as they are deemed to have accepted the decision and waived their rights; all parties should now abide by the decision.
17. 827. The employer states that following the appointment of process specialists, several employees, particularly those without the relevant skills, had to be made redundant. This led to the decision that a reduction of manpower in TIM would be necessary, and the BATEU was duly notified of this intention. In view of the redundant employees, the company made a VSS offer that was sufficiently generous to the employees concerned. As a result, all of the employees offered the VSS voluntarily accepted the scheme despite the BATEU’s campaign against it.
18. 828. As stated above, the employer’s marketing and distribution activities are carried out by the CMD. Although the distribution of its tobacco products is under the purview of the CMD, much of the actual distribution and sale of its products have been handled by third party independent dealers and distributors who have their own personnel. In carrying out marketing and distribution activities, the company employed a large number of trade marketing and distribution representatives (TM&D reps) whose functions are essentially to plan, organize, coordinate and implement cost-effective sales and distribution activities aimed at ensuring the quality and timely availability of BAT Malaysia’s range of products, and to pursue proactive initiatives designed to support and advance BAT Malaysia’s trade marketing activities. Given the changing environment, the company realized that, moving forward, the present system would not be an ideal method because it was not cost effective and the independent dealers and distributors were not sufficiently committed to ensuring that all the retail outlets were sufficiently supplied with the company’s products. The company decided that to have a more dynamic system of distribution and marketing, it would directly market and distribute its products and have its own personnel to do so. The sales personnel employed by the independent dealers and distributors would be absorbed by the CMD. To support such change and for business efficacy, the company needs to reorganize and restructure its current sales and distribution division to give more focus to both the trade marketing and sales and distribution activities and enable structured capability development in both fields. As such, the functions and responsibilities of the existing TM&D reps will also change to reflect the level of professionalism and sales mastery required by the company of the TM&D reps for now, and in the future to provide more professional and dynamic service in marketing and distribution activities.
19. 829. The employer indicates that it decided that the TM&D reps need to be divided into two groups, i.e., TMRs and SDRs. The current TM&D reps would be re-designated as either TMRs or SDRs. Both TMRs and SDRs will be handling managerial, executive and confidential functions, with multi-skill requirements in managing the operational and leadership aspects of their roles. The TMRs and SDRs currently execute a number of executive responsibilities which is evidenced in the daily requirements of their jobs such as: (a) the need for decision-making in day-to-day business activities, including deciding on effective methods and means to achieve their trade marketing and sales and distribution targets in segmented outlets; (b) the need to provide problem-solving solutions and advice to retailers and various stakeholders in their daily jobs; (c) providing constructive feedback and ideas which will help the CMD make better decisions in marketing execution; (d) planning their activities to achieve the CMD’s targets within budgets; (e) to have direct supervision and leadership of sales teams, and providing performance coaching where necessary to sales teams; and (f) conducting performance appraisals for sales teams, dealing with disciplinary issues and resolving daily people issues among sales teams. The employer attaches, as an appendix, a summary of the key functions and responsibilities of TMRs and SDRs.
20. 830. The employer indicates that it applied to the Director of Industrial Relations for an opinion on the TMR and SDR positions, and on 14 December 2006 the company received a decision from the Ministry of Human Resources that the TMR and SDR positions fall within the executive category. In January 2007, the company offered the new positions to all existing TM&D reps; all relevant employees accepted their positions. Among those who accepted the new positions were the President of the BATEU and several Executive Committee members.
21. 831. According to the employer, although the rules of the BATEU’s constitution provide that its membership is open to all employees of BAT Malaysia and its subsidiaries, TUA does not allow this. The BATEU’s constitution was erroneously approved by the DGTU in the year 2000 when the union was established. Section 2 of the latter law provides that membership in a trade union is only open to workers within any particular establishment, trade, occupation or industry or within any similar trades, occupations or industries. Furthermore, in one decision the High Court had determined that an establishment, as defined under section 2(1) of TUA, included a branch or division of the company concerned but did not include its subsidiary companies; in that same decision the High Court had also held that a union registered to cater for one establishment could not grow out of itself to represent employees in another establishment. In view of the above, the BATEU can only represent employees in BAT Malaysia and not those belonging to the latter’s subsidiary companies. The company thus decided, in accordance with the relevant law, to seek a decision from the DGTU on the BATEU’s competence to represent all employees of BAT Malaysia including its subsidiaries. On 29 October 2007, the DGTU ruled that the BATEU could only represent employees in BAT Malaysia, and not in TIM or the CMD.
22. 832. The employer states that on 15 November 2007 the union applied to the High Court for judicial review of the DGTU’s decision. On 27 November 2007, the High Court granted the BATEU leave to commence judicial review proceedings; the leave application was heard ex parte. Apart from the leave application, BATEU had also applied for a stay order against all proceedings and any effect related to or arising from the DGTU’s decision, so as to enable the BATEU to still carry out its duties and functions, including the use of its bank account, until the conclusion of its application or any such directions of the High Court. The foregoing stay application has yet to be heard. The High Court had declined to give an interim stay order save for a limited order, handed down on 7 December 2007, enabling the three existing cheque signatories of the BATEU to sign cheques solely for the purposes of paying the union’s monthly utility bills and the monthly allowance of its part-time clerk. Aside from this limited order, the DGTU’s decision still stands and all parties are compelled to comply with the same.
23. 833. The employer indicates that article 10(2) of the collective agreement between itself and the union provides for the right of the company to operate and manage its business in all respects for the well-being of the company. Additionally, articles 15 and 17 of the collective agreement provide for recruitment and promotions and require the company to advertise, among existing employees, vacancies for positions, within the scope of the agreement. However, in the case of management positions article 17(2) provides that the company would consider promoting employees from within the scope of the agreement to junior management positions; in such cases there is no requirement to advertise internally. In filling the position of process specialist the company was therefore not obliged to advertise internally, but had done so to offer opportunities to a large number of employees who would otherwise have no opportunity to apply for management positions. The actions of the company, therefore, cannot be construed as union-busting.
24. 834. The employer states that it has always recognized the right of employees to be represented by trade unions. Although the DGTU has ruled that the BATEU cannot represent employees in TIM and the CMD, the company is always willing to work with trade unions that have the capacity under the law to legitimately represent employees from TIM and the CMD, and has never refused or failed to negotiate with the BATEU. The decision of the DGTU does not permit the current union officials, including the President and General Secretary, to be members of the BATEU. However, the BATEU has not been disbanded by the DGTU and remains very much alive. It is for the existing members in BATEU to elect a new General Secretary and President and negotiate with the company.
25. 835. The employer maintains that it has not undertaken union-busting activities and has at all times acted within the parameters of local legislation and fair industrial relations practices. Its decisions were undertaken in order to adapt to changing global market conditions and, to date, the overall restructuring undertaken by the company had resulted in a workforce of approximately 500 potential union members as well as career development opportunities for its employees. Furthermore, all initiatives taken by the company to date have been approved by the relevant authorities in Malaysia. The employer adds, finally, that in relation to the pending proceedings before the High Court it is able to submit only the information provided above, as any further details may be sub judice to the court proceedings.

C. The Committee’s conclusions

1. 836. The Committee notes that the present case involves allegations that BAT Malaysia reclassified existing posts within the company in order to prevent employees who were members of the BATEU from retaining their union membership. According to the complainant, out of 175 existing process technician posts, 31 were reclassified as process specialist ones; following the announcement of the posts, union members were allegedly harassed into applying for them and 109 process technicians positions were subsequently made redundant. The complainant also states that there are no significant differences between the duties and functions of the two.
2. 837. The Committee notes the information transmitted by the Government, particularly as concerns the 7 March 2007 ruling of the Minister of Human Resources and the 29 October 2007 decision of the DGTU. The Committee further notes the employer’s statement that the process specialist post had been introduced to replace that of the process technician within its wholly owned subsidiary, TIM, in order to increase production efficiency, and that the said post had been evaluated and deemed to possess executive functions and responsibilities, with wages and terms of employment much higher than that provided for in the collective agreement with the BATEU. Furthermore, as management positions, the process specialist positions are not required to be advertised internally, as per the collective agreement. According to the employer, following the announcement of the new posts on 28 August 2006 about 150 process technicians, including members of the BATEU’s executive committee, applied for them and approximately 70 were appointed and given specialized training. Subsequently, several employees had to be made redundant and were given VSS offers that were sufficiently generous, and which all of the employees concerned voluntarily accepted. The employer indicates that no union members were harassed to apply for the positions.
3. 838. The Committee notes that a disparity exists between the complainant’s and the employer’s statements with respect to the number of posts reclassified. The Committee nevertheless notes that the Minister of Human Resources, on 7 March 2007, decided that the process specialist position falls within the managerial, executive, confidential or security category and – by virtue of section 2(1) of TUA, which requires that trade unions be associations or combinations of workers within “similar” trades, occupations or industries – thus fell outside the scope of union representation. The Government indicates that the union appealed the Minister’s decision to the High Court on 20 April 2007, and that the matter is pending.
4. 839. The employer had also created two new posts, TMR and SDR, to replace the TM&D rep post within its other wholly owned subsidiary, the CMD. In this respect the Committee notes that, as with the process specialist post in the employer’s TIM subsidiary, the TMR and SDR posts were designated as falling within the executive category by the Ministry of Human Resources (on 14 December 2006), and furthermore that, following a petition by the employer, the DGTU ruled on 29 October 2007 that by virtue of section 26(1) of TUA, the BATEU could no longer represent employees employed by BAT Malaysia’s subsidiaries, TIM or the CMD; the BATEU appealed the DGTU’s decision to the High Court, and the matter is still pending. Finally, the Committee notes that according to the complainant, following these rulings the BATEU’s membership currently stands at 15 out of a total workforce of approximately 1,000.
5. 840. The Committee observes that the 14 December 2006 decision of the Ministry of Human Resources and the 7 March 2007 decision of the Minister of Human Resources, which respectively determined that the TMR/SDR posts and the process specialist posts were executive positions and thus fell outside the scope of union representation, were apparently based on section 9 of the IRA 1967. The said provision states that no trade union, the majority of whose membership consists of “workmen in the managerial, executive, confidential or security capacities”, may seek recognition or invite the employer to engage in collective bargaining in accordance with section 13 of the IRA. The Committee further notes that the IRA provides no definitions for the above noted categories, but stipulates rather that whether a particular occupation falls into any of the said categories is a matter to be determined by either the Director-General of Industrial Relations (section 9(4)) or the Minister of Human Resources (section 9(5)).
6. 841. As concerns managerial and supervisory staff, the Committee recalls that it is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to establish their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 247]. Moreover, the Committee has taken the view that the expression “supervisors” should be limited to cover only those persons who genuinely represent the interests of employers [see Digest, op. cit., para. 248]. The Committee has previously recognized that limiting the definition of managerial staff to persons who have the authority to appoint or dismiss is sufficiently restrictive to meet the condition that these categories of staff are not defined too broadly, and that a reference in the definition of managerial staff to the exercise of disciplinary control over workers could give rise to an expansive interpretation which would exclude large numbers of workers from workers’ rights. It recalls, furthermore, that an excessively broad interpretation of the concept of “worker of confidence”, which denies such workers their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association [see Digest, op. cit., paras 249, 250 and 251]. In view of the principles cited above, the Committee requests the Government to take the necessary measures to amend the IRA 1967 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.
7. 842. On the basis of the information on the process specialist position submitted by the employer and the complainant, the Committee queries whether this newly created position, which entirely replaces the previous process technician post, can be genuinely seen as meeting the criteria for managerial staff as set out in the principles noted above, particularly as the indications provided make no reference to the authority to appoint, dismiss or exercise disciplinary control over others. In these circumstances, the Committee requests the Government to take the necessary measures, including a review of the 14 December 2006 and 7 March 2007 decisions of the Ministry of Human Resources, so as to ensure that the exclusions from the BATEU’s union membership are limited to supervisory staff genuinely representing the interests of employers. The Committee requests to be kept informed of the progress made in this respect.
8. 843. The Committee observes that other causes for the reduction in the BATEU’s membership lie within the country’s labour legislation – sections 2(1) and 26(1) of TUA specifically – and its application, which, as the Committee has noted in another case before it concerning Malaysia, has resulted in serious and ongoing violations of the right to organize and bargain collectively. In that case, the Committee had been referring for many years to the fundamental deficiencies in the legislation (including section 2(1) of TUA, which limits the definition of trade unions to associations or combinations of workers within “similar” trades, occupations or industries) and, in its most recent examination of the said case, had once again urged the Government to incorporate its long-standing recommendations on the need to amend the legislation so as to ensure, inter alia, that all workers, without distinction whatsoever, enjoy the right to establish and join organizations of their own choosing, both at primary and other levels [see Case No. 2301, 353rd Report, para. 137].
9. 844. The Committee further observes that section 26(1) of TUA, on which the DGTU’s 29 October 2007 ruling was based, provides that “no person shall join, or be a member of, or be accepted or retained as a member by, any trade union if he is not employed or engaged in any establishment, trade, occupation or industry in respect of which the trade union is registered”. As in its previous examinations of Case No. 2301, the Committee recalls with respect to sections 2(1) and 26(1) of TUA that under Article 2 of Convention No. 87, workers have the right to establish organizations of their own choosing, including organizations grouping together workers from different workplaces and different cities. [see Digest, op. cit., para. 335].
10. 845. In these circumstances the Committee, recalling its long-standing recommendations on legislative reform in Case No. 2301, urges the Government to take the necessary measures to amend sections 2(1) and 26(1) of TUA so as 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. Further noting that the BATEU appealed the decisions of the Minister of Human Resources and the DGTU to the High Court over two years ago, and that in the interim the BATEU is only permitted limited action as a union, the Committee firmly expects that its conclusions will be drawn to the High Court’s attention when it reviews these cases and that its rulings be issued in the near future and will ensure the right of all workers to form and join the organization of their own choosing, including those workers in BAT Malaysia’s wholly owned subsidiaries. It requests the Government to keep it informed of developments in this regard and to transmit a copy of the judgements once they have been handed down.

The Committee's recommendations

1. 846. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to amend the Industrial Relations Act, 1967 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.
   • (b) The Committee requests the Government to take the necessary measures, including a review of the 14 December 2006 and 7 March 2007 decisions of the Ministry of Human Resources, to ensure that the exclusions from the BATEU’s union membership are limited to supervisory staff genuinely representing the interests of employers. The Committee requests to be kept informed of the progress made in this respect.
   • (c) The Committee, recalling its long-standing recommendations on legislative reform in Case No. 2301, urges the Government to take the necessary measures to amend sections 2(1) and 26(1) of TUA so as 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.
   • (d) Noting that the BATEU appealed the decisions of the Minister of Human Resources and the DGTU to the High Court over two years ago, the Committee firmly expects that its conclusions will be drawn to the High Court’s attention when it reviews these cases and that its rulings will be issued in the near future and will ensure the right of all workers to form and join the organization of their own choosing, including those workers in BAT Malaysia’s wholly owned subsidiaries. It requests the Government to keep it informed of developments in this regard and to transmit a copy of the judgements once they have been handed down.