Rapport définitif - Rapport No. 399, Juin 2022

Cas no 3409 (Malaisie) - Date de la plainte: 27-MAI -21 - Clos

Allegations: The complainant organization alleges the dismissal of trade union members and leaders by an automobile-producing company for their participation in a trade union meeting, as well as the Government’s failure to provide adequate protection against acts of anti-union discrimination and interference in law and in practice

1. 208. The complaint is contained in a communication dated 27 May 2021 from IndustriALL Global Union.
2. 209. The Government provides its observations in a communication dated 30 September 2021.
3. 210. Malaysia has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but not the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 211. In its communication dated 27 May 2021, the complainant alleges the dismissal of 32 union members, including five union leaders, from its affiliate organization – Malaysia’s National Union of Transport Equipment and Allied Industries Workers (NUTEAIW) – by the Hicom Automotive Manufacturers (Malaysia) Sdn Bhd (hereinafter “the company”) for their participation in a trade union meeting. It also denounces the Government’s failure to ensure adequate protection of the unionists against acts of anti-union discrimination and interference, both in law and in practice.
2. 212. The complainant provides background to the dispute, indicating that the NUTEAIW and the company engaged in negotiations for a fourth collective agreement from June 2014 to November 2015 but did not reach consensus. The NUTEAIW therefore sent a declaration of deadlock in negotiations to the company by fax in December 2015 but the company claimed that it had not received it. The General Secretary of the NUTEAIW, Mr Gopal Kishnam Nadesan, informed union members that a briefing would be held, after working hours and outside the company premises, to inform them on the status of the negotiations. The complainant alleges that the company management warned the workers not to join the proposed briefing under the threat of dismissal. On 4 December 2015, after working hours, around 110 NUTEAIW members left the company premises, assembled in the car park outside the company and held a peaceful briefing for one hour led by the union General Secretary, without blocking the entrance to the factory.
3. 213. The complainant alleges that one month after the meeting, the company issued show cause letters to 32 NUTEAIW members and accused five union leaders of influencing 110 factory workers to assemble outside factory premises. The company claimed that the unionists had violated its policy and disciplinary procedures by attracting public attention and giving a picture of inharmonious industrial relations in the company, causing a negative public perception of the company, and therefore instructed the unionists to provide an explanation as to why disciplinary action should not be taken against them. The 32 unionists replied to the show cause letters, refuting the accusations, but after domestic inquiry which found them guilty, they were dismissed in February 2016. Following a representation for unfair dismissal, filed to the Industrial Relations Department under section 20 of the Industrial Relations Act, 1967 (IRA), 27 unionists were reinstated. However, the company refused to reinstate five union leaders (members of the NUTEAIW national executive committee and worksite committee), Muhamad Sukeri Bin Mahudin, Rozaimi Bin Mohammad, Mohamad Yusry Bin Othman, Kaikhidil Bin Jamaludin and Nurdin Bin Muda, all of whom had between 20 and 26 years of service at the company. The complainant alleges that the employer’s interference in the exercise of the right to assembly and the sanctions imposed thereafter have had a chilling effect on the workers, inhibiting them from freely pursuing the resolution of the deadlock in negotiations with the employer, and constitute a breach of the principle of freedom of association.
4. 214. The complainant provides an overview of domestic procedures initiated to address the alleged anti-union dismissal of the five unionists who had not been reinstated, stating that the Minister of Human Resources first referred the complaint to the Industrial Court which ruled in March 2019 that the dismissals were with just cause. The Industrial Court considered that the assembly attracted public attention and tarnished the image of the company and ruled that since the union had not communicated the declaration of deadlock to the company (no documentary evidence of the communication was provided) and had not referred its complaint for conciliation to the Director-General of Industrial Relations under section 18(1) of the IRA, there was no evidence of a trade dispute; the union was therefore not entitled to resort to picketing and the union briefing was considered as an illegal picket in which the unionists participated. In September 2019, the High Court upheld the ruling of the Industrial Court, stating that the union members had attended an illegal picket with the intention to obtain support from the outside and, in that process, caused disrepute to the company. In November 2020, the Court of Appeal dismissed the unionists’ application for judicial review, indicating that there were no questions of illegality, irrationality, procedural impropriety or disproportionality, and in December 2020, the Federal Court (the highest court in the country) also rejected the unionists’ application for leave to appeal the Court.
5. 215. In the NUTEAIW’s view, the courts’ rulings are flawed considering that: (i) the dismissals violated the right to assembly of the five unionists, as enshrined in the Constitution; (ii) there is no requirement to seek permission from the company to attend a union briefing outside of working hours and outside the workplace; (iii) the courts failed to consider section 4(1) of the IRA which prohibits interference in the right to participate in lawful union activities; (iv) the Industrial Court Chairperson acted beyond his jurisdiction by considering the union briefing as an illegal picket, as neither the company nor the authority charged the union officials with participation in an illegal picket; (v) even if the union briefing had been a picket, there was no obligation to refer a dispute to the Director-General of Industrial Relations before convening it, as the language of section 18(1) of the IRA stipulates that an unresolved dispute “may be referred” to the Director-General; (vi) under section 40(1) of the IRA, trade unions have the right to participate in peaceful pickets; and (vii) dismissal for engagement in lawful union activities is illegal. According to the NUTEAIW, the courts failed to address the anti-union practices of the employer and thereby failed to safeguard the right of union officials to participate in union activities through their erroneous interpretation of the IRA leading to unfair dismissal of five union leaders. It also alleges that little assistance has been available to trade unions to invoke the criminal sanctions procedure to address anti-union allegations stipulated in section 59 of the IRA, as has been underlined by the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts) and the Conference Committee on the Application of Standards, as a result of which unions’ choice is restricted to invoking section 20 of the IRA, which lacks clarity on reinstatement, as well as on enforcement measures with the employer.
6. 216. In the complainant’s view, the Government failed to protect the unionists against unfair dismissals for having participated in legitimate union activities, both in law and in practice. It therefore requests the Government to carry out an investigation into the dismissal of the five unionists, to convene a conciliation meeting between the union and the company with a view to reinstating the unionists and to sanction the company for illegal interference in legitimate trade union activities. It also puts forward that the Government should ensure strict adherence to the principles enshrined in Convention No. 98 to ensure that domestic labour laws effectively protect workers against anti-union discrimination and should consult trade unions, including the NUTEAIW, to reform the IRA to ensure that anti-union discrimination provisions in sections 4, 5 and 59 are enforceable with appropriate sanctions in order to guarantee workers’ access to remedy and deter violations of workers’ rights.

B. The Government’s reply

1. 217. In its communication dated 30 September 2021, the Government indicates, with regard to the alleged failure to protect NUTEAIW members against anti-union dismissals and interference, that the Ministry of Human Resources, through the Department of Industrial Relations, had initiated conciliation meetings in March and April 2016, as a result of which the employer agreed to reinstate 16 unionists. The company however refused to reinstate five union leaders, who filed a representation under section 20 of the IRA claiming that they had been dismissed without just cause and asking for reinstatement. Further conciliations were unsuccessful and the cases were referred to the Industrial Court, which dismissed the complaint in 2019, finding no violation of sections 4 and 5 of the IRA (prohibition of anti-union discrimination and interference). According to the Government, the Court’s decision was based on equity, good conscience and the substantial merits of the case.
2. 218. The Government further contends that the IRA provides adequate protection against acts of anti-union discrimination in respect of employment through section 8 (procedures for non-criminal union-busting cases) and section 59 (procedures for semi-criminal cases). If there is an issue of anti-union discrimination and a complaint is submitted under section 59 of the IRA, investigations will be carried out. However, no such complaint has yet been filed in relation to the present dispute and the NUTEAIW only submitted the above-mentioned representation concerning unfair dismissal under section 20 of the IRA, asking for reinstatement. The Government adds, on the alleged lack of clarity in the procedures for redress for anti-union discrimination, that the IRA was amended in January 2021, providing an increased protection against union busting and adequate compensation for anti-union discrimination. In particular, the Industrial Court is now empowered to exclude the restrictions stipulated in the Second Schedule of the IRA (factors for consideration in making an award in relation to a representation for unfair dismissal referred to the court under subsection 20(3)) when dealing with dismissals involving union-busting.
3. 219. The Government concludes by reiterating its commitment to protect the rights of workers and employers in upholding social justice and industrial harmony in the workplace.

C. The Committee’s conclusions

1. 220. The Committee observes that the present case concerns allegations of anti-union interference and dismissal of union members and leaders from the NUTEAIW by an automobile-producing company, as well as allegations of the Government’s failure to provide adequate protection against these acts both in law and in practice.
2. 221. The Committee notes from the information provided by the complainant and the Government that the facts leading to the case are undisputed by the parties, in particular that the company and the NUTEAIW were unable to reach a collective agreement despite prolonged negotiations and that the union organized a meeting in December 2015 outside of the company premises and after working hours, in which approximately 110 workers participated and which it claims aimed at informing union members about the stalling in negotiations. It is also undisputed that the company dismissed 32 unionists following their participation in the meeting, 27 of whom were later reinstated following conciliation by the Department of Industrial Relations, but that the company refused to reinstate five union leaders, whose dismissal was adjudicated by the Industrial Court, which considered their dismissal as justified, a ruling confirmed by the High Court, the Court of Appeal and the Federal Court.
3. 222. The Committee observes that while the above points are not contested, the complainant raises serious concerns as to the anti-union nature of the company’s acts and the Government’s failure to protect NUTEAIW members against these acts, alleging in particular that the company interfered in legitimate union activities by issuing warnings to its workforce not to join the scheduled union briefing under the threat of disciplinary action, that the dismissal of the 32 unionists following the meeting constituted anti-union discrimination and that these acts had a chilling effect on the workers, inhibiting them from pursuing negotiations with the employer. The Committee notes that the Government refutes the allegation concerning its failure to protect the workers against anti-union acts, points to conciliation meetings it had initiated in March and April 2016, as a result of which the employer agreed to reinstate certain unionists, and also affirms that it referred the cases of the five dismissed union leaders to the courts. In this respect, the Committee notes, from the judgment of the Industrial Court, that the fact that the company issued reminders and warnings to its workforce against participation in the proposed union briefing was not contested by the employer and observes that the Court does not seem to have examined this question from the perspective of possible interference in trade union affairs, as alleged by the complainant. The Court further considered that since there was no evidence of an existing trade dispute (no evidence of communication of the deadlock in negotiations to the company), the assembly held by the union was un unlawful picket which attracted the attention of the public and tarnished the image of the company; by participating in these activities, the union leaders acted contrary to company rules and engaged in serious misconduct, justifying their dismissal. The Committee observes that while the Government contends that the judgment of the Industrial Court was based on equity, good conscience and the substantial merits of the case, the complainant alleges that the courts proceeded to an erroneous assessment of the situation (in the complainant’s view, the meeting was not a picket and there is no requirement to obtain a permission from the employer to hold a union meeting after working hours and outside of company premises). According to the complainant, the courts did not give due attention to anti-union discrimination and interference provisions of the IRA and thereby failed to safeguard the right of union officials to participate in union activities, leading to the unfair dismissal of five union leaders.
4. 223. The Committee understands from the above that the central question in this case is whether or not the company’s actions – the issuance of warnings to the workers against participation in a union meeting and dismissal of unionists who participated therein – constitute acts of anti-union discrimination and interference, as alleged by the complainant. Observing that the factual situation leading to this case has been addressed through domestic legal procedures, the Committee wishes to emphasize from the outset that it is not taking a position as to whether the interpretation of the national legislation by the courts is founded in light of particular circumstance; rather, the Committee’s assessment is limited to whether or not the situation complained of raises issues of freedom of association and in this particular case, issues of anti-union discrimination. The Committee wishes to recall in this regard that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. The dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association. With regard to the reasons for dismissal, the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1072, 1104 and 1132]. It also recalls that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and it is for employers and workers’ organizations to agree on the modalities for exercising this right. Respect for the principles of freedom of association requires that employers exercise great restraint in relation to intervention in the internal affairs of trade unions [see Compilation, paras 1585 and 1192].
5. 224. In view of the above, the Committee considers that recourse to dismissal of trade union members and leaders on the grounds of having organized or participated in a union meeting, which purportedly attracted public attention and resulted in a negative image of the company, is not in conformity with freedom of association and can amount to intimidation preventing the exercise of their trade union functions, irrespective of whether the meeting can be qualified as a picket or not (an assessment for which the Committee does not have sufficient information at its disposal), as long as the action remains peaceful and guarantees the right of the management to enter company premises. In these circumstances, the Committee requests the Government to continue to facilitate discussion between the company and the union, as it has done in relation to the other dismissed workers, with a view to ensuring that workers and their trade union leaders at the company may exercise their activities, including the holding of trade union meetings, without retaliation, and to explore possible solutions to the pending concerns raised by the complainant with regard to the five dismissed union leaders, including reinstatement as an effective means of redress.
6. 225. The Committee further observes that the complainant and the Government have differing opinions on the general state of the law and practice with regard to adequate protection against acts of anti-union discrimination and interference, as well as access to remedies and sanctions for such acts. While the complainant alleges an insufficient use of section 59 of the IRA, which provides for semi-criminal procedures to address anti-union allegations, as well as a lack of assistance to unions to invoke this provision, and points to a lack of clarity on reinstatement and enforcement measures under section 20 of the IRA, the Government contends that the IRA provides adequate protection against acts of anti-union discrimination in respect of employment, that whenever a complaint is submitted under section 59 of the IRA, investigations are conducted, but no such complaint has been submitted by the NUTEAIW, and that following the 2021 amendments to the IRA, the Industrial Court now has broader powers in making awards in relation to complaints of anti-union dismissals under section 20 of the IRA.
7. 226. Taking due note of the concerns raised by the complainant in this regard, as well as the Government’s reply thereto, the Committee recalls that these matters have been addressed by the Committee of Experts which, in its latest comments on the application of Convention No. 98, welcomed the amendments to the IRA allowing the Industrial Court to have at its disposal a full range of remedies to be awarded to a worker dismissed for anti-union reasons when dealing with complaints under section 20 of the IRA and requested the Government to provide detailed information on the sanctions and measures of compensation awarded in practice. Recalling that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress [see Compilation, para. 1165], the Committee trusts that the amendments to the IRA mentioned by the Government will contribute to ensuring the availability of adequate compensation and sufficiently dissuasive sanctions for acts of anti-union discrimination and invites the complainant and the NUTEAIW to formulate any requests for training or guidance on the applicable provisions of the IRA to the relevant authorities, so as to ensure that trade unions have at their disposal all available means to efficiently address allegations of anti-union discrimination.
8. 227. The Committee refers the legislative aspect of this case to the Committee of Experts.
9. 228. In view of the above, the Committee considers that this case does not call for further examination and is closed.

The Committee’s recommendations

1. 229. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to continue to facilitate discussion between the company and the union, as it has done in relation to the other dismissed workers, with a view to ensuring that workers and their trade union leaders at the company may exercise their activities, including the holding of trade union meetings, without retaliation, and to explore possible solutions to the pending concerns raised by the complainant with regard to the five dismissed union leaders, including reinstatement as an effective means of redress.
   • (b) The Committee trusts that the amendments to the Industrial Relations Act mentioned by the Government will contribute to ensuring the availability of adequate compensation and sufficiently dissuasive sanctions for acts of anti-union discrimination and invites the complainant and the NUTEAIW to formulate any requests for training or guidance on the applicable provisions of the Industrial Relations Act to the relevant authorities, so as to ensure that trade unions have at their disposal all available means to efficiently address allegations of anti-union discrimination.
   • (c) The Committee refers the legislative aspect of this case to the Committee of Experts on the Application of Conventions and Recommendations.
   • (d) The Committee considers that this case does not call for further examination and is closed.