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- 550. In a communication dated 1 December 1988 the International
- Metalworkers' Federation (IMF) presented allegations of violations of trade
- union rights against the Government of Malaysia. The International
- Confederation of Free Trade Unions (ICFTU) joined in this complaint in a
- communication dated 22 December 1988. In a communication dated 19 January
- 1989, the Malaysian Trades Union Congress (MTUC) also joined in the complaint,
- and provided further information relating to the matters raised by the IMF in
- its letter of 1 December 1988.
- 551. The Government sent its observations on the case in a communication
- 552. Malaysia has not ratified the Freedom of Association and Protection of
- the Right to Organise Convention, 1948 (No.87); it has ratified the Right to
- Organise and Collective Bargaining Convention, 1949 (No.98).
A. The complainants' allegations
A. The complainants' allegations- 553. The IMF points out that since 1977 it has presented no less than four
- complaints of violations of trade union rights in Malaysia (see Case No. 879
- (177th Report of the Committee, paras. 88-113, approved by the Governing Body
- at its 205th Session February-March 1978); Case No. 911 (190th Report of the
- Committee, paras. 410-429, approved by the Governing Body at its 209th
- Session, February-March 1979, and 202nd Report of the Committee, paras.
- 122-142, approved by the Governing Body at its 213th Session, May-June 1980);
- Case No. 1022 (211th Report of the Committee, paras. 515-525, approved by the
- Governing Body at its 218th Session, November 1981, 217th Report of the
- Committee, paras. 379-388, approved by the Governing Body at its 220th
- Session, May-June 1982, and 218th Report of the Committee, para. 18, approved
- by the Governing Body at its 221st Session, November 1982); and Case No. 1380
- (248th Report of the Committee, paras. 363-380, approved by the Governing Body
- at its 235th Session, March 1987) (on this last case, see also para. 17 of the
- present Report)). The MTUC was also a complainant in Case No. 879.
- 554. All of these complaints related, in part at least, to the difficulties
- which had been encountered by the Electrical Industry Workers' Union (EIWU) in
- seeking to organise workers in the electronics industry. These difficulties
- centre around the fact that the Trade Unions Act, 1959 (TUA) limits the right
- to associate within the same trade union to workers within a particular trade,
- occupation or industry, or within any similar trades, occupations or
- industries. It is for the Registrar of Trade Unions to determine what
- constitutes "similarity" for these purposes (subject to a right of appeal to
- the relevant Minister, and to judicial review by the High Court and,
- ultimately, the Supreme Court). Over the years, the Registrar has exercised
- this discretion so as to deny the EIWU the right to organise workers in the
- electronics industry - even in situations where a substantial proportion of
- workers in an enterprise had in fact joined the EIWU.
- 555. The complainants point out that in all four of the previous cases, the
- Committee asked the Government, inter alia, to take steps to ensure that the
- provisions on the establishment of first-degree trade unions are interpreted
- in a less restrictive manner by the administrative authorities. This the
- Government has consistently failed to do.
- 556. From the late 1970s onwards the MTUC has sponsored a number of attempts
- to obtain registration for a separate trade union in the electronics industry
- - the most recent application to the Registrar being lodged on 15 October
- 1988. However, it has proved impossible to obtain a favourable decision from
- the Registrar, the Minister or the High Court. Moreover, employers in the
- industry have actively obstructed both the organisational activities of the
- EIWU and MTUC-sponsored attempts to establish a separate union for the
- industry. On the other hand, the Registrar has, in recent years, agreed to
- register two "in-house" unions in the industry (the Union of Employees of
- Perwira Ericsson Peninsular Malaysia and the Union of Employees in Amalgamated
- Parts Manufacturers).
- 557. According to the complainants, at a meeting of the tripartite National
- Labour Advisory Council on 22 September 1988 the Minister announced that
- workers in the electronics industry would be permitted to form their own
- union. He reportedly stated that the industry was now sufficiently "strong and
- stable" to have a union, and that it was up to the workers to organise
- themselves "with the help of the MTUC". This wholly unexpected announcement
- was warmly welcomed by workers in the industry, by the MTUC and "even by the
- government-controlled press through their editorials". Despite intimidatory
- tactics on the part of some employers, hundreds of workers held meetings and
- decided to establish a new union, the National Union of Electronic Industry
- Workers. It was this union which formally applied for registration on 15
- October 1988.
- 558. With equal suddenness, the Minister announced on 19 October 1988 that
- the Government had changed its mind, and that workers in the industry would be
- permitted only to establish "in-house" unions.
- 559. The complainants allege that this change of attitude was brought about
- largely as a result of pressure which was exerted on the Government by the
- foreign-owned employers in the industry.
- 560. The MTUC asserts that in-house unions in the electronics industry are
- totally unsuitable: first, because by and large workers in the industry are
- not experienced in trade unionism; secondly, because the possibility of
- victimisation and/or favouritism by management cannot be ruled out; thirdly,
- because there is a real possibility that the employers will seek to influence
- the leadership of such unions by means of subtle financial and material
- contributions to the unions; and fourthly, the establishment of such unions is
- bound to create economic imbalance in the industry. The MTUC also alleges that
- the Government's insistence on in-house unions is contrary to its own
- legislation relating to the registration and recognition of trade unions.
- B. The Government's reply
- 561. In its communication of 5 April 1989 the Government refers to earlier
- attempts by the EIWU to organise workers in the electronics industry and to
- that union's unsuccessful appeal to the High Court in 1985. The Government
- states that clear guide-lines have now been given to the EIWU to enable it
- accurately to identify and organise workers in the industries that fall under
- its scope, and that this situation has been accepted by the union. The
- Government states that the MTUC has also accepted the situation and that it is
- currently actively involved in assisting workers in the electronics sector to
- form unions of their own choice.
- 562. The Government points out that the wishes of the workers in a given
- workplace is one of the factors which is taken into account by the Registrar
- in considering applications for registration. This is reflected in the fact
- that four unions have been registered in the electronics sector in recent
- years: the Mitsumi Electric Employees' Union (registered 25 March 1986); the
- Perwira Ericsson Employees' Union (registered 30 May 1986); the Audio
- Electronics Employees' Union (registered 18 August 1987); and the RCA Sdn.
- Bhd. Employees' Union (registered 31 January 1989). In addition, the Registrar
- is currently considering the application for registration by the National
- Union of Electronic Industry Workers.
- 563. Finally, the Government emphatically states that under Malaysian law
- all registered unions have the same rights and responsibilities, be they
- in-house, industry-wide or whatever. It is not for the MTUC or any other body
- to determine the type of organisation workers should join - that is purely a
- matter for the workers in the unit concerned.
C. The Committee's conclusions
C. The Committee's conclusions- 564. The complainants' allegations touch upon four aspects of the principles
- of freedom of association: i) workers' right to establish and to join
- organisations of their own choosing; (ii) workers' right to establish and to
- join organisations of their own choice without previous authorisation; (iii)
- the need for protection against acts which are designed to promote the
- establishment of organisations which are under the domination of employers or
- employers' organisations, or to support workers' organisations by financial or
- other means, with the object of placing such organisations under the control
- of employers or employers' organisations, as required by Article 2 of
- Convention No. 98; and (iv) the need to ensure that the right of workers to
- form and join organisations of their own choosing is established and respected
- both in law and in fact. Freedom of choice
- 565. The Committee has always attached the utmost importance to the fact
- that workers and employers should in practice be able to form and to join
- organisations of their own choosing in full freedom (Digest of Decisions and
- Principles of the Freedom of Association Committee, 1985, para. 222). It has
- accordingly taken the view that a situation in which an individual is denied
- any possibility of choice between different organisations by reason of the
- fact that the legislation permits the existence of only one organisation in
- the area in which (s)he carries on her/his occupation is not compatible with
- this principle (Digest, op. cit., para. 226).
- 566. The Committee has also recognised that governments may quite properly
- seek to promote a strong trade union movement by avoiding the defects
- resulting from an undue multiplicity of small and competing trade unions,
- whose independence may be endangered by their weakness. However, this
- objective can most appropriately be attained by encouraging trade unions
- voluntarily to form strong and united organisations, rather than by imposing
- upon them a compulsory form of unification which deprives workers of the free
- exercise of their right of association (See Digest, op. cit., para. 224).
- 567. In the present case, the Government states that the choice of unions is
- a matter for the workers employed in the unit concerned.
- 568. The Committee notes:
- i)that registration of trade unions is compulsory by virtue of section 8 of
- the TUA; (ii) that section 12(2) of the TUA confers upon the Registrar a
- discretionary power to refuse to register a trade union if he is satisfied
- that there is in existence a trade union in respect of a particular trade,
- occupation or industry and it is not in the interest of the workmen in that
- particular trade, occupation or industry that there be another trade union in
- respect thereof; and (iii) that section 15(2) of the same Act states that:
- Where two or more trade unions registered in respect of a particular trade,
- occupation, industry or place of employment exist, the Registrar may, if he is
- satisfied that it is in the interests of the workmen of the said trade,
- occupation, industry or place of employment so to do -
- a) cancel the certificate of registration of the trade union or trade unions
- other than the trade union which has the largest number of workmen in the said
- trade, occupation, industry or place of employment as its members; or
- b) issue an order requiring the trade union or trade unions other than the
- trade union which has the largest number of workmen in the said trade,
- occupation, industry or place of employment as its members to remove from the
- membership register those members as are employed in that trade, occupation,
- industry or place of employment; and thereafter the trade union or trade
- unions so ordered shall not enrol as members workmen in any trade, occupation,
- industry or place of employment similar to that trade, occupation, industry or
- place of employment except with the permission in writing of the Registrar ...
- The Committee also notes that decisions of the Registrar are subject to appeal
- to the Minister by virtue of section 71A of the Act, and to judicial review by
- means of the prerogative writs.
- 569. Bearing in mind that the registration of unions is compulsory in
- Malaysia, the Committee considers that workers cannot be said to have the
- right to join the union of their choice in a situation where the public
- authorities have the right to deny such registration in the circumstances set
- out in section 12(2) of the TUA. The powers conferred upon the Registrar by
- section 15(2) of the Act also appear to be incompatible with the right of
- workers to join, or (subject only to the rules of the union) to remain members
- of the union of their choice.
- 570. The existence of a right of appeal to the Minister against the exercise
- of the Registrar's discretion does not alter the fact that the public
- authorities have the capacity improperly to interfere with workers' right
- freely to choose the union to which they wish to belong. As regards the
- availability of judicial review, the Committee recognises that it is
- appropriate that means be available of ensuring that the Registrar's powers
- are exercised in a lawful manner. But that does not alter the fact that those
- powers are themselves incompatible with the principles of freedom of
- association. Previous authorisation
- 571. The Committee has always taken the view that the principle of freedom
- of association would remain a dead letter if workers and employers were
- required to obtain any kind of previous authorisation to enable them to
- establish an organisation (See Digest, op. cit., para. 263). It does not
- necessarily follow that it would be incompatible with the principles to
- require unions to adhere to certain basic requirements as to publicity or as
- to the form or content of their rules. Clearly, however, such requirements
- must not be of such a nature as to be equivalent in practice to previous
- authorisation, nor must they constitute such an obstacle to the establishment
- of an organisation that they amount in practice to outright prohibition (ibid.
- ).
- 572. This suggests that any system of compulsory registration which makes
- registration subject to the discretion of the public authorities must be
- regarded as incompatible with the principle of freedom of association (see
- Digest, op. cit., para. 264).
- 573. The Committee has also determined that the formalities prescribed by
- law for the establishment of trade unions should not be applied in such a way
- as to delay or prevent the setting up of occupational organisations (Digest,
- op. cit., para. 271).
- 574. The TUA does not require the Registrar to make a decision in relation
- to an application within any specified period. However, section 11 of the Act
- does state that between the date of establishment of a trade union (as
- determined in accordance with section 9) and the grant or refusal of a
- certificate of registration "no person shall organise or take part in any
- collection of money or other property for or on behalf of such trade union
- without the prior written permission of the Registrar and subject to such
- conditions as may be specified by the Registrar".
- 575. In the Committee's opinion it would be exceedingly difficult for a
- trade union to survive, let alone seek to strengthen its organisational base,
- if it is deprived of the capacity to raise funds for any extended period. It
- follows that, even assuming that section 11 is not in itself incompatible with
- the principles of freedom of association, it is clearly most important that
- the Registrar deal with all applications for registration in an expeditious
- manner.
- 576. The Committee notes that the National Union of Electronic Workers
- applied for registration on 15 October 1988 and that that application was
- still under consideration at the date of the Government's reply. The Committee
- also notes that a union of the same name made an application for registration
- on 22 January 1980 and that on 13 December 1983 the MTUC initiated proceedings
- in the High Court because that application had still not been determined. The
- Committee considers that a delay of almost four years in dealing with a matter
- of this nature is grossly excessive and calls upon the Government to use its
- good offices to ensure that there is no such delay in dealing with the
- application for registration which was submitted on 15 October 1988. It also
- asks the Government to advise the Office as to the outcome of this
- application.
- Protection against interference
- 577. The Government has not made any direct comment upon the complainants'
- allegation that on 19 October 1988 the Minister of Labour had announced that
- the Government would allow workers in the electronics industry to establish
- only in-house unions. It has, however, referred to the fact that four "house"
- unions have been registered in the electronics sector in recent years and has
- also stated that the choice of union in that industry "is confined to the
- workers employed in the unit concerned".
- 578. The complainants have drawn attention to a number of factors which they
- consider make in-house unions in the electronics industry "totally
- unsuitable". These include the lack of experience of trade unionism of workers
- in the industry, the possibility of victimisation or favouritism by management
- and the danger of managerial control of such unions by means of financial or
- material contributions.
- 579. The Committee has repeatedly stressed the need for legislation which
- makes explicit provision for remedies and penalties against acts of
- interference by employers in workers' organisations in order to ensure the
- effective application of Article 2 of Convention No. 98 (see Digest, op. cit.,
- para. 577). The Committee notes that section 4(2) and (3) of the Industrial
- Relations Act, 1967 provides a substantial measure of protection for these
- purposes: (2) No trade union of workmen and no trade union of employers shall
- interfere with each other in the establishment, functioning or administration
- of that trade union. (3) No employer or trade union of employers and no person
- acting on behalf of such employer or such trade union shall support any trade
- union of workmen by financial or other means, with the object of placing it
- under the control or influence of such employer or such trade union of
- employers. Sections 4(1), 5 and 59 of the 1967 Act provide complementary
- protection against acts of anti-union discrimination for individual workers
- (as required by Article 1 of Convention No. 98).
- 580. The Committee notes that the complainants have not presented any
- evidence to suggest that existing unions in the electronics industry have in
- fact been subject to interference (financial or otherwise) by management. If
- such interference were to occur, section 4(2) and (3) of the Industrial
- Relations Act would appear to provide an appropriate means of recourse.
- 581. The Committee notes that there is some conflict of evidence as to
- precisely which "in-house" unions have been registered. The complainants refer
- to two such unions: the Union of Employees of Permira Ericsson Peninsula
- Malaysia and the Union of Employees in Amalgamated Parts Manufacturers. Both
- of these unions were also referred to in Case No. 1380. The Government,
- however, lists four "in-house" unions, including the Ericsson union, but not
- the Union of Employees in Amalgamated Parts Manufacturers.
- Protection in law and in fact
- 582. The Committee has always taken the view that the right of workers to
- establish and join organisations of their own choosing cannot be said to exist
- unless such freedom is fully established and respected in law and in fact
- (Digest, op. cit., para. 654).
- 583. The Committee considers that these rights are not fully established and
- respected by law in Malaysia. Section 8 of the TUA makes registration
- compulsory, whilst section 12 confers a discretion upon the public authorities
- (in the person of the Registrar and, on appeal, the Minister of Labour) to
- accept or to refuse an application for registration even though the union in
- question has complied with all of the formal requirements of the legislation.
- These provisions deny workers the right to belong to the union of their
- choice, and amount to a requirement of previous authorisation. The Committee,
- therefore, calls upon the Government to amend sections 8 and 12 of the TUA so
- as to bring them into conformity with the principles of freedom of
- association.
- 584. Bearing in mind that sections 8 and 12 of the TUA are in themselves
- incompatible with the principles of freedom of association, the extent and
- practical impact of that incompatibility will depend upon the manner in which
- the Registrar and (ultimately) the Minister exercise their discretions under
- section 12. Accordingly, the Committee requests the Government, as it has done
- in Cases Nos. 879, 911, 1022 and 1380, to take steps to ensure that section 12
- of the TUA is interpreted and applied in a manner which gives effect to the
- principle that the choice of the unions to which workers wish to belong should
- be that of the workers themselves.
- 585. The Committee notes that the Government has not responded to the
- complainants' allegation that its change of mind in October 1988 in relation
- to the establishment of an industry union in the electronics sector was the
- result of pressure from the foreign-owned corporations which dominate the
- industry. The Committee notes that the Tripartite Declaration of Principles
- concerning Multinational Enterprises and Social Policy which was adopted by
- the Governing Body of the ILO in November 1977 states that (para. 45): "Where
- governments of host countries offer special incentives to attract foreign
- investment, these incentives should not include any limitation of the workers'
- freedom of association or the right to organise and bargain collectively." It
- accordingly urges the Government to provide a reply to this allegation.
- 586. Finally, the Committee feels bound to express its concern at the fact
- that this is the fifth occasion since 1977 upon which it has had to deal with
- allegations of denial of the right to organise in the electronics industry in
- Malaysia. It asks the Government to give serious consideration to making use
- of the assistance of the ILO in order to help it bring the law and practice
- relating to the registration of trade unions into conformity with the
- principles of freedom of association.
The Committee's recommendations
The Committee's recommendations
- 587. In the light of its foregoing interim conclusions, the Committee
- invites the Governing Body to approve the following recommendations:
- a) That the Government introduce legislation to amend sections 8 and 12 of
- the Trade Union Act so as to bring them into conformity with the principles of
- freedom of association.
- b) That pending legislative change the Government take steps to ensure that
- section 12 of the Trade Union Act is interpreted and applied in a manner which
- gives effect to the principle that the choice of the unions to which workers
- wish to belong should be that of the workers themselves.
- c) That the Government use its good offices to ensure that the application
- for registration which was submitted by the National Union of Electronic
- Workers on 15 October 1988 is dealt with in an expeditious manner, and that it
- advise the Office as to the outcome of that application.
- d) The Committee expresses its concern at the fact that it has examined
- allegations of breaches of the right to organise in the electronics industry
- on five occasions. It considers that the Government should now give serious
- consideration to making use of the assistance of the ILO in order to help it
- bring law and practice relating to the registration of trade unions into
- conformity with the principles of freedom of association.
- e) The Committee urges the Government to respond to the allegation that its
- position in 1988 relating to the establishment of a trade union in the
- electronics industry was due to pressure exerted by the foreign-owned
- companies who dominate this industry.