Effect given to the recommendations of the committee and the Governing Body - Report No 334, June 2004

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

1. 35. 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 union 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 union representatives; establishment of employer-dominated unions; and arbitrary denial of collective bargaining. The Committee formulated the following recommendations at its March 2004 meeting [see 333rd Report, para. 599]:
   • (a) The Committee expresses its concern at the fact that several complaints have been filed on these same issues during the last 15 years, on which it made unambiguous recommendations, and that no significant progress could be observed.
   • (b) The Committee urges once again the Government to introduce in the near future legislation to amend the Trade Unions Act, 1959, and the Industrial Relations Act, 1967, to bring them into full conformity with freedom of association principles, by ensuring:
     • - that 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;
     • - that 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;
     • - that workers’ organizations have the right to adopt freely their internal rules, including the right to elect their representatives in full freedom; and
     • - that workers and their organizations enjoy appropriate judicial redress avenues over the decisions of the minister or administrative authorities affecting them.
   • (c) The Committee requests the Government to amend its legislation so as to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to regulating terms and conditions of employment by means of collective agreements.
   • (d) The Committee requests the Government to take rapidly appropriate measures and give instructions to the competent administrative authority, so that the 8,000 workers denied representational and collective bargaining rights in 23 named companies may effectively enjoy these rights, in accordance with freedom of association principles.
   • (e) The Committee requests the complainant and the Government to keep it informed on the court challenges filed by some employers and affecting some 2,000 workers, so that it may make an informed decision in full knowledge of the facts.
   • (f) The Committee requests the Government to keep it informed of developments on all the abovementioned issues.
   • (g) The Committee suggests once again that the Government avail itself of the ILO’s technical assistance, to help it bring its law and practice into full conformity with freedom of association principles.
2. 36. In a communication dated 15 April 2004, the Government states in connection with recommendation (b): that workers have the right to establish a trade union "if its membership is confined exclusively to workmen employed in a particular establishment, trade, occupation or industry", or to join a union which is registered "in respect of the particular establishment, trade, occupation or industry"; that the Trade Union Act allows for the establishment of federations and affiliation to confederations; that no obstacles are placed, in law or in practice, to recognition and registration of trade unions as long as "their membership is confined to workmen employed in a particular establishment, trade, occupation or industry"; that trade unions have the right to adopt freely their internal rules, including the "right to elect eligible members" to be their representatives in full freedom; and that workers and their organizations have the right to seek legal redress over decisions of the director-general of trade unions affecting them.
3. 37. As regards recommendation (c), the Government indicates that the current legislation is sufficient to encourage and promote the full development and utilization of collective bargaining machinery, and that workers have not been denied their right to representation and collective bargaining "provided that they are represented by a competent union". The Government states that it notes the recommendation concerning the 8,000 workers but that the complainant is in a better position to inform the Committee. As regards the recommendation concerning the court challenges filed by employers and affecting some 2,000 workers, the Government indicates it will fulfil its obligation under article 19 of the ILO Constitution. Finally, as regards the recommendation that the Committee be kept informed of developments on all the above issues, the Government states that it considers that the current law and practice have helped the orderly and healthy development of trade unions, which in turn contributes to industrial harmony in the country.
4. 38. In a communication dated 5 May 2004, the complainant organization (MTUC) refers to the Committee’s conclusion that no significant progress could be observed in spite of a series of complaints on the same issues during the last 15 years and requests that a mission be sent to Malaysia to follow up on the Committee’s recommendations. In this regard, in a communication dated 26 May 2004, the Government states that the legislative provisions have been successful in maintaining the healthy growth of trade unions, as well as harmonious industrial relations conducive for investment so as to ensure the continuous political, social and economic development. Under the current legislation, workers can join a union related to their work and the union can represent workers in collective bargaining. Consequently, the Government considers that an ILO mission to follow up on the recommendations of the Committee is not necessary.
5. 39. The Committee notes with deep regret that the Government merely reiterates the arguments submitted in its initial reply. The Committee emphasizes that all the points raised by the Government in its communication have already been dealt with at length and rebutted in its previous decision on the merits, including through examination of the relevant provisions of the Trade Unions Act, 1959 [see paras. 586-598, and Annex 1].
6. 40. The Committee deplores the lack of cooperation from the Government on these matters which have been examined by the Committee for 15 years and therefore reiterates its previous recommendations in their entirety and, noting the complainant organization’s request, recalls, once again, that the Government may avail itself of the ILO’s technical assistance.