Effect given to the recommendations of the committee and the Governing Body - Report No 363, March 2012

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

1. 171. The Committee last examined this case, which 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, including: discretionary and excessive powers granted to authorities as regards trade union registration and scope of membership; denial of workers’ rights to establish and join organizations of their own choosing, including federations and confederations; refusal to recognize independent trade unions; interference of authorities in internal union activities, including free elections of trade union representatives; establishment of employer-dominated unions; and arbitrary denial of collective bargaining, at its June 2011 meeting [see 360th Report, paras 62–71].
2. 172. On that occasion, the Committee recalled that it has commented upon the extremely serious matters arising out of the fundamental deficiencies in the legislation on many occasions over a period spanning 18 years. As concerns union recognition and collective bargaining, the Committee noted with interest the Government’s indication that it had taken steps to amend the Industrial Relations Act 1967 and the Trade Union Act 1959, and that it proposed to amend certain provisions in the relevant labour laws in order to make it easier and faster to establish trade unions and expedite claims for recognition, thus facilitating the process of collective bargaining. In these circumstances, the Committee once again urged the Government to address rapidly the issues raised in its previous examination and summarized below and invited the Government to have recourse to the technical assistance of the ILO in this regard, should it so desire, 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, and for the establishment of federations and confederations;
   • – employers do not express opinions which would intimidate workers in the exercise of their organizational rights, such as claiming that the establishment of an association is unlawful, or warning against application with a higher level organization, or encouraging workers to withdraw their membership;
   • – 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;
   • – workers’ organizations have the right to adopt freely their internal rules, including the right to elect their representatives in full freedom;
   • – workers and their organizations enjoy appropriate judicial redress avenues over the decisions of the minister or administrative authorities affecting them; and
   • – the full development and utilization of machinery for voluntary negotiation between employers or employers’ and workers’ organizations, with a view to regulating terms and conditions of employment by means of collective agreements is encouraged and promoted by the Government.
3. 173. As regards sections 9(5) and 9(6) of the Industrial Relations Act providing that the Minister’s decision on trade union recognition “shall be final and shall not be questioned in any court”, the Committee expected the Government to introduce without delay legislation to amend the Trade Unions Act and the Industrial Relations Act, to bring it into full conformity with freedom of association principles, by ensuring that the appeals to the courts against all decisions made by administrative authorities allow a substantive examination of the issues raised.
4. 174. Finally, as regards the situation of 8,000 workers in 23 manufacturing companies whose representational and collective bargaining rights were allegedly denied (in these companies, unions had accepted members but, based on objections raised by the companies, the Director-General of Trade Unions (DGTU) ruled that the unions were not permitted to represent the workers; as a result the unions’ right to bargain collectively was denied), recalling that it considers the decisions of the DGTU to be rooted in the legislative framework’s restrictions on trade union rights that it has extensively commented upon and that questions of trade union structure and organization are matters for the workers themselves, the Committee requested the Government and the complainant to indicate if these workers are currently represented by one or more trade unions and, if so, if they are able to exercise their rights to collective bargaining and conclude collective agreements.
5. 175. In its communication dated 20 October 2011, the Government indicates, as regards the 8,000 workers whose representational and collective bargaining rights have been denied, that it is not in a position to provide the information requested as there are no record on this matter. Pertaining to the Committee’s invitation to have recourse to the technical assistance of the ILO, the Government indicates that for the time being, it is more incline to embark on engagement sessions with social partners to further improve the Industrial Relations Act (IRA) and the Trade Union Act (TUA).
6. 176. As concerns the legislative issues raised by the Committee, the Committee, noting that the Government has referred to engagement sessions with social partners to further improve the IRA and the TUA legislation, the Committee trusts that social dialogue has already begun with a view to addressing the Committee’s long-standing recommendations, and requests the Government to keep it informed of any progress in this regard.
7. 177. Finally, as regards the situation of 8,000 workers in 23 manufacturing companies whose representational and collective bargaining rights were allegedly denied, noting that the Government indicates that it is not in a position to provide the information requested as there are no record on this matter, the Committee once again requests the complainant to indicate if these workers are currently represented by one or more trade unions and, if so, if they are able to exercise their rights to collective bargaining and conclude collective agreements. The Committee trusts that this very situation will be addressed without delay so as to ensure that these 8,000 workers are duly represented by the union of their choice and can exercise their right to collective bargaining.