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
- 208. The complaint is contained in a communication dated 27 May 2021 from
IndustriALL Global Union.
- 209. The Government provides its observations in a communication dated 30
September 2021.
- 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
A. The complainant’s allegations- 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.
- 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.
- 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.
- 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.
- 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.
- 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
B. The Government’s reply- 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.
- 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.
- 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
C. The Committee’s conclusions- 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.
- 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.
- 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.
- 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].
- 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.
- 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.
- 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.
- 227. The Committee refers the legislative aspect of this case to the
Committee of Experts.
- 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
The Committee’s recommendations- 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.