Informe provisional - Informe núm. 277, Marzo 1991

1. 383. In a communication dated 24 July 1990, the International Metalworkers' Federation (IMF) presented allegations of violations of trade union rights against the Government of Malaysia. The Government sent its observations on these allegations by a communication of 9 January 1991.
2. 384. 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 complainant's allegations

1. 385. The allegations presented by the IMF relate to the denial of freedom of association to workers employed by a Japanese-owned company, Hitachi Consumer Products, in Malaysia.
2. 386. Hitachi has a factory in Malaysia which is part of the parent company's electrical consumer products division, and which produces components for video recorders. The factory employs 1,003 people, of whom 85 per cent are women.
3. 387. Workers at the factory elected to join, and to be represented by, the Electrical Industry Workers' Union (EIWU). The company rejected the union's claim for recognition, and dismissed eight workers who had been active in organising union membership. This led to a strike of all staff at the factory from 18 to 22 June 1990.
4. 388. Whilst this strike was in progress, the Government announced that it considered Hitachi employees to be engaged in the electronics, rather than electrical, industry. Under Malaysian law this meant that they were not eligible to be members of the EIWU.
5. 389. This action on the part of the Government led to the strike being called off. In order to be rehired all workers had to sign a letter of apology to the company. Twenty-one workers have not been rehired. The complainant alleges that this was because of their activities on behalf of the union.
6. 390. According to the complainant, workers at the factory have rejected attempts to establish an in-house union, and continue to indicate their preference for membership of the EIWU. The IMF also points out that the EIWU has successfully organised workers in similar plants - for example at the Mitsumi Electronics plant in Batu Pakat, which is engaged in the manufacturing of electronic components for audio equipment and computers.
7. 391. Finally, the IMF refers to the fact that it has presented complaints to the Committee on a number of occasions as a consequence of the Government's continuing refusal to permit workers in the electronics industry to establish or join the union of their choice. The present complaint is a further consequence of that refusal.

B. The Government's reply

1. 392. In its reply the Government states that the law of Malaysia protects the rights of workers to form and to join trade unions of their choice: subject to the prescribed scope of representation of the trade union concerned. These safeguards are set out in sections 4 and 5 of the Industrial Relations Act, 1967, and in the Constitution of Malaysia.
2. 393. As concerns structure, trade unions in Malaysia are organised on the basis of homogeneous groupings according to trade, occupation or industry. This is intended to encourage the orderly growth of trade unions. This is necessary in order to ensure that trade unions have the strength to deal with management on appropriate terms, and to take account of the social and economic conditions of the country.
3. 394. The organisational base of each trade union is, essentially, determined by its own constitution and rules. In the case of the EIWU, its membership rule covers workers in companies manufacturing "complete and finished" electrical products such as vacuum cleaners, electric fans, refrigerators and television sets.
4. 395. Under the Trade Union Act, 1959, the Director General of Trade Unions has the power to determine the nature of the business carried on at any establishment in order to ascertain whether workers employed therein fall within the membership rule of any given trade union.
5. 396. In the present case the management of the company referred the question of the competency of the EIWU to represent its employees to the Director-General. The matter was thoroughly investigated by officers of the Department, who heard submissions from both the union and the employer. On the basis of this investigation it was established that the company manufactures three types of products: flyback transformers, deflection yokes and electronic tuners. These are all used as components for television sets. They are not complete and finished electrical products as envisaged by the membership rule of the union. Consequently, the Director-General determined that it was not eligible to represent the workers employed by the company. This decision was taken in an objective manner, on the merits of the case. The same is true of the decision in relation to workers at the Matsumi plant in Batu Pakat. This latter cannot be regarded as binding in relation to the Hitachi employees because the products manufactured by the two companies are different.
6. 397. It is clear, therefore, that in the present case the real issue is not whether workers at the Hitachi plant had been denied the right to organise, but rather whether they fall within the membership rule of the EIWU. The Director-General, after careful consideration, had determined that they did not. This does not mean, and was not intended to mean, that these workers cannot form or join a trade union if they so choose.

C. The Committee's conclusions

1. 398. The Committee recalls that this is the sixth occasion since 1977 that it has been called upon to examine allegations relating to denial of the right of workers in the electronics industry in Malaysia to establish or to join the trade union of their choice: 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); Case No. 1380 (248th Report of the Committee, paras. 363-380, approved by the Governing Body at its 235th Session, March 1987, and 265th Report of the Committee, para. 17, approved by the Governing Body at its 243rd Session, May-June 1989); and Case No. 1480 (265th Report of the Committee, paras. 550-587, approved by the Governing Body at its 243rd Session, May-June 1989, 270th Report of the Committee, paras. 109-123, approved by the Governing Body at its 245th Session, February 1990, and 272nd Report of the Committee, para. 22, approved by the Governing Body at its 246th Session, May-June 1990).
2. 399. In all five of these previous cases the Committee has asked the Government to take measures to bring law and practice into line with the principle that the choice of the unions to which workers wish to belong should be that of the workers themselves. This, the Government has consistently failed to do.
3. 400. In the present case, the Government states that the reason why the employees of Hitachi Consumer Products were denied the right to join the EIWU was because the Director General of Trade Unions had, after careful investigation, determined that they did not fall within the membership rule of that union.
4. 401. The Committee is not unmindful of the fact that the right to establish or to join the trade union of one's choice which is guaranteed by the principles of freedom of association is conditioned by the rules of the organisation concerned. This assumes, however, that those rules are the product of the free choice of the members of the union as guaranteed by Article 3 of Convention No. 87. That is not the case here. The EIWU has been trying for many years to obtain the right to organise workers in the electronics industry. It has been denied this right by the operation of legislation which the Committee has repeatedly determined to be incompatible with the principles of freedom of association.
5. 402. Even if it were the case that the membership rule of the EIWU was the product of processes which were in conformity with the principles of freedom of association, the interpretation of that rule should be the responsibility of the judicial authorities rather than an administrative authority such as the Director General of Trade Unions.
6. 403. In the light of the foregoing, the Committee can only call upon the Government, yet again, to introduce legislation which permits all workers, including those in the electronics industry, to establish and to join the organisations of their choice, as guaranteed by the principles of freedom of association. It would also repeat its previous suggestion that the Government use the technical assistance of the ILO in order to help it bring its law and practice into full conformity with the principles of freedom of association.
7. 404. In the present case, the complainant has alleged that eight employees of Hitachi Consumer Products had been dismissed because of their organising activities on behalf of EIWU. It has also alleged that 21 workers were not rehired in the aftermath of a strike in June 1990, again because of their trade union activities. The Government has not made any response to these allegations. Since the allegations involve the dismissal of trade union activists, the Committee must now call upon the Government to provide its observations on this aspect of the case as a matter of priority.