Rapport définitif - Rapport No. 202, Juin 1980

1. 178. The complaint of the International Transport Workers' Federation (ITF) was presented in two letters dated 12 March and 23 April 1979. The Government sent its observations in a letter dated 6 May 1980.
2. 179. Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 180. In its letter of 12 March 1979, the ITF states that on 15 February 1979 the Government of Malaysia detained Mr. Donald Uren, the ITF's Asian representative and refused to give information as to his condition, his whereabouts or the reason for his detention. According to statements in the Malaysian press, which have not been refuted by the Government, this action was promoted by Mr. Uren's role in a dispute between the Malaysian Airline Employees' Union (AEU), affiliated to the ITF, and the Malaysian Airline System (MAS), the government-owned national airline.
2. 181. In its letter of 23 April 1979, the complainant informed the Office that Mr. Uren was released from detention on 16 April but reiterated its allegation that his detention violated the principles of freedom of association. The complainant alleges that on 15 February 1979, 22 other officials and members of the ABU were detained; 9 were released on 14 April and a further 8 on or about 20 April 1979. It states that none of those released was charged or tried. According to the complainant, the local press has reported that it is the Government's intention to detain the five persons still in custody without trial for two years.
3. 182. The complainant also states that on 14 April 1979 the registration of the AEU was cancelled, thus effectively disbanding it.
4. 183. Attached to the complaint is a copy of the Prime Minister's statement made to the Parliament on the MAS-AEU industrial dispute. This document accuses the ITF of interfering in a domestic dispute and states that Mr. Uren incited AEU members during the dispute with a view to worsening matters. A copy of the ITF's reply to this statement is also enclosed, pointing out, inter alia, that ITF officers had made it clear to the local union at the beginning of the dispute that such matters can only be solved at the national level.

B. The Government's reply

1. 184. In its letter of 6 May 1980, the Government confirms that all persons detained in February 1979, including Mr. Uren, have since been released. It states that it was only a small group of union members who had behaved in a most irresponsible manner, not caring for the consequences which their actions might unleash for their unsuspecting colleagues, for the nation which they served, nor for the cause of trade unionism.
2. 185. In addition, the Government explains the cancellation of the AEU's registration as justifiable from a legal point of view (it was involved in December 1978 in industrial action which was illegal under certain provisions of the Trade Unions Ordinance and the industrial Relations Act) and from an economic point of view (the illegal industrial action had drastically disrupted vital domestic and international air services and had aroused concern as to the responsible development of trade unionism in Malaysia). The Government states that members of the AEU whose removal from the membership register had been directed by the Registrar of Trade Unions were advised that they should apply to the Registrar for their restoration to membership status. Moreover, under the cancellation procedure which was commenced on 27 January 1979, the union was allowed two months to challenge the "show cause" notice issued by the Registrar and provisions exist for an appeal to the Minister of Labour and Manpower against the interim prohibition order. None of these avenues was pursued by the union. The Registrar held an inquiry under section 15(3) of the Trade Unions Ordinance during which representatives from the AEU and the management were interviewed. The union failed to satisfy the Registrar as to why its certificate of registration should not be cancelled and, according to the Government, after careful consideration, the Registrar proceeded with the cancellation. A further appeal provision to the Minister was not utilised by the union.
3. 186. The Government states that on 19 June 1979 the Registrar of Trade Unions received an application for registration of the Malaysian Airline System Employees' Union, Peninsular Malaysia, which is, at this point in time, being processed.

C. Conclusions of the Committee

1. 187. The Committee notes that this case involves the detention of trade union leaders and members, and the cancellation of the registration of a trade union.
2. 188. According to the complainant organisation, on 15 February 1979 22 officials and members of the Malaysian Airline Employees' Union were detained, along with Mr. Uren, the ITF's Asian representative, and no information was available as to reasons for their arrest or as to their whereabouts. The Government states that all were subsequently released.
3. 189. While noting that no trade unionist remains in detention, the Committee would point out that in all cases in which trade union leaders are preventively detained, these measures may involve a serious interference in the exercise of trade union rights and the Committee has always emphasised the right of all detained persons to receive a fair trial at the earliest possible moment.& Moreover, the Committee has insisted upon the importance which should be attached to the principle that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
4. 190. As regards the cancellation of the registration of the Airline Employees' Union, the Committee notes the Government's response according to which the union was given several opportunities to present its case to the competent administrative authorities and to appeal to the Minister of Labour, but did not do so. The Committee would like to point out that it has emphasised the importance which it attaches to the generally accepted principle that employers' and workers' organisations should not be subject to suspension or dissolution by administrative authority, and that legislation which accords to an administrative authority the power to order the cancellation of the registration of a trade union in its entire discretion and without any right of appeal to the courts is contrary to the principles of freedom of association.