Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 270, Mars 1990

1. 109. The Committee examined this case and presented an interim report to the Governing Body in May 1989, which was approved at the 243rd Session of the Governing Body (see 265th Report, paras. 550-587). The Government sent its further observations on the case in a communication dated 10 January 1990.
2. 110. 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. Previous examination of the case

1. 111. The complainants had presented a series of allegations relating to violations of the right to organise in the electronics industry in Malaysia. These allegations touched upon four aspects of the principles of freedom of association: (i) workers' right to establish and to join organisations of their own choosing; (ii) workers' right to establish and to join organisations of their own choice without previous authorisation; (iii) the need for protection against acts which are designed to promote the establishment of organisations which are under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, as required by Article 2 of Convention No. 98; and (iv) the need to ensure that the right of workers to form and join organisations of their own choosing is established and respected both in law and in fact.
2. 112. The Committee considered that the effect of sections 8 and 12 of the Trade Unions Act, 1959 (TUA), was such as to deny workers the right to join the union of their choice as guaranteed by Article 2 of Convention No. 87. Section 15(2) of the same Act appeared to be incompatible with workers' right to join or (subject to the rules of the union) to remain members of the union of their choice.
3. 113. The Committee also considered that the fact that the TUA made registration compulsory, and subject to the discretion of the public authorities, constituted a requirement of "prior authorisation" in a manner which was not compatible with Article 2 of Convention No. 87. On the other hand, the Committee considered that there did appear to be adequate protection against acts of interference for purposes of Article 2 of Convention 98 - and that it had not been presented with any evidence which suggested that unions in the electronics industry had in fact been subject to interference (financial or otherwise) by management.
4. 114. Finally, the Committee expressed its concern at the fact that this was the fifth occasion since 1977 upon which it had had to deal with allegations of denial of the right to organise in the electronics industry in Malaysia.
5. 115. In the light of these interim conclusions, the Committee invited the Governing Body to approve the following recommendations (265th Report, para. 587):
   • (a) That the Government introduce legislation to amend sections 8 and 12 of the Trade Unions Act so as to bring them into conformity with the principles of freedom of association.
   • (b) That pending legislative change the Government take steps to ensure that section 12 of the Trade Unions Act is interpreted and applied in a manner which gives effect to the principle that the choice of the unions to which workers wish to belong should be that of the workers themselves.
   • (c) That the Government use its good offices to ensure that the application for registration which was submitted by the National Union of Electronic Workers on 15 October 1988 is dealt with in an expeditious manner, and that it advise the Office as to the outcome of that application.
   • (d) The Committee expresses its concern at the fact that it has examined allegations of breaches of the right to organise in the electronics industry on five occasions. It considers that the Government should now give serious consideration to making use of the assistance of the ILO in order to help it bring law and practice relating to the registration of trade unions into conformity with the principles of freedom of association.
   • (e) The Committee urges the Government to respond to the allegation that its position in 1988 relating to the establishment of a trade union in the electronics industry was due to pressure exerted by the foreign-owned companies who dominate this industry.

B. The Government's further observations

1. 116. In its communication of 10 January 1990 the Government indicates that whilst it respects the Committee's view that sections 8 and 12 of the TUA are not compatible with Convention No. 87 (which Malaysia has not ratified), workers in Malaysia are free to choose the unions to which they will belong subject to the provisions of the 1959 Act. In relation to the specific circumstances of the electronics industry the Government refers to its letter of 7 March 1989 sent in response to the allegations in the present case, and to its response to the allegations in Case No. 1380 (248th Report of the Committee, paras. 363-380, and 265th Report, para. 17).
2. 117. The Government indicates that on 15 August 1989 the Director-General of Trade Unions rejected the application for registration submitted by the National Union of Electronic Industry Workers (NEW). The basis for this decision was that "... the formation of the proposed union is in conflict with the definition of 'trade union' as provided in the Trade Union Act, 1959, as the members are drawn from workers employed in the electrical industry and also the electronic industry which are not similar". On 14 September 1989 NEW lodged an appeal against this decision with the Minister of Labour. The Minister's decision is pending.
3. 118. As to the Committee's suggestion that the Government should give serious consideration to making use of the assistance of the ILO in order to bring its law and practice relating to the registration of trade unions into conformity with the principles of freedom of association, the Government considers that this is unnecessary given its view that existing law and practice in this regard are satisfactory and have assisted in the orderly growth and development of trade unions in Malaysia. The Government has, however, availed itself of the ILO's advisory services through consultation with the ILO Regional Adviser on Standards where this has been considered appropriate.
4. 119. Finally, the Government emphatically refutes the complainants' allegation that its change of position in 1988 relating to the establishment of trade unions in the electronics industry was due to pressure exerted by the foreign-owned companies who dominate the industry. The Government has never allowed itself to be placed "under pressure" of this kind. Nor will it ever succumb to any pressure exerted either from the workers or the employers in the establishment of a trade union.

C. The Committee's conclusions

1. 120. As regards the right of workers to form and join trade unions of their own choosing, the Committee can only express its deep concern at the Government's continued refusal to take the necessary measures to bring law and practice in Malaysia into conformity with the requirements of the principles of freedom of association.
2. 121. The Committee notes that on 15 August 1989 the Director-General of Trade Unions rejected the application for registration submitted by NEW. The grounds upon which this decision was based do not appear to be compatible with the principles of freedom of association in that they deny workers in the industry the right to belong to the union of their choice. The Committee can only express the hope that this decision will be reversed on appeal. It asks the Government to advise it of the Minister's decision as soon as it becomes available.
3. 122. The Committee also notes that the Government emphatically rejects the suggestion that its position in 1988 relating to the establishment of trade unions in the electronics industry was due to pressure exerted by the foreign-owned companies which dominate the industry.