Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 295, Novembre 1994

1. 120. The Committee has already examined the substance of this case on three previous occasions during which it presented interim conclusions to the Governing Body (see 277th Report, paras. 406-419, 281st Report, paras. 311-325 and 283rd Report, paras. 282-295, approved by the Governing Body at its sessions in February-March 1991, March 1992 and May-June 1992 respectively).
2. 121. The Government supplied certain further information on this case in a communication dated 23 July 1994.
3. 122. Malaysia has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); it has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 123. The International Metalworkers' Federation (IMF) alleged that electronics workers who had formed a union in the Harris Solid State Sdn. Bhd. (HSS), a wholly owned subsidiary of the multinational Harris Corporation, were facing intimidation aimed at eliminating the only in-house union in the industry. Although the union had been registered in January 1990, the parent company decided to wind up HSS and absorb it into Harris Advanced Technology Sdn. Bhd. (HAT); 23 union activists at the HSS plant were dismissed without being given the option to transfer to HAT.
2. 124. The Government initially replied that workers in the electronics industry were not denied the right to associate and that, in the Malaysian system, in-house unions were truly independent bodies able to pursue claims against their employers and free to affiliate to national and international workers' bodies. It subsequently added that after the parent company decided to consolidate its subsidiaries, HAT offered 2,700 HSS employees jobs, all of whom accepted except 22 (one of whom later resigned), who were mainly union officers; the figure of 23 workers mentioned in the complaint comprised these 21 plus two workers who had been at that time seconded from HAT but subsequently returned there. Following the dismissal of the 21 HSS employees when HSS ceased operations on 21 September 1990, three wrongful dismissal cases were lodged on behalf of these employees before the Industrial Court. According to two Industrial Court awards supplied by the Government, initial procedural questions concerning the three Industrial Court cases had been ruled upon and hearings for the applications for reinstatement had been set for 27 and 28 July 1992. Moreover, as a result of the preliminary rulings, the Harris Solid State Employees' Union had been made a party to the claims for wrongful dismissal under the Industrial Relations Act, 1967.
3. 125. At its May-June 1992 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendation:
4. The Committee trusts that the hearings scheduled for July 1992 (some 22 months after the dismissals of the 21 HSS employees) will proceed in a timely fashion and requests the Government to inform it of the outcome of these unfair labour practice proceedings before the Industrial Court immediately upon the handing down of the decisions concerning the applications for reinstatement.
5. B. The Government's observations
6. 126. In its communication of 23 July 1994, the Government states that the three cases that were lodged on behalf of the 21 dismissed HSS employees took a longer time than expected for completion due to the legal tussles of both the disputing parties who had made various applications and objections in the process. In order to rule on the applications/objections, the Industrial Court had to make three separate awards/decisions. The company was aggrieved by one of the decisions made (Award No. 293 of 1992) and applied to the High Court to quash the award. The company also obtained an order prohibiting the Industrial Court from proceeding with the hearing of the cases pending the High Court's decision.
7. 127. The High Court dismissed the company's application in September 1993 and the Industrial Court proceeded to hear the three cases together in a period of six days. The hearing was completed on 16 April 1994 and a decision - Award No. 213 of 1994 - was handed down on 30 May 1994. The Industrial Court dismissed the claims of the 21 workers that they were dismissed without just cause. However, the Court received a notice from the claimants on 7 July 1994 that they would apply to the High Court for a judicial review. The High Court's decision on the application would only be known after the relevant papers were filed by the claimants.

C. The Committee's conclusions

1. 128. The Committee notes from the Government's further reply that the three Industrial Court cases filed by the 21 dismissed HSS employees were ruled upon only in May 1994, nearly four years after the dismissals took place. According to the Government, this delay was due to the various applications and objections made by both disputing parties which resulted in a protracted process of litigation before the Industrial Court could hear the substantive claims of dismissal.
2. 129. The Committee recalls that the existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. Thus, for example, it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he has been the victim. This shows the full importance of Article 3 of Convention No. 98 which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 567).
3. 130. The Committee further notes that although the Government states that the Industrial Court dismissed the claims of the 21 workers, it does not indicate the reasons for which the Court handed down this decision. The Committee requests the Government to keep it informed of the outcome of the High Court's decision on the application for judicial review by the 21 HSS employees, by transmitting the text of the judgement handed down by the Court.