Rapport intérimaire - Rapport No. 283, Juin 1992

1. 282. The Committee has already examined the substance of this case on two previous occasions, at which it presented interim conclusions to the Governing Body (see 277th Report, paras. 406 to 419 and 281st Report, paras. 311 to 325, approved by the Governing Body respectively at its sessions in February-March 1991 and March 1992).
2. 283. The Government supplied certain further information on this case in a communication dated 20 April 1992.
3. 284. 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. 285. 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. 286. 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 workers in question when HSS ceased operations on 21 September 1990, they all filled wrongful dismissal cases which were currently being heard by the Industrial Court.
3. 287. At its March 1992 Session, the Governing Body, in the light of the conclusions of the Committee, approved the following interim recommendation:
4. The Committee requests the Government to inform it of the outcome of all proceedings before the Industrial Court concerning the 21 workers allegedly dismissed by the Harris Solid State Sdn. Bhd. in September 1990 because of their union activities.
5. B. The Government's observations
6. 288. In its letter of 20 April 1992, the Government states that three cases were lodged on behalf of the 21 dismissed HSS employees.
7. Case No. 3/4-254/90 (a complaint by Bruno Gentil and 18 other workers) and Case No. 3/4-297/90 (a complaint by Azlina Abdullah) were consolidated on 27 February 1991 at the request of the parties concerned and were heard on 26 June 1991. Both the company and workers were represented by counsel, the workers being represented by the Harris Solid State Employees' union counsel.
8. 289. At the outset of the hearing preliminary issues were raised by both counsel for a ruling by the Court. The Company pleaded that certain parts of the Union's (Harris Solid State Employees' Union) statement of case be struck off as, since the Company is new, they were irrelevant to the issue of dismissal. The Union, for its part, applied to the Court to enjoin the three companies: (a) Harris Advanced Technology Sdn. Bhd.; (b) Harris Semiconductors Sdn. Bhd., together with; (c) Harris Solid State Sdn. Bhd. as co-respondents, as they belonged to the same business group. It also applied for the Union itself to be enjoined as a party to the case.
9. 290. In two awards (Awards Nos. 207/91 dated 10 July 1991 and 230/91 dated 29 July 1991 copies of which are supplied), the Industrial Court disallowed the Company's application to strike out certain parts of the Union's statement of case, but allowed the Union's application to enjoin the three above-mentioned companies, as joint-respondents. It also allowed the Union to be made a party to the case. The Court then fixed 27 and 28 July 1992 for hearing the workers' application for reinstatement.
10. 291. As for the third Industrial Court case (No. 3/4-141/91 involving Ruslina Hassan), the statement of case was received on 30 July 1991 and the Company's reply was received on 23 January 1992. This case was also fixed for hearing on 27 and 28 July 1992. The Government undertakes to submit a further report after this hearing is completed.

C. The Committee's conclusions

1. 292. The Committee notes that, according to the two Industrial Court awards supplied by the Government, initial procedural questions concerning the three Industrial Court cases filed by the 21 dismissed HSS employees have been ruled upon and that the hearings for the applications for reinstatement have been set for 27 and 28 July 1992. It also notes that, as a result of these preliminary rulings, the Harris Solid State Employees' Union has been made a party to these claims for wrongful dismissal under the Industrial Relations Act, 1967.
2. 293. While not yet being able to conclude that the dismissals were acts aimed at victimising union activists or were designed to destroy the union, the Committee would recall as it did in its previous examination of this case that, as it is often difficult, if not impossible, for a worker to prove that he or she has been subjected to an act of anti-union discrimination, legislation and practice could ensure protection against anti-union measures by having effective and speedy machinery against such acts.
3. 294. The Committee recalls that it has already drawn the Government's attention to the importance of tribunals issuing their decisions rapidly in cases alleging dismissal for trade union activities, and observes that the dismissals of these 21 workers date back to September 1990. It accordingly trusts that the hearings scheduled for July 1992 (some 22 months after the dismissals) will proceed in a timely fashion and that the Government will be able to inform it - as it has undertaken to do - of the outcome of the proceedings before the Industrial Court immediately upon the handing down of the corresponding decisions.