Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 353, Mars 2009

Effect given to the recommendations of the Committee and the Governing Body

1. 133. This case concerns the Malaysian labour legislation and its application which, for many years, have resulted in serious violations of the right to organize and bargain collectively, including: discretionary and excessive powers granted to authorities as regards trade unions’ registration and scope of membership; denial of workers’ right to establish and join organizations of their own choosing, including federations and confederations; refusal to recognize independent trade unions; interference of authorities in internal unions’ activities, including free elections of trade unions’ representatives; establishment of employer-dominated unions; arbitrary denial of collective bargaining. The Committee formulated extensive recommendations at its March 2004 meeting [see 333rd Report, para. 599] and last examined the follow-up to this case at its March 2008 meeting. On that occasion the Committee, noting that the proposed amendments to the Industrial Relations Act of 1967 and the Trade Unions Act of 1959 were waiting to be tabled in the Senate, once again urged the Government to fully incorporate its long-standing recommendations with respect to the legislation. As concerned the nine court challenges filed by several employers after the authorities had ruled in favour of the unions in cases concerning collective bargaining rights, the Committee requested the Government to provide copies of the judgements handed down, so that it may examine the grounds on which the said decisions were made, and to take the necessary measures to ensure that final decisions in the cases still pending may be reached without further delay. Finally, in respect of the 8,000 workers in 23 companies whose representational and collective bargaining rights were denied, the Committee once again urged the Government to rapidly take appropriate measures and give instructions to the competent authorities so that these workers may effectively enjoy rights to representation and collective bargaining, in accordance with freedom of association principles [see 349th Report, paras 165–173].
2. 134. In its communication of 19 September 2007, the Government states that it does not believe national labour laws seriously violate the rights to organize and bargain collectively. Although Malaysia has not ratified Convention No. 87, the principles of the right to organize have been provided for in the legislation, which also forbids interference by employers in the formation or organization of workers’ organizations. The Government also reiterates that checks and balances are built into the system, as all powers vested in the authorities derive from laws formulated through tripartite consultation and passed by a democratically elected parliament; furthermore, the judicial system provides for the right of aggrieved parties to seek redress from the courts.
3. 135. As concerns the legislation, the Government indicates that the amendments to the Trade Unions Act, 1959, and the Industrial Relations Act, 1967, have been passed by Parliament and came into effect on 28 February 2008. The amendments to the Industrial Relations Act provide, inter alia, for a fast and efficient procedure for recognition for collective bargaining purposes.
4. 136. As regards the nine court cases concerning collective bargaining rights, to which the Committee had previously referred, the Government states that they have all been resolved, with written judgements handed down in two cases and oral judgements issued in respect of the others.
5. 137. The Committee notes the above information. It recalls that it has commented upon the extremely serious matters arising out of fundamental deficiencies in the legislation on many occasions, over a period spanning 17 years. It can only deplore that, in spite of its most recent request that the ongoing process of amending the industrial relations legislation take fully into account its recommendations, the proposed amendments to the Industrial Relations Act of 1967 and the Trade Unions Act of 1959 have now been passed by Parliament and have entered into force, without addressing the issues raised by the Committee. In these circumstances, the Committee once again urges the Government to take the necessary measures to fully incorporate its long-standing recommendations concerning the need to ensure that:
   • – all workers, without distinction whatsoever, enjoy the right to establish and join organizations of their own choosing, both at primary and other levels, and for the establishment of federations and confederations;
   • – no obstacles are placed, in law or in practice, to the recognition and registration of workers’ organizations, in particular through the granting of discretionary powers to the responsible official;
   • – workers’ organizations have the right to adopt freely their internal rules, including the right to elect their representatives in full freedom;
   • – workers and their organizations enjoy appropriate judicial redress avenues over the decisions of the minister or administrative authorities affecting them; and
   • – the full development and utilization of machinery for voluntary negotiation between employers or employers’ and workers’ organizations, with a view to regulating terms and conditions of employment by means of collective agreements is encouraged and promoted by the Government.
6. 138. The Committee requests the Government to transmit copies of the amended legislation and once again reminds the Government that it may avail itself of the ILO’s technical assistance so as to bring its law and practice into full conformity with freedom of association principles. Noting further that the legislative amendments referred to above include provisions on trade union recognition for collective bargaining purposes, the Committee requests the Government to provide copies of the legislation to the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.
7. 139. The Committee notes the information regarding the nine court cases filed by several employers after the authorities had ruled in favour of the unions in cases concerning collective bargaining rights. The Committee notes in particular that in the two cases pending as of its previous examination of the case, judgements had been handed down granting the unions concerned recognition for collective bargaining purposes.
8. 140. Finally, the Committee notes with regret that, once again, the Government provides no information concerning the 8,000 workers in 23 companies whose representational and collective bargaining rights were denied. The Committee once again urges the Government to rapidly take appropriate measures and give instructions to the competent authorities so that these workers may effectively enjoy rights to representation and collective bargaining, in accordance with freedom of association principles.