Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Malaysia (Ratification: 1961)

The Committee notes the information supplied by the Government in its report.

1. Further to its previous comments, the Committee notes the Government's statement that section 15 of the Industrial Relations Act (IRA), which limits the scope of collective agreements for companies granted "pioneer status", is in the process of being amended and that a copy of the repealing legislation will be forwarded to the ILO as soon as it is passed by Parliament. The Committee recalls however that the Government has been referring to "positive measures to repeal section 15" since 1994, and would therefore request it to ensure that section 15 of the IRA is repealed shortly, and to provide a copy of the repealing legislation as soon as it is adopted.

2. In its previous comments, the Committee had referred to the restrictions on collective bargaining contained in section 13(3) of the IRA, with regard to matters known as internal management prerogatives (i.e. promotion, transfer, employment, termination, dismissal and reinstatement). The Government had indicated previously that such matters could not be predetermined in a collective agreement, as a predetermined agreement on such matters would ultimately affect the rights of management to manage. In addition, the Government had emphasized that internal management prerogatives did not grant unfettered rights to employers, as demonstrated by numerous decisions of the Malaysian courts. The Committee considers that while issues such as promotion, employment and termination could eventually be considered as matters for management decision-making as part of its freedom to manage the enterprise, the other issues, namely transfer, dismissal and reinstatement, should not be excluded from the scope of collective bargaining. The Committee therefore requests the Government to indicate, in its next report, the steps taken or envisaged to bring section 13(3) of the IRA into conformity with Article 4 of the Convention.

3. In relation to the Committee's comments on certain restrictions on the right to bargain collectively for public servants other than those engaged in the administration of the State (section 52 of the IRA), the Government indicates once again that the Congress of Unions of Employees in the Public and Civil Services (CUEPACS), the officers of the Joint Councils and the Public Services Department meet on a regular basis to discuss issues affecting employees in the public service. Through these discussions, the public sector unions do contribute to the deliberations on remunerations, terms and conditions of employment and the resolution of anomalies arising therefrom. The Government emphasizes that the National Joint Councils provide a sufficient avenue for discussion and negotiation on salary and terms and conditions of employment of public servants and that CUEPACS as a national centre for public servants, plays an important and responsible role in protecting the interests of public servants, including wage negotiation.

While taking note of this information, the Committee would once again request the Government to provide specific information on how collective bargaining is encouraged and promoted in practice between public employers and public servants other than those engaged in the administration of the State, for example, by supplying information on the number of collective agreements concluded, the different categories and numbers of employees covered, the number of public sector unions acting as bargaining agents, etc.