Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

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

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination of public servants not engaged in the administration of the State. The Committee had observed that while public servants are excluded from the provisions of the IRA on protection against act of anti-union discrimination, the new section 52(3) of the Act establishes a possibility to file representations for unfair dismissal that applies to any service of or any worker employed by a statutory authority, in which the Minister, after consultation with such authority, prescribes such application by an order in the Gazette (Part VI of the IRA). With respect to the public servants not engaged in the administration of the State, the Committee had requested the Government to: (i) indicate the statutory services to which the Minister extended the application of Part VI of the IRA; (ii) provide information on its application in practice; and (iii) indicate the specific legislative provisions which provide protection against acts of anti-union discrimination, in compliance with the Convention. The Committee notes the Government’s reply that: (i) engagement with statutory authorities is ongoing to explore mechanisms to implement section 52(3) of the IRA; and (ii) protection against act of anti-union discrimination for public servants is provided under article 135(2) of the Federal Constitution and the Public Officers (Conduct and Discipline) Regulations 1993. The Committee observes that: (i) while the Federal Constitution establishes that public servants (as defined in article 132) shall not be dismissed or have a reduction in rank without being heard, there is no explicit protection against acts of anti-union discrimination for public servants (in recruitment, employment and dismissals); and (ii) the Government does not provide further information on the specific provisions providing for protection against anti-union discrimination acts in Public Officers (Conduct and Discipline) Regulations 1993. The Committee recalls the need to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State (including those who are not trade union officers) against acts of anti-union discrimination and to provide for effective and sufficiently dissuasive sanctions against those responsible for such acts. The Committee trusts thatthe Government will be soon, following its consultation with the corresponding authorities, in a position to indicate the statutory services to which the Minister extended the application of Part VI of the IRA and to provide information on its application in practice relating to public servants not engaged in the administration of the State. The Committee further requests the Government to indicate the specific legislative provisions providing protection against acts of anti-union discrimination to the public servants not engaged in the administration of the State, as well as the sanctions and remedies applicable in such cases. The Committee requests the Government to provide a copy of the applicable legislation.