Interim Report - Report No 211, November 1981

Case No 1022 (Malaysia) - Complaint date: 26-JAN-81 - Closed

1. 515. The complaint of the International Metalworkers' Federation (IMF) is contained in a communication dated 26 January 1981; additional information was supplied in a letter dated 29 April 1981. The Government replied in a communication dated 15 September 1981.
2. 516. 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. Allegations of the complainant

1. 517. The complainant alleges that its affiliate - the Electrical Industry Workers' Union (EIWU) - is still faced with the Government's restrictive interpretation of law and anti-union practices similar to those examined by the Committee in Cases Nos. 879 and 911.1 It claims that the Government has disregarded the recommendations of the Committee and the Governing Body.
2. 518. The complainant explains that after assisting in settling a strike at the RUF (Malaysia) Sdn. Bhd. factory (RUF), a radio and electric parts factory, the EIWU started to organise the RUF workers and succeeded in unionising 600 out of the total of 800 employees. On 7 October 1980 the EIWU claimed recognition for collective bargaining and other purposes from the employer and from the Registrar of Trade unions under section 9 of the industrial Relations Act, 1967 while the company kept its decision in abeyance pending the ministerial decision, on 18 December the EIWU was informed by the Director-General of Industrial Relations that the Registrar had decided that it could not represent the employees of RUE. On 31 December, continues the complainant, the EIWU appealed again to the Director-General of Industrial Relations claiming that RUE manufactured similar products produced by several other companies (Pernas Plessey Electronics Sdn. Bhd, Matsushita Electric Company (M) Bhd, Toshiba (M) Bhd, Sanyo Industries (M) Bhd, Roxy Electric Industries (M) Bhd, Maltronics Sdn. Bhd, Setron (M) Sdn. Bhd and McAlister Industries) whose employees were permitted by the Registrar to join the EIWU and stressing that under the EIWU's membership Rule (3), it could unionise employees engaged in the "manufacture and repair of radios and communication equipment" such as was being carried out by 65 per cent of RUF's employees. However, according to the complainant, on 8 January 1981, the Director-General confirmed the Registrar's decision and the EIWU then appealed to the Minister of Labour and Manpower to exercise his discretion under section 71A of the Trade Unions Ordinance, 1959 as amended. When this appeal was rejected on 24 February 1981, the EIWU decided to apply to the High Court for an Order of Certiorari; the complainant encloses a copy of the Affidavit, dated 6 April 1961, which asks for annulment of the Minister's decision.

B. The Government's reply

1. 519. While recalling that this matter is sub judice before the High Court of Kuala Lumpur, the Government states that it would like to clarify why the EIWU is not allowed to recruit the RUF employees as its members: section 26(1A) of the Trade Unions Ordinance reads "No person shall join, or be a member of, or be accepted or retained as a member by any trade union if he is employed or engaged in any trade, occupation or industry which is not similar to the trade, occupation or industry in respect of which the trade union is registered". The Government states that RUF is not considered as an industry "similar" to those industries where the workers have been enrolled by the EIWU under the Ordinance, and that the membership scope of the EIWU's own Constitution does not encompass such workers as those employed by RUF.
2. 520. Regarding the allegation that the Registrar's decision is inconsistent with the previous rulings allowing the EIWU to unionise workers of similar industries, namely Roxy Electrical Industries, Matsushita Electric, Setron, Sanyo Industries, Toshiba, Arlas Electronics and ITT, the Government states that this is not so; the Registrar has ruled that RUF is not similar to these industries.
3. 521. Lastly, the Government points out that it has not ratified Convention No. 87 and that workers in Malaysia enjoy the right to organise and engage in collective bargaining consistent with the provisions of Convention No. 98 which the Government has ratified.

C. The Committee's conclusions

1. 522. The Committee notes that this complaint is similar to previous complaints brought by the complainant organisation alleging restrictive interpretation by the authorities concerned of trade union registration legislation as regards the unionisation of workers in the electronic industry by the Electrical Industry Workers' Union. The relevant section 26 (1A) of the Trade Unions Ordinance is set out above.
2. 523. The Committee recalls that in its examination of Cases Nos. 879 and 911, it stated that it would be desirable for the Government to take steps to ensure that the provisions on the establishment of first-degree unions were interpreted in a less restrictive manner by the administrative authorities, especially in view of the fact that the right of workers to establish and join organisations of their own choosing is one of the basic tenets of freedom of association. It notes that in the present case these authorities once again do not appear to have taken into account the previous comments of the Committee and expresses the firm hope that account will be taken of them in the future.
3. 524. At the same time, it notes that the complainant organisation's affiliate has appealed to the High Court to quash the decision of the Minister and the Registrar of Trade Unions and would request the Government to keep it informed of the outcome of this appeal.
4. 525. Finally, the Committee notes the Government's statement that the workers in Malaysia enjoy the right to organise and to engage in collective bargaining. It requests the Government to indicate the manner in which these rights are currently enjoyed by the employees of RUF.

The Committee's recommendations

• The recommendations of the Committee
  526. 526 In these circumstances, the Committee recommends the Governing Body to approve the present interim report and in particular the following conclusions:
• The Committee must repeat the conclusions it arrived at in its examination of two earlier complaints concerning the same issue, that it is desirable for the Government to take steps to ensure that the provisions on the establishment of first degree unions are interpreted in a less restrictive manner by the administrative authorities. The Committee expresses the firm hope that account will be taken of its comments in this respect in the future.
• The Committee notes that an appeal on the issue of unionisation of certain workers by the complainant's affiliate is before the High Court and requests the Government to keep it informed of the outcome of this case and to indicate the manner in which the employees of RUF (Malaysia) Sdn. Bhd enjoy the right to collective bargaining.