Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

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

The Committee notes with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request.

Further to the conclusions of the Committee on Freedom of Association in Case No. 1380 (248th Report of the Committee, March 1987), the Committee of Experts requested the Government to supply information on the role of the Registrar in the procedure for recognising a trade union for collective bargaining purposes.

The Committee notes the information supplied by the Government in its last report concerning the procedure for the registration of trade unions that is established by the Trade Unions Act of 1959.

However, referring to the recognition procedure for the purposes of collective bargaining regulated by the Industrial Relations Act of 1967 (sections 9 to 12), the Committee notes that the Director-General and the Minister responsible have discretionary powers to decide whether to grant recognition in the event of an employer refusing to recognise a trade union as a bargaining agent.

The Committee considers that, where systems provide for the most representative trade union to have preferential or exclusive bargaining rights, it is important that the determination of the trade union in question should be based on objective and pre-established criteria, so as to avoid any opportunity for partiality or abuse. It has also suggested that, where national legislation provides for a procedure of certifying unions as exclusive bargaining agents, certain safeguards should be provided, such as: (a) the certification to be made by an independent body; (b) the representative organisation to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organisation which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of any organisation other than the certificated organisation to demand a new election after a reasonable period has elapsed, otherwise a majority of the workers concerned might belong to a union which, for an unduly long period, could be prevented from organising its administration and activities with a view to fully furthering and defending the interests of its members. (See General Survey, 1983, paragraph 295.)

The Committee requests the Government to consider amending its legislation in the light of the above considerations and to supply information on any progress achieved in this respect.

In addition, the Committee asks the Government to indicate whether workers employed in export processing zones are accorded the right to engage in collective bargaining.