Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

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

The Committee notes with regret that the Government’s report does not contain a full reply to all of its previous comments and urges the Government to include, in its next report, full information on the following matters raised in its previous observations.

1. Noting a delay of a number of years, the Committee urged the Government to ensure that there were no further delays in repealing section 15 of the Industrial Relations Act (IRA), which limits the scope of collective agreements for companies granted "pioneer status", and requested a copy of the repealing legislation as soon as it was adopted. The Committee notes that the Government has provided no new information in this regard and it again requests that section 15 of the IRA be repealed in the near future and to keep it informed in this regard, including in relation to the progress of any repealing legislation currently in the draft stage.

2. The Committee had urged the Government to amend the legislation to bring section 13(3) of the IRA, which contains restrictions on collective bargaining in relation to transfer, dismissal and reinstatement (certain of the matters known as "internal management prerogatives"), into full conformity with Article 4 of the Convention. The Committee notes that the Government has provided no new information in this regard, and it again requests that section 13(3) of the IRA be amended to ensure that transfer, dismissal and reinstatement are not excluded from the scope of collective bargaining in Malaysia.

3. Noting that without detailed information it has not been in a position to determine whether genuine collective bargaining exists in the public service, the Committee had requested the Government to provide it with specific information on how collective bargaining is encouraged and promoted in practice between public employers and public servants and, in particular, on the number of employees covered and the specific issues discussed, as well as examples of the process that has been followed to reach specific collective agreements for public servants. The Committee had further requested the Government to indicate the steps taken or envisaged to bring section 52 of the IRA, which provides for certain restrictions on the right to bargain collectively for public servants, other than those engaged in the administration of the State, into conformity with the Convention.

The Committee notes the information provided by the Government in its report that the National Joint Council and Departmental Joint Council serve as the nationwide forum for information sharing, discussion and consultation between government/management and public sector employees, in a positive environment and concerning matters including consolidation of schemes of service, terms and conditions of service and improvements to the existing remuneration structure. The Committee further notes that the Government indicates its view that this is a better approach rather than granting full collective bargaining rights to public sector unions/employees. The Committee requests the Government to indicate in its next report whether any limitations exist in relation to the outcome of consultations within the National Joint Council and Departmental Joint Council as to the terms and conditions of service and remuneration structure, as well as the form and scope of any agreements reached.

The Committee recalls that under Article 6 of the Convention all public servants other than those engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment (see General Survey on freedom of association and collective bargaining, 1994, paragraph 262), and that simple consultations do not satisfy the requirements of Articles 4 and 6 of the Convention.