Effect given to the recommendations of the committee and the Governing Body - Report No 368, June 2013

Case No 2717 (Malaysia) - Complaint date: 22-MAY-09 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 48. The Committee last examined this case, which concerns allegations that the British American Tobacco (BAT) company reclassified existing posts within the company in order to prevent employees who were members of the British American Tobacco Employees Union (BATEU) from retaining their union membership, at its March 2012 meeting. On that occasion, with regard to its long-standing recommendations on legislative reform (previously raised in Case No. 2301), the Committee once again urged the Government to take the measures to amend the Trade Union Act of 1959 (TUA) so as to ensure that all workers, without distinction whatsoever, enjoy the right to establish and join organizations of their own choosing, whether at primary level or by grouping together workers from different workplaces or cities. As regards the Industrial Relations Act (IRA), the Committee urged the Government to take the necessary measures so as to ensure that: (1) the definition of managerial and supervisory staff is limited to those persons who genuinely represent the interests of employers, including, for example, those who have the authority to appoint or dismiss; and (2) managerial and supervisory staff have the right to establish their own associations for the purpose of engaging in collective bargaining, and firmly expected the Government to inform it in the near future of concrete measures taken to amend the IRA in view of the above principles. In the meantime, the Committee expected that the BATEU would be able to work and function freely. The Committee urged the Government to make every effort to consult with the company and the trade union concerned so as to determine the supervisory staff genuinely representing the interests of employers which could be excluded from the BATEU’s union membership [see 363rd Report, paras 178–183].
2. 49. The Government submitted its observations in a communication dated 6 December 2012. With regard to the Committee’s request to amend the IRA, the Government reiterates its intention to maintain the present arrangement as status quo. With regard to the consultations with the company and the trade union concerned so as to determine the supervisory staff genuinely representing the interests of employers which could be excluded from the BATEU’s union membership, the Government once again reiterates that it has been decided by the Department of Trade Union Affairs and Industrial Relations (DGTU) that the BATEU cannot represent workers employed under BAT (Malaysia) Sdn. Bhd. subsidiaries and does not have any locus standi regarding issues relating to the scope of membership and that therefore the Department of Industrial Relations (DIR) is not able to conduct an investigation to determine the scope of membership by virtue of the above decision. The Government further indicates that the DGTU has approved the amendments on the scope of membership of the National Union of Tobacco Workers (NUTW). The widening of the membership scope allows the employees of BAT and ex-members of the BATEU to join and be members of the NUTW.
3. 50. The Committee notes the Government’s indication that the DGTU has approved the amendments on the scope of membership of the NUTW and that the widening of the membership scope now allows the employees of BAT and ex-members of the BATEU to join and be members of the NUTW. The Committee deeply regrets that the Government did not follow-up on its recommendation to make every effort to consult with the company and the trade union concerned (BATEU) so as to determine the supervisory staff genuinely representing the interests of employers which could be excluded from the BATEU’s union membership, pending the introduction of the legislative reform which would clarify the different categories of workers falling under union representation and understands that the BATEU was not able to work and function freely. The Committee recalls that it considers the decisions of the courts concerning the BATEU to be rooted in the legislative framework’s restrictions on trade union rights that it has extensively commented upon in Case No. 2301. Recalling that questions of trade union structure and organization are matters for the workers themselves and that it sees the situation faced by these workers as a concrete example of the fundamental deficiencies of the legislation which, in the end, prevent these workers from exercising their organizational and collective bargaining rights, the Committee once again urges the Government to take the measures to amend the TUA without further delay so as to ensure that all workers, without distinction whatsoever, enjoy the right to establish and join organizations of their own choosing, whether at primary level or by grouping together workers from different workplaces or cities.
4. 51. Concerning the request for measures to be taken to amend the IRA, the Committee once again urges the Government to take the necessary measures without delay so as to ensure that: (1) the definition of managerial and supervisory staff is limited to those persons who genuinely represent the interests of employers, including, for example, those who have the authority to appoint or dismiss; and (2) managerial and supervisory staff have the right to establish their own associations for the purpose of engaging in collective bargaining, and recalls that it may avail itself of the technical assistance of the ILO in this regard should it so desire.