Report in which the committee requests to be kept informed of development - Report No 401, March 2023

Case No 3414 (Malaysia) - Complaint date: 08-OCT-21 - Follow-up

Allegations: The complainant alleges that the recognition of a representative union in a forestry company has been delayed for 12 years because of the employer’s abuse of judicial process and exploitation of weaknesses in the legislation

1. 549. The complaint is contained in a communication dated 8 October 2021 from Building and Wood Workers’ International (BWI).
2. 550. The Government forwarded its partial observations in communications dated 1 and 30 September 2022, and 3 February 2023.
3. 551. Malaysia has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but not the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 552. In its communication dated 8 October 2021, BWI alleges that since 2009, the Malaysian forestry company Sabah Forest Industries (hereinafter “the Company”) has steadfastly refused to recognize the Sabah Timber Industry Employees Union (STIEU) despite two secret ballots, held in 2010 and 2018, indicating that the majority of workers wished the STIEU to represent them, and despite two decisions of the Minister of Human Resources (MOHR) according recognition to the union. The complainant indicates that by constantly challenging the process of determination of representativity of the STIEU and the administrative decisions related to them, the Company has hampered for 12 years the legal recognition of the STIEU as the representative of its employees.
2. 553. The complainant also alleges acts of interference on the part of the Company, including by considering the recognition of a defunct in-house union, Sabah Forest Industries Employees Union (SFIEU), which it had previously refused to recognize, with the aim of avoiding recognition of the STIEU; and giving wrong information to migrant workers from Nepal and Indonesia interested in participating in union activities, pretending that engaging in such activities would be in violation of their residence permits.
3. 554. Regarding the consequences of this situation, the complainant alleges that in the absence of a legally recognized union, with which it would have been obliged to negotiate, the Company had engaged in unilateral changes in terms and conditions of employment affecting the workforce, which included lower wages and worse working conditions including greater hazards. The complainant states that workers had been seriously injured and three had died because of poorly maintained equipment and poor safety protocols. Furthermore, continued lack of recognition also meant that workers were unable to bargain collectively or take industrial action when the Company unilaterally imposed mass lay-offs in late 2017.
4. 555. The complainant alleges that in 1991, workers formed an enterprise level union, the SFIEU, which the Company never recognized. In 2009, workers dissolved the SFIEU and decided to join the already existing, state-wide union, the STIEU. On 24 October, the STIEU submitted a claim for recognition to the management. On 30 October, the Company declared that it would not recognize the STIEU, on the basis that the union’s jurisdiction did not cover forestry-related workers.
5. 556. A secret ballot was carried out by the Industrial Relations Department (IRD) between 30 November and 1 December 2010 as per the agreed employee list – which the Company had attempted to substitute – and the outcome was that 85 per cent of the voters supported the STIEU. The MOHR recognized the STIEU on 26 January 2011. On 1 March, the Company applied to the High Court, requesting the judicial review of the ministerial decision. The High Court dismissed the review application, against which the Company appealed. The High Court granted an order to stay its decision pending appeal. Ultimately, on 27 November 2012 the Court of Appeal ruled in favour of the Company and directed the Minister to review his decision on the scope of membership of the STIEU.
6. 557. In 2013, as the Company had applied for an International Financial Corporation (IFC) loan, which required regular consultation with the workers or workers’ representatives, it set up a Joint Consultative Council (JCC), an internal enterprise platform to address employee grievances. The complainant states that recognizing the union would have accomplished the requirement of consultation with workers’ representatives and alleges that throughout 2013, the workers contested the formation of the JCC, did not actively engage in it, and instead continued to push for the recognition of the STIEU through the MOHR.
7. 558. On 14 February 2014, the Director-General of Industrial Relations (DGIR) convened a meeting between the Company and the union, which led to the decision dated 10 March 2014, allowing the union to file a new application for recognition. The union filed the new application on 17 March. However, on 2 April the Company once again denied recognition, on the basis that the application did not comply with the law, as it contained workers who were not legally eligible to be union members.
8. 559. According to the complainant in July 2014, the Company was invited to supply a list of employees eligible to be union members. The list was submitted to the DGIR on 22 August. On 12 September, the DGIR wrote to the Company with a view to organizing a secret ballot on 22 September. However, the Company requested that the vote be postponed pending a reply from the Trade Union Department concerning the competence of the STIEU to represent the workers.
9. 560. On 26 September 2014, a hearing concerning the scheduling of the secret ballot was held; during another hearing held on 29 September it was determined that 116 workers fell into a disputed category and needed to be interviewed before a ballot could take place. On 3–4 November, the IRD interviewed workers to ascertain their eligibility. On 17 November, the DGIR wrote to the Company to inform that the STIEU had indeed the competence to represent the Company workers; and on 8 December, the IRD completed its investigations to determine the electorate of the secret ballot. In a letter dated 15 April 2015, the IRD communicated to the Company its findings on the eligibility of the 116 disputed workers and in another letter dated 16 April it set the secret ballot for 27 April. The Company wrote to the DGIR rejecting the decision; and on 24 April, informed the MOHR of its intent to file for judicial review.
10. 561. The complainant further alleges that on 7 November 2014, amid the process of establishment of the list of workers who could participate in the vote, the Company issued a circular to all employees indicating that it would only support the SFIEU, an in-house union which the workers had dissolved in 2009 and the Company had heretofore refused to recognize. The STIEU rejected this circular.
11. 562. On 14 May 2015, the Company filed its third judicial review before the Sabah Supreme Court to challenge the eligibility of the employees who could vote in the secret ballot. The case was not heard until 2016, and on 13 June 2016, the Court dismissed the Company’s case. The Company appealed but the appeal was also dismissed in October 2017. The complainant states that the October 2017 decision should have cleared the last hurdle preventing the holding of the secret ballot, but it was never delivered in writing, which caused further delay, until the new MOHR intervened, and the ballot finally took place on 29 October 2018, even though the Company refused to allow the election to take place on site and only allowed the workers to leave during their lunch break and vote at a school adjacent to the premises. The STIEU was elected as the representative union with over 70 per cent of the vote – 680 of the 933 eligible workers – and the MOHR accorded recognition to the union via a Form F letter dated 21 November 2018.
12. 563. The complainant states that the Company went bankrupt in early 2017, and on 28 June of that year, Grant Thornton Consulting (M) Sdn Bhd (hereinafter, “the Receiver”) was appointed as its receiver and manager. BWI alleges that in November 2017, right after the Court of Appeal had disposed of the Company’s last legal claim against the recognition of the STIEU, the Company announced a temporary lay-off programme involving 1,350 employees, to come into force on 1 January 2018. Only around 200 of the approximately 1,600 Company employees were retained and paid full salaries. According to the complainant, the announcement shocked the workers as there had been no prior negotiations with them on this matter.
13. 564. In April 2018, Ballarpur Industries Limited (BILT), of which the Company is a subsidiary (hereinafter “the parent company”), confirmed the sale of the Company to Pelangi Prestasi Sdn Bhd (hereinafter, the “acquirer company”). In April 2018, the Receiver and the acquirer companies reached an agreement on the sale; however, several approvals were needed before the sale could be finalized, including regulatory approvals for the transfer of forestry licences. According to the complainant, following national elections in May 2018, the new Sabah state government announced a review of all timber concession holders, including forest management units. In March 2019, the Sabah government decided not to approve the transfer of forestry licences to the acquirer company and introduced new conditions on future timber licence grants.
14. 565. On 28 February 2019, the Receiver filed a judicial review against the Minister’s decision dated 21 November 2018 to accord recognition to the STIEU. The complainant alleges that in a meeting held in the first week of March 2019, the director of the Receiver informed the general secretary of the STIEU that they had filed for the judicial review because it would be difficult to sell the Company with a union in place. BWI adds that as previously in 2018, the Company/Receiver had obtained a restraining order to shield themselves from any legal action and to guarantee a smoother sale process; the union could not challenge the judicial review in court.
15. 566. The complainant further adds that with the non-approval of the transfer of forestry licences, the conditions for the sale and purchase agreement were not satisfied and the agreement terminated on 1 April 2019. In the same month, the Receiver issued a notice inviting interested parties to submit offers for the Company’s assets. In June 2019, the acquirer company brought an injunction application before the Malaysian High Court, to restrain the implementation of the new preconditions on timber licence grants, which the High Court allowed. At the same time, the acquirer company filed a civil suit against the Company and the Receiver. In July 2019, the High Court recommended that the parties explore mediation, taking into account the numerous Company workers who were impacted by the delayed sale. The complainant states that according to the STIEU, the status of the workers has been uncertain ever since the Company went into receivership in 2017, and it was expected that a High Court decision would provide certainty to allow the workers to engage with their employers.
16. 567. On 26 February 2020, the High Court quashed the Ministerial decision to recognize the union. The MOHR appealed against this ruling. However, the proceedings were halted due to the COVID-19 pandemic. The complainant states that the Company and the Receiver have not yet recognized the union.
17. 568. The complainant alleges that in the present case, the excessive delays by the Government and the abuse of the judicial process by employers has prevented union recognition and adds that the Company was able to game the system because of certain aspects of the Malaysian law which do not comply with international law. In this regard the complainant refers to:

B. The Government’s reply

1. 569. In its communication of 1 September 2022, the Government emphasizes that it is very committed to enhancing workers’ rights and protection and indicates that it amended the IRA 1967 in 2019 to extend the protection of workers and employers and to improve the dispute resolution system with a view to making it more effective and efficient. According to the Government, the amendment was made to be in line with international labour standards.
2. 570. Regarding the delay in the recognition process, the Government indicates that in this particular case, the delay is beyond the control of the MOHR, because the Company has the right to exhaust all legal avenues under the domestic law. The Government further refers to several legal actions taken by the Company and the Receiver which delayed the recognition process, namely the application for judicial review against the Ministerial decision to recognize the union, which resulted in the order of the High Court that quashed the recognition decision, as well as the obtention of a restraining order from the High Courts of Sabah and Sarawak, which prohibited further legal action against the Company. The Government further indicates that in order to uphold justice, the MOHR has appealed against the judicial review order. The case is pending before the Court of Appeal and a hearing is scheduled on 28 September 2022.
3. 571. The Government adds that the MOHR has taken measures through the Department of Labour Sabah (DOL) to assist laid off workers. Ten cases were filed in the Sipitang Labour Court and the DOL has conducted several dialogue sessions with the Receiver and the employees. In August 2021, the DOL conducted an online meeting which focused on the issue of payment of salaries of the laid off workers. As a result of these efforts, part of the salary claim was paid. On 17 January 2022, the DOL had a discussion with the Receiver concerning the employees’ application of proof of debt to the Insolvency Department of Malaysia, in relation to their action to recover their salary.
4. 572. The Government further indicates that the Bill on amendment of Trade Unions Act 1959 is before the Parliament and the proposed amendments have taken into account the key principles in ILO Convention No. 87, and concludes by the affirmation that it remains committed to facilitate dialogue between the parties in accordance with the procedure provided in the national law.

C. The Committee’s conclusions

1. 573. The Committee notes that this case concerns allegations of the denial of the right to organize and to collective bargaining at a forestry company, as a result of excessive delays in the legal recognition of a union as the bargaining agent. The complainants specifically allege that the excessive administrative and judicial delays have intervened in the context of the employers’ relentless judicial and administrative challenges to every step of the verification of the claim of the union that it represents the majority of workers at the enterprise. The Committee further notes that the complainant also raises deficiencies in the Malaysian legislation pertaining to the recognition of unions entitled to negotiate.
2. 574. While the Committee notes that amendments to the Industrial Relations Act (IRA) governing recognition for collective bargaining purposes were adopted in 2019 (part of which came into force as of January 2021), while enforcement of others is subject to the termination of the amendment process of the Trade Union Act (TUA), the Committee observes that up to January 2021, the previous versions of the IRA were applied with regard to the representation claim of the STIEU at the Company and will therefore examine this case in that light.
3. 575. The Committee notes that pursuant to section 9 of the IRA, the procedure of recognition in absence of the employer’s voluntary recognition involves the following steps: the trade union should report the matter to the Director General for Industrial Relations (DGIR – failing this step the recognition claim shall be deemed to be withdrawn (section 9(4)). Pursuant to section 9(4A), the DGIR may make enquiries to ascertain: (a) the “competence” of the trade union; and (b) by way of secret ballot, the percentage of union members who support the trade union seeking recognition. Following these steps, the Minister shall give his decision, and where it is decided that recognition is to be accorded, “such recognition shall be deemed to be accorded by the employer or trade union of employers concerned, as the case may be, from such date as the Director General may specify” (section 4(5) of IRA). The Committee notes in addition the Government’s statements to the Committee on the Application of Standards (CAS) in 2016 and 2022 that the decision of the Minister under section 9(5) is appealable by way of judicial review, and the ruling of the court deciding on judicial review is also appealable in the Court of Appeal. Furthermore, until the case is finally decided by courts, the status of recognition cannot be finalized. The initiation of the judicial review process has the effect of staying the administrative decision to accord recognition for the whole duration of the judicial proceedings.
4. 576. The Committee further notes that pursuant to section 9(1A), if a dispute arises at any time before or after recognition has been accorded as to whether any of the workers that the union claims to represent are employed in managerial, executive, confidential or security capacities, such dispute may be referred to the DGIR, who may take steps to resolve the matter. If the dispute cannot be resolved through those steps, the DGIR shall issue a decision on the matter that it shall communicate in writing to the parties (section 9(1D)). The Committee notes that this DGIR decision, as well, is subject to appeal by way of judicial review.
5. 577. The Committee notes that according to the presentation of facts in the complaint, which is not disputed by the Government, the STIEU first submitted a claim for recognition to the employer on 24 October 2009, which the Company rejected on the basis that the union’s competence was restricted to timber-processing workers and did not extend to forestry-related employees. The IRD carried out a secret ballot by the end of 2010, and as the outcome was 85 per cent of support for the STIEU, the Minister decided to accord recognition to the STIEU by a decision dated 26 January 2011. However, the Company filed for judicial review of this decision on 1 March 2011, which the High Court dismissed, but the Company appealed against this ruling as well, and finally on 27 November 2012, the Court of Appeal ruled in favour of the Company and directed the Minister to review his decision on the scope of membership of the STIEU. The Committee notes that this first part of the recognition proceedings took more than three years, including 15 months in administrative proceedings and 20 months in judicial proceedings.
6. 578. The Committee further notes that following facilitation by the DGIR and pursuant to a decision dated 10 March 2014, the union was allowed to submit a new application for recognition, which the Company rejected anew, this time on the ground that the union sought to represent workers who were not legally eligible to be union members. The Committee notes that this referred to “workers employed in managerial, executive, confidential or security capacities” mentioned in section 9(1) of the IRA. There was disagreement on which workers were eligible to vote in the secret ballot that would ascertain the percentage of employees supporting the STIEU. The Company also had once again challenged the competence of the STIEU to represent its employees. On 17 November 2014, the DGIR informed the Company that the union had the competence to represent the workers. After protracted administrative investigations for determining which workers were eligible to vote, on 15 April 2015 the IRD communicated its findings on this matter to the Company. Based on those findings, the IRD decided that a secret ballot will be held on 27 April. However, the Company immediately reacted to this decision by informing that it rejects the decision to hold the vote and will file for judicial review, which it did on 14 May 2015, before the Sabah Supreme Court, challenging the administrative decision concerning the list of workers who were eligible to vote. The Court dismissed the Company’s application on 13 June 2016. After two further Company appeals, the final judicial decision on this dispute was issued in October 2017 and the case of the Company was definitely dismissed. The Committee notes that this phase of the recognition proceedings lasted three years and seven months, including 14 months in administrative proceedings and 29 months in judicial proceedings.
7. 579. The Committee notes that according to the complainant, the fact that the October 2017 ruling was never delivered in writing was used to prevent the secret ballot from taking place, until the new MOHR intervened, and the ballot was finally held on 29 October 2018. The STIEU was elected as the representative union with over 70 per cent of the vote and on 21 November the Minister accorded recognition to the union. However, on 28 February 2019, the Receiver company once again filed a judicial review against the Minister’s decision to recognize the union. The Committee notes that the complainant alleges that the Director of the Receiver company had told the Secretary-General of the STIEU in a private meeting that they had filed the judicial review because it would be difficult to sell the Company with a union in place while the Government provides no information on the grounds on which the Receiver company appealed against the Ministerial decision. The Committee notes that with an order dated 26 February 2020, the High Court quashed the Minister’s recognition of the union. This time the MOHR appealed. However, the proceedings were halted due to the COVID-19 pandemic. The Committee notes the Government’s indication, that the case was pending before the Court of Appeal and a hearing was scheduled on 28 September 2022. The Committee has not received information on the outcome of this hearing however, it notes that this last phase of the recognition proceedings, has been ongoing since October 2017, including 13 months of administrative proceedings and ongoing judicial proceedings that were initiated on 28 February 2019, and after more than four years remain inconclusive at the date of examination of this case by the Committee.
8. 580. The Committee recalls that it has always considered that workers and employers should in practice be able to freely choose which organization will represent them for purposes of collective bargaining. It further recalls that employers, including governmental authorities in the capacity of employers, should recognize for collective bargaining purposes the organizations representative of workers employed by them; that recognition by an employer of the main unions represented in the undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking; and that for a trade union at the branch level to be able to negotiate a collective agreement at the enterprise level, it should be sufficient for the trade union to establish that it is sufficiently representative at the enterprise level. [see Compilation of Decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1359; 1354, 1355 and 1363].
9. 581. Regarding the determination of trade unions entitled to negotiate, the Committee recalls that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. In systems that adopt the first approach, in order to determine whether an organization has the capacity to be the sole signatory to collective agreements, two criteria should be applied: representativeness and independence. The determination of which organizations meet these criteria should be carried out by a body offering every guarantee of independence and objectivity; furthermore, pre-established, precise and objective criteria for the determination of the representativity of workers’ and employers’ organizations should exist in the legislation and such a determination should not be left to the discretion of governments. Finally, where under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted all the unions in this unit, at least on behalf of their own members [see Compilation, paras 1351, 1374, 530 and 1390].
10. 582. The Committee notes that the employer’s challenges to the STIEU’s recognition claim were based on two substantive criteria enshrined in section 9 of the IRA, namely section 9(1) prohibiting the representation of workers employed in managerial, executive, confidential and security capacities with other groups of workers; and the rule according to which the union had to be “competent” to represent the workers concerned. Regarding the “competence” issue, the Committee notes that in the present case, the employer rejected the first recognition application of the STIEU in 2009 on the basis that the union was only competent to represent workers in timber processing, and not forestry-related workers like those at the Company, although the complainants indicate that the vote was said to take place in accordance with an agreed employee list. Following the second application of the union in 2014, the Company rechallenged the competence of the union, and once requested the postponement of the secret ballot pending a reply from the Trade Union Department of the MOHR on this question. The Committee notes that on that occasion, the DGIR ultimately decided that the union had competence.
11. 583. The Committee recalls that the issue of restrictive definition of the unions’ “competence”, which was also brought up in two previous cases concerning Malaysia [Case No. 2301, 333rd Report, paras 565–599 and Case No. 2717, 356th Report, paras 803–846], is rooted in sections 2(a) and 26(1A) of the TUA, defining “trade union” as any association or combination of workmen or employers “within any particular establishment, trade, occupation, or industry or within any similar trades, occupations or industries” and providing that “no person shall join, or be a member of, or be accepted or retained as a member by, any trade union if he is not employed or engaged in any establishment, trade, occupation or industry in respect of which the trade union is registered”. Section 9 of the IRA left it to the DGIR to ascertain whether the trade union claiming recognition was competent, namely within the trade or industry concerned or similar trades or industries. In both aforementioned cases, the Committee had concluded that these rules infringed the right of workers to establish and join organizations of their own choosing and had urged the Government to amend the legislation in this regard [333rd Report, para. 599(b) and 356th Report, para. 846(c)]. The Committee notes with interest that in the TUA Amendment Act that is currently in the process of adoption, section 2(a) and the corresponding part of section 26(1A) are repealed, and that in section 9 of the revised IRA, the requirement of “competence” is replaced by that of conformity of the scope of membership with the “constitution of the trade union”. The Committee notes however that none of these amendments is yet in force and expresses the firm hope that the process of legislative revision will conclude soon, so that workers can effectively exercise their right to establish and join organizations of their own choosing and be represented by them in collective bargaining.
12. 584. Regarding section 9(1) prohibiting the representation of workers employed in managerial, executive, confidential and security capacities, the Committee notes that according to the complaint, when the STIEU first applied to obtain recognition, a secret ballot was held “per the agreed employee list”. However, two years after the Ministerial decision to recognize the union, the Company finally succeeded in obtaining a judicial ruling directing the Minister to review his decision “on the scope of membership of STIEU”. The second time the union applied for recognition, once again the main challenge the employer opposed to it was that the union was seeking to represent workers that were not “eligible to be union members”. The DGIR first informed the Company that a secret ballot will be organized on 22 September 2014, but this vote finally took place on 29 October 2018. The Committee notes that the pending dispute concerning the list of workers eligible to vote delayed the secret ballot for four years. First the IRD determined that 116 workers fell into a disputed category, and then it conducted an investigation into their status. The findings were communicated to the Company and a new date was set for the ballot, but the Company rejected the administrative findings and decision and filed anew for judicial review. The judicial proceedings started in May 2015 and ended in October 2017, with a ruling in favour of the MOHR this time.
13. 585. Recalling that the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse [see Compilation, para. 540], the Committee observes that the dispute around the application of section 9(1) of the IRA in this case appears to revolve around the different understandings of what is meant by “workers employed in managerial, executive, confidential and security capacities”. In the present case, disagreements on the meaning of these terms entailed excessively long administrative and judicial procedures involving complex legal appraisals and giving rise to a situation of obstruction and long delays in fixing the list of workers eligible to vote in the secret ballot. The Committee also recalls in this regard that in a previous case concerning Malaysia (Case No. 3334) a protracted dispute concerning the qualification of certain posts as supervisor/managerial and the lawfulness of their being represented by the union had arisen and the Committee requested that necessary legislative amendments aimed at ensuring that 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, be prepared in consultation with the social partners and adopted without further delay [391st Report, paras 375–384].
14. 586. Furthermore, the Committee notes that sections 5(2)(b) and 5(2)(c) of the IRA, provide that the employer has the right to require “at any time that a person who is or has been appointed or promoted to a managerial, an executive or a security position shall cease to be or not become a member or officer of a trade union catering for workmen other than those in a managerial, an executive or a security position”; as well as to require, “that any workman employed in confidential capacity in matters relating to staff relations shall cease to be or not become a member or officer of a trade union”. The Committee recalls in this regard that legal provisions which permit employers to undermine workers’ organizations through artificial promotions of workers constitute a violation of the principles of freedom of association [see Compilation, para. 386].
15. 587. While observing within the framework of Case No. 3334, the Government’s previous indication that finally, on the basis of consultations with the social partners, it had decided to maintain the current provision of the IRA concerning the definition of managerial and supervisory staff, as it seems sufficient in determining the scope of representation of trade unions, the Committee had trusted that the Government would ensure that the legislation concerning union recognition was applied in line with the principle of freedom of association [393rd Report, paras 26 and 29].
16. 588. In view of the foregoing, and recalling that the categories of managerial and supervisory staff should not be defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership, the Committee must once again request the Government to review the legislation, with a view to ensuring that managerial and supervisory staff is limited to those persons who genuinely represent the interests of the employers, including, for example, those who have the authority to appoint or dismiss and that any artificial reclassifications are swiftly addressed.
17. 589. The Committee notes that the STIEU first submitted its claim for recognition to the employer on 24 October 2009, and that as of the date of examination of this case, the process of legal recognition remains inconclusive.
18. 590. The Committee notes that the proceedings of recognition in the present case can be divided into three phases, each containing administrative and judicial proceedings which are summarized in the table below:

    • Phase	Period	Administrative proceedings	Judicial proceedings
      1	24 Oct. 2009–27 Nov. 2012	15 months (agreement on list of voters + secret ballot + MOHR decision of recognition)	20 months (judicial review + one appeal by the employer)
      2	10 Mar. 2014–Oct. 2017	14 months (decision to allow the union to submit a new application for recognition + decision on union competence + investigations and decision on eligible voters + decision to hold secret ballot)	29 months (judicial review + two appeals by the employer)
      3	Oct. 2017	13 months (delay in decision to hold secret ballot due to non-delivery of the final judicial decision in writing, decision to hold secret ballot + decision to accord recognition to the union)	Since 28Feb. 2019 (judicial review filed by the employer, High Court order dated 26Feb. 2020, appeal by the MOHR, still pending)

      >
19. 591. The Committee notes the Government’s indication that in this particular case, the delay is beyond the control of the MOHR, because the Company has the right to exhaust all legal avenues under the domestic law. The Government refers to the legal actions taken by the Company and the Receiver which delayed the recognition process and further indicates that in order to uphold justice, the MOHR has appealed against the judicial review order. The Committee notes that the delays due to judicial proceedings are the longest in the present case, as more than eight years were spent on judicial proceedings, which are still pending. Nevertheless, the total time taken in administrative proceedings at different stages amounts to three years and a half and could therefore have been expedited.
20. 592. The Committee notes that in June 2022, the Government indicated before the Committee on the Application of Standards that between 2018 and 2019 the average duration of recognition process in 54 per cent of cases has been between four to nine months, and that the Committee on the Application of Standards requested the Government to ensure that the procedure for trade union recognition is simplified, and that effective protection against undue interference is adopted.
21. 593. The Committee notes that the delays in the present case were excessive and that their aggregated effect amounts effectively to a denial of the possibility of the workers concerned and the STIEU to bargain collectively for more than 13 years. The Committee considers that these delays are partly attributable to shortcomings in substantive law, namely the unprecise and vague character of the criteria for recognition, that give rise to disputes between the parties. On the other hand, improvements in procedural rules can also contribute to the simplification and expediting of the recognition process. Recalling that justice delayed, is justice denied [see Compilation, para. 170], the Committee considers that although all administrative decisions should be subject to judicial review, judicial proceedings should come to conclusion within a reasonable period in order to ensure effective respect of freedom of association. The Committee therefore requests the Government to take the necessary measures, in full consultation with social partners, to review the legal framework governing the procedure for recognition of unions for collective bargaining purposes with a view to simplifying and expediting the administrative and judicial processes. It invites the Government to avail itself of the technical assistance of the Office in this regard should it so desire. The Committee further draws the attention of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) to the legislative aspects of this case. The Committee trusts that, bearing in mind the recent legislative amendments and the need to ensure that the exclusion of managerial and supervisory staff is limited to those persons who genuinely represent the interests of the employers, including, for example, those who have the authority to appoint or dismiss, the union will obtain legal recognition for collective bargaining purposes without further delay.
22. 594. Regarding the complainant’s allegation concerning the broad discretion given to the DGTU pursuant to section 12(2) of the TUA to refuse registration of a trade union if he is satisfied that there is in existence a trade union representing the workers, the Committee notes that the Act on the Amendment of the TUA that is currently in the process of adoption repeals this provision. The Committee expects that the amendment process will soon come to conclusion and with the coming into force of the revised TUA, trade union pluralism will be duly guaranteed.

The Committee’s recommendations

1. 595. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following:
   • (a) The Committee expresses the firm hope that the current process of amendment of the Trade Unions Act will soon come to conclusion, so as to enable all workers to enjoy the right to establish and join organizations of their own choosing and to be represented by them in collective bargaining.
   • (b) The Committee once again requests the Government to review the legislation with a view to ensuring that the definition of managerial and supervisory staff is limited to those persons who genuinely represent the interests of the employers, including, for example, those who have the authority to appoint or dismiss and that any artificial reclassifications are swiftly addressed.
   • (c) The Committee requests the Government to take the necessary measures, in full consultation with the social partners, to review the legal framework governing the procedure for recognition of trade unions for collective bargaining purposes with a view to simplifying and expediting the administrative and judicial processes. The Committee invites the Government to avail itself of the technical assistance of the Office in this regard should it so desire. It further draws the attention of the CEACR to the legislative aspects of this case.
   • (d) The Committee trusts that, bearing in mind the recent legislative amendments and the need to ensure that the exclusion of managerial and supervisory staff is limited to those persons who genuinely represent the interests of the employers, the union will obtain legal recognition for collective bargaining purposes without further delay.