379. The Committee already examined this complaint at its November 1981 meeting when it presented interim conclusions to the Governing Body. Since then, the Government has sent the further information requested by the Committee in a communication dated 7 April 1982.
- 379. The Committee already examined this complaint at its November 1981 meeting when it presented interim conclusions to the Governing Body. Since then, the Government has sent the further information requested by the Committee in a communication dated 7 April 1982.
- 380. 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. Previous examination of the case
A. Previous examination of the case
- 381. The complaint concerned the restrictive interpretation given by the authorities concerned (the Registrar of Trade Unions, the Director-General of Industrial Relations and the Minister of Labour and Manpower) to section 26(1A) of the Trade Unions ordinance when one of the complainant's affiliates - the Electrical Industry Workers' Union (EIWU) - sought to unionise workers in the electronics industry. The relevant section of the 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".
- 382. The Government replied that the EIWU's appeal against the refusal to recognise it as representative of the workers at the RUF (Malaysia) Sdn. Bhd. factory (RUF) was still pending before the High Court. It added that the Registrar's decision that the workers at RUF were not employed in an industry "similar" to those industries already covered by the EIWU under the Ordinance was not inconsistent with his previous rulings. Lastly, the Government pointed out that it had not ratified Convention No. 87 and that workers in Malaysia enjoyed the right to organise and engaged in collective bargaining consistent with the provisions of Convention No. 98 which the Government had ratified.
- 383. The Committee recalled that in its examination of earlier cases dealing with the same issue, it had 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 noted that in the present case these authorities once again did not appear to have taken into account the previous comments of the Committee and expressed the firm hope that account would be taken of them in the future. It noted that the complainant organisation's affiliate had appealed to the High Court and requested the Government to keep it informed of the outcome of this appeal. It also requested the Government to indicate the manner in which the rights to organise and to engage in collective bargaining were being enjoyed by the employees of RUF.
B. The Government's reply
B. The Government's reply
- 384. In its communication of 7 April 1982 the Government states that no decision has yet been made by the High Court regarding the appeal of the EIWU to quash the decision disallowing it to enrol the workers of RUF.
- 385. Secondly, it points out that, at present, the question of collective bargaining does not arise in respect of the PUP employees as the issue of unionisation has yet to be resolved. According to the Government, collective bargaining under the Industrial Relations Act, 1967 presupposes that a trade union has been duly registered under the Trade Unions Act, 1959 and duly recognised under the relevant provisions of the 1967 Act itself. Despite this, the RUF employees set up a Committee of Workers' Representatives in 1978 which holds joint meetings with the management of the company from time to time. The Government states that there is a cordial relationship between the two parties.
C. The Committee's conclusions
C. The Committee's conclusions
- 386. The Committee notes that the appeal before the High Court against the authorities' restrictive interpretation of the trade union legislation concerning registration has not yet been decided. Recalling that it has expressed the firm hope that account will be taken of the basic principle of freedom of association that workers have the right to establish and join organisations of their own choosing, and that the provisions on the establishment of first-degree unions would be interpreted in a less restrictive manner, the Committee requests the Government to keep it informed of the outcome of this appeal.
- 387. Regarding the right of the employees of RUF (Malaysia) Sdn. Bhd. to engage in collective bargaining - a right generally guaranteed by Convention No. 98 which has been ratified by Malaysia -,() the Committee notes the Government's statement that although collective bargaining under the Industrial Relations Act presupposes that the union concerned has been registered under the Trade Unions Act and such registration has been refused in the present case, joint meetings of employees' representatives and management have been taking place since 1978. In this connection the Committee would recall that Article 4 of Convention No. 98 invites governments to take appropriate measures to "encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements." The Committee considers that direct negotiation between the undertaking and its employees, by-passing representative organisations where these exist, might in certain cases be detrimental to the principle that negotiations between employers and organisations of workers should be encouraged and promoted. Moreover, the Committee has pointed out the importance which it attaches to the right of negotiation of representative organisations, whether they are registered or not.
- 388. In view of the above considerations, and in view of the fact that other aspects of collective bargaining under the Industrial Relations Act have been the subject of comments by various ILO supervisory bodies for some time, the Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations. In doing so, the Committee hopes that the Government will apply its legislation in a manner such as to allow representative trade union organisations, even if not registered under the Trade Unions Act, to engage in normal trade union activities, in particular collective bargaining on behalf of their members, as guaranteed by the Conventions on freedom of association.
The Committee's recommendations
The Committee's recommendations
- 389. In these circumstances, the Committee recommends the Governing Body to approve this report, in particular the following conclusions:
- (a) The Committee notes that the appeal on the issue of unionisation of certain workers by the complainant's affiliate is still pending before the High Court and requests the Government to keep it informed of the outcome of this case.
- (b) The Committee reiterates its firm hope that account will be taken of the basic principle of freedom of association that workers have the right to establish and join organisations of their own choosing and that the legislation on the establishment of first-degree trade unions will be interpreted in a less restrictive manner.
- (c) The Committee notes that, due to the fact that the registration of the trade union was refused, the workers concerned only have contact with management through joint meetings. It draws the Government's attention to the importance of the role of workers' organisations in collective bargaining, as stated in Article 4 of Convention No. 98 and would bring this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
