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

Individual Case (CAS) - Discussion: 2025, Publication: 113rd ILC session (2025)

Written information provided by the Government

The Government has provided the following written information as well as copies of the Industrial Relations Act 1967 (Act 177) (updated text), Consultation sessions on section 12A of Act 177, the Trade Unions (Amendment) Act 2024, the Industrial Relations (Amendment) Regulations 2024, the Trade Unions (Amendment) Regulations 2024, the Appointment of date of coming into operation of the Industrial Relations (Amendment) Act 2020 and the Trade Unions (Amendment) Act 2024, and statistics on collective agreements.

Legislative reform

Malaysia reaffirms its strong collaboration with the ILO through the Memorandum of Understanding on the Decent Work Country Programme signed in 2019. This partnership has supported Malaysia in advancing legislative reforms in line with international labour standards. Domestically, the National Labour Advisory Council serves as a key tripartite platform to discuss and strengthen such reforms. The amendments to the Industrial Relations (Amendment) Act 2020 and the Trade Unions (Amendment) Act 2024 reflect major reforms to Malaysia’s industrial relations legislation. The first phase of the Industrial Relations (Amendment) Act 2020, effective 1 January 2021, strengthened access to justice by providing for automatic referrals of dismissal cases and enhancing the powers of the Industrial Court. The second phase, which took effect on 15 September 2024, introduced more complex reforms, particularly on trade union recognition and sole bargaining rights, which reflect the need to regulate situations where multiple unions may represent the same class of worker. The significant amendments to Act 177 included section 9 (claim for recognition), section 11 (trade unions accorded recognition), sections 12A and 12B (new section – sole bargaining rights), section 13 (collective bargaining), section 26 (reference of trade disputes to the court), section 62 (power to make regulations relating to the process of determining the sole bargaining rights) and the First Schedule (essential services). This gradual approach enables employers, trade unions and employees to adapt progressively to relevant legal changes. Complementary amendments to the Trade Unions Act 1959 (Act 262), effective 15 September 2024, removed long-standing sectoral restrictions on union formation. Trade unions and federations of trade unions are no longer required to be set up in a specific establishment or subject to the principle of similarity in industry, trade or occupation. This change allows for broader representation and a more diverse membership. The amendment to the Act also allows for the existence of more than one trade union representing the same group of workers in a single workplace. This amendment gives workers the freedom to choose which union they wish to join. Also important was the repeal of the competency checks, which were previously used as a stalling tactic by employers to delay or challenge union recognition. This amendment shifts towards facilitating more efficient and fair union recognition procedures. These reforms under Act 177 and Act 262 form a coherent framework to further improve Malaysia’s industrial relations system. The amendment significantly aligns Malaysia’s legal framework and legislative instruments with the Convention. It represents a strategic shift towards a more enabling commitment to freedom of association, a democratic system for trade unions and effective collective bargaining. This alignment between Act 177 and Act 262 and the subsidiary regulations demonstrates a commitment to a cohesive and integrated industrial relations system in Malaysia. Please find below the amendments to the Industrial Relations Act 1967 (Act 177) and its regulations, as well as the Trade Unions Act 1959 (Act 262) and its regulations, which came into effect on 15 September 2024.

Article 1 of the Convention: Adequate protection against anti-union discrimination

Although sections 8 and 59 of the Industrial Relations Act 1967 (Act 177) remain unchanged, we would like to highlight the key steps taken by the Government to ensure that anti-union discrimination complaints are properly handled and workers have access to effective remedies.

• Prohibition of anti-union discrimination (section 8)

Section 8 of the Industrial Relations Act 1967 expressly prohibits any act of interference, intimidation or discrimination by employers or their representatives against workers for participating in lawful trade union activities. This includes:

• dismissal or threats of dismissal;
• alteration of employment conditions to the worker’s detriment;
• denial of promotion or employment based on union affiliation.

To illustrate enforcement, the Department of Industrial Relations Malaysia (DIRM) recorded the following complaints under section 8:

• complaints received in 2023: 16 cases;
• complaints received in 2024: 9 cases;
• complaints received between January and April 2025: 0 cases.

All 25 cases filed under section 8 of Act 177 in 2023 and 2024 have been resolved (21 at the DIRM level through conciliation and voluntary withdrawal, while 4 were referred to the Industrial Court). Most cases were resolved through conciliation by the Director General for Industrial Relations (DGIR), showing the effectiveness of administrative processes in handling union-related complaints. All section 8 cases were either settled or referred for adjudication, ensuring that workers’ rights were addressed. This reflects the Government’s commitment to protecting trade union rights and the efficiency of Malaysia’s industrial relations system.

• Right to representation and referral to the Industrial Court (section 20)

In 2021, section 20 was amended to remove the Minister’s discretion in referring unfair dismissal cases to the Industrial Court. This authority now lies with the DGIR. Under the new process, workers can file complaints directly with the DGIR, who will attempt conciliation. If no settlement is reached, the DGIR must refer the case to the Industrial Court, ensuring that all workers have access to a fair hearing. This reform promotes transparency, consistency and stronger protection for workers, especially those dismissed for union involvement.

• Criminal enforcement mechanism (section 59)

Section 59, which prohibits retaliation against workers for trade union activities, remains in effect. As it is a criminal offence, there is no conciliation process. Instead, the DIRM investigates complaints and, if necessary, initiates criminal proceedings.

• Government measures to ensure access and effective redress

Although sections 8 and 59 remain unchanged, the Government has put in place administrative measures to ensure that all anti-union discrimination complaints are promptly handled by the DGIR, victims have access to redress through conciliation or judicial referral and section 59 cases are properly investigated and prosecuted when offences are found.

In summary, while sections 8 and 59 remain unchanged, the amended section 20 significantly strengthens legal protections for workers against dismissal, including for union activities. This, along with active enforcement and complaint-handling mechanisms, highlights Malaysia’s commitment to upholding international labour standards and protecting workers’ rights to freedom of association without discrimination or reprisal.

Duration of recognition proceedings

The amendment to the Industrial Relations Act 1967 (Act 177), effective from 15 September 2024, introduced key reforms to simplify and speed up the trade union recognition process. The main changes are:

• (a) The responsibility for determining the eligibility and representational scope of trade unions has shifted from the Director General of Trade Unions (DGTU) to the DGIR. Previously, decisions by the DGTU could be appealed to the Minister, with the Minister’s decision being subject to judicial review. This multi-tiered process has been eliminated, making the recognition process more efficient and quicker.
• (b) The authority to decide on the capacity of trade union members (that is, managerial, executive, confidential or security status), and issuance of the recognition declaration, has been shifted from the Minister to the DGIR, removing a discretionary layer and streamlining decision-making.

These changes have significantly reduced the duration of the recognition process from six to nine months or more to a maximum of four months in most cases. The reforms also address the legal gap that allowed employers to challenge decisions by the DGTU or DGIR during the recognition process. Under the new framework:

• There is no longer a separate decision on competency subject to early legal review.
• Employers can only contest the DGIR’s decision after the recognition process is complete.

This has strengthened the integrity of the recognition process and has minimized procedural delays arising from premature judicial interventions.

The DIRM closely monitors and addresses any allegations of employer interference during the trade union recognition process under sections 4, 5, 7 and 8 of Act 177, especially during the secret ballot.

When a complaint of employer interference is raised during recognition:

• The DIRM will promptly assess the complaint. If found to be without merit, the recognition process will proceed without delay. No complaints have yet caused a delay in the process.
• If the issue can be resolved during the process, the DIRM will continue the proceedings without postponement to avoid unnecessary delays.
• If the issue is unrelated to the recognition process but involves violations under sections 4, 5, 7 or 8, the parties are advised to file a separate complaint with the DIRM. These matters will be handled independently and will not disrupt the recognition process.

This approach has been affirmed by the Federal Court in the case of Valeo Malaysia Sdn Bhd v. Director General for Industrial Relations, Department of Industrial Relations Malaysia & Anor, which affirmed the principles laid down by the High Court as follows:

• (a) The right to be heard before the DGIR to accord recognition is not specifically provided for in section 9 of Act 177.
• (b) The court will not be warranted in supplementing the legislation, that is Act 177, even if the legislative provision of section 9 thereof is not as full and complete as the court might think appropriate.
• (c) If the legislature has by its legislation decided what opportunity should be afforded, the court is bound by the legislation as much as the citizen and has no warrant to vary the legislative scheme of Act 177.
• (d) Not all common law principles relating to natural justice are applicable. The rules and ambit of natural justice vary according to the circumstances and context.
• (e) It is well established that when a statute has conferred on anybody the power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statute to be followed, but will readily allow so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.
• (f) The court should not fly in the face of a clearly evinced parliamentary intention to exclude the operation of the audi alteram partem rule.
• (g) It is not for the court to amend the statute by engrafting upon it some other provision that it might think more consonant with a complete opportunity for an aggrieved person to present his or her views and to support them by evidentiary material.

Exclusive bargaining rights: Minority unions

The Government acknowledges the ILO Conference Committee’s 2022 recommendation to adopt measures, in consultation with social partners, to ensure that in situations where no union is declared as the exclusive bargaining agent, all unions within the bargaining unit are allowed to negotiate, jointly or separately, on behalf of their respective members. In response, the Government wishes to highlight that the matter has been addressed through the Industrial Relations (Amendment) Act 2020 (Act A1615), which introduced section 12A into the Industrial Relations Act 1967 (Act 177) to govern sole bargaining rights.

The introduction of section 12A provides a structured mechanism whereby:

• In cases where multiple trade unions represent the same class of worker at a particular workplace, the unions may agree among themselves on which union will have sole bargaining rights.
• If there is no agreement, the DGIR may determine the matter, including through a secret ballot to identify the union with the highest level of support. This provision was introduced after thorough consultations with employer and employee representatives, before being tabled and approved in Parliament as attached in annex. The Government’s approach aims to:
  • avoid fragmented bargaining involving multiple unions representing the same category of worker at a single workplace;
  • ensure clarity and efficiency in the collective bargaining process;
  • resolve the issue of representation proactively, thereby preventing scenarios where no union is declared the exclusive bargaining agent. In line with this framework, the Government does not provide for all unions within the unit to negotiate jointly or separately on behalf of their individual members once the process under section 12A has been invoked and a union has been determined to hold sole bargaining rights. This is to ensure orderly and coherent industrial relations, prevent conflicting demands and promote effective and unified representation.

Migrant workers

Malaysia affirms that section 28(1)(a) of the Trade Unions Act 1959, which requires the authorization of the Minister of Human Resources prior to the registration of union office bearers, plays a crucial role in safeguarding national security and upholding the integrity of the industrial relations system. As of 2024, more than 28,000 foreign workers are registered as union members. To further support inclusive representation, a blanket ministerial exemption, effective from 15 January 2025, was granted to a trade union that submitted a formal application to register their office bearers under section 28(2) of the Act. This exemption enables non-citizen union officers to serve without requiring individual approval, demonstrating Malaysia’s balanced and progressive approach to trade union governance.

Scope of collective bargaining

The Government informs the Committee that section 13(3) of the Industrial Relations Act 1967 (Act 177) was amended to support broader reforms aimed at aligning national legislation with international labour standards and strengthening collective bargaining in Malaysia. The revised section13(3) now states that a trade union of workers may not include in its collective agreement proposals any matter relating to:

• (a) the promotion of workers by the employer from a lower to a higher grade or category;
• (b) the transfer of workers within the organization, provided there is no detriment to the terms of employment;
• (c) the appointment by the employer of any person to fill a vacancy;
• (d) the termination of a worker’s services due to redundancy or reorganization, or the criteria for such termination;
• (e) the dismissal and reinstatement of a worker;
• (f) the assignment or allocation of duties consistent with the terms of employment.

It is important to note that the amended provision introduces a new clause allowing trade unions to discuss general matters related to the restricted topics with employers, even if these are not part of formal collective agreement proposals. This aims to promote more open dialogue while respecting employers’ decision-making authority. The Government acknowledges the Committee’s long-standing recommendation to review and limit broad restrictions on collective bargaining. The recent amendment marks important progress by:

• clarifying that unions may engage in discussions on general issues related to restricted matters;
• narrowing the scope of prohibition to only formal proposals in collective agreements;
• encouraging broader consultation and transparency in employment-related decisionmaking. This balanced approach supports workers’ rights while maintaining operational flexibility and reflects Malaysia’s commitment to strengthening its industrial relations in line with the Convention. Subsequently, although the Industrial Court does not maintain specific statistical records on this matter, it is observed that approximately 98 per cent of collective agreements accorded cognizance by the Industrial Court have encompassed the above-mentioned subject matters.

Restriction on collective bargaining of public servants not engaged in the administration of the State

The Government is fully committed and has taken the necessary measures to enable collective bargaining for public servants not involved in state administration. Recent negotiations through the National Joint Council (NJC) led to the successful implementation of the Public Service Remuneration System in 2024, as detailed in Service Circular No. 1/2024. With 99.9 per cent of public sector employees accepting the new package, this highlights the success of the NJC’s bargaining process. The Government affirms that the NJC remains the effective collective bargaining mechanism, grounded in a legitimate framework and democratic representation, with a key role in shaping policy outcomes.

Collective bargaining in practice

The Industrial Court gave cognizance to 274 collective agreements in 2023 and 240 in 2024. Sector-specific statistics for both years are provided in the annex.

Direct request

The Government has taken steps to explore the extension of Part VI of the Industrial Relations Act 1967 (Act 177), which provides for representations on unfair dismissal, to public servants employed under statutory bodies, in accordance with section 52(3) of the Act. Consequently, consultations were conducted from 23 to 25 August 2021 with a number of statutory authorities and regulatory agencies to assess the feasibility and implications of such an extension. These engagements involved key stakeholders from across the public sector. The consultations revealed that all statutory bodies already maintain internal mechanisms and disciplinary procedures for handling dismissal-related matters, established under their respective enabling Acts. These frameworks, in many cases, mirror the protections afforded under Part VI of the Industrial Relations Act and serve as parallel systems for resolving employment disputes. In light of these findings, the matter was referred to the Attorney General’s Chambers (AGC) for legal review. The AGC advised that enforcing section 52(3) in its current form would lead to overlapping legal protections, as these statutory bodies are governed by specific legislation that already provides for an independent authority or body empowered to hear and determine industrial disputes. These internal mechanisms operate in parallel to the Industrial Court, and extending Part VI without legislative reconciliation could result in jurisdictional conflicts and enforcement inconsistencies. Accordingly, the Government acknowledges the need for further policy alignment and legislative harmonization to ensure clarity, consistency and effective protection across all public sector frameworks. The matter remains under active review. Such findings also have been communicated to the employees’ associations, that is, the Malaysian Trades Union Congress and the Congress of Union of Employees in the Public and Civil Services, during a series of engagements between 2022 and 2024.

Discussion by the Committee

Chairperson – I have the honour to give the floor to the distinguished Government representative of Malaysia, the Undersecretary of the International Division of the Ministry of Human Resources, for his opening statement.

Government representative – I stand before this esteemed Committee with utmost respect and gratitude for the opportunity to reaffirm Malaysia’s commitment to the Convention. Malaysia has submitted comprehensive documentation, including the updated Industrial Relations Act (IRA), the Trade Unions (Amendment) Act 2024, and accompanying regulations. These documents reflect major steps in aligning our national laws with international labour standards.

Malaysia’s legislative journey is guided by strong collaboration with the ILO through our Decent Work Country Programme established in 2019.

The National Labour Advisory Council, a tripartite body, has played a vital role in ensuring social dialogue throughout this reform process. The amendments to the IRA via the Industrial Relations (Amendment) Act 2020 reflect major reforms to Malaysia’s industrial relations legislation.

Key reforms were introduced in two phases:

• The first phase of the Industrial Relations (Amendment) Act 2020, effective 1 January 2021, improved access to justice, most notably by enabling automatic referrals of dismissal cases and enhancing the powers of the Industrial Court.
• The second phase, which came into force on 15 September 2024, brought further improvements especially around union recognition and sole bargaining rights, a necessary evolution to address overlapping union representation, the collective bargaining process and reference of trade disputes to the court under section 26(2) of the IRA.

These reforms were complemented by amendments to the Trade Unions Act (TUA), which eliminated long-standing restrictions. Today, trade unions or federations of trade unions in Malaysia may be formed beyond sectoral boundaries, enabling more inclusive and representative union structures. Workers can now choose among multiple unions in the same workplace, enhancing their freedom of association.

Significantly, Malaysia repealed the competency check mechanism, a long-standing, opaque requirement that had been systematically misused to delay trade union recognition, marking a significant step forward for workers’ rights. Now, a fairer, faster process ensures that workers’ rights are not unjustly withheld. This represents a strategic shift towards a more enabling commitment to freedom of association, a democratic system of trade unions and effective collective bargaining. This alignment between the IRA and the TUA and the subsidiary regulations demonstrates a commitment to a cohesive and integrated industrial relations system in Malaysia.

Although Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the legislative reforms made are a powerful demonstration that we are embracing the spirit and objectives of the Convention.

Under section 8 of the IRA, anti-union discrimination, be it dismissal, demotion, or denial of promotion, is strictly prohibited. The conferment of discretion upon the Director-General for Industrial Relations (DGIR) to directly refer cases to the Industrial Court without the need for the Minister’s prior discretion marks a significant and progressive development in the industrial relations framework. As a result, it streamlines procedures, promotes transparency, and allows for more timely resolutions, which enhances workers’ confidence in the fairness and impartiality of the system.

To illustrate enforcement, the Department of Industrial Relations Malaysia (DIRM) recorded the following complaints under section 8 of the IRA:

• complaints received in 2023: 16 cases;
• complaints received in 2024: 9 cases;
• complaints received between January and April 2025: 0 cases.

All 25 cases filed under section 8 of the IRA in 2023 and 2024 have been resolved: 21 at the DIRM level through conciliation and voluntary withdrawal, while 4 were referred to the Industrial Court. The majority of cases were successfully resolved through conciliation by the DGIR, demonstrating the efficiency of administrative processes in managing union-related complaints. Furthermore, all section 8 cases were either settled or referred for adjudication, ensuring the protection of workers’ rights. This reflects the Government’s commitment to protecting trade union rights and the efficiency of Malaysia’s industrial relations system.

The amendment to section 20 of the IRA empowers the DGIR to directly refer dismissal cases to the Industrial Court, eliminating the need for ministerial discretion. Notably, the amendment has hastened the settlement of the cases based on the statistics as follows:

In 2023:

• Total cases resolved: 4,294 cases.
• Settlement through conciliation: 2,802 cases.
• Cases reported/referred to the Industrial Court: 1,492 cases.

In 2024:

• Total cases resolved: 4,394 cases.
• Settlement through conciliation: 2,945 cases.
• Cases reported/referred to the Industrial Court: 1,449 cases.

In 2025:

• Total cases resolved: 1,894 cases.
• Settlement through conciliation: 1,223 cases.
• Cases reported/referred to the Industrial Court: 671 cases.

From the statistics, the DIRM has addressed every case regarding reinstatement without exception.

This change streamlines the process, ensuring faster, more efficient resolutions. It strengthens the dispute resolution framework, promoting transparency, impartiality and timely justice for all parties involved.

Section 59 of the IRA, which criminalizes violations of trade union protections, remains fully enforced. The process includes a thorough investigation, where evidence is gathered and analysed by the relevant authorities. Once the investigation is complete, and if sufficient evidence is found to support the allegations, the matter is formally brought before the court. This ensures that unionized workers’ rights are effectively protected at every stage, strengthening the legal process for enforcing those rights.

The Government has put in place administrative measures to ensure that all anti-union discrimination complaints are promptly handled by the DGIR, victims have access to redress through conciliation or judicial referral, and section 59 cases are properly investigated and prosecuted when offences are found.

One of the most impactful reforms lies in the duration and fairness of the union recognition process. Overcoming its former length and susceptibility to premature legal challenges, the recognition application process now concludes in under five months. Discretionary powers of appeal to the Minister on competency issues have been removed. The DGIR now makes binding decisions on union recognition according to employer and member eligibility.

Since the amendment took effect, the recognition process has demonstrated significant responsiveness. From 15 September to 31 December 2024, a total of ten recognition applications were received, and all ten were settled within this period. Subsequently, from 1 January to 30 April 2025, a further 19 applications were received. Out of these, 7 have been settled, while 12 are currently ongoing. This shows that, within the first five months following the amendment (15 September 2024 to 15 February 2025), a total of 17 recognition cases were settled, demonstrating a positive trend in expediting the recognition process under the amended regulations.

Furthermore, the DIRM closely monitors allegations of employer interference during the trade union recognition process under sections 4, 5, 7 and 8 of the IRA, especially during the secret ballot.

When a complaint is raised:

• The DIRM will quickly assess the issue. If the complaint is unfounded, the recognition process will continue without delay.
• If the issue can be resolved during the process, the proceedings will proceed without postponement.
• If the complaint is unrelated to recognition but involves violations under the relevant sections, the parties will be advised to file a separate complaint, which will not impact the recognition process.

This is supported by the Malaysian Federal Court, in the case of Valeo Malaysia Sdn Bhd v. Director-General for Industrial Relations, Department of Industrial Relations Malaysia & Anor that affirmed the principles laid down by the High Court as follows:

• (a) The right to be heard before the DGIR to accord recognition is not specifically provided for in section 9 of the IRA.
• (b) The court will not be warranted in supplementing the legislation, that is the IRA, even if the legislative provision of section 9 thereof is not as full and complete as the court might think appropriate.
• (c) If the legislature has by its legislation decided what opportunity should be afforded, the court is bound by the legislation as much as the citizen and has no warrant to vary the legislative scheme of the IRA.
• (d) Not all common law principles relating to natural justice are applicable. The rules and ambit of natural justice vary according to the circumstances and context.
• (e) It is well established that when a statute has conferred on anybody the power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statute to be followed, but will readily allow so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.
• (f) The court should not fly in the face of a clearly evinced parliamentary intention to exclude the operation of the audi alteram partem rule.
• (g) It is not for the court to amend the statute by engrafting upon it some other provision that it might think more consonant with a complete opportunity for an aggrieved person to present views and to support them by evidentiary material.

This decision affirmed that legislative procedure rather than judicial interpretation should govern the recognition process. This ruling ensures legal certainty and reinforces our statutory intent.

In response to the Committee’s 2022 recommendations, Malaysia introduced section 12A of the IRA to address sole bargaining rights. When multiple unions represent the same category of workers, the DGIR, through a secret ballot, if needed, identifies the union with the majority mandate.

In line with this framework, the Government does not provide for all unions within the unit to negotiate jointly or separately on behalf of their individual members. Once the process under section 12A of the IRA has been invoked, and a union has been determined to hold sole bargaining rights, such a union may initiate bargaining with the employer. This is to ensure orderly and coherent industrial relations, prevent conflicting demands and promote effective and unified representation.

While unions not selected as sole bargaining agents cannot negotiate separately, they remain free to advocate for their members. This structure, built on tripartite consultation, balances representation and industrial coherence.

Malaysia is proud to report that over 28,000 foreign workers are currently members of trade unions across the country, underscoring the nation’s commitment to fair and inclusive labour practices. In January 2025, the Government introduced a significant policy change by granting a blanket ministerial exemption to a specific union, allowing non-citizens to serve as union officers within that union without requiring individual case-by-case approval. This exemption was granted following a formal application by the union and was approved by the Minister.

While the exemption applies to one union only, it represents an important step toward more inclusive trade union governance. The reform enables migrant workers in that union to take on leadership roles, recognizing their essential contributions to Malaysia’s workforce and affirming their right to representation within union structures. This development highlights Malaysia’s ongoing efforts to strengthen labour rights and promote equitable participation in trade union leadership.

While the exemption granted by the Minister does not eliminate the overall requirement for case-by-case approval, it marks a positive and progressive step by the Government. By approving a blanket exemption for one union, the Government has demonstrated its willingness to support more inclusive union leadership and facilitate greater participation of migrant workers in trade union governance. This move acknowledges the vital contributions of migrant workers to Malaysia’s workforce and reinforces their right to representation within union structures.

Although non-citizens generally still require ministerial approval to hold union office, the exemption granted in this case illustrates that there are no absolute barriers to migrant workers serving in leadership roles, especially where unions actively seek inclusive representation. This contributes to the growing inclusivity and diversity of union leadership across the country.

With respect to the participation of migrant workers in effectively exercising their collective bargaining rights, it is important to note that the IRA does not impose any restrictions in this regard. In practice, there have been instances before this where collective agreements and awards have been successfully concluded involving trade union representing migrant workers.

It is also worth highlighting the fact that the terms of a collective agreement, once concluded, apply uniformly to all workers within the relevant scope of employment, not only to union members. This ensures that the benefits of collective bargaining extend to all employees, including migrant workers, thereby reinforcing inclusive and equitable labour practices.

Amendments to section 13(3) of the IRA clarify that while certain managerial prerogatives remain excluded from formal collective agreements, trade unions may engage employers in discussions on these matters. This provision promotes constructive dialogue, enhances transparency and reflects the Committee’s recommendation to limit overly broad restrictions.

The amendment marks meaningful progress by:

• enabling unions to raise general concerns on restricted topics;
• narrowing the prohibition to formal proposals only;
• fostering broader consultation in employment matters.

While the provision does not compel employers to reach agreement on such issues, it encourages openness to dialogue in good faith. In situations where an employer declines to engage, maintaining records of such efforts may support continued advocacy and transparency in industrial relations.

Notably, around 98 per cent of collective agreements recognized by the Industrial Court have included such matters, underscoring their practical importance. In 2023, the Court accorded cognizance to 274 collective agreements, and 240 in 2024.

In conclusion, Malaysia’s comprehensive reforms in law, policy and practice mark a strategic and progressive shift towards a modern, fair and inclusive industrial relations system.

These reforms, ranging from streamlined union recognition and stronger enforcement against anti-union discrimination, to inclusive union leadership and more balanced collective bargaining, demonstrate Malaysia’s firm alignment with the principles of the Convention.

Our labour law reform continues to evolve with purpose and clarity, reflecting our unwavering commitment to fairness, inclusivity and the protection of workers’ rights.

Central to this transformation is our close and constructive collaboration with tripartite partners, governments, employers and workers as well as steadfast support from the ILO. Malaysia sincerely thanks the Committee for its continued engagement and guidance and we reaffirm our dedication to deepening this partnership and upholding the highest standards of labour rights and social justice.

Employer members – Malaysia ratified the Convention in 1961, and has been under close scrutiny by the ILO supervisory bodies for several decades. Malaysia’s compliance with the Convention has come before the Committee multiple times (namely, in 1992, 1994, 1999, 2016 and 2022), and over this period the Committee of Experts has issued numerous observations (23, in fact, since 1989) urging Malaysia to align its laws and practices with the Convention.

In recent years, Malaysia has undertaken significant legislative reforms that mark substantial progress toward compliance with the Convention. Since 2016, the Government, with support from ILO technical assistance, has implemented major amendments to the IRA and the TUA. These changes were designed in consultation with the social partners and are aimed at strengthening freedom of association and collective bargaining rights, in line with international standards. Changes included improved access to justice by removing the Minister’s discretion over referrals of dismissal cases to the Industrial Court and related measures, and reforms to trade union recognition and bargaining rights.

At the same time, complementary amendments to the TUA came into force in September 2024, removing long-standing restrictions on union formation that had constrained workers to organizing only within specific trades or industries. Likewise, the repeal of the so-called “competency check” (a procedure formerly used to challenge a union’s suitability for recognition) has closed a loophole that employers could use to stall union recognition. These reforms have been welcomed by the ILO’s supervisory bodies as aligning Malaysia’s legal framework more closely with the Convention.

Malaysia has also strengthened enforcement and dispute resolution mechanisms. For instance, prohibiting anti-union discrimination and making retaliation against union activities a criminal offence liable to prosecution.

Statistical evidence indicates improving enforcement outcomes. The DIRM recorded 16 complaints of anti-union discrimination in 2023 and 9 in 2024, with all 25 cases resolved either through conciliation or by referral to the Industrial Court.

However, despite the significant progress, several continuing challenges remain to be overcome before Malaysia can be considered in full conformity with the Convention. In its latest observation, the Committee of Experts highlighted a number of areas where further improvements could be achieved. These include:

• Anti-union discrimination – Workers do not appear to have an independent right to take an anti-union discrimination claim directly to court. The Employer members echo the Committee of Experts’ concern that they once again urge Malaysia to ensure that victims of anti-union discrimination have the right to lodge complaints directly before an impartial tribunal and that remedies are available (such as reinstatement, compensation, and sufficiently dissuasive sanctions). The lack of detailed public information on section 8 complaints has been noted with regret by the Committee of Experts. This data gap needs to be closed so that progress can be measured and any bottlenecks identified.
• Trade union recognition procedures – While the IRA reforms have streamlined recognition on paper, practical impediments in the recognition process persist. The Committee of Experts observed that no clear statutory definitions of these categories exist, and while the DGIR can now make the initial determination, employers still have the right to appeal this decision. The challenge going forward is to implement the new four-month recognition timeline in practice, including at the appeals stage, by removing any unnecessary procedural hurdles. Additionally, the ILO has pointed out that protection against acts of interference during the recognition process should be strengthened and the Employer members echo that thought.
• Exclusive bargaining rights and minority unions – A new feature of Malaysia’s industrial relations system is the “sole bargaining agent” framework (section 12A of the IRA), established in 2024. This mechanism was created to deal with situations where multiple unions exist at a workplace, by designating one union as the exclusive bargaining representative of all workers in the unit. This approach prioritizes unified representation, but it has given rise to a challenge regarding the rights of minority unions. Specifically, this Committee recommended in 2022 that if no union achieves exclusive bargaining status (for example, if a recognition ballot fails or turnout is too low), all unions in the unit should be allowed to negotiate – jointly or separately – at least for their own members. Current Malaysian law does not provide for such a scenario. If a union does not secure the required majority or highest vote, the result simply seems to be that no collective bargaining can occur at all. This needs to be rectified.
• Restrictions on trade union officers (migrant workers) – Another outstanding issue, as we have heard from the Government, is the restriction on non-citizens holding office in a union, even if they are union members. The Committee of Experts has reiterated that migrant workers should be able to fully participate in union activities, including running for union office, and it regrets that its long-standing request to remove this blanket restriction has not yet been met in law, despite limited exceptions being granted.

In conclusion, the Employer members commend the Government for the progress it has made in modernizing its industrial relations regime and enhancing compliance with the Convention while at the same time recognizing that some gaps need to be addressed. The Employer members also support Malaysia in continuing to avail itself of technical assistance from the ILO. In particular, with ILO assistance on streamlining recognition and defining managerial exclusions, by developing best practices for handling multiple unions, focusing on clarity, efficiency, and dialogue, and ensuring that procedures are clear, processes move swiftly, and all stakeholders have a voice in solutions, Malaysia can resolve the remaining challenges in a manner that sustains both workers’ rights and productive, harmonious workplaces.

Finally, we underline the importance of ongoing social dialogue and engagement with the ILO as Malaysia implements these recommendations. The National Labour Advisory Council should continue to be used as the forum to discuss any proposed legal or policy changes, thereby securing buy-in from both employers and workers.

Worker members – From the outset, the Worker members express deep concern over the Government’s refusal to deposit credentials for the Workers’ delegates at this Conference. The Government justified this by alleging an “absence of legitimate leadership” in the Malaysian Trades Union Congress. We recall the Government’s obligation under article 3(1) and (5) of the ILO Constitution to nominate a fully tripartite delegation, ensuring that Workers’ delegates are chosen in agreement with the most representative workers’ organizations.

This is the second time in four years that our Committee examines Malaysia’s application of the Convention. Following up on the conclusions adopted in 2022, the Committee of Experts has identified serious concerns regarding Malaysia’s compliance.

The Worker members are particularly troubled by the persistent failure to address anti-union discrimination. Remedies remain slow and ineffective. Section 8 of the IRA still grants the DGIR discretionary power to decide whether anti-union discrimination cases proceed to the Industrial Court, effectively denying workers direct access to justice. Despite explicit requests from the Committee of Experts, the Government has not provided data on the number, duration or outcomes of such cases. Meanwhile, as you will hear from my colleagues in the room, unions and members are routinely denied effective remedies against anti-union discrimination.

Effective protection requires swift, effective procedures and remedies ensuring reinstatement and adequate compensation, as well as sufficiently dissuasive sanctions. We urge the Government of Malaysia to repeal section 8 of the IRA and enact provisions allowing workers who are victims of anti-union discrimination to lodge complaints directly in court. Furthermore, the burden of proof should shift to employers once a prima facie case is established.

Despite long-awaited legal amendments which now establish the principles of plurality of trade unions and freedom of choice for workers employed in different sectors, significant barriers to trade union recognition for collective bargaining persist. Employers continue to interfere in secret ballots, and the Director-General retains broad discretion in handling recognition complaints. Trade unions have long decried the lengthy recognition process, which can take up to nine months, compounded by the possibility of appeals that further delay outcomes. The new formula introduced in the IRA for calculating votes needed for recognition still requires broad worker support in a bargaining unit, which is difficult to achieve in many sectors.

We urge the Government to establish effective administrative and judicial procedures for trade union recognition in collective bargaining. It must also take measures to prevent and address employer interference, including through accessible, efficient and expedited complaint mechanisms. Echoing the Committee of Experts, we call on the Government to amend the legislation so that, where no union is declared an exclusive bargaining agent, all unions in the unit can negotiate jointly or separately on behalf of their members.

Interference by authorities extends to unions’ right to elect their representatives. Despite repeated calls, section 28(1)(a) of the TUA still bars non-citizens from being elected to trade union executive bodies unless the Minister of Human Resources deems it necessary to represent persons outside Malaysia. This restriction must be immediately repealed.

Regarding collective bargaining, the Worker members deplore the lack of progress since our last review. According to the Committee of Experts, collective bargaining coverage remains extremely low – 0.4 per cent in 2018, the latest available data. This dismal figure reflects the excessive legal restrictions in Malaysia.

In the public sector, civil servants not engaged in the administration of the State remain excluded from collective bargaining under the IRA. Bodies such as the National Joint Council (NJC) serve merely consultative roles rather than functioning as true bargaining platforms. The IRA also imposes undue restrictions through compulsory arbitration on disputes involving certain government services and statutory authorities, some of which include workers beyond public servants in the administration of the State. Furthermore, businesses linked to defence and security are classified as essential services, contrary to Convention provisions.

In the private sector, the scope of collective bargaining remains severely limited. Section 13 of the IRA restricts the scope of collective bargaining and excludes promotions, transfers, appointments to vacancies, redundancy terminations, dismissal and reinstatement, and the assignment or allocation of work.

The Worker members firmly recall that, under the Convention, governments must actively promote and encourage the full development and utilization of machinery for voluntary negotiation mechanisms between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The broad restrictions in both private and public sectors violate the Convention and must be lifted without delay.

We call on the Government to align its legislation with the Convention and ensure in practice that the rights to organize and bargain collectively are fully respected and realized throughout the country.

Employer member, Malaysia – The Malaysian Employers Federation (MEF) acknowledges the Committee of Experts’ observations on Malaysia’s legislative reforms, especially concerning section 8 of the IRA. The MEF commends the Government’s continued alignment with international labour standards and would like to offer clarifications and voice concerns on the subject.

The DGIR’s discretion in referring anti-union cases is not arbitrary. It prevents system abuse, manages caseloads, follows internal standard operating procedures (SOPs), and remains reviewable by the courts.

On the proposal for direct court access by workers, the MEF urges caution. While this may appear to enhance worker protection, it risks overwhelming the courts with unvetted cases, potentially delaying justice for all parties (“justice delayed is justice denied”). Malaysia’s current system, via the Industrial Relations Department’s conciliation process, has proven effective. More than 85 per cent of reported cases at the Industrial Relations Department were resolved amicably, indicating the system’s strength in delivering practical outcomes.

Delays often stem from parties’ actions, not systemic issues. Remedies like reinstatement and compensation are already fairly applied.

The proposal to reverse the burden of proof must include safeguards to avoid unfair consequences for employers, especially small and medium-sized enterprises (SMEs).

The MEF supports freedom of association but stresses that reforms must balance worker protection with procedural fairness and practical implementation.

Trade union recognition – The MEF welcomes the reform to the IRA and the TUA, effective as of 15 September 2024. This reform promotes union pluralism aligned with global standards. The removal of sectoral restrictions and the introduction of impartial secret ballots enhance union freedom, transparency and trust. The MEF refutes allegations of employer interference.

Malaysia has strong legal protections under sections 4 to 8, including criminal penalties. Any claims must be evidence-based. The secret ballot system ensures a fair and confidential platform for union elections.

While supporting union pluralism, the MEF warns against over-fragmentation, especially for SMEs. Multiple unions in one workplace can lead to rivalry and inefficiency. Recognition processes must balance workers’ rights and employers’ needs. Constructive engagement is vital for a sustainable industrial climate. Delays in union recognition reflect necessary legal steps like classification and ballot logistics, not inefficiency. Accuracy matters due to the long-term impact on employers.

The DGIR ensures neutrality and due process. Judicial review protects all parties and should be viewed as a safeguard. Reclassifications of executive and confidential staff are based on business needs. Exclusion from union participation avoids conflicts of interest as provided for in section 9(1) of the IRA. The 2024 reform, that is to say, faster ballots and enhanced authority of the DGIR, are already improving the process.

Union recognition timeline – The MEF stressed that the timeline must be seen through the lens of due process and the complexity of legal assessments, such as workers’ eligibility and union representativeness. Judicial review and the DGIR oversight ensure neutrality and fairness.

The MEF strongly objects to the term “pseudo-promotions”. Promotions are legitimate human resources tools and should not be presumed to be anti-union tactics without evidence. Reforms such as abolishing competency checks and enhancing the powers of the DGIR are improving the timelines.

Union recognition and bargaining – The MEF welcomes recognition of recent reforms but disagrees with the view that Malaysia’s “50 per cent plus 1” majority threshold is too high. This threshold ensures democratic legitimacy and industrial stability. Reducing it could lead to fragmented bargaining and inconsistent representations. Parallel bargaining by minority unions would burden employers, especially SMEs, and risk conflicting demands.

The MEF supports the use of ballots to determine a sole bargaining agent under section 12A of the IRA ensuring coherent and fair negotiations. Liberalized union formation must be balanced by unified bargaining. The MEF urges voluntary inter-union cooperation, not statutory mandates.

Scope of collective bargaining under section 13(3) of the IRA – The MEF acknowledges the Committee of Experts’ concern regarding section 13(3) of the IRA, but emphasizes that this provision is a necessary safeguard. It excludes key management functions like promotion, transfer, redundancies and dismissals from mandatory bargaining to preserve operational efficiency and legal certainty, especially for SMEs. Importantly, section 13(3) of the IRA is not a blanket provision. Parties may voluntarily negotiate these matters, and unions may raise them under section 18 of the IRA. No formal complaints suggest misuse and this aligns with international standards recognizing managerial functions. Rather than revising section 13(3) of the IRA, the MEF proposes maintaining it as a default, supported by clearer guidelines and data collection. Any reform must involve tripartite consultation.

The MEF highlights the Government’s proactive efforts in the form of streamlined union registration, sectoral union support, gig worker protection and initiatives like the MADANI worker card benefiting more than 1 million union members with up to 30 per cent discounts on products and services, demonstrating Malaysia’s strong commitment to worker empowerment and alignment with ILO standards.

Compulsory arbitration under the IRA – Compulsory arbitration under section 26(2) of the IRA and point 10 of the First Schedule of the IRA is used sparingly in critical sectors like defence and healthcare, ensuring national stability. It applies only with state consent and does not affect ordinary businesses. It balances workers’ rights with public interest. Defence-linked sectors, for example military logistics, are appropriately classified as essential based on the national risk.

Voluntary bargaining remains the norm; this exception upholds the principles of the Convention. The MEF supports the keeping of this safeguard conducting tripartite reviews and sharing data with the ILO to ensure transparency and responsible application.

Collective bargaining rights for public servants – The MEF appreciates the Committee of Experts’ focus on public servants. The Government’s dual role as both employer and policymaker requires a differentiated framework. While public sector collective bargaining may not mirror the private sector, the National Joint Council (NJC) functions as an effective negotiation platform, with binding outcomes such as 13 per cent wage adjustment and improved benefits. In addition, many statutory bodies and government-linked companies (GLCs) engage in formal collective bargaining.

Collective bargaining coverage and practice in Malaysia – The MEF welcomes the Committee’s attention to collective bargaining, but stresses that Malaysia’s reported 0.4 per cent coverage must be viewed in context. Malaysia’s economy is largely SME-driven, with more than 650,000 microenterprises having fewer than five employees. In such cases, direct informal arrangements often suit both parties better.

The Malaysian bargaining framework is enterprise-level and voluntary, unlike countries with sector-wide models, so global comparisons can be misleading. Nonetheless, in Malaysia, more than 300 collective agreements are signed annually in key sectors like manufacturing, transport and finance, covering employment terms and registered with the Industrial Court.

The 2024 reforms have strengthened this system to improve procedures and voting mechanisms. Barriers to wider bargaining are not legal but structural, such as low union density, worker preference and union fragmentation.

The MEF supports collective bargaining that reflects Malaysian economics and cultural realities, not “one size fits all” models. Malaysia has embarked on substantial reforms, many of which are still in the early stages. The MEF respectfully urges the ILO to allow adequate time for these measures to mature and to be evaluated. The MEF remains committed to upholding the Convention and advancing decent work through a fair, inclusive and sustainable ecosystem for all stakeholders.

Government member, Poland – I have the honour to speak on behalf of the European Union (EU) and its Member States. The candidate countries Albania, Bosnia and Herzegovina, Montenegro, North Macedonia, Republic of Moldova and Ukraine, and the European Free Trade Association (EFTA) country Norway, member of the European Economic Area, align themselves with this statement.

The EU and its Member States are committed to the respect, protection and fulfilment of human rights, including labour rights. We promote universal ratification and effective implementation of the fundamental ILO Conventions and support the ILO in developing and promoting international labour standards and supervising their application.

The EU and Malaysia signed, in 2022, a Bilateral Partnership and Cooperation Agreement which further strengthens bilateral cooperation and encompasses a wide range of areas, including human rights and sectoral cooperation on labour and employment.

We welcome the Government’s recent legislative reform through amendments to the IRA, the Industrial Relations Regulations, the TUA and the Trade Unions Regulations.

We note the observations made by the ITUC related to the remedies for anti-union discrimination and lengthy procedures. We recall that effective protection against acts of antiunion discrimination requires rapid and effective procedures and remedies through reinstatement and adequate compensation, as well as sufficiently dissuasive sanctions. We also recall that workers who are victims of anti-union discrimination should have the right to directly lodge a complaint before the courts.

Regarding the criteria and procedure for recognition of trade unions for the purposes of collective bargaining, we note the “satisfaction” expressed by the Committee of Experts regarding the entry into force of several legislative amendments. However, we recall that the recognition processes should provide safeguards to prevent acts of employer interference, and we ask the Government to take the necessary measures to prevent or repress such acts. We also echo the Committee of Experts’ request to further review the legal framework for the recognition of trade unions with a view to simplifying and expediting the administrative and judicial procedures.

We join the Committee of Experts’ request to the Government to take measures – in consultation with the social partners – to ensure that, in situations where no union is declared the exclusive bargaining agent, all unions in the unit are able to negotiate, jointly or separately, at least on behalf of their own members.

In addition, we call on the Government to ensure that foreign workers do not face instances of discrimination, including in relation to trade union membership.

We note the Committee of Experts’ observations that the elements considered during their analysis may not demonstrate the existence of complete bargaining machinery. Moreover, we share the Committee of Experts’ concerns about the very low coverage of collective bargaining, with a rate of 0.4 per cent in 2018.

We call on the Government to take the necessary actions to remove any remaining legal and practical obstacles to collective bargaining addressed in the Committee of Experts’ comments, including on the scope of collective bargaining, compulsory arbitration, and restrictions applied to public servants not engaged in the administration of the State. We ask the Government to take concrete measures to promote the full development and utilization of collective bargaining.

We acknowledge the Government’s written submission in response to the observations made by the Committee of Experts.

The EU and its Member States encourage the Government to avail itself of the technical assistance of the ILO. We remain committed to constructive engagement with Malaysia and encourage the Government to further strengthen its cooperation with the ILO, social partners and the international community.

Government member, Brunei Darussalam – I have the honour to deliver this statement on behalf of the Association of Southeast Asian Nations (ASEAN). At the outset, ASEAN would like to express its appreciation to the ILO for its continued engagement and collaboration with regional organizations and its Members, including with our Member States.

We reaffirm our collective commitment to advancing the Decent Work Agenda and promoting fair, inclusive, and rights-based labour practices in the region, in accordance with international labour standards and ASEAN’s own shared goals and principles.

In this regard, ASEAN takes note of the efforts made by the Government of Malaysia to strengthen its industrial relations framework through legislative reforms, developed in close cooperation with the ILO under the Decent Work Country Programme. These reforms, implemented in phases since 2019, reflect ongoing efforts to improve transparency, efficiency, and inclusiveness in Malaysia’s labour governance, while taking into account national circumstances.

ASEAN acknowledges Malaysia’s steps to enhance union recognition, strengthen legal safeguards for trade union activities, and address anti-union discrimination. Reforms such as the streamlining of the union recognition process and measures to ensure clearer procedures in cases of trade disputes are indicative of Malaysia’s intention to promote greater access to industrial justice. These measures, while still evolving, contribute to a more rules-based approach to industrial relations.

We also take note of efforts to foster greater inclusivity, including provisions that facilitate the participation of migrant workers in trade unions and collective bargaining.

It is also important to highlight that these developments take place within the broader regional context. As a community, ASEAN remains committed to supporting its Member States in their respective journeys toward strengthening compliance with international labour standards.

We recognize that each Member State must navigate its own path, shaped by national realities, legal traditions and institutional capacities. In doing so, we continue to uphold the ASEAN principles of mutual respect, non-interference and regional solidarity.

ASEAN believes that constructive cooperation, both within our region and with partners such as the ILO, will remain essential in fostering resilient, just and forward-looking labour systems. Our shared vision is to promote decent work for all and to advance social protection, social dialogue and sustainable growth across ASEAN.

In conclusion, ASEAN reaffirms its support for Malaysia’s ongoing efforts to strengthen its labour governance in alignment with international labour standards. We respectfully encourage the ILO to continue its constructive partnership with Malaysia, not only in supporting compliance with international norms but also in advancing the development of sound, inclusive labour policies that promote sustainable national growth. A continued and balanced collaboration between Malaysia and the ILO will contribute not only to national progress but also to the creation of a more coherent, resilient and harmonious labour environment across the ASEAN region.

Government member, Islamic Republic of Iran – The Islamic Republic of Iran supports Malaysia’s remarkable achievements in advancing workers’ rights and strengthening industrial relations. We commend our Malaysian partners for their visionary leadership in implementing comprehensive labour reforms that serve as a beacon of progress for the region and beyond.

Malaysia’s collaboration with the ILO since 2019 through the Decent Work Country Programme demonstrates commitment to international best practices. The two-phase reform of the IRA reflects careful planning and genuine dedication to workers’ welfare. We particularly applaud Malaysia’s decisive action in removing restrictive sectoral limits through amendments to the TUA. This bold step towards greater freedom of association aligns with fundamental principles of worker empowerment that resonate deeply with our own values.

The Islamic Republic of Iran recognizes Malaysia’s strengthened protection against anti-union discrimination as a cornerstone of just labour relations. The clear prohibition of all forms of discrimination under section 8 of the IRA, coupled with the Director-General’s enhanced authority to refer cases directly to the Industrial Court, ensures swift and impartial justice for workers.

Malaysia’s streamlined union recognition process, completed within five months, exemplifies administrative excellence and respect for workers’ organizing rights. The removal of ministerial appeal powers and the Director-General’s binding authority over union recognition creates a transparent, predictable framework.

The Islamic Republic of Iran particularly celebrates Malaysia’s inclusive approach to migrant workers in union representation. With over 28,000 foreign workers as union members and the 2025 policy exempting non-citizens from individual approval requirements for union leadership, Malaysia demonstrates that worker solidarity transcends national boundaries.

Malaysia’s expansion of collective bargaining scope to include discussions on managerial prerogatives, while maintaining appropriate boundaries, shows sophisticated understanding of modern industrial relations.

In conclusion, the Islamic Republic of Iran views Malaysia’s comprehensive labour reforms as a testament to what can be achieved through political will, international cooperation and genuine commitment to workers’ welfare. These reforms represent not merely legislative changes but also a fundamental shift towards a more democratic, transparent and rightsbased industrial relations system.

Employer member, Cambodia – The Cambodian Federation of Employers and Business Associations (CAMFEBA) wishes to express its strong support for the comprehensive and balanced statement delivered by the Malaysian Employers Federation (MEF) in response to the Committee of Experts’ observations on the Convention. As fellow representatives of employers in ASEAN, CAMFEBA commends the MEF’s principled stand in defending the integrity of Malaysia’s industrial relations framework, while acknowledging the need for continuous alignment with international labour standards.

CAMFEBA particularly supports the MEF’s clarification that the role of the DGIR in Malaysia is not arbitrary but structured and subject to judicial review. This mechanism, based on conciliation, is not a weakness but a strength. It allows for the early and amicable resolution of disputes, protecting both workers’ and employers’ interests. Cambodia and many other jurisdictions particularly in ASEAN adopt similar principles in their labour dispute resolution system, emphasizing the importance of institutional filters to maintain industrial harmony and avoid court congestion.

On the matter of union recognition, CAMFEBA supports the MEF’s call for a fair and transparent process that respects workers’ choices while avoiding fragmentation of unions, especially for SMEs. In Cambodia, we too have witnessed how overlapping union representation led to counterproductive rivalry rather than constructive engagement. CAMFEBA agrees that union pluralism must not come at the cost of enterprise-level stability.

The MEF’s caution regarding the reversal of the burden of proof and calls for stronger sanctions is also well-founded. Any reforms in this area must maintain balance and avoid inadvertently creating procedural unfairness, particularly for small enterprises lacking resources.

CAMFEBA also endorses the MEF’s position on collective bargaining coverage. Malaysia, like Cambodia, has a predominantly SME-based economy. It is critical that international assessments recognize the diversity of national industrial contexts and avoid “one size fits all” comparisons.

Finally, CAMFEBA commends the MEF for its evidence-based, constructive, and forward-looking engagement with the Committee. CAMFEBA echoes the MEF’s call for reforms to be guided by practical realities, social dialogue and tripartite consultation, principles that are at the core of the ILO’s mission.

Worker member, United Kingdom of Great Britain and Northern Ireland – We are used to conflicts between decent laws and poor practice. Malaysia is unusual in that a positive legal framework based on the Trade Unions Act 1959 is undermined not just by poor practice but by an entirely separate legal framework, the IRA. The result is confusion, complication, and great difficulty for Malaysian workers to exercise their right to join a union.

While the 1959 Act allows for simple recognition processes, this dual system creates unnecessary barriers for trade unions. In one case, the Electrical Industry Workers’ Union filed for recognition with an electrical company in August 2024. A full nine months later, the Government responded that 1,200 of the workers involved were confidential workers, not eligible for union rights. Denying basic union rights to electrical workers could form the basis of a Conference complaint all by itself.

Delays and arbitrary reclassifications of worker eligibility are a form of bureaucratic smothering of the collective bargaining process. The IRA sets the Director-General for Industrial Relations no time frame, meaning unions can be left in limbo indefinitely with no legal path to restitution for delays. The system urgently needs some urgency.

The Government also applies troubling methodologies to recognition votes. In one example, the National Union of Drink and Food Industry Workers (NUDFIW) finally secured a ballot. Out of 99 workers who were entitled to vote, 49 votes were for the union, 3 were spoiled, 3 were for the employer and 44 were not cast. The union therefore gained 89 per cent support for recognition from votes cast, a clear win.

But the Government ruled that the 44 uncast votes were votes for the employer, meaning that the union’s recognition attempt failed by one vote. This is clear evidence of a system set up to discourage union recognition and with it to stifle collective bargaining. Government complicity makes it all the easier for employers in defiance of the Convention to interfere with union processes. Unions report that workers have been prevented from voting in secret ballots by being given special tasks that kept them busy or by outright threats.

Employer agents are then able to lurk around during the ballot while unions are kept away. Indeed, unions are held at arm’s length throughout the whole process. NUDFIW reports huge difficulty in getting access to workplaces, as does the Electronics Industry Employees Union, forcing them to go from town to town and village to village to meet workers away from the workplace, itself reinforcing the idea that the union is frowned upon.

Workers should not have to feel as if they are engaged in something shady and illicit just to exercise their rights. The Government is not meeting its obligations to properly promote collective bargaining with a simple process, either through underhand manipulation or blatant threats with the explicit support of the State via provisions for challenging successful recognition votes. Both Government and employers are impeding union rights.

The Government must decide which set of laws it wishes to give precedence to. Alas, its shameful failure to accredit workers to its delegation this year suggests it is far from showing the right inclinations, but I hope this case will persuade it of the need to act firmly in favour of compliance with its obligations.

Interpretation from Arabic: Government member, Saudi Arabia – My delegation notes the clarifications provided by Malaysia. We thank Malaysia for their constructive cooperation with ILO mechanisms. They have cooperated in a number of ways, including by presenting oral information that is comprehensive and written information that was submitted at the right time. This has enriched our discussion here in this Committee. We welcome the structural and institutional reforms under way in Malaysia in recent years. We also note recent amendments that entered into force in December 2024 to strengthen relevant legal and institutional frameworks within the country and to enhance the transparency of procedures. All of this is in line with obligations under the relevant international instruments. We commend this positive step and we would encourage Malaysia to continue implementing reforms efficiently in order to enhance awareness among all partners and to create a working environment based on institutional equity, fairness and transparency. We recognize all that is done by Malaysia at the international level and its ongoing cooperation with the ILO and its constituents.

Employer member, Philippines – The Employers Confederation of the Philippines (ECOP) aligns itself with the Malaysian Employers Federation (MEF) in addressing the Committee of Experts’ observations on Malaysia’s application of the Convention. ECOP commends the Malaysian Government and the MEF for the substantial, forward-looking legislative reforms to the IRA and the TUA. These reforms demonstrate a sincere commitment to workers’ rights, while recognizing the operational realities of a diverse SME-driven economy.

ECOP echoes the MEF’s position that mechanisms such as conciliation, secret ballots for union recognition, and current majority thresholds enhance democratic legitimacy, prevent misuse and foster industrial harmony. These measures align with the principles of the Convention and must be appreciated in the context of Malaysia’s administrative and legal landscape.

ECOP shares the MEF’s concerns regarding proposals like reversing the burden of proof and unrestricted and direct court access. While worker protection is vital, safeguards for procedural fairness and business sustainability, especially for SMEs, which make up 98 per cent of Malaysia’s enterprises, are equally important.

On collective bargaining, ECOP supports the protection of core managerial functions such as promotions and dismissals. These do not preclude voluntary negotiation but maintain clarity in employer responsibilities.

Finally, compulsory arbitration in essential sectors, including defence and healthcare, is a legitimate sovereign measure to ensure national stability. The success of Malaysia’s National Joint Council in delivering gains for public servants reflects the fact that flexibility and protection can coexist.

In conclusion, ECOP recognizes Malaysia’s significant progress and urges the Committee to allow time for these reforms to take full effect. ECOP is confident that MEF will continue to play a constructive role in the tripartite process to promote decent work and inclusive growth.

Worker member, South Africa – I speak on behalf of the workers of South Africa, standing shoulder to shoulder with our sisters and brothers in Malaysia. They face a calculated assault on their rights, rights that are guaranteed under the Convention, yet violated with impunity. Picketing is not a crime. It is a fundamental tool of collective bargaining yet Malaysian workers, especially those in the National Union of Bank Employees (NUBE) are being punished for exercising their right.

What do they face? They face harassment and intimidation. They face threats of prosecution. They face state-orchestrated efforts to silence and break their unions. In February of this year, 10 NUBE members were dragged into long, intimidating investigations and forced to travel long distances simply for picketing after hours. Employers are working hand-in-hand with the authorities handing over confidential union information to the employers’ unions to target and isolate workers. Even union leaders are under siege.

While Malaysia claims to respect the right to strike, in reality legal obstacles render this right meaningless. This is not negligence. It is a deliberate and systematic campaign to crush workers’ rights and to undermine the Convention. We therefore demand that the Government of Malaysia end the harassment and intimidation now, align its laws and practices fully with the Convention, and guarantee the right to picket and to strike in practice, not just on paper.

Workers’ rights are universal and they are non-negotiable. Therefore, as workers of South Africa, we stand with our Malaysian comrades.

Government member, Fiji – International labour standards set out minimum requirements. This is to help governments bring their law and practice into line with the Conventions. The benefit is that it provides protection to workers. It assists our businesses, improves productivity and it sets out the right platform for our national development.

As members of this Organization we, the Governments, have to play our part. We should ensure that when we ratify a Convention, our laws and practice are in line with it.

The Malaysian Government has been reminded by the ILO supervisory mechanism that there are severe gaps between what is in the current law and practice and what is set out in the Convention, which they have ratified.

When a government fails to do so, we consider that the government has not only failed with their workers and businesses, it has also failed to uphold and respect the objectives of this Organization.

As a government minister, I know it is not that easy to have both social partners agree easily on matters. Giving up is not the answer. I can say from my experience that with continuous practice, tripartite discussions and help from the ILO, it is possible to overcome difficulties.

A constructive industrial relations environment helps all: workers, employers, and the Government. It contributes to national development efforts.

I join others to plead to the Malaysian Government to engage with the social partners and, in discussion with them, help bring the law and practice into line with the Convention as recommended by the Committee of Experts.

Worker member, Peru – It is important to recall that States are required to comply strictly with the Convention, that is, to respect trade union organizations without any form of interference, coercion or, much less, discrimination. Malaysia must do so, particularly given that it ratified this Convention in 1961. The reality is different from what we have heard today from the Government.

We in Peru have become aware of systematic action allegedly undertaken by government officials and employers to undermine trade union activity and workers’ rights in Malaysia, in flagrant violation of the principle of protection for trade unions and workers from discrimination.

In the disputes referred to the Ministry for conciliation, trade unions are neither consulted nor involved, and decisions are taken on their behalf, resulting in substandard agreements that are unacceptable to the trade unions and their members.

The Government has processed criminal complaints submitted by employers against trade union members and leaders for participating in peaceful protests, thereby criminalizing legitimate trade union activity. The Ministry accepted the employers’ request to refer to the Industrial Court cases relating to collective agreements that were never negotiated with trade unions, in violation of the principles of collective bargaining and fundamental trade union rights.

It should be emphasized that section 8 of the IRA is the main provision affording protection against acts of anti-union discrimination. This section is supplemented by sections 39 and 59 of the same Act, and these are criminal law provisions. Despite this legislation, trade union members face ongoing discrimination. In 2024 and 2025, NUBE lodged 42 complaints under section 39 and 7 complaints under section 59. These complaints related to intimidation on account of participation in trade union activities, refusal of trade union leave, warnings, salary deductions, suspensions and dismissals that affected 130 members.

The Government sent the Committee of Experts statistics on section 8 complaints lodged from 2023 to 2025. It did not, however, provide information from before 2023. In 2019, NUBE lodged three complaints under sections 39 and 59, and the Government has yet to adopt measures against the employers or to provide information to the trade union.

Lastly, we see the same thing happening with regard to the dismissal of workers. Section 20 of the IRA is intended to provide reparation to affected workers. Such reparation is limited owing to slowness on the part of the Government. We request the Government to reveal the number of reinstatements under section 20 in order to evaluate its effectiveness.

Government member, Bangladesh – Bangladesh notes with appreciation the efforts made by Malaysia in submitting the report. We take note with appreciation of the genuine intention of the Government for its engagement and collaboration with the ILO including through the Decent Work Country Programme to reform its industrial relations framework.

We recognize the initiation of automatic referrals of dismissal cases and the strengthening of the Industrial Court’s powers, improving access to justice. We also acknowledge enhanced union recognition, introducing sole bargaining rights, and the improvement of the process for resolving trade disputes.

To widen the scope of collective bargaining, amendments to section 13(3) of the IRA were carried out. It allows unions to discuss managerial prerogatives with employers, though formal proposals on these are limited. This also encourages good-faith dialogue and transparency without obliging employers to agree. The Industrial Court has recognized such discussions in the vast majority of collective agreements, reflecting their practical importance in Malaysia’s industrial relations. We appreciate the introduction of section 12A of the IRA to clarify sole bargaining rights among multiple unions representing the same worker category.

Bangladesh takes good note of the streamlining of the union recognition process, which can now be completed within five months. The removal of ministerial appeal powers on competency issues gives the Director-General for Industrial Relations binding authority over union recognition and member eligibility.

Bangladesh encourages the Office to capitalize on the Government’s forthcoming approach to deepen its engagement to address all the outstanding issues.

Worker member, Japan – I stand here to speak out on the continuing challenges faced by Malaysian unions in carrying out collective bargaining. In particular, I would like to highlight a lack of protection against sexual harassment of Malaysian workers.

The example I will highlight shows that women workers in Malaysia in this age and time still face real dangers of sexual harassment. As a woman and president of the largest global trade union, it saddens me to see that we still have to campaign for the protection of women.

A union member employed at a bank was sexually harassed by an executive of the bank. The sexual harassment started on 7 May 2021 when lewd messages were sent to her by the executive and the matter has still not been resolved.

The matter involved a woman worker and her direct supervisor in Malaysia’s leading local bank, which is a government subsidiary. The matter was reported in 2021 and no action was taken by the bank, despite many reminders by the worker. Instead of resolving the matter, the branch manager coerced her to sign an agreement to close the matter.

After three years, the worker sought assistance from the union and from then onwards the union took up the case. Grievances were filed and were submitted to the Ministry. No action was taken by the Ministry. The action by the bank forced her to be terminated, which was also brought to the Ministry’s attention, but no action was taken and the matter is still in the Court.

The sexual predator has been charged in the Criminal Court of Malaysia while the matter is still pending in the Industrial Court. He remains employed by the bank while the female worker has been terminated.

The bank’s inaction regarding the sexual harassment resulted in NUBE commencing industrial actions for more than six months. The Government referred the employers’ complaint against the union to stop the picketing, which is the union’s fundamental right.

By law, no picketing is allowed after the matter is referred to the Court. This is a violation of the Convention. In the meantime, the bank sought a cease-and-desist order from the Industrial Court against the union to cease industrial actions, which itself is an infringement of trade union rights. The Ministry did not carry out any investigation or conciliation but only referred her termination complaint to the Court after more than three months and disqualified two of her intimidation complaints.

I would like to ask the Government what measures they have provided to dissuade such actions in law and through collective bargaining at workplaces. What kind of punishment is given for such actions of harassment condoned by the employers and the Government? Without strong punishments, such problems will continue. What other dissuasive measures have been taken at the workplace in Malaysia to avoid sexual harassment issues? Employers must be reminded that this is the duty of the employer to provide a safe and healthy working environment for workers. This is a right of workers.

Interpretation from Chinese: Government member, China – My thanks to the Government of Malaysia for the information presented. We have studied carefully the report from the Committee of Experts and all written information submitted by the Government of Malaysia to this Committee.

Malaysia has shown a steadfast commitment to respect international labour standards and has always stood ready to honour its obligations under various Conventions. A number of legislative amendments were adopted recently in order to change the legislation governing the recognition of trade unions and also to remove certain sectoral restrictions on the establishment of trade unions and to enhance legal recourse and appeal when required. These amendments also serve to further strengthen the rights of workers. We believe that these amendments should be recognized and encouraged by our Committee.

China commends all of the sustained efforts undertaken by Malaysia as part of its ongoing legislative reform. All of this work is done through consultations and in close cooperation with the ILO. We know that the National Consultative Committee is vital to all of this work and it provides a platform to ensure that national standards are in line with international standards.

We fully support the ILO Secretariat and its mechanisms in order to allow it to provide the technical assistance required.

Worker member, Singapore– I would like to intervene on behalf of the Malaysian Trade Union Congress (MTUC) regarding the scope of bargaining and relate it to what the Committee of Experts observed in its report regarding the law and practice in Malaysia.

As highlighted by the Committee of Experts, the Malaysian Government claims that all restrictions on the scope of bargaining and in particular the restrictions contained in section 13(3) have been lifted. As you know, the restrictions relate to promotion, transfer, appointment, termination, dismissal and allocation of tasks.

The Government claims that the workers and employers are free to raise issues of a “general nature”. In other words, the Government argues that while the restrictions are still there, the law also provides for unions and employers to discuss whatever they agree to negotiate. This is a fallacy. The restrictions still apply, according to the MTUC. No union can negotiate on a promotion, transfer, appointment, termination, dismissal or allocation of tasks. Denying them this right to negotiate is unfair.

In essence, the Government has never lifted the restrictions. Job security, protection from unfair dismissal, the right to negotiate on transfers and the right to discuss job descriptions are the most important issues for any worker. If there are provisions to lift the restrictions, why can the union not negotiate? Moreover, employers need to exercise their discretion in good faith. Unions must have the right to hold employers accountable when they fail to do so and also have an avenue to appeal against such actions by employers.

For example, in Case No. 4/2-482/24 between the bank employers and the union, the employers’ lawyers have raised absolute discretion under section 13(3) and denied the union any right to even raise discussions in relation to a disciplinary process which includes dismissal. Yet in another case, the union and employer agreed to a collective bargaining fee. This is to deter “free-riders”. The Industrial Court refused to recognize it, saying that it was outside the scope of collective bargaining.

The Convention guarantees that workers and employers can negotiate any matter that relates to them. The refusal by the Government to talk about such genuine issues as dismissal and recognizing collective bargaining fees is a complete violation of the Convention.

The Malaysian Government should take cognizance of the current situation and immediately review the law with clarity, to create an atmosphere of constructive industrial relations that promotes harmony and leads to national development.

Worker member, France – In 2024, Malaysia amended its Trade Unions Act to remove union membership conditions. But to date, the Government has not approved the NUBE constitutional amendments in line with the reforms sent in December 2024. This delay, without a prescribed timeline, constitutes interference under Article 2(1) of the Convention. The country’s IRA further hinders union rights.

In June 2024, NUBE filed 34 complaints against companies in the banking sector for not complying with the collective agreement on matters such as mandatory social dialogue and occupational health and safety training. Yet these cases will not be heard until July 2025, with decisions expected in 2025 or 2026. Justice delayed is justice denied.

In 2021, a major bank which is a government subsidiary filed a trade dispute to silence NUBE from campaigning against unfair labour practices. The bank misused the Industrial Court to seek injunctive relief outside the court’s jurisdiction and to restrict the union and drain its resources.

In November 2024, NUBE submitted an application to represent workers at a large local bank but the Government delayed its decision until August 2025. In the meantime, the Government registered an in-house union for the same group of workers. Recognition was quickly granted to this in-house union, raising concerns about the fairness of the process.

Another case of customer service workers at a multinational bank where NUBE filed a recognition case in June 2024 remains pending. It is not clear whether the delay in recognition of NUBE was deliberate and part of a broader effort to undermine its representation.

The Government and employer’s action deprived workers of their right to freely choose their representation. These events indicate possible collusion between the Government and the employer to create a union that would not threaten their interests.

The Government claim that recognition timelines have been reduced to four months is not true. It is clear from both cases that the duration is much longer and lacks transparency.

These examples highlight a systematic pattern of state-sanctioned interference in trade union activities. Malaysia’s failure to uphold its obligations under the Convention must be addressed. Trade union rights are human rights and denying them undermines the foundation of decent work and social justice.

Worker member, Fiji – ILO is a tripartite organization, a house for workers, employers and governments, all having equal rights and responsibilities. We discuss, negotiate and agree upon ways and means to provide decent working conditions for workers, promote good business and contribute to national development efforts. Accordingly, labour laws based on ILO Conventions play a pivotal role. Member Governments have an obligation to abide by the Constitution and the objectives of ILO

Malaysia has failed in this regard, as pointed out by the Committee of Experts. A middleincome country like Malaysia has failed in many ways to respect the ILO objectives. It has miserably failed to bring law and practice into line with the Convention. Instead, they have been attacking the unions.

Leaders of the NUBE bank union were summoned by the police and were accused of participating in picketing. The head of industrial relations from the bank complained to the police that she did not like the placards displayed in the picket. This is nothing but sheer harassment and intimidation. Trade unions cannot be denied the right to exercise the legitimate trade union right of picketing.

The Ministry has overbearing powers, which it uses to control unions. As pointed out earlier, NUBE submitted an amended constitution to the registrar of trade unions. It has now been over six months and the Ministry has yet to approve it. Another example of harassment is that unions must submit notices of change of union officers within two weeks of the election with full minutes and the attendance list signed by several officers of the union. If delayed, the Ministry punishes the union by refusing to register it. This high-handed attitude of the registrar of trade unions goes against helping to develop constructive industrial relations. This is nothing short of interference in legitimate trade union work.

The Government is allowing employers to have contempt for proceedings against officers of unions participating in picketing and other union activities. These are rights guaranteed under trade union and civil laws. This is nothing but prosecution of trade union leaders and members. Employers, emboldened by apparent political backing, have drastically shifted their approach towards collective bargaining, abandoning legal frameworks and good industrial relations practices in favour of aggressive and unlawful tactics. These actions are strongly condemned. Blatant misuse of government power to suppress legitimate trade unions, the employers’ complicity in this campaign of intimidation and the aggression must stop immediately.

Lastly, we are shocked to see that the Government has denied the right of the representatives of the MTUC, the largest workers’ representative organization in Malaysia, to be here as delegates. The Malaysian Government knows that this tripartite house requires the Government to bring a complete delegation to the Conference. By denying the right of workers, the Government not only has failed but is in complete violation of the Convention. Denying the right of Workers’ delegates is denying their right to freedom of association.

As the President of the Asia–Pacific Regional Office of the International Trade Union Confederation (ITUC), I call on the Malaysian Government to do the right thing.

Worker member, Brazil – We express our deep concern over the serious and systematic violations of the Convention by the Government of Malaysia. This is not about isolated breaches. What we are witnessing is a deliberate pattern of collusion between the Government and certain employers to undermine trade unions, suppress workers’ rights, and dismantle collective bargaining frameworks.

Let me highlight four particularly alarming issues:

• 1. Union exclusion from dispute resolution – The Ministry of Human Resources often engages directly with employers behind closed doors, excluding unions and imposing settlements that fall far short of what is just and acceptable.
• 2. Interference in collective bargaining – We have seen agreements referred to the Industrial Court without any negotiation with unions. In one case, the Ministry claimed a deadlock, when no meeting had even occurred. This is a blatant violation of workers’ rights.
• 3. Legal harassment of union leaders – The misuse of defamation lawsuits, injunctions and other legal tools to intimidate and silence union representatives is deeply troubling and must be condemned.
• 4. Retaliation against victims of harassment – In one shocking case, a woman who filed a complaint of sexual harassment was dismissed, while the perpetrator remained protected. The union’s attempt to support her was suppressed by the authorities.

This situation is not just about the Convention, it is about the erosion of democratic space for workers to organize, speak out, and defend their rights.

We urge this Committee to recommend that the Government of Malaysia:

• Cease interference in trade union affairs.
• Guarantee genuine collective bargaining processes.
• Reinstate workers and union leaders dismissed for their activities.
• Investigate all cases of retaliation and collusion.
• Fully comply with the Convention in both law and practice.

Finally, we appeal to Governments in this Committee: do not remain silent. To stay silent is to stand with oppression. Workers in Malaysia deserve justice, dignity and our collective solidarity.

Observer, Building and Wood Workers’ International (BWI) – IndustriALL and the Swiss workers align themselves with this statement. Indeed, Malaysia has amended key labour laws. However, persistent implementation gaps are still found in law and practice, undermining workers’ rights to organize and bargain collectively, in breach of the Convention, and particularly Article 1(2)(b). This Article obliges governments to protect workers from dismissal or prejudice due to union membership or lawful trade union activities. However:

• 1. A BWI Indonesian migrant worker and union member was illegally dismissed, wrongfully convicted, caned and imprisoned for 11 months, despite having a valid work permit and having a pending case appeal.
• 2. In a wood processing company, four migrant organizers of the Sabah Timber Industry Employees Union (STIEU) were illegally dismissed shortly after filing for union recognition. The other local and migrant members were blacklisted, intimidated and denied overtime, and an in-house union was promoted to undermine the STIEU.
• 3. In an automative company case, five leaders of the National Union of Transport Equipment and Allied Industries Workers were dismissed for attending a union briefing after office hours. No redress has been granted.
• 4. The Electrical Industry Workers’ Union faced threats and intimidation from two multinational corporations. Similarly, migrant workers were denied access to a secret ballot and were warned of deportation.

These cases expose the Government’s failure to enforce its pertinent laws, particularly sections 4, 5, 7, 8, 20 and 59 of the IRA, violating its obligations under the Convention. We respectfully urge this Committee to recommend:

• 1. Strict enforcement of anti-discrimination provisions with statutory timelines and penalties;
• 2. Reform the recognition and secret ballot process under section 9, ensuring workplace access to unions, and non-interference voting, including a bystander clause to prevent employer interference;
• 3. Equal protection for migrant workers, including guaranteed work permits during pending disputes;
• 4. A moratorium on dismissal for six months before and after a secret ballot;
• 5. Enactment of whistle-blower protection to protect worker witnesses from retaliation.

Malaysia’s commitment to the Convention must be realized through enforcement and structural reform. Without this, workers, especially migrant workers, will remain vulnerable for exercising their fundamental rights.

Observer, International Trade Union Confederation (ITUC) – The entire Malaysian industrial relations are vested in the hands of the Government. Ministerial powers are used to trample on trade unions’ bargaining rights. This is evident from the Minister’s adamant refusal to deposit credentials for the MTUC as a workers’ representative organization at this Conference while there are 40 Government members here and 8 Employer members. This is a blatant breach of the ILO Constitution and Conventions Nos 87 and 98.

In 2023, the Government got the Industrial Court to dictate the removal from a collective agreement of a 10 per cent bargaining fee that was to be paid by non-members or “free-riders” who benefited from the union’s efforts. This fee was negotiated by NUBE with the employer’s union, the Malayan Commercial Banks’ Association (MCBA), in the 19th collective agreement. The court threatened that non-compliance with the collective agreement would exist if the bargaining fee was not removed, which would nullify the entire collective agreement. The question is: why use cognizance to interfere in collective bargaining when it should be a simple registration? This is a violation of Article 4 of the Convention.

In 2023, the MCBA and NUBE signed a Festival Aid Agreement where 17 banks agreed to pay workers festival aid equivalent to one month’s salary every year, beginning in 2023. The banks and NUBE also agreed that both parties may review the payment for the following year.

In 2024 the banks had afterthoughts and refused to pay the aid but NUBE stood firm on the agreement. When a trade dispute ensued, the Director-General for Industrial Relations called for conciliation. While a third conciliation meeting was pending, the Minister met the bank to strike an inferior deal.

When NUBE lodged police reports against the Minister for abuse of power, the Minister rushed the matter to the Court. The Court glaringly acted in favour of the Minister, denied NUBE’s application to subpoena the Minister and nullified the 2023 agreement. The Minister supported banks that refused to commence negotiation for the 20th collective agreement on the expiry of the 19th collective agreement by referring the matter to the Court while NUBE was urging negotiations.

In the Court, the banks are retracting from all progressive articles bargained in the 19th collective agreement. The Court bends over backwards to help the banks by denying NUBE’s application for documents to prove its claim for the 20th collective agreement. The Government refuses to raise awareness about ILO Conventions among the courts, even when a court is under the Minister’s direct purview.

I am confident this house can see the obvious breach of the Convention and the repugnant government–employer interference in trade union independence and the expansion of union funds to challenge unfair court and ministerial decisions.

Government representative – First and foremost, Malaysia would like to thank to all Members for taking the floor concerning the application of the Convention. Malaysia would like to stress to the Committee that article 3(5) of the ILO Constitution gives the Government power to accredit its national delegation to attend the 113th Session of the Conference. However, as the Committee is undoubtedly aware, the MTUC is currently embroiled in a serious internal dispute concerning legitimacy of its leadership and the administration of office bearers for the 2022–25 term. This dispute has directly affected the MTUC’s capacity to represent workers, particularly in light of the Court of Appeal’s decision for the Joint Special Committee to be established to carry out elections of new office bearers, which had yet to be done.

Following objections from other affiliate union members also, it could not be said that the Joint Special Committee represents the MTUC. This matter has been newly referred to the Credentials Committee for its consideration and as such it would be more appropriate for it to be addressed within that specific forum. In addition, the Government humbly requests from the Committee to encourage workers’ unions in Malaysia to work together and end any animosity and personal agendas between them in order for the Government to carry out its powers as enshrined in article 3(5) of the ILO Constitution.

The Government cannot be said to be the barrier within the worker union members when the internal issues of the appointment of office bearers of the MTUC have yet to be settled since 2022, having further been acknowledged by the order of the court.

The Government, having power to nominate and accredit its national delegation to attend the Conference, would be highly pleased in issuing the required credentials to the eligible most representative workers’ and employers’ organizations.

It is high time that the different factions within the MTUC settle their differences and carry out fair elections to appoint new office bearers for the term 2025–27 to avoid such an occurrence happening again next year.

The Government would also like to put on record that currently in Malaysia we have 775 trade unions registered with 1,041,554 members. Yet, the only one that we hear from time and time again is NUBE.

Malaysia also wishes to emphasize that all concerns and measures raised by NUBE have been thoroughly examined and appropriate actions have been taken accordingly.

Malaysia acknowledges the importance of ensuring effective protection against anti-union discrimination and remains committed to upholding the principles enshrined in our Conventions, particularly Convention No. 98. At the same time Malaysia adopts a traditional framework that prioritizes conciliation as the primary means of resolving disputes including those involving anti-union discrimination. This approach reflects a deliberate policy choice grounded in the preservation of industrial harmony and the fostering of cooperative labour relations.

The current system allows complaints of anti-union discrimination to be brought before the Department of Industrial Relations Malaysia (DIRM), where the Director-General for Industrial Relations (DGIR) facilitates conciliation between the parties. This is not a procedural barrier but rather a mechanism designed to resolve disputes efficiently and amicably.

Importantly, statistical evidence shows the effectiveness of this model, resolving more than 85 per cent of industrial disputes. Even disputes involving allegations of unfair labour practices or discrimination are successfully resolved at the conciliation stage.

This high success rate highlights the system’s ability to deliver timely and mutually agreeable solutions without resorting to protracted litigation. When conciliation fails, the DGIR may refer the matter to the Industrial Court. The process also includes judicial review safeguards ensuring that the DGIR’s discretion is not exercised arbitrarily. These mechanisms, together, provide a balanced approach which facilitates early resolution.

Worker members – As we close this discussion, the Worker members reiterate their deep concerns regarding the continued non-compliance by the Government of Malaysia with the Convention. We are dismayed by the Government’s refusal to deposit the credentials of the Workers’ delegates, an action that undermines the principle of tripartism at the heart of this Organization. This is not merely a procedural issue. It is a direct challenge to the rights of workers to be represented by their own freely chosen organizations.

Despite this Committee’s conclusions in 2022 and the clear guidance of the Committee of Experts, we have seen no meaningful progress on critical issues. Anti-union discrimination remains pervasive and inadequately addressed. Trade union recognition continues to face procedural delays and employer interference. Legal restrictions on both the scope of bargaining and the right to bargain persist in both the public and private sectors and foreign nationals are still denied the right to fully participate in trade union leadership. These are not abstract issues. They impact real workers every day, denying them dignity, a voice and protection at work.

We call on the Government to: take immediate and concrete action to remove all legal and administrative obstacles to trade union recognition; ensure prompt effective remedies for antiunion discrimination; repeal or amend, in full consultation with the social partners, restrictive provisions in the IRA and the TUA, in particular sections 8 and 13 of the IRA and section 28.1A of the TUA; and, lastly, guarantee full and unrestricted collective bargaining rights for all workers including public sector employees and those in so-called essential services.

The Worker members strongly encourage the Government to engage in genuine dialogue with the social partners to bring its legislation and practice into full conformity with the Convention. The values of this Organization rest on the commitment of its Members to uphold the rights of workers to organize and bargain collectively. We urge the Government to approach the outstanding issues with the seriousness, diligence and urgency they clearly require and we call on the Government to accept a high-level tripartite mission.

Employer members – I would like to thank, as others have done, all of the speakers that have made their contributions today. They have informed all of our thinking and they will certainly help to produce some considered recommendations.

As mentioned in my opening remarks, Malaysia has made measurable progress over the last few years towards compliance with the Convention. However, despite the significant process, there are several continuing challenges that remain to be overcome before Malaysia can be considered to be in full conformity with the Convention.

Today’s discussion has highlighted a number of areas where further improvements are needed and the Employer members make the following recommendations accordingly.

With respect to anti-union discrimination, the Employer members urge Malaysia to ensure that victims of anti-union discrimination have the right to lodge complaints directly before an impartial tribunal, that remedies such as reinstatement and compensation are available and sanctions are sufficiently dissuasive, and that data on how complaints are handled and resolved are made publicly available.

With respect to the trade union recognition procedure, the Employer members ask the Government to ensure that implementation of a decision of the DGIR to grant recognition to a union is not subject to unduly restrictive practices and, in particular, the Government should implement the new four-month recognition timeline in practice, including at the appeal stage, by removing any unnecessary procedural hurdles, and strengthen protection against acts of interference during the recognition process.

With respect to exclusive bargaining rights in minority unions, the Employer members call upon the Government of Malaysia to amend the provisions of the IRA relating to bargaining rights to ensure, if no union achieves exclusive bargaining status, for example, if a recognition ballot fails or turnout is too low, that all unions in the unit are allowed to negotiate jointly or separately at least for their own members in line with the conclusions of this Committee in 2022.

Lastly, with respect to the restrictions on trade union office for migrant workers, the Employer members ask the Government to remove the remaining restrictions on non-citizens, allowing them to be able to fully participate in union activities including running for and holding union office.

In conclusion, the Employer members commend the Government of Malaysia for the progress made in modernizing its industrial relations regime and enhancing compliance with the Convention while at the same time urging it to close the gaps I have just identified. The Employer members also support Malaysia in continuing to avail itself of ILO technical assistance.

We underline the importance of ongoing social dialogue and engagement with the ILO as Malaysia implements these recommendations. The National Labour Advisory Council should continue to be used as the forum to discuss any proposed legal or policy changes, thereby securing buy-in from both employers and workers.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government and the discussion that followed.

The Committee noted with concern that gaps remained in the protection against anti-union discrimination, lengthy recognition procedures and the need to promote the full development and utilization of collective bargaining.

Taking the discussion into account, the Committee urged the Government, in consultation with the social partners, to take effective and time-bound measures to:

• remove all the remaining legal and practical obstacles to collective bargaining and to promote its development;
• ensure effective protection against acts of anti-union discrimination with dissuasive sanctions, and that victims of anti-union discrimination have the right to access justice and remedy;
• review recognition procedures for collective bargaining, with reasonable and adequate safeguards to prevent interference, simplifying and expediting the administrative and judicial processes; and
• enable collective bargaining machinery for public servants who are not engaged in the administration of the State.

The Committee requested the Government to accept a technical advisory mission of the ILO before the next session of the Conference.

The Committee also requested the Government to report any progress to the Committee of Experts on the measures taken to implement the above recommendations in line with the Convention by 1 September 2025.

Chairperson – I have the honour to give the floor to the distinguished Government representative of Malaysia.

Government representative – The Government extends its sincere appreciation to the Committee for its constructive engagement and the thoughtful observations regarding the application of the Convention, which Malaysia ratified in 1961. We take due note of the concerns raised by the Committee, which serve as valuable input for our ongoing efforts.

While we recognize the importance of strengthening the framework supporting freedom of association and collective bargaining, we wish to note that these observations will be kept in view within the broader context of Malaysia’s ongoing labour law reform initiatives.

Malaysia also takes due note of the Committee’s full recommendations and affirms that the implementation of these reforms will be carried out in accordance with national circumstances and legal process.

The Government takes note of the Committee’s offer of a technical advisory mission and, in the spirit of constructive engagement, proposes instead to receive technical assistance from the ILO. This assistance may be effectively channelled through the existing Decent Work Country Programme (DWCP), particularly via the Labour Law and Industrial Relations Reform (LLIR) Project, which provides an established platform for structured technical cooperation and engagement with social partners. The Government remains committed to aligning domestic practices with the Convention in collaboration with the ILO. Malaysia remains committed to aligning its labour policies with international standards where appropriate, and we appreciate the Committee’s continued engagement and support in this regard.

Individual Case (CAS) - Discussion: 2022, Publication: 110th ILC session (2022)

Written information provided by the Government

The Government has provided the following written information as well as statistics on the number of collective agreements given cognizance.

Observations of the Malaysian Trades Union Congress (MTUC)

The Government keeps its measures in protecting the rights of employees in the country.

The Industrial Relations Act (IRA) 1967 [Act 177] provides protection against acts of anti-union discrimination in respect of their employment through section 8 and section 59 of Act 177. Section 8 provides procedures for non-criminal union-busting cases whereas section 59 deals with semi-criminal cases.

Currently, sections 4, 5 and 7 of Act 177 provide protections of the rights of workers to form, to join and to participate in trade union activities.

In addition, the Government is in the midst of amending the Trade Unions Act, 1959 [Act 262]. Act 262 regulates the operation of trade unions in Malaysia which generally provides for procedures and processes in terms of registration, cancellation and governance of trade unions. The proposed amendment aims to enhance the rights of collective bargaining power of unions in the country by allowing multiplicity of trade unions establishment as well as allow the existence of more than one trade union in one workplace.

The first reading of this bill has been tabled at Parliament on 24 March 2022. The second reading of this act is scheduled to be tabled in the forthcoming Parliament session.

Ongoing legislative reform

The Government has continued to cooperate with the ILO through the Labour Law and Industrial Relations Reform Project in the holistic review process. The development of the labour law amendments are as follows:

(1) The amendment of the Employment Act, 1955 [Act 265] has been approved by Parliament on 20 March 2022 and has been gazetted on 10 May 2022.

(2) Further, on the development of the amendment of the Trade Unions Act, 1959 [Act 262], the first reading of this bill has been tabled at Parliament on 24 March 2022. The second reading of this act is scheduled to be tabled in the forthcoming Parliament session.

Article 1 of the Convention. Adequate protection against anti-union discrimination. Effective remedies and sufficiently dissuasive sanctions.

Detailed information on the general remedies imposed in practice for acts of anti-union discrimination dealt with through sections 5, 8 and 20 of Act 177 are as follows:

(i) Remedies for anti-union discrimination under section 8 and section 20 of Act 177 are awarded by the Industrial Court based on the facts and merits of each case. The Industrial Court will act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal form for all cases that have been referred by the Director-General of Industrial Relations under section 8, Act 177.

(ii) Further, in the spirit of tripartism and as stipulated in Act 177, victims of anti-union discrimination may file complaints to the Director-General of Industrial Relations in order for the department to inquire or conciliate or investigate the complaints.

(iii) 35 cases were reported from January 2021 until April 2022 under section 8 of Act 177. Out of 35 cases, 31 (88.57 per cent) have been resolved by the Industrial Relations Department and the average duration of the proceedings is three to six months.

(iv) As for the Industrial Court, the case which has been referred by the Director-General of Industrial Relations under section 8 of Act 177 shall be disposed within 12 months based on the Industrial Court Client’s Charter.

Articles 2 and 4. Trade union recognition for purposes of collective bargaining. Criteria and procedure for recognition. Exclusive bargaining agent.

The consultation sessions with stakeholders including the social partners have been done throughout the drafting process for each amendment, including the Trade Unions Act, 1959. As for the process on the amendment of the Trade Union Act, 1959, a total of 72 sessions of engagement, consultation and workshop with social partners have been conducted starting from 2018 to date.

The amendment of the Trade Unions Act, 1959 [Act 262], has undergone the first reading of its bill which has been tabled at Parliament on 24 March 2022. The second reading of this act is scheduled to be tabled in the forthcoming Parliament session.

The Government is of the view that simple majority is a minimum requirement and it shall be maintained in order for a trade union to become an exclusive bargaining agent and the social partners agree with this. Where more than one trade union of workers have been accorded recognition, the exclusive bargaining agent will be determined among themselves or ascertained by the Director-General of Industrial Relations by way of a secret ballot (highest number of votes) as stipulated in the new section 12A of IRA 1967. Section 12A has yet to be enforced and subject to the amendment of the Trade Unions Act, 1959.

In this regard, the amendment of the Trade Unions Act, 1959 [Act 262] has undergone the first reading of its bill, which has been tabled at Parliament on 24 March 2022. The second reading of this act is scheduled to be tabled in the forthcoming Parliament session.

Duration of recognition proceedings

The average duration of the recognition process is four to nine months. The decision on recognition by the Director-General of Industrial Relations may be appealed by the concerned union or employers by way of judicial review.

Migrant workers

Foreign workers are eligible to become members of a trade union and are eligible to hold office upon approval of the Minister if it is in the interest of such union. In addition, Act 177 does not impose restrictions on migrant workers to engage in collective bargaining.

Scope of collective bargaining

The Government maintains its opinion that section 13(3) of Act 177 shall be retained to maintain industrial harmony and in order to speed up the collective bargaining process. Furthermore, the provisions under section 13(3) of Act 177 are not compulsory provisions, since, if both parties agree, they may negotiate the said provisions during the collective bargaining process.

Prior to the current amendment of section 13(3) of Act 177, questions of a general character with regard to promotion only may be raised for matters related to promotion, transfer, recruitment, termination of employment due to redundancy, dismissal and reinstatement and assignment or allocation of duties.

Compulsory arbitration

The amendment on the proviso will be enforced respectively after the amendment of the Trade Unions Act, 1959 [Act 262]. In this regard, the amendment of Act 262 has undergone the first reading of its bill which has been tabled at Parliament on 24 March 2022. The second reading of this act is scheduled to be tabled in the forthcoming Parliament session.

Restrictions on collective bargaining in the public sector

The Government is committed to ensure the welfare of public servants and has recognized collective bargaining at one of the engagement sessions between employers and employees in the public sector. The contents of Service Circular 6/2020 and Service Circular 7/2020 can be accessed through https://docs.jpa.gov.my/docs/pp/2020/pp062020.pdf and https://docs.jpa.gov.my/docs/pp/2020/pp072020.pdf.

Collective bargaining in practice

Statistical information on the number of collective agreements concluded and in force is provided.

Discussion by the Committee

Government representative – In response to the observations raised by this Committee on Malaysia’s compliance with the Convention, please allow me to share some feedback with regard to efforts that have been undertaken by the Government of Malaysia, with the view to progressively fulfilling the requirements under the Convention, thus enhancing Malaysia’s credibility and integrity at international forums.

In this context, Malaysia wishes to take this opportunity to briefly explain the constructive development of labour law reform with reference to the requirements of the Convention. In this respect, Malaysia has successfully amended the Industrial Relations Act, 1967, in December 2020. This important development aims to enhance the existing dispute resolution system, as well as to enable any disputes arising to be resolved effectively, and expedite the procedures involved. In addition, an amendment to the Employment Act, 1955, has been gazetted on 10 May 2022, following which the amendments to the Trade Unions Act, 1959, have been tabled in Parliament in March 2022, with the objective to encourage greater participation of workers to join trade unions. In this regard, the Government of Malaysia would like to take this opportunity to record our appreciation for the technical assistance provided by the ILO via the Labour Law and Industrial Relations Reform project.

Malaysia has made a progressive move to enhance the relevant laws in order to be in line with the Convention. The Government, through the Ministry of Human Resources, has conducted a series of engagements and dialogue sessions with the social partners and the relevant authority to deal with the issues holistically. Further, the Government’s commitment towards labour law reforms shows the continued commitment to deal with all the allegations made particularly with regard to anti-union discrimination and interference in the recognition process. These measures will resolve matters in relation to any cases reported by the Malaysian Trades Union Congress (MTUC). As such, the Government would like to state that observations made by the MTUC previously have been addressed accordingly. Overall, the journey to resolve the cases is not easy. Out of 21 cases reported, 20 cases have been resolved and the outcome of one case is pending at the Industrial Court. Sharing a case in point is the dispute between one of the nation’s largest and most diverse conglomerate companies and the National Union of Transport Equipment and Allied Industries Workers (NUTEAIW); it has been resolved by the decision of the Industrial Court, which was in favour of all the 18 claimants.

In addition, the new amendments provide adequate protection against anti-union discrimination, whereby sections 8 and 20 of the Industrial Relations Act, 1967, provide general remedies for any case of dismissal such as reinstatement, back wages, and compensation in lieu of reinstatement. In relation to this, if there are cases of anti-union discrimination, in the spirit of tripartism and as stipulated in the Industrial Relations Act, 1967, the affected parties may file complaints to the Director-General of Industrial Relations in order for the department to launch inquiries or conciliate or investigate the complaints.

In terms of complaints received by the Department of Industrial Relations, a total of 35 cases were reported between January 2021 and April 2022. Out of 35 cases, 31 cases, which is equal to 88.7 per cent, have been resolved and the average duration of these proceedings is between three to six months. For cases referred to the Industrial Court under section 8 of the Industrial Relations Act, 1967, they will be resolved within 12 months based on the Industrial Court Client’s Charter.

To safeguard against employers’ interference in the recognition process, specific provisions, which are sections 4, 5 and 8 of the Industrial Relations Act, 1967, are applied. In this context, although section 8 of the Act has been amended, the actual impact on the secret balloting process has not been visible due to COVID-19 restrictions. Thus, the Government is of the view that the effectiveness of the amendment should not be a measuring tool at this juncture.

In addition, the Government has also introduced new provisions in advance especially on the sole bargaining rights under section 12A of the Industrial Relations Act, 1967, to enable a trade union the rights of sole bargaining in cases where more than one trade union has been recognized by the employer. However, the new provision will only take effect after the amendment of the Trade Unions Act, 1959, has been completed. The amendment of the Trade Unions Act, 1959, has undergone the first reading of its Bill and is expected to be tabled for the second reading in the forthcoming Parliament session. To the point raised by the Committee of Experts with regard to the situation where no union is declared as the exclusive bargaining agent, a simple majority is needed as a minimum requirement to ensure the process has been completed.

With regard to the point raised by the Committee of Experts on the average duration of the recognition process, 54 per cent of cases were resolved from 2018 to 2019 within four to nine months. However, there are also cases that can be resolved within a month if it involves voluntary recognition. In relation to the amendment of section 9(6) of the Industrial Relations Act, 1967, whereby the provision is deleted, the decision on recognition by the Director-General of Industrial Relations could still be applied through a judicial review request.

With regard to the issue of migrant workers, the Government would like to reiterate that they could be members of a trade union and may hold office subject to appropriate processes and approval by the Ministry of Human Resources. As such, there is no specific restriction under the Industrial Relations Act, 1967, for them to engage in collective bargaining. Based on the statistics provided by the Trade Unions Department, in 2019, a total of 13 unions with a membership of 2,874 members, migrant worker members, were registered. The number has increased in 2021, whereby a total of 7,325 migrant workers are registered as members of a trade union. Today, a total of 27,964 foreign workers are members in 16 registered trade unions.

With regard to the request of the Committee of Experts to consider lifting the broad legislative restrictions on the scope of collective bargaining, the Government maintains its status quo in order to speed up collective bargaining processes and maintain industrial harmony.

The Government took note of the comments by the Committee of Experts on the amendment of section 26(2) of the Industrial Relations Act, 1967.

Further, as for the rights pertaining to collective bargaining by public servants, the Government has always been supportive and has made engagements through various avenues. In this respect, the Public Service Department has provided a platform through the National Joint Council and the Departmental Joint Council in order to ensure that the welfare of public servants is heard and taken care of well.

Last but not least, the Government has always taken important steps to improve and address matters related to labour laws as well as reforms. In this regard, we will continue to be consistent in our support via the existing strategic collaboration between various stakeholders, especially the MTUC and the Malaysian Employers Federation (MEF), in ensuring that the ILO’s requirements with regard to the Convention are met.

Employer members – This case is about the application in law and practice by Malaysia of the Convention. This is a fundamental Convention which Malaysia ratified in 1961. The case is being discussed this year in the Committee for the fifth time, the last occasion being in 2016. It is a case in which the Committee of Experts has made 20 observations since 1989, the last five times being in 2015, 2016, 2017, 2018 and 2021.

The latest consideration of the case follows the complaints launched in 2019 by the MTUC alleging violations of the Convention in practice, including numerous instances of anti-union discrimination, employer interference and violations of the right to collective bargaining in a number of enterprises. The same or similar complaints were previously raised in 2015 by the MTUC and in 2016, 2017 and 2018 by the International Trade Union Federation (ITUC).

The Committee of Experts’ observations relate to the following areas of alleged non-compliance by the Government with the Convention. The first one relates to adequate protection against acts of anti-union discrimination. We recall that Article 1 provides that “workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment”.

The Government has indicated that general remedies against acts of anti-union discrimination are dealt with mainly through sections 5, 8 and 20 of the Industrial Relations Act. Cases are referred to the Director-General of Industrial Relations for investigation, inquiry or conciliation, a process which takes an average of three to six months to complete.

Cases referred by the Director-General to the Industrial Court may take up to 12 months to finalize. In addition to the information already submitted by the Government, the Committee of Experts has requested the Government to take measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint directly before the courts in order to access expeditiously adequate compensation and the imposition of sufficiently dissuasive sanctions.

The Committee of Experts also repeated their recommendation for the Government to consider shifting the burden of proof once a worker has made a prima facie case of anti-union discrimination which could be blocking access to appropriate remedies in law.

In this regard, the Employer members invite the Government to continue working with its social partners and, if necessary, with ILO technical assistance to consider measures to improve workers’ access to adequate remedies for acts of anti-union discrimination.

The next observation relates to recognition of trade unions for purposes of collective bargaining. In this regard, we recall that Article 2(1) of the Convention provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration.

Further, Article 4 provides that “measures appropriate to national conditions shall be taken when necessary to encourage and promote the full development and utilization of machinery for voluntary negotiations between employers and employers’ organizations and workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements”.

The Committee of Experts noted the complaints by the MTUC and the ITUC that the process of challenging an employer’s rejection of a voluntary recognition application by a trade union did not provide adequate protection against interference by the employer. The Committee of Experts also repeated its recommendation that, where no single union has emerged as the exclusive bargaining agent, minority unions should be able to negotiate, either individually or jointly, at least on behalf of their members.

We welcome the information by the Government that it has worked with its social partners to make amendments to the legal provisions governing union recognition, including section 12(A) of the Industrial Relations Act, which deals with the determination of a bargaining agent by a secret ballot by the Director-General. We note that section 12(A) will only enter into force upon amendment of the Trade Unions Act, 1959. Accordingly, the Employers encourage the Government to continue working with its social partners to finalize the legal mechanisms that provide safeguards against any interference in the process of trade union recognition and to address the situation of minority unions where no exclusive bargaining agent has emerged. The Government is invited to inform the Committee of Experts of its progress in this regard.

The next observation relates to the duration of recognition proceedings. The Committee of Experts had previously called on the Government to implement administrative and legal measures to expedite the recognition process. According to the Government, changes have been implemented, including amendments to the Industrial Relations Act, to shift powers relating to union recognition from the Minister of Human Resources to the Director-General of Industrial Relations. The Committee of Experts welcomed the changes in law but inquired whether the deletion of section 9(6) of the Industrial Relations Act would render the decision of the Director-General appealable, which might further delay the process. We accordingly invite the Government to consider this matter and provide information to the Committee of Experts by 1 September 2022.

The next observation is in respect of migrant workers, specifically their ability to stand for trade union office. While the Government’s information confirms that migrant workers are not prevented from joining trade unions or standing for office, the information maintains the qualification that it must be approved by the Minister if it is in the interest of such a union. The Committee of Experts has indicated that this situation is not consistent with the Convention and has repeated its call on the Government to take measures, legal and otherwise, to ensure that migrant workers enjoy their full collective bargaining rights. In this regard, the Employers invite the Government to work with the most representative employers’ and workers’ organizations with ILO technical assistance, if required, to align national laws with the Convention.

The next observation is in respect of the scope of collective bargaining, especially as circumscribed by section 13(3) of the Industrial Relations Act. The Committee of Experts had previously expressed its firm hope that this section would be amended in respect of its broad restrictions to collective bargaining, especially with regard to transfer, dismissal and reinstatement, which are matters known as “internal management prerogatives”. According to the Government, section 13(3) was retained in the last round of amendments, except that it has also been amended to now allow trade unions to raise questions of a general character relating to transfers, termination of services due to redundancy, dismissal, reinstatement and assignment or allocation of work.

The Committee of Experts called for information from the Government on the practical implications of the changes, especially the wording about questions of a general character and repeated their recommendation for the Government to lift the broad restrictions on collective bargaining. The Employer members accordingly invite the Government to provide information to the Committee of Experts no later than 1 September 2022. In addition, we advise the Government to continue working with the most representative employers’ and workers’ organizations to address any provisions that restrict the scope of collective bargaining.

The next observation relates to collective bargaining in the public sector. The Committee of Experts noted some of the restrictions on collective bargaining in the public sector, specifically, the exclusion in terms of section 52 of the Industrial Relations Act. We also note the Government’s information that it is committed to protecting the collective bargaining rights of public servants. We also note Service Circular No. 6 and Service Circular No. 7 of 2020 in this regard. We therefore invite the Government to provide information to the Committee of Experts on the working and practice of collective bargaining in the public sector.

A last observation relates to collective bargaining in practice. In the context of low levels of unionization and coverage by collective agreements, the Committee of Experts encouraged the Government to continue providing statistical information on the number of active collective agreements, sectors covered and the number of workers concerned, as well as on any additional measure taken to promote the full development and utilization of collective bargaining under the Convention. We accordingly invite the Government to continue submitting the statistical data on collective bargaining to the Committee of Experts.

We note that Malaysia is receiving ongoing technical assistance from the ILO through the Labour Law and Industrial Relations Reform project, as well as capacity-building on international labour standards for government officials and social partners. We trust their assistance takes into account the national realities and the evolving nature of the world of work, workers’ protection needs and the needs of sustainable enterprises in Malaysia. We also trust that this Committee will be able to see the fruit of these interventions.

Worker members – The Committee is called upon to examine once again the application of the Convention by the Government of Malaysia. During our last review in 2016, the Committee had noted the Government’s indication that it was undertaking a holistic review of its key labour legislation: the Employment Act, 1955, the Trade Unions Act, 1959, and the Industrial Relations Act, 1967.

The Industrial Relations Act was amended in 2019, with effect in January 2021, while amendments to the Employment Act were adopted in 2021, and published in the Official Gazette a few weeks ago, on 10 May. We take note of these changes. However, we remain concerned that the legislative amendments adopted do not adequately address the long-standing issues raised by the unions and by the ILO supervisory bodies and we note with regret that collective bargaining in Malaysia is still subject to statutory restrictions which run counter to the Convention.

Even when workers succeed in establishing and registering a union, which remains a long and arduous process due to the application of the Trade Unions Act – which is still to be amended – they then have to go through the rigid, lengthy and costly legal process of recognition as a bargaining agent.

First of all, applications for recognition as the bargaining agent must be submitted to the employer who has complete discretion to reject them. In that case, the burden then shifts to the union to report the matter to the Director-General within a prescribed time frame or have its application for recognition considered as having been withdrawn.

The Director-General may demand a secret ballot to ascertain the percentage of workers who show support for the union seeking recognition. This procedure which, by the Government’s own admission, still needs to be further reviewed, does not guarantee a fair ballot and does not offer the necessary protections to ensure that employers are unable to gain access to the results. As a matter of fact, it is not the Director-General but rather the employer who decides the time and location of the secret ballot.

For decades, trade unions in Malaysia have raised concerns about this recognition process, which fully rests in the hands of the employers and of the Director-General, allowing undue employer interference throughout the process and depriving workers of representation for the purposes of collective bargaining.

In practice, recognition of the union as the bargaining agent can drag on needlessly for years. Even when a union wins a secret ballot and should therefore be granted collective bargaining status, employers often challenge these results in court, further delaying recognition.

Collective bargaining in Malaysia is further hindered by undue restrictions imposed on the scope of collective bargaining. The current legislation does not allow unions to negotiate general aspects relating to transfers, termination of services due to redundancy, dismissal, reinstatement and assignment or allocation of work, these being so-called “internal management prerogatives”. Amendments introduced to section 13(3) of the Industrial Relations Act, which allow unions to raise questions of a general character, but equally allow the employer to dismiss those questions, fall short of expectations.

To add to this situation, whole categories of workers are denied the right to collective bargaining. In the public sector, unions of public servants are simply consulted and not fully integrated in a process of collective bargaining as mandated by the Convention.

While migrant workers can become trade union members, they can hold trade union office only upon the inappropriate process of approval by the Minister, who will decide on behalf of the union whether it is in the union’s interest for them do so. The Committee of Experts has indicated that this condition hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes.

Finally, protection against anti-union discriminatory measures is virtually non-existent in Malaysia. Complaint mechanisms before the courts are lengthy and can last well over two years, while any remedies applied are inadequate and usually consist of compensation in lieu of reinstatement. We note in this respect the existing restrictions on the subjects of collective bargaining, especially the aforementioned “internal management prerogatives” which impede unions from raising these issues. In practice, anti-union dismissals and other discriminatory measures are frequent.

The Worker members recall that collective bargaining is a right; together with the right to freedom of association, it enables the exercise of all other rights at work. Without effective and meaningful protection against anti-union discrimination, collective bargaining becomes meaningless. Determining the scope and meaning of the right to collective bargaining under the Convention without its human rights context and the safeguards intended to be afforded to workers when this right is exercised will lead to a race to the bottom regarding terms and conditions of work.

The existing legal framework for the exercise of collective bargaining in Malaysia is deeply flawed and it is no surprise that, in this context, the percentage of workers covered by collective agreements is extremely low, standing between 1 and 2 per cent, while the level of trade union density barely reaches 6 per cent and is declining. The ILO supervisory bodies have repeatedly observed over the years that the Employment Act, the Industrial Relations Act and the Trade Unions Act do not comply with the requirements of the Convention.

In examining the situation, they have regularly emphasized to the Government of Malaysia the importance of adopting measures to facilitate the establishment and growth, on a voluntary basis, of free independent and representative workers’ organizations and their recognition for the purposes of collective bargaining, and the importance of mutual trust and confidence for the development of harmonious labour relations.

Regrettably these calls have not yet been heeded, and the latest amendments introduced fail to address the long-standing issues raised by both the ILO supervisory bodies and the trade unions.

We urge the Government of Malaysia to review and amend the national legislation in consultation with the social partners and in line with the recommendations of the ILO supervisory bodies to bring it into conformity with the Convention.

Worker member, Malaysia – The implementation of the Convention was also examined in this Committee in 2016 and certain concerns raised by the Committee of Experts have not been addressed. We therefore consider the discussion of this case by the Committee as timely and critical.

Several major national labour acts have gone through amendments and are pending implementation. Among them is the Industrial Relations (Amendment) Act, 2020, which came into force on 1 January 2021, and similarly the Employment (Amendment) Act, 2021, which received royal assent on 26 April 2022 and was published in the Official Gazette on 10 May 2022.

Undeniably, the Industrial Relations Act, 1967, does provide some form of protection to the workers and trade unions in Malaysia. However, executive repression and technical and difficult policies and processes prevent workers and trade unions from benefiting even from the minimum protection.

The amendments to the Industrial Relations Act, 1967, move arbitrary ministerial power to the Director-General. The Director-General now decides whether to hold a secret ballot or makes decisions on referring trade disputes to the Industrial Court. Anti-union discrimination and trade union dispute cases are at the discretion of the Director-General. They will not be automatically referred to the Industrial Court, unlike the dismissal cases.

As it is, the Industrial Relations Department must be competent and consistent. In many trade disputes, both parties fail to conciliate. Employers can easily reserve their rights to comply with conciliations or simply refuse to attend the conciliations; even when the employers attend the conciliation, the industrial relations officers merely record statements from both parties, and this is then referred to the Director-General.

Whenever there is an act of intimidation during a secret ballot exercise or unfair dismissal of trade union leaders, the Industrial Relations Department needs to seriously enforce the Act to protect the workers’ right to organize.

Another big challenge of trade unions is to undergo a relatively long and complicated secret ballot process. In section 9 of the Industrial Relations Act, 1967, several processes must be followed and it takes many long years to complete the processes as a suitable date, time and location of the secret ballot are left with the employer. Such a practice is not in conformity with the Convention. Some irresponsible employers refuse recognition and challenge the formation of the union even after a secret ballot victory, right up to the highest court of the land.

We want the entire section 9 – claims for recognition – of the Industrial Relations Act, 1967 to be reviewed and amended to make it easier for any trade union to form a new union. There is a need for a secret ballot; recognition should be automatic and given immediately without being subjected to lengthy processes.

We are also still facing a situation where a claimant whose case is brought to the Industrial Court has to go through a lengthy process to get a decision. There are cases that exceed the period of 24 months to get a decision, and most of the decisions do not provide for reinstatement in work but only for compensation in lieu of reinstatement, including for trade union leaders, although this remedy is foreseen in the Industrial Relations Act, 1967.

The processes in the tribunal have also been made technically difficult for workers. By the same token, we also call on the Government to ensure that the President and Chairpersons of the Industrial Court have broad knowledge of trade unionism, social justice and international labour standards in order to be appointed to the Industrial Court to adjudicate cases, without which workers and trade unions suffer great injustices.

At the same time, a union’s locus standi to represent workers can be challenged judicially in court, which may be time-consuming and extremely costly to the trade union, notwithstanding the deliberate violation of the Convention by the employer. Their intention is usually to frustrate the union and they know very well the union has financial constraints.

Section 13 of the Industrial Relations Act, 1967 prohibits trade unions from including six types of proposal in a collective agreement (in relation to transfer, promotion, dismissal and reinstatement of workers) which are purported to be the company’s “prerogatives”. If such proposals are included, the employer has discretionary power to reject them.

Further, due to the repressive provisions in the Act, trade unions are not allowed to decide the scope of negotiable issues despite having succeeded in the recognition process. For example, workers have repeatedly asked for union security clauses to be included in collective bargaining agreements, but the highest court of Malaysia has decided that such check-off provisions are unenforceable against the employers, as they do not fall under the scope of “trade dispute” as defined in the Industrial Relations Act, 1967.

The amended Industrial Relations Act, 1967, is also denying trade unions from obtaining sole and exclusive bargaining rights. The complexity of the process in the Act will weaken the trade unions’ bargaining power, by exhausting union funds in legal battles and delay collective agreements for the workers. This amendment read with the Trade Unions Act, 1959, will be detrimental to the trade union movement in Malaysia.

There are also cases that are brought up to the Industrial Court to seek clarification and ensure that the employers comply with the agreements. Here, we call on the employers as well as the Government to respect every agreement that has been signed between the employers and trade unions, which must be fully complied with.

We see “union-busting” in Malaysia happening rampantly. This is an absolute denial of access to justice and a fundamental breach of the Convention.

Despite recognition under the Employment Act, 1955, and the Industrial Relations Act, 1967, migrant workers face significant difficulties in exercising their rights to freedom of association and collective bargaining. Migrant workers constantly face threats of dismissal and deportation as they fall under close scrutiny of the police. Unethical employers use dirty tactics and manipulate loopholes in laws and policies to find ways to prevent workers from exercising their right to vote.

In Malaysia, the public sector is continuously denying the right to collective bargaining. We urge the Government to ensure that public servants can bargain collectively in conformity with the Convention and with its Service Circular No. 6/2020 and Service Circular No. 7/2020.

Lastly, workers in Malaysia call for drastic reform to the Employment Act, the Industrial Act, the Industrial Relations Act and the Trade Unions Act to ensure that economic development is aligned with social development, including social protection for all workers. The Malaysian Government must take anti-union discrimination seriously and must cease all forms of anti-union legislation and practices. Legislative amendments must be in the interest of developing and protecting trade union rights in conformity with the Convention.

To conclude, we strongly believe that effective and transparent social dialogue is the way to move forward. This is currently lagging behind in Malaysia. Social dialogue has not been conducted for two years but many labour policies and legislative amendments have been implemented without social dialogue. The Government must hold regular discussions among the tripartite partners within the National Labour Advisory Council in the interests of all, including migrant workers in Malaysia.

Government member, France – I have the honour of speaking on behalf of the European Union (EU) and its Member States. The candidate countries Albania and Montenegro, and the European Free Trade Association country Norway, Member of the European Economic Area, align themselves with this statement.

The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights such as the right to organize and collective bargaining.

We actively promote the universal ratification and implementation of fundamental international labour standards, including Convention No. 98. We support the ILO in its key role of developing, promoting and supervising the application of ratified international labour standards and of the fundamental Conventions in particular.

The EU and Malaysia have a close relationship, including through our cooperation in trade and economic issues complemented by our strategic partnership with the Association of Southeast Asian Nations (ASEAN).

While taking account of the information provided by the Government, we note with great concern the apparent tolerance shown by the Government with respect to allegations of anti-union discrimination, employer interference and violations of the right to collective bargaining in a number of enterprises. We echo the Committee’s call for the Government to take the necessary measures to address all of the above allegations, including through rapid investigation and ordering effective remedies for the victims and sufficiently dissuasive sanctions on the perpetrators. We look forward to detailed information in this regard.

We welcome the Government’s engagement with the ILO Office on the legislative reforms of the main labour laws, including by enacting the Industrial Relations (Amendment) Act (IRA) with effect from January 2021 and by revising the Employment Act and the Trade Unions Act. We see this cooperation as vital for achieving full conformity of these laws with the Convention, including in practice.

We reiterate the Committee’s request to the Government to provide detailed information on the amendments to the IRA and their implementation, in order to ensure that workers who are victims of anti-union discrimination can lodge a complaint directly before the courts to obtain the imposition of sufficiently dissuasive sanctions, including the prompt provision of adequate compensation. It is also important to ensure effective protection without placing on victims a burden of proof that could impose obstacles with regard to establishing liability and providing adequate remedies.

Similarly, with regard to the IRA provisions on the criteria, procedure and duration of proceedings on trade union recognition for the purposes of collective bargaining, we call on the Government to ensure, in consultation with the social partners, that the recognition process as a whole provides adequate safeguards to prevent acts of employer interference. We also reiterate the Committee of Experts’ call to the Government to ensure the full inclusion of migrant workers in collective bargaining.

We would also welcome more detailed information on the practical implications of the IRA amendments on the scope of collective bargaining, compulsory arbitration and restrictions on collective bargaining in the public sector, as well as any additional measures taken to promote the full development and utilization of collective bargaining as provided for by the Convention.

The EU and its Member States will continue to follow and analyse the situation and remain committed to their close cooperation and partnership with Malaysia.

Government member, Indonesia – I have the honour to deliver this statement on behalf of ASEAN. ASEAN notes the many efforts and initiatives undertaken by Malaysia towards compliance with the Convention on the right to organize and collective bargaining. In this regard, ASEAN congratulates Malaysia on the recent amendment to the legislation, the Industrial Relations Act, and waits in anticipation for the amendments to the Trade Unions Act to be gazetted and come into effect.

Amendments to legislation are a huge undertaking and will require time to see their effect in implementation. ASEAN is pleased to note that Malaysia has placed much emphasis on its domestic labour law amendment, which is being done in a comprehensive and gradual manner. This is important to ensure its sustainability, particularly in the rapid and dynamic world of work.

ASEAN also encourages Malaysia to continue engagement and consultation with the tripartite constituents in a meaningful manner. The improvements made to the labour dispute resolution system, including expediting some of the required processes, are most welcome in light of the disruption caused by the COVID-19 pandemic.

In addition, the safeguard elements and provisions of remedies in the gazetted Industrial Relations Act can be seen as adequate to address observations and concerns on anti-union discrimination. However, ASEAN recommends Malaysia to continue reviewing the provisions to ensure that the full effect of its implementation is in compliance with the Convention.

ASEAN is pleased to note Malaysia’s close cooperation with the ILO in the amendment process and believes that this will pave the way towards ensuring full compliance with the Convention. ASEAN believes that Malaysia is at its most opportune juncture to continue its good work in protecting and promoting the rights of workers in which ASEAN gives its full support towards the continuous and sustained implementation of the planned activities.

ASEAN would also like to draw attention to the emerging issues and challenges which affect the traditional labour market and industrial harmony and calls upon the ILO to continue working closely with its Member States to ensure the promotion of decent work to all workers.

Worker member, Republic of Korea – In reference to the Convention and concerns raised by the Committee of Experts regarding remedies to anti-union discrimination, trade unions are suffering due to the excessive powers of the Director-General. Under the amended section 8 of the Industrial Relations Act, the Director-General is authorized to forward unresolved complaints to the Industrial Court for remedies.

This relates to Case No. 3401 referred to in the 397th Report of the Committee on Freedom of Association and concerns the complaint against the Government of Malaysia filed by the National Union of Bank Employees (NUBE).

In 2019, the NUBE lodged two complaints against a UK-based multinational bank in Malaysia for intimidating and attempting to injure workers for participating in pickets and campaigns pursuant to trade disputes. The complaint was filed under sections 39(a) and 59(1)(d) of the Industrial Relations Act, 1967, long before the dismissal of the workers.

The ILO Director-General also intervened directly in this case, urging the Malaysian Government to take swift action to stop the intended dismissal of the union representatives. But the Malaysian Government did not heed the ILO Director-General’s intervention or refer the case to the Industrial Court; only the dismissal case of the workers was referred to the Industrial Court.

However, when the bank lodged a complaint against the NUBE for defamation and to stop the NUBE from picketing, campaigning and lodging complaints to the ILO and the OECD, the Director-General very quickly referred the bank’s complaint to the Industrial Court.

He referred the bank’s case even though he is fully aware that the Malaysian Federal Court decided that no court should entertain a case against a trade union pursuant to a trade dispute because trade unions have “immunity” from actions in furtherance to a trade dispute under sections 21 and 22 of the Trade Unions Act, 1959.

It is also important to note that the union has written numerous letters urging the Government to take action against the bank for its anti-union activities but the Government failed to act or respond to the NUBE.

The trade union had filed a suit against the Government for “inaction” which has caused 300 workers’ complaints against the bank to be left unattended.

“Injustice anywhere is a threat to justice everywhere.” The Malaysian Government is an accomplice in union-busting. We call on the Malaysian Government to stop its anti-union practices and undertake to protect workers and trade unions in conformity with the Convention with immediate effect.

Worker member, Japan – I am speaking on behalf of IndustriALL Global Union and the Japanese Trade Union Confederation (JTUC-RENGO). Section 9 of the Industrial Relations Act concerning the secret ballot procedure for trade union recognition was a key concern discussed in this Committee in 2016.

We regret that the amendment of section 9 in 2020 has not brought fundamental changes to safeguard workers from undue interference from employers in the secret ballot procedure. The Government remains reluctant to invoke penal sanctions against employer interference and union-busting practices.

Ten years after the Malaysian Metal Industry Employees’ Union (MIEU), in a German multinational company producing copper wire in Pahang, applied for union recognition, the MIEU is still unable to bargain with the employer. The MIEU submitted a claim for trade union recognition in June 2012; the company immediately disputed the union’s right for representation.

The company also disputed the competence of the union which had been ascertained by the Director of Industrial Relations and Director-General of Trade Unions and moved the case to the High Court. Even though the Court upheld the Director-General’s decision in 2014, the company continued to block each and every step of the proceeding to a secret ballot.

The company reclassified almost all 353 production workers, except 16 of them, under the confidential capacity, in a bid to throw them out from being members of a trade union under section 5 of the Industrial Relations Act. Until the Director-General threatened to file a police report, the company had been blocking the Director-General from visiting the workplace to assess and interview workers.

When the MIEU succeeded in submitting a new claim for recognition in 2019, the company intervened again and supported the registration of an in-house union to undermine the MIEU. The MIEU is still waiting for a secret ballot to take place. This is unacceptable.

Trade union recognition should be simple and automatic after meeting the legal requirements. We urge the Government to continue consultation with the social partners to review section 9 of the Industrial Relations Act, 1967, in order to ensure that workers in Malaysia can meaningfully exercise their rights under the Convention.

Worker member, Switzerland – Our colleagues from the Indonesian Workers’ delegation align themselves with this intervention. The Committee of Experts has rightly again raised the issue of foreign migrant workers’ ability to becoming members and hold office in a trade union. In its latest response, the Government has simply reiterated that foreign workers are eligible to become members of a union and to hold trade union office “upon approval of the Minister if it is in the interest of such union”. This condition in our view hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes and is thus not in line with the Convention.

Though the law allows migrant workers to join trade unions, there are many cases, such as the example of a multinational tyre manufacturer in Selangor, which excluded migrant workers from Myanmar, India and Nepal from the collective bargaining agreement. A total of 109 migrants could only recover shift allowances, annual bonuses and pay increases worth 5 million Malaysian ringgit based on a court award.

The rights under the Convention are even more remote for migrant workers unable to acquire legal residence status under the very restrictive migration legislation.

It is estimated that in the State of Sabah alone, more than 500,000 migrant workers, mostly from Indonesia, are employed in the palm oil sector. Of these, approximately 70 per cent are undocumented and thus excluded from the possibility of joining a trade union and participating in collective bargaining.

For a long time, only one trade union in the Sabah palm oil sector has been able to organize in only one plantation. One reason for that is that foreigners are not allowed to hold any executive positions in the unions; thus, only Malaysian citizens may act as union organizers. And even though Indonesia and Malaysia share similar vocabularies, most of the migrants only understand basic Sabah–Malay, since many of them still use their mother language based on their ethnic origin.

Another reason is that, according to the Industrial Relations Act, a union is required to prove a majority of membership in a company. The need to organize in almost all estates of one company in different, often very remote, areas at the same time makes the establishment of a new union extremely difficult.

We recognize the efforts of the Malaysian Government and call on it to take all the necessary measures to ensure that all migrant workers can effectively practise their collective bargaining rights and run for trade union office without any restrictions, and to apply the majority requirement at least separately to the different estates of one company in the plantation sector.

Observer, Public Services International (PSI) – The last time we discussed this case, in 2016, this Committee, in its conclusions, requested the Government to: “ensure that public sector workers not engaged in the administration of the State may enjoy their right to collective bargaining”. We will all remember as well that the Government representative said at the time that: “… the Government was currently drafting the amendments and had requested ILO technical assistance so as to facilitate the drafting of the amendments and to ensure that they were in line with the requirements of the Convention …”. However, despite of these promises, barriers for public sector workers still remain in law and practice after six years.

While provisions have been made for municipal workers to bargain collectively, to date, no enabling regulations, for example, have been adopted to realize this right.

The application of compulsory arbitration in essential services under amended section 26(2) of the Industrial Relations Act, First Schedule, are still broad and deprive public servants not engaged in the administration of the State of the right to freely bargain and resort to industrial action.

Also, we raise concerns over the adoption of Service Circulars Nos 6 and 7. First, these circulars were adopted, paradoxically, without consultation and negotiation with relevant unions in the public service. There is – or there was – an established mechanism to discuss the adoption of new service circulars through the National Joint Council, which did not occur. So these circulars have eroded even more the role of workers’ groups in the National Joint Council. Furthermore, these circulars seem to impose new barriers to consultation with public service workers. For instance, union leaders must now receive permission from departmental heads to attend the National Joint Council meetings. While in practice, departmental heads have not restricted attendance to date, the new provisions allow for such restriction.

In addition, Service Circular No. 6/2020 seems to restrict the subject of consultations as well, while Service Circular No. 7/2020 seems to restrict who can be elected to represent the workers in the consultations.

We support the Committee of Experts’ view that workers who deliver public services should be allowed to bargain collectively and that simple consultations do not amount to effective collective bargaining.

Therefore, we expect to see fully-fledged collective bargaining rights for public sector workers in the legislation, in line with the provisions of the Convention.

Government representative – The Government of Malaysia would like to record its appreciation for the views and comments put forward by the Committee and respective social tripartite partners. The views and comments highlighted will help us in further improving and enhancing the application of the Convention in Malaysia. The Government of Malaysia would like to reaffirm that we will continue to take appropriate steps in compliance with the Convention.

In this context, it must be stated that Malaysia has been progressively adhering to the observation made by the Committee of Experts, and we will continue to ensure reforms are done with the support of the employers’ associations and workers’ unions in amending the relevant labour laws to be in line with the Convention. Malaysia takes note of comments raised by representatives from both the Employers’ and Workers’ groups. In this regard, Malaysia would like to put in perspective that the Government of Malaysia believes in constructive engagement between trade unions and employers’ associations, which will ensure that rights are taken care of.

As the process of compliance of standards is subject to many laws in place, Malaysia has always been supportive in amending appropriate laws where needed and we will continue to do so. Among the impacts observed were the amendments with regard to expanding the power of the Director-General of Industrial Relations, and the dispute resolution process has been expedited. Although some of the amendments are in progress, the Government – through consultation, engagement, and townhall sessions – has gathered input from the stakeholders that contribute to the improvement of the process relating to the amendment of labour laws, in particular at this point, the amendments to the Trade Unions Act, 1959.

As for matters raised by representatives through the complaints and disputes lodged in ILO supervisory mechanisms, we take note of the issues raised and we will revert as soon as possible to the ILO. Thus, we value the opinion and views raised by Members.

To address the post-COVID-19 effect on the global economy, the Malaysian economy and the world of work, various initiatives have been implemented using technology platforms. One such initiative with regard to work is the e-Mention to address and expedite matters related to Industrial Court cases. To support all the initiatives, the Decent Work Country Programme (DWCP) was signed in 2019.

The DWCP is jointly developed by the ILO, the Ministry of Human Resources, the Malaysian Employers Federation (MEF) and the Malaysian Trades Union Congress (MTUC) based on the country’s specific priorities. This priority is in line with supporting the Decent Work Agenda through compliance with international labour standards, as well as the country’s commitment to the 2030 Agenda for Sustainable Development, which focus on three areas, namely: rights at work to protect and promote labour rights; future of work to strengthen national capacity in addressing the challenges of the future of work; and labour migration to improve governance of the migration of labour and foreign workers in the country.

In this regard, the Government would like to record its appreciation to the ILO for its continuous support for the labour law reform in Malaysia, especially through the Labour Law and Industrial Relations Reform project.

Last but not least, we would like to reiterate that the Government of Malaysia has made progressive efforts to enhance the procedure and process on the right to strike and collective bargaining. The Government will contribute and engage with the MEF and the MUTC and other stakeholders from time to time in order to uphold industrial harmony in Malaysia.

With those remarks, I wish to conclude my statement by pledging our full and undivided commitment in order to ensure and safeguard the rights and welfare of workers in line with the obligations under the Convention.

Employer members – We wish to thank the various delegates who took the floor and expressed views that enrich the discussion of this case. We have also noted the information made available by the Government in response to the requests and observations by the Committee of Experts and in this meeting today. We note that the ILO is currently providing ongoing technical assistance and capacity-building to officials of the Malaysian Government and social partners. We trust that this will continue.

We invite the Government to continue working with the most representative employers’ and workers’ organizations to bring the national laws into full conformity with the Convention, taking into account the national realities in Malaysia, the evolving world of work, including the needs of workers and sustainable enterprises.

On the question of whether there is a legal obligation for employers to negotiate under Article 4 of the Convention, we have noted that the Committee of Experts seems to believe there is, as long as there is no obligation to conclude a collective agreement. The Employers do not agree with this view, given that Article 4 clearly refers to voluntary negotiation. Similarly, the Employers do not agree with the Committee of Experts that compulsory arbitration at the initiative of a workers’ organization is in line with Article 4, even if it is meant to achieve the conclusion of a first collective agreement. Again, this is based on the facts that Article 4 contemplates on voluntary collective bargaining.

We trust that the Government will keep the Committee of Experts updated on any progress it makes in its efforts to harmonize its laws with the Convention.

Worker members – The Worker members take note of the changes to the Industrial Relations Act and the Employment Act, which recently entered into force in 2021 and 2022. However, we deplore the fact that, despite the introduction of these amendments, challenges concerning the exercise of collective bargaining rights in Malaysia remain unresolved.

We recall that trade unions in Malaysia have been continuously raising these issues for over 40 years. We recall that collective bargaining is a right which, together with the right to freedom of association, enables the exercise of all other rights at work.

The current legal framework in Malaysia constitutes a severe obstacle to their full enjoyment and exercise and therefore must be revised in accordance with the requirements of the Convention.

The Worker members call on the Government of Malaysia to review and amend the national legislation, specifically the Employment Act, the Trade Unions Act and the Industrial Relations Act, in consultation with the social partners and in line with the recommendations of the ILO supervisory bodies to bring it into conformity with the Convention. More specifically, the Government of Malaysia must ensure in law and practice that the procedure for trade union recognition is simplified and that effective protections against employer interference are adopted; that subjects of collective bargaining are not unduly restricted and it is left to the parties to decide on those subjects; that migrant workers can fully participate in collective bargaining, including by enabling them to run for trade union office; that collective bargaining machinery is fully recognized and promoted in the public sector; and that public service unions can bargain collectively and protection against anti-union discrimination is improved through effective and expeditious access to courts, adequate compensation and the imposition of sufficiently dissuasive sanctions.

We call on the Government of Malaysia to accept a direct contacts mission and we invite the Government to avail itself of the technical assistance of the ILO.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government and the discussion that followed.

The Committee noted with interest the amendments to the Industrial Relations Act and the Employment Act, which entered into force in 2021 and 2022, respectively. The Committee noted concern at the complaints of ongoing challenges concerning the exercise of collective bargaining rights in Malaysia and the instances of anti-union discrimination and undue interference.

Taking into account the discussion, the Committee requests the Government, in consultation with the social partners, to:

- amend without delay national legislation, specifically the Employment Act, the Trade Unions Act and the Industrial Relations Act, in consultation with the social partners, to bring these laws into conformity with the Convention;

- ensure that the procedure for trade union recognition is simplified and that effective protection against undue interference is adopted;

- ensure that migrant workers can fully participate in collective bargaining, including by enabling them to run for trade union office;

- enable collective bargaining machinery in the public sector to ensure that public sector workers may enjoy their right to collective bargaining;

- ensure, in law and practice, adequate protection against anti-union discrimination, including through effective and expeditious access to courts, adequate compensation and the imposition of sufficiently dissuasive sanctions.

The Committee invites the Government to continue to avail itself of the technical assistance of the ILO.

The Committee requests the Government to submit a report to the Committee of Experts by 1 September 2022 with information on the application of the Convention in law and practice, in consultation with the social partners.

Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)



A Government representative wished to share the various efforts and measures that had been taken by the Government, both internationally and domestically, with a view to minimizing the issues related to the right to organize and collective bargaining, thereby enhancing Malaysia’s credibility and integrity. Regarding the observations made in 2015 by the International Trade Union Confederation (ITUC) and the Malaysian Trades Union Congress (MTUC), he said that the Government was currently amending the Industrial Relations Act 1967 (IRA) and the Trade Unions Act 1959, taking into consideration the comments of the Committee of Experts. Malaysia, as a signatory to the Trans-Pacific Partnership Agreement (TPPA), was embarking on labour law reforms. Out of a total of eight complaints raised by the MTUC, three had been resolved and five were pending before the Industrial Court or the relevant authority. Detailed comments by the Government would be forwarded in writing. The observations made in 2014 by the World Federation of Trade Unions (WFTU) and the National Union of Bank Employees (NUBE) concerned two cases: NUBE v. Hong Leong Bank Bhd and Nur Hasmila Hafni Binti Hashim & 26 others v. Hong Leong Bank Bhd. In both cases, the Industrial Court had dismissed the documents’ claims on the substance. The Court had not yet received any notice for judicial review from the aggrieved parties.

With respect to the holistic review of labour laws, he said that the Government was currently drafting the amendments and had requested ILO technical assistance so as to facilitate the drafting of the amendments and to ensure that they were in line with the requirements of the Convention and the principles of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The length of the process of trade union recognition varied from case to case and depended on the cooperation of the parties. Furthermore, the recognition process could be subject to judicial review. Until the case was finally decided by the courts, the status of recognition could not be finalized. As to the criteria and procedure for recognition, section 9(4B)(b) of the IRA provided that during the recognition process the Director General of Industrial Relations (DGIR) could refer to the Director General of Trade Unions (DGTU) to ascertain the union’s competence. The main criteria for recognition of trade unions were competence and majority support from employees (50 per cent plus one person), to be determined through secret ballot. Details on the formula were provided in Regulation 11 of the Industrial Relations Regulations 2009. Part IXA of the IRA, as amended, granted the power of investigation and prosecution to the DGIR to determine the competency of a union to represent employees in a particular establishment, trade, industry or occupation. The investigation process would only commence after the DGIR had received a recognition claim from a trade union. The DGIR would carry out an investigation to examine the business activities carried out by the company. Among the criteria to determine eligibility were the final product: the raw materials used; the validation by the Companies Commission of Malaysia; the licence issued by the Ministry of International Trade and Industry; the relevant industrial sector; previous cases resolved; and legal court cases. The decision taken by the DGIR in light of the findings and information obtained through the investigation was forwarded to the DGTU for further action.

With respect to migrant workers, he reiterated the commitment of his country as an ILO member State and a State party to the TPPA to adhere to the principles of Convention No. 87. Non-citizens would be able to run for election for union office if they had been legally working in the country for at least three years. That amendment would enable trade unions to elect their representatives freely, especially with regard to representatives of migrant workers. As to the scope of collective bargaining, the Government had agreed, under the Labour Consistency Plan which formed part of the TPPA, to repeal during the upcoming amendment exercise section 13(3) of the IRA, which contained restrictions on collective bargaining with regard to transfer, dismissal and reinstatement. The Government would also look into and discuss the matter of compulsory arbitration, as it had been included in the Labour Consistency Plan. Concerning the restrictions on collective bargaining in the public sector, he said that the process in the public sector was different from the private sector. It was based on meetings or dialogues between workers’ representatives and the management team, the outcomes of which could be used at various levels and brought to the attention of the Prime Minister. The benefits and welfare of public sector workers were far better compared to previous years. In conclusion, he reiterated that the labour law reforms would transform the landscape of industrial relations and labour practices in the country and would hopefully improve national labour laws so as to meet international labour standards, including the Convention.

The Worker members recalled that the application of the Convention by Malaysia had previously been examined by the Committee in 1999. Yet, certain issues of concern raised by the Committee of Experts dated back to 1989 and were still topical. They therefore considered that the discussion of this case by the Committee was timely and critical. The Government had failed to address the major shortcomings in its laws and practices, as well as in its institutional framework, to give effect to the Convention. Regrettably, the deficiencies concerned key issues, including trade union recognition, compulsory arbitration, the scope of collective bargaining, collective bargaining in the public sector, anti-union discrimination and the right of migrant workers to collective bargaining. They noted from the report of the Committee of Experts that the procedure for union recognition took at least three months and that, according to the Government, judicial reviews were conducted within a timespan of at least nine months. However, certain cases had been pending before the Industrial Court for more than three years including the case of a multinational producing copper wire in the metal sector. These time frames were excessive, and were particularly problematic in light of the criteria and procedure under section 9 of the IRA. A union could submit a claim with the DGIR, if an employer rejected its request for voluntary recognition. Unions representing over 50 per cent of the workforce were entitled to participate in collective bargaining. However, the DGIR did not use the total number of participants in the ballot, but instead the total number of workers on the date that union requested recognition. If in this period (of up to three years) the number of workers in the factory had been substantially reduced, the union might lose the recognition, even if it got an overwhelming majority of the votes. The criteria and procedure were therefore open to abuse by certain employers, who sought to delay and prevent good faith collective bargaining. The Government had also repeatedly refused to comply with the request by the Committee of Experts to amend section 26(2) of the IRA, which provided that the Minister of Labour could refer a dispute to the Industrial Court for arbitration, even without the consent of the bargaining parties, in clear violation of Article 4. The Committee of Experts had also made repeated requests for the repeal of legislative texts imposing restrictions on the scope of collective bargaining, and specifically section 13(3) of the IRA, which contained restrictions on collective bargaining with regard to transfer, dismissal and reinstatement, which were essential terms and conditions of employment. Workers in the public sector were excluded from the right to collective bargaining, with consultations about working conditions taking place in the National Joint Council and the Joint Agency Council. The Committee of Experts had repeatedly urged the Government to allow public servants to bargain collectively over wages, remuneration and other working conditions.

The Worker members also expressed serious concerns over various discriminatory tactics used by certain employers against workers engaged in union activities, and the lack of remedies and dissuasive sanctions. Examples were numerous. Union officials in the railway industry had been subject to disciplinary actions for conducting a picket; ten workers in the rubber production industry had been dismissed for participating in a picket; a union leader employed in a waste collection company had been dismissed for sending out circulars to union members, and the Industrial Court had not ordered his reinstatement, despite the recognition by the court that he had acted as a union official in accordance with the law and the president of a union that sought recognition for collective bargaining purposes in a cement company had been transferred to another branch and then dismissed for allegedly making slanderous comments about management. The Committee of Experts had also raised concerns that migrant workers could only be elected as trade union representatives with the permission of the Minister of Human Resources pursuant to section 28(1)(a) and section 29(2) of the Trade Union Act. They observed that the practical obstacles to collective bargaining faced by migrants went much further. Migrant workers were likely to be subject to dismissal and non-renewal of residence permits if they joined a union or engaged in union activities, as had already happened in the electronics sector. In a case in the paper industry, the Industrial Court had ruled that migrant workers working under a fixed-term contract could not benefit from the conditions agreed in collective agreements. The Worker members wished to draw to the attention of the Committee the fact that the MTUC could not engage in collective bargaining, which meant that there was no collective bargaining at national level. According to the principle of free and voluntary collective bargaining embodied in Article 4, the determination of the bargaining level was essentially a matter to be left to the discretion of the parties. They welcomed the Government’s statement that it was currently undertaking a holistic review of its principal labour laws and emphasized the importance of social dialogue in the context of this review. They hoped that the Government would take into account the comments provided by the MTUC, which contained a detailed review of the legislation, taking into account the comments provided by the ILO supervisory mechanisms.

The Employer members noted that the case had been examined by the Committee in 1994 and 1999. Since then, the Committee of Experts had made nine observations on it, mostly dealing with Article 4 of the Convention. As the Government was conducting a holistic review of its labour laws, they considered that the observation of the Committee of Experts was a “laundry list” of issues with the current legislation in the hope that any new legislation would conform to such views. They therefore considered that it was not the right time to examine the case of Malaysia and would have preferred to do so after the long list of revisions had been made by the Government, which had welcomed the ILO’s assistance. As the situation stood, five main issues were at stake.

First, regarding recognition, the law provided for a secret ballot if an employer did not voluntarily recognize a trade union. Prior observations of the Committee of Experts concerning the duration of the recognition process mentioned that it took nine months on average, but the Government had stated that the duration was only three to four-and-a-half months. While the Committee of Experts believed it was still too long, the Employer members considered that this was shorter and that Article 4 said nothing about the duration of the recognition process. In addition, regarding the ballot, a majority of 50 per cent of workers on the date that the union sought recognition was required, whereas the Committee of Experts considered that it should be 50 per cent of actual voters. Again, Article 4 did not provide any details on the ballot process. Such matters were inappropriate for a binding Convention. Second, the law potentially restricted migrant workers from holding union office, although it did not establish a blanket ban on migrant workers, but only required permission from the Minister of Human Resources. In the view of the Employer members, Article 4 did not deal with the question, which moreover appeared to be a sovereign right consistent with the term used in Article 4 “measures appropriate to national conditions”. The Government had stated that it planned to amend the national legislation in this regard, and the Employer members welcomed that initiative. The third issue concerned management rights, including promotion, transfer, employment, termination, dismissal and reinstatement. In the past, there had been discussions in the Conference Committee on the matters that could be subject to collective bargaining. Determining matters that could be the subject of collective bargaining should be the right of a member State. The Convention did not enumerate matters that were not subject to collective bargaining. Any such detail should be part of a non-binding recommendation, not a Convention. Detailing matters in that way contradicted the voluntary character of collective bargaining and was not appropriate for an observation. While noting the Government’s intention to change the law, the Employer members considered that the existing provision was not contrary to Article 4 of the Convention. The fourth issue concerned restrictions on the right to collective bargaining for public servants other than those engaged in the administration of the State. The Government had noted that committees existed to discuss working conditions with the State. It would however be useful to receive precise information on the bargaining that had taken place, the number of those committees and the nature and number of the collective agreements that had been concluded. Finally, regarding compulsory arbitration if collective bargaining failed, the law allowed either social partner to request such arbitration and the Minister of Labour to refer the parties to arbitration. They raised the question as to why the Committee of Experts had only taken issue with the latter. In conclusion, the Employer members did not consider that the case was about the failure of collective bargaining, but mostly about the Committee of Experts expressing detailed views on a broadly worded provision.

The Worker member of Malaysia said that, while the enactment of the IRA upon ratification of the Convention had been laudable, collective bargaining was subject to statutory restrictions which ran counter to the Convention. When workers succeeded in establishing and registering a union, they still had to go through the rigid, agonizing and costly legal process of recognition under section 9. Related to this was the competency check of trade unions by a third party, as well as the secret ballot to determine whether a union represented the majority of workers. A union’s locus standi to represent the workers could also be challenged by judicial process, which was time consuming and extremely costly for trade unions. Even if trade unions succeeded in the recognition process, they could not determine the scope of negotiable issues due to the restrictive provisions in the Act. Union security clauses were prohibited from being included in collective agreements, and the highest court in Malaysia had held that the check-off provisions contained in collective agreements were no longer enforceable against employers because they were not a trade dispute, as defined in the Act. He welcomed the Government’s assurance that section 13(3) of the IRA would be amended at the next sitting of Parliament. For over 40 years, the trade union movement had raised this issue, which prevented proposals for collective agreements to include provisions that were purported to be management prerogatives.

Malaysian workers also faced other impediments such as: (i) Industrial Court presidents and judges who refused to acknowledge international labour standards; (ii) the lengthy adjudication process; (iii) the equity and good conscience of the Industrial Court’s being subject to legal technicalities; (iv) no order of reinstatement for workers wrongfully dismissed, including trade union leaders, despite the remedy provided for in the Act; (v) compensation in lieu of reinstatement restricted to 24 months and reduced by the court; (vi) unlawfulness of pickets when disputes were referred to the Industrial Court; and (vii) no real right to strike in practice, although it was provided for by law. Although the Employment Act and the IRA granted migrant workers the right to collective bargaining, they were excluded from joining a trade union and faced threats of dismissal and deportation. There were no sanctions, penalties or measures applied to errant employers. That allowed for widespread and extensive victimization of workers, including the dismissal of union members and leaders for upholding their rights, as well as attacks on unions, such as applying to the courts to de-register unions or suing them for defamation. In a recent award, the Industrial Court had concluded that the company had violated the protection accorded to trade union leaders and members, but had not imposed a penalty. Another example was the victimization and dismissal of 27 clerical workers of a bank who had appealed against their transfer, followed by the bank’s injunction to stop the union from picketing and its application to de-register the union and, after one year, the court’s dismissal of the application, which was currently being challenged. Since 2014, relations between the social partners in the country had improved under the leadership of the Secretary-General of the Ministry of Human Resources and workers’ issues would hopefully be addressed soon for the benefit of all stakeholders. He acknowledged the Government’s decision to take a holistic review of the labour laws further to the TPPA Labour Chapter, but emphasized that the labour legislation should comply with international labour standards. Finally, he urged the Government to immediately engage with the ILO High-level Mission to address the backlog of cases, so as to clear all pending issues, and to work on the holistic review of the labour and other legislation contravening ILO Conventions. The provisions for trade union recognition should be simplified and it should be mandatory for employers to give due recognition. Government organs should give effect to ILO Conventions and employers acting contrary to the Convention and to the principles of bargaining should be penalized. He hoped that the Employer member of Malaysia would be a responsible social partner and promote meaningful collective bargaining so as to enable the Government to comply with the Convention.

The Employer member of Malaysia said that, with regard to allegations of anti-union discrimination and interference in several sectors, including dismissals and non-recognition of unions, raised by the ITUC and the MTUC, disciplinary action had been taken by employers after due inquiry arising from employment misconduct committed by employees and could not be categorized as anti-union discrimination. On the issue of recognition claims filed by unions, the fact remained that the union needed to go through the process of claiming recognition before it could be recognized by the employer. In the event that the union failed to fulfil the criteria required for recognition, the employer was given discretion to recognize the union or not to do so. Furthermore, the issues raised by the WFTU and the NUBE on two cases pending before the Industrial Court were premature and should not be entertained as the matters raised were currently pending before the Industrial Court. The claims filed in the two cases had since then been dismissed and the aggrieved parties had decided to file applications for judicial review to the High Court. Referring to the issue of the holistic review of labour laws, he confirmed that the Government had actively carried out consultations with the stakeholders to review existing labour legislation. The labour law review should be carried out after getting the views and inputs from the relevant stakeholders, which required time. He considered that labour legislation should facilitate rather than hinder the growth of businesses. With regard to the observations that the duration of proceedings for claiming recognition were still excessively long, he said that the length of time taken to handle trade union recognition depended on the complexity of each case. The recognition claim could also be subjected to judicial review up to the highest level of the judicial system, which would delay the process further. The case would still be pending until a final decision by the highest court, it would not therefore be possible for the Government to impose a fixed period of time for recognition claims to be resolved. With reference to the criteria and procedures for assessing the competency of a trade union for the purposes of recognition, he was of the view that it was appropriate to consider those in employment at the date when the claim for recognition was submitted to the company, and not a future percentage of union membership, which would be unfair. Regarding the scope of collective bargaining, the restrictions under section 13(3) of the IRA were not absolute and were not a hindrance to effective collective bargaining, as many collective agreements covered the matters set out in section 13(3), such as transfer, retrenchment and promotion. He was surprised by the position taken by the Committee of Experts on the issue of compulsory arbitration and noted that the existing system in Malaysia ensured harmonious industrial relations, considering that where both parties could not resolve the dispute it was only appropriate that the matter be subject to arbitration. Referring to collective bargaining in the public sector, he emphasized that, despite the comments made by the Committee of Experts, wages and terms and conditions in service of the public sector were generally better when compared with those in the private sector, and he believed that content was more important than form.

The Government member of Cambodia, speaking on behalf of the member States of the Association of Southeast Asian Nations (ASEAN), as well as Bahrain, Bangladesh and China, acknowledged the observations made by the Committee of Experts and welcomed the commitment and efforts of the Government of Malaysia to ensure that its labour legislation was in line with the requirements of the Convention. Further noting that the country was conducting a major holistic review of its main labour laws – the Employment Act 1955, the Trade Union Act 1959 and the Industrial Relations Act 1967, he urged the Committee to grant ample time to Malaysia to conduct such a substantial exercise.

The Government member of Qatar welcomed the Government’s efforts as part of the holistic review of its main labour laws and emphasized that the Office should provide technical assistance to support those efforts.

The Worker member of Italy considered that in Malaysia there was an unacceptable situation of discrimination and exploitation towards migrant workers. Although it was possible for a migrant worker to join an existing union, section 28(a) of the Trade Union Act required that union officers be citizens of Malaysia, thus disqualifying migrant workers from serving as union leaders. The Committee of Experts had already in the past observed that such a requirement hindered the right of trade unions to choose their representatives for collective bargaining freely, and she raised the question of what concrete action had been taken by the Government in this regard. In addition, the conditions set out by the Ministry of Home Affairs (MHA) for issuing work permits to migrant workers included an absolute prohibition on these workers from joining any sort of association. Employers had interpreted this to mean that migrant workers were forbidden to join trade unions, and the MHA had declined repeated appeals by the MTUC to take a stand on this interpretation by employers. In addition, employers had included these restrictions in the contracts of migrant workers, in contradiction with the legal guarantees of freedom of association, notably section 8 of the Employment Act of 1955, and the MHA had taken no steps to prevent this. Violation of the terms of a contract was an offence that could be punished with termination, which in turn led to the revocation of the migrant’s work permit and the initiation of deportation proceedings. Employers also held the passports of migrant workers, making them vulnerable to detention by the police immediately until their identities could be verified with their employers. This situation represented a real obstacle to the implementation of the Convention in Malaysia, since the country had the fourth largest number of migrants in East Asia and the Pacific. She therefore called on the Government to act urgently in order to ensure that discriminatory rules and practices were removed and the legislation brought into line with ILO Conventions.

The Worker member of Canada, also speaking on behalf of the Worker member of the United States, indicated that national labour law remained non-compliant in almost every aspect of the Convention. The Committee of Experts had noted non-compliance concerning compulsory arbitration, dismissal, non-recognition of unions and unfair labour practices. The right to organize and collective bargaining were regularly violated and collective bargaining was restricted in companies and the public sector. Section 13(3) of the IRA provided for unfair restrictions against the freedom to bargain collectively and should be repealed with immediate effect, as it excluded from the negotiable issues that could be discussed at the bargaining table, the promotion, transfer, dismissal and reinstatement of workers, as well as assignment of duties and termination by reason of redundancy or reorganization. While recognizing the efforts made by the Government to conduct a holistic review of its main labour laws, she acknowledged that the driver of the reform was membership of the TPPA, the 12-country free trade agreement that included Canada and the United States. Despite the characterization of the TPPA as a “gold standard” by those who promoted it, its Labour Chapter and the Malaysia consistency plan proposed by the Government of the United States offered watered-down and partial measures that invoked the spirit of ILO Conventions, rather than their full content. The TPPA could have provided an impetus and some ideas for Malaysia to pursue badly needed reforms to comply with the Convention, but meeting goals set by the TPPA would not produce compliance. She concluded by expressing concern that the existence of trade agreements such as the TPPA which referred to the 1998 Declaration on Fundamental Principles and Rights at Work, but did not require compliance with fundamental Conventions, had opened the door to countries looking to be associated with the spirit of ILO Conventions, but not with their full content.

The Worker member of Japan recalled that various violations of the Convention by the Government had been continuously examined by the Committee on Freedom of Association and the Committee of Experts since the early 1970s and late 1980s, respectively. Malaysia had achieved rapid economic growth in the past decades, and the country should now take a high road towards improving its labour and employment policies. Recalling that Japan was a signatory to the TPPA, he indicated that, in the course of a parliamentary hearing in Japan related to the Labour Chapter of the TPPA, non-recognition and anti-union discrimination in Malaysia had been considered as the most serious cases where the principles of the 1998 Declaration on Fundamental Principles and Rights at Work were not respected. He emphasized that, if the Government of Malaysia was looking for further expansion of its trade and investment into the country, it should review the main labour laws that had been barriers to adequate protection of trade union rights.

The Worker member of France referred to two archetypal cases concerning violations of the right to collective bargaining. The first concerned the Hong Leong Bank and the NUBE union. In 2013, the bank had decided to centralize part of its activities, thereby imposing forced mobility on 49 workers who were members of the union, which had made their family life difficult. The workers affected by this measure had immediately protested, expressing their disagreement by means of pickets and subsequently calling for conciliation at the ministerial level, but the management of the bank had refused to reach a compromise, and the 27 workers refusing transfer had been dismissed. The bank had then initiated legal proceedings with the Supreme Court in order to obtain an injunction against the union to stop it picketing the bank’s premises and to have the trade union removed from the register, which was contrary to Articles 1 and 2 of the Convention. The second case had been running for 26 years and involved Sabah Forest Industries (SFI) and the Sabah Timber Industry Employees Union (STIEU). Attempts to register the union in 2003 and 2010 had failed. Nonetheless, in 2010, the results of a secret ballot held following a request for recognition had revealed that 85.9 per cent of staff at SFI supported the STIEU. The need for a union presence had sadly been felt after the death of a worker in the wood and pulp factory because of inadequate safety measures. At the end of 2015, the STIEU had still not been recognized. Disputes of this sort were on the increase and affected all sectors. Time and again, the same methods cropped up: lack of consultation with the trade unions; unilateral decision-making; anti-union harassment and discrimination; recourse to the highest courts; dismissed trade unionists who were simply seeking to exercise their rights peacefully; and delays in registration, which showed how difficult it was to ensure that the principles of collective bargaining were applied in Malaysia.

An observer representing the World Federation of Trade Unions (WFTU) said that, of the 24 cases selected this year, five related to Convention No. 98, or 20.8 per cent, which gave a clear idea of the situation of freedom of association and collective bargaining in a number of countries. What was happening in Malaysia and Tunisia and in other countries reflected the attitude of governments in penalizing trade union movements, discriminating against them and preventing them from enjoying their right to collective bargaining. In Tunisia, for example, the Government refused to recognize certain trade union organizations that operated outside the unionist majority in both the public and private sectors. It was important for the ILO to impose compliance with the fundamental Conventions in order to promote social justice.

The Worker member of Indonesia regretted that the Government still did not have a concrete proposal to guarantee the right to collective bargaining of public servants so as to comply with the Convention. The Government had referred to the specific characteristics of the public administration to justify the exclusion of public servants from collective bargaining. However, it was precisely the absence of the right to collective bargaining in a country that had ratified the Convention which rendered “peculiar” the situation of public servants in Malaysia. He requested the Government to respect the commitments made when ratifying the Convention and to give effect to the recommendations of the supervisory bodies of the ILO. Being part of an organization such as the ILO and pledging to abide by its rules was an act of responsibility, significance and commitment. He called on the Government of Malaysia to live up to the values and honour the commitments it had freely chosen to assume.

The Government member of India thanked the Government of Malaysia for the comprehensive reply that it had provided on all matters, including the allegations made by the ITUC and the MTUC. He recognized that three out of eight MTUC complaints had already been settled and the detailed updates on the remaining cases were expected. The IRA and the Trade Unions Act were being amended in the context of a holistic review of labour laws. Under the Labour Consistency Plan, the Government had agreed to: repeal section 13(3) of the IRA, which contained restrictions on collective bargaining with regard to transfer, dismissal and reinstatement; eventually allow migrant workers to run for election to trade union office; and address the issues of compulsory arbitration and the scope of collective bargaining. The Government had requested ILO assistance to ensure that these legislative amendments were in line with Conventions Nos 87 and 98, thereby demonstrating its commitment to international labour standards. India supported Malaysia in its efforts to reform labour legislation and requested the Committee to fully take into account the detailed information provided by the Government and its continued commitment to strengthening the compliance of its labour laws with the Convention.

The Government member of Bangladesh considered that the Committee should recognize the significant progress made by the Government in addressing the outstanding issues. He welcomed the Government’s legislative initiatives, in particular those aimed at amending the laws dealing with industrial relations and trade union activities, and encouraged the ILO to provide technical assistance to Malaysia in this regard.

The Government representative emphasized that, where trade unions and employers’ organizations existed at the national level, as was the case in the plantation, banking and insurance sectors, collective bargaining took place. The allegation that workers were not free to establish trade unions was not substantiated. He emphasized that the presidents of the Industrial Court were free from any external influence or pressure when making awards, and that there were therefore no privileges given to union leaders when the cases were adjudicated. With respect to the cases involving the dismissal of employees of the Hong Leong Bank, he explained that in 2013 the bank had decided to centralize its credit processing standards located across the country into three main regions in Peninsular Malaysia and that 27 employees who had refused to comply with the transfer order were dismissed following due inquiry. He said that the bank’s prerogative to transfer employees was part of the letter of appointment, as well as the collective agreement, and it was therefore issue of misconduct by employees and not an act of union victimization. In conclusion, he referred to the following benefits enjoyed by public sector employees achieved through negotiations between trade unions and management: security tenure, guaranteed annual increment, pension schemes, lump sum gratuity upon retirement, free health care, government quarters, fully paid maternity leave, low interest rate for certain loans, higher minimum wage compared to the private sector, annual leave of 35 days and other cash payments.

The Employer members recalled that this case had last been examined by the Committee in 1999. Nothing had changed since then and there was nothing to supervise, and thus discuss, until the holistic legislative reform announced by the Government was completed. Indeed, the Committee of Experts had duly noted the information provided by the Government to the effect that in the last two years no cases had been reported of employers opposing the directives of the authorities granting trade union recognition, except in cases where the employer had obtained a stay from court due to judicial review, or regarding employers refusing to comply with Industrial Court orders to reinstate unlawfully dismissed workers. They requested the Government to provide detailed information on the collective bargaining rights of public servants not engaged in the administration of the State and on the outcome of the holistic legislative review, once it had been completed.

The Worker members, while welcoming the Government’s commitment to provide details on the ongoing legislative review, considered that the challenges concerning the exercise of collective bargaining rights in Malaysia were enormous and a cause of concern. The Worker members, in response to the Employer members, noted that in order to assess compliance of the laws and practices in Malaysia with the principles of Article 4 of the Convention, it was unavoidable to look at the specifics and the details of those laws and practices, as the Committee of Experts had done in accordance with its mandate. They expressed the view that it was precisely those details of the laws and their implementation that hindered compliance with those principles and the promotion of collective bargaining in Malaysia. They believed that the Government had not taken adequate measures to encourage and promote voluntary negotiations between workers and employers to regulate terms and conditions of employment by means of collective bargaining. The percentage of workers in Malaysia covered by collective agreements was extremely low. Despite a unionization rate of almost 10 per cent, only 1–2 per cent of workers were covered by collective agreements. The right to collective bargaining was an essential element of freedom of association, as it was key to the representation of collective interests. Collective representation was only meaningful if workers could negotiate and improve their conditions. The Worker members urged the Government to bring its law and practice into line with the Convention, in consultation with the social partners. A conducive framework for collective bargaining required an efficient process for the recognition of trade unions for collective bargaining purposes. It was crucial to simplify and speed up the procedure for claims submitted by the unions to the Industrial Relations Department seeking recognition. This was necessary in order to ensure that the recognition of representative unions by employers was mandatory. It was also important to discourage employers from abusing lengthy recognition procedures as a means of protracting negotiations. The Worker members hoped that the criteria for determining the representativity of trade unions for collective bargaining would be reformed so as to ensure a genuinely democratic process. A trade union which could obtain the support of the majority of workers who cast a vote should be entitled to bargain on behalf of those workers. The holistic review of labour laws that was currently being undertaken should also include the repeal of sections 13(3) and 26(2) of the IRA which, respectively, limited the scope of collective bargaining and allowed compulsory arbitration without the agreement of the bargaining partners. Furthermore, section 27(a) of the Trade Unions Act should be amended to allow workers in the public sector to unionize and engage in collective bargaining. The number of workers, and trade union officials who had suffered from anti-union discrimination and the lack of remedies against such acts were shocking and unacceptable. The Government should immediately take legal and practical measures to ensure that remedies and penalties against acts of anti-union discrimination were effectively enforced and all outstanding legal cases be settled. The Worker members emphasized that there were over 2 million migrant workers in Malaysia. This number would rise dramatically, as the Government had just signed a Memorandum of Understanding with Bangladesh to bring 1.5 million workers into the country within the next three years. In practice, migrant workers were currently excluded from collective bargaining as the employment contracts of migrant workers had typically a duration of two years, the Worker members remained concerned that, even after reforms had been undertaken, most migrant workers would be excluded from the right to be elected as union officials. The Government should therefore explicitly grant migrant workers the full right to join unions and to engage in collective bargaining and ensure that all of its institutions respected and enforced this right, particularly the Industrial Court. The Worker members hoped that the Government would take guidance from the discussion in the Committee. They called for a direct contacts mission to visit the country and requested the Government to avail itself of ILO technical assistance.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with interest the Government’s indication that it is undertaking a holistic review of its key labour legislation – the Employment Act 1955, the Trade Unions Act 1959 and the Industrial Relations Act 1967 (IRA).

Taking into account the discussion of the case, the Committee requested the Government to:

• - Provide further detailed information regarding the announced repeal of section 13(3) of the IRA on the limitations with respect to the scope of collective bargaining.
• - Report in detail on the holistic review of the national labour legislation described above to the next meeting of the Committee of Experts in November 2016.
• - Ensure that public sector workers not engaged in the administration of the State may enjoy their right to collective bargaining;
• - Provide detailed information on the scope of bargaining in the public sector.
• - Review section 9 of the IRA in order to guarantee that the criteria and procedure for union recognition are brought in line with the Convention.
• - Undertake legal and practical measures to ensure that remedies and penalties against acts of anti-union discrimination are effectively enforced.
• - Ensure that migrant workers are able to engage in collective bargaining in practice.

The Committee calls upon the Government of Malaysia to avail itself of ILO technical assistance with a view to implementing these recommendations and ensuring that its law and practice are in compliance with Convention No. 98.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative broke down the Committee's concerns regarding the Government of Malaysia's implementation of Convention No. 98 into three issues. First, section 15 of the Industrial Relations Act of 1967 relating to collective agreements for companies granted "pioneer status". Second, section 13 of the same Act concerning restrictions with regard to certain matters on collective bargaining. Third, the right of government employees to bargain collectively under section 15 of the same Act.

Regarding the first issue, the Government informed the Committee that the provision in question was in the process of being repealed. However, as the repeal process formed part of a general amendment to the Industrial Relations Act, the amendment to this section had inadvertently been delayed in order to accommodate amendments to various other provisions which were being incorporated. The Government was fully aware that the relevant provision had outlived its purpose and had taken appropriate measures to repeal it in the near future. The Government also undertook to forward a copy of this legislation to the Office as soon as it was enacted by Parliament.

In respect of the second issue, the Government took note of the Committee's comments that employment, promotion and termination should be matters for management's decision-making and form part of management's freedom to run the enterprise. The Government also took note of the Committee's view that transfer, dismissal and reinstatement should not be excluded from the scope of collective bargaining. In this regard, the Government reiterated its position that these three matters should not be predetermined in a collective agreement. In its view, if such issues were predetermined in a collective agreement, this would ultimately affect the rights of management to manage its business efficiently. However, while these issues were excluded from collective bargaining this did not grant unfettered rights to employers in this respect, as shown by the numerous relevant decisions issued by the Malaysian courts. Despite this restriction, issues related to those matters had been the subject of frequent negotiations, consultations and agreements between unions and management whenever the need arose, as the Malaysian labour laws did not prohibit such negotiations.

With reference to the third issue of the restriction of public services from collective bargaining, the Government reiterated that the Congress of Unions of Employees in the Public and Civil Services (CUEPACS) and the Public Services Department (PSD) had met on a regular basis through various joint councils. In their discussions, they deliberated and negotiated remuneration packages, terms and conditions of employment and the resolutions of anomalies. While macro-level issues such as salaries, pension increases and general allowances were raised through CUEPACS, which was the central body of the public services union, other issues, specific to certain services or agencies, were taken up by the individual trade unions with the agencies concerned, either through the departmental joint councils or directly with the PSD. Presently, there were about 300 trade unions in the public service representing employees from various services, categories and agencies. Once negotiations were concluded, circulars were issued to the relevant agencies for implementation of the agreements.

Due to the differing objectives between the public sector and the private sector, and the Government being a single employer of more than 850,000 employees, it was not possible to have collective bargaining and collective agreements with each of the trade unions. The Government had to take into account equity and uniformity of salaries and terms of conditions of employment for all its employees. At the same time, the Government had to bear in mind the economic situation, the financial possibilities and the services needed to be provided to all its citizens in determining remuneration and other benefits for its own employees. In Malaysia, the mechanisms for consultation and negotiation for government employees were not limited to CUEPACS and the PSD or the individual unions of the various agencies. Rather, unions had access to the highest authority, the Prime Minister. To date, the mechanisms available had provided sufficient avenues for discussions and negotiations on salaries and terms and conditions of employment for public employees and had been successful in ensuring the protection and enhancement of the interests and the welfare of public sector employees. As an example, in early 1997, five trade unions representing employees from five government agencies submitted proposals and claims for salary adjustments to the Government. Unfortunately, due to the economic decline which began in mid-1997, discussions on the proposals were temporarily set aside. However, serious discussions resumed six months ago between these five unions and the Government. Only a few days ago, the Prime Minister announced the Government's approval for, among other things, salary adjustments for the five agencies, which would benefit nearly 11,000 employees, especially those in the lower income groups. Prior to this, a new circular had also been issued, which provided a certain group of employees with a special duty allowance. CUEPACS had played an important role in assisting the five unions throughout these negotiations.

It had always been the policy of the Malaysian Government to ensure that equity prevailed among all citizens, especially on social and economic levels. Enhancement of quality of life of the people could only be realized through economic development. It was therefore essential that the laws, policies and practices provide a balance between worker protection and enterprise development to ensure stability, harmony and a conducive climate for development. She indicated that the Workers' delegate from Malaysia representing CUEPACS would be in a position to affirm the Government representative's statement.

The Employer members stated that this case had been examined previously in 1994 at the Conference Committee. The case was related to collective bargaining issues, particularly with regard to Article 4 of the Convention, which were of a more promotional character. In this respect, three questions had been raised by the Committee of Experts in its report. The first question concerned section 15 of the Industrial Relations Act (IRA) which had limited the scope of collective agreements for companies granted "pioneer status". The Employer members stated that the Government representative had already promised in 1994 that this provision of the Industrial Relations Act would be amended. However, there had been some delay in the legislative process, with the result that the Bill had only been submitted to Parliament for examination recently. In this regard, the Employer members thought that the Government should provide some information as to the content of the Bill already at this stage of the legislative process. Another issue concerned section 13(3)(c) of the IRA with regard to matters known as internal management prerogatives, such as promotion, transfer, employment, termination, dismissal and reinstatement. The Employer members recalled that there was agreement as to the State's right to determine matters which could not be subject to collective bargaining, since such matters would ultimately affect the rights of management to manage. Indeed, the Convention had not enumerated matters which were not subject to collective bargaining. Such detailed provisions would constitute a contradiction to the voluntary character of collective bargaining. The Employer members thought that provisions in this respect could only be accepted in a recommendation which was legally non-binding. In this respect, they mentioned that the recognition of internal management prerogatives would consequently lead to a recognition regarding a possible limitation of the right to strike. However, the Committee of Experts had never considered such limitations. In relation to certain restrictions on the right to bargain collectively for public servants other than those engaged in the administration of the State (section 52 of the IRA), the Employer members noted the indication of the Government representative to the effect that there existed committees which had participated on matters related to labour conditions, such as the determination of wages. In conclusion, the Government should be requested to provide precise information as to the collective bargaining which had taken place, the number of such co-determination committees as well as the number of agreements which had been concluded in this respect. This detailed information should be provided in written form as well as information concerning the amendment of section 15 of the IRA currently under consideration.

The Worker members considered this to be a serious case. Despite an ILO mission in 1993 and the Committee's discussion of this case in 1994, the situation remained unchanged. Despite the fact that the Government had had five years to fulfil its promise to repeal legislation limiting the scope of collective agreements for companies granted "pioneer status", the Committee was still empty-handed. Malaysia also had serious problems in regard to the application of Convention No. 87. While the Worker members recognized that the Committee was not now discussing Convention No. 87, they nevertheless drew its attention to the well-known overlap between Conventions Nos. 87 and 98. There was no point in giving workers the right to organize if they could not collectively bargain and no point in giving the right to bargain collectively if they did not have the right to organize. With regard to the three points raised by the Committee, the Worker members expressed their disappointment at the Government representative's statements. In 1994, the Government had indicated that it was taking action to amend section 15 of the Industrial Relations Act (IRA). The Worker members asked the Government to explain what had caused this amendment to remain at a standstill for the past five years. The Government representative was also asked to indicate the status of the proposed amendment and to indicate whether the Government intended to take steps to speed up this process. Disagreeing with the statement of the Employer members that issues such as promotion, employment and termination were matters for exclusive management decision-making, the Worker members stressed that the Committee of Experts had in fact stated that these issues could eventually be considered as internal management prerogatives. The Worker members emphasized that the other issues, namely transfer, dismissal and reinstatement should not be excluded from the scope of collective bargaining according to the Committee of Experts. The Worker members agreed that the legislation could be put in more general terms but noted that, if the Government intended to legislate specifically on this point, it should follow the Committee of Experts' recommendations on this point. He therefore requested the Government to indicate its intention in this regard. The Worker members noted the statement of the Government representative that, in practice, Malaysian employers did not have unfettered rights in regard to restricting collective bargaining. While this was reassuring, it was not relevant to the point made by the Committee of Experts. Simply put, the national legislation was not in conformity with the Convention and therefore must be amended. In relation to the Committee's comments on certain restrictions placed on the right to bargain collectively for public servants other than those engaged in the administration of the State, the Worker members noted the Government representative's statement that the National Joint Councils provided a sufficient avenue for collective bargaining. While the Worker members conceded that no complaints regarding this process had been received from the trade union side, they pointed out the distinction between law and practice and urged that the law be brought into conformity with the Convention. The Government representative was asked to respond to this point. Finally, the Worker members noted that the Government could not cite economic development constraints as an excuse not to conform its legislation with the Convention, which is a fundamental human rights Convention of the ILO without flexibility clauses, and urged the Government to take rapid action in this regard.

The Worker member of Malaysia wished to address the issue of the restrictions on collective bargaining in the public services in Malaysia referred to in paragraph 3 of the report of the Committee of Experts. As the Government had indicated in its report to the Committee of Experts, the Congress of Unions of Employees in the Public and Civil Services (CUEPACS), the officers of the National Joint Councils (NJC) and the Public Service Department (PSD) met on a regular basis to discuss issues affecting employees in the public service. Through these discussions, public sector unions did contribute to the deliberations on remuneration, terms and conditions of employment and the resolution of any problems related thereto. The Government had emphasized and guaranteed that the NJC provided a sufficient avenue for discussions and negotiations on salaries as well as terms and conditions of employment of public servants and that CUEPACS, as the national centre for public servants, played an important and responsible role in protecting the interests of public servants, including wage negotiations. With reference thereto, he stated that while he hoped that a system of collective bargaining could be implemented in the near future, the system of discussions and negotiations previously described would continue to remain applicable and was accepted by CUEPACS. CUEPACS and the Government of Malaysia agreed, in principle, based on the economic situation and improvements therein, that the salary scales would be revised every five years. The last revision for public servants in Malaysia was effective as of 1 January 1992 and was approved by the Government after meetings and discussions with CUEPACS. At the request of CUEPACS, certain adjustments thereto were made in 1995. Negotiations involving CUEPACS for a renewed revision of the salary scales would be initiated in a few months' time, following an agreement with the First Finance Minister of Malaysia on 18 March 1999. This system could be considered as forming part of a collective bargaining mechanism. CUEPACS, which represented some 800,000 civil servants in Malaysia, looked forward to further improvements in the negotiation system for public servants in Malaysia. During the General National Joint Council meeting on 24 April 1999, the Government had agreed in principle to set up an arbitration court for public servants to handle the system of services and other matters arising in public service.

The Employer member of Malaysia wished to address the so-called management prerogative referred to in paragraph 2 of the report by the Committee of Experts. He was pleased to note that the Committee of Experts had accepted that employers did have the freedom to manage and that this freedom also involved certain rights of management. He emphasized that this freedom to manage resulted in the creation of employment and jobs. In order to encourage and enhance such contribution from the employers, certain rights to manage must be retained by the employers and be outside the scope of collective agreement. Some of these rights had, in the case of Malaysia, been incorporated in section 13 of the Industrial Relations Act (IRA). These rights should be retained and the speaker's organization (Malaysian Employers Federation (MEF)) did not encourage the Government to make any amendments thereto. The IRA had functioned satisfactorily for more than 20 years, and in view of the tripartite environment in which it operated, there was no need to change the present situation. In any event, he noted, the employers' management rights could not be arbitrarily exercised. A significant case law emanating from the Industrial Court had fettered the exercise of these rights, and any complaints related to such exercise could be addressed to the Industrial Court. Furthermore, and to the extent that general dissatisfaction exists as regards these rights or the exercise thereof, such issues could be brought up by any party in the National Labour Advisory Council in Malaysia, a tripartite entity set up to discuss labour issues.

The Worker member of Pakistan noted that the Government had not fulfilled its 1994 undertaking to amend section 15 of the Industrial Relations Act. He urged the Government to expedite this process, as well as to amend sections 13(3) and 52 of the Act, in accordance with the recommendations of the Committee of Experts. He took note of the comments made by the Employer and Worker members of Malaysia in which they indicated their desire to improve the present system in the country. He requested the Government to provide the information requested by the Committee of Experts on the manner in which collective bargaining was encouraged and promoted in practice between public employers and public servants other than those engaged in the service of the State. While noting the Government's information that Malaysian legislation had been interpreted by the courts, he pointed out that individual workers were not always able to litigate their complaints. He reminded the Government that it remained under an obligation to bring its national legislation into conformity with the Convention and expressed the firm hope that it would do so in the near future.

Another Government representative of Malaysia thanked all the speakers for their comments. He recalled that it had always been the policy of the Government to review all labour laws to keep them in line with economic developments. He reiterated that there had been no delay to amend section 15 but explained that since 1994, other legal provisions had been amended and that it had been requested that all these amendments be presented together, which of course caused a delay. He also pointed out that the process of amending legislation included consultation with the social partners. He then explained that the 1997 economic downturn had changed certain priorities and that it had been necessary to protect workers' interests. Finally, he assured the Committee that his Government would submit the necessary legislative amendments as soon as they had been adopted by the Government.

The Worker member of Greece considered unacceptable the Government representative's excuse that, despite every effort having been undertaken by the Government to amend its legislation, difficulties remained in adopting new legislation, and that after five years no changes had been recorded, particularly since Malaysia was an economically developed country and had not suffered unduly from the Asian crisis.

The Worker members expressed their disappointment with the response of the Government. The Government had only responded to the first point and that response was the same answer given by the Government in 1992 and 1994. The Worker members urged the Committee to signal a sense of urgency to the Government so that it would expedite the amendment process. The Worker members pointed out that it would be disastrous for the ILO supervisory system if points repeatedly discussed were never acted upon. The Government should be required to respond to the issue raised by the Committee of Experts regarding the legislation regulating internal management prerogatives. Finally, the Government's response that the consultation system with regard to collective bargaining for civil servants was functioning adequately was insufficient.

The Employer members recalled their views expressed in the first intervention. The Conference Committee could not request the Government to eliminate restrictions imposed by section 13(3)(c) of the IRA relating to matters known as internal management prerogatives. Provisions were not necessarily required for matters which would be excluded from collective bargaining. This issue had to be regulated in consultation with the social partners. However, the method to determine matters for collective bargaining could differ from country to country. The Government therefore should only be requested to provide additional information on the subject. Moreover, there was agreement as to the necessity to amend section 15 of the IRA.

The Committee took note of the statements made by the Government representatives and of the discussion which took place thereafter. The Committee acknowledged the willingness of the Government to repeal section 15 of the Industrial Relations Act (IRA), 1967, which limited the scope of collective agreements for companies granted "pioneer status", but recalled that according to the Committee of Experts these "positive measures" had been announced by the Government since 1994. Similarly to the Committee of Experts, the Committee urged the Government to repeal section 15 and to amend section 13(3) of the IRA at an early date so as to ensure that workers' organizations and employers were encouraged to negotiate freely the terms and conditions of employment of the workers in accordance with Article 4 of the Convention. In addition, the Committee asked the Government to provide more information on how collective bargaining was encouraged and promoted in practice between public employers and organizations of employees in the public and civil services. The Committee trusted that the Government would supply a detailed report on concrete measures actually taken to comply with the requirements of the Convention on all the questions raised by the Committee of Experts.

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

A Government representative stated that the Committee of Experts raised three main issues in its observation this year. He would confine his comments to these three issues, which related to (1) the scope of collective agreements for companies granted "pioneer enterprises" status; (2) internal management prerogatives; and (3) collective bargaining in the public service. Concerning the first issue, the Cabinet had approved the proposed repeal of section 15 of the Industrial Relations Act which limited the scope of collective agreements for so-called "pioneer enterprises", and appropriate action was currently being taken to repeal this Act. The repealing legislation would be transmitted to the ILO as soon as it was passed by Parliament. Regarding the issue of internal management prerogatives, the speaker pointed out that section 13 of the Industrial Relations Act did not confer any advantages on the employers nor did it cause any disadvantages to workers, as the matters covered by that provision were subject to negotiation, conciliation, arbitration and judicial decisions. These matters could be raised at any time as and when necessary as opposed to other matters covered by collective agreements that were negotiated at specific intervals. Finally, regarding the third issue, section 52 of the Industrial Relations Act referred to collective bargaining in the public service. Public sector employees, through their unions, had been holding regular consultations in respect of some aspects of their terms and conditions of employment, including remuneration. The Congress of Unions of Employees in the Public and Civil Services, the offices of the National Joint Councils and the Public Services Department met every month to discuss issues affecting employees in the public services. Through these discussions, the parties were working towards resolving problems by consensus. The National Labour Advisory Council, a tripartite advisory body, at its meeting in April 1994 had taken note of the need for adaptability to changes in the country's economy and the changing social requirements within the framework of an ongoing process. His Government had taken, and continued to take, positive measures to give effect to the Convention.

The Employers' members thanked the Government representative for his explanations, recalling that most of the questions raised by this case were already discussed by the Committee in 1992 and that a direct contacts mission was undertaken in Malaysia in 1993. The observation of the Committee of Experts dealt with three points. Concerning the limits to collective bargaining in so-called "pioneer enterprises", the Government representative confirmed that they would soon be lifted. He would communicate information on when the law would be modified. The exclusion from collective bargaining of issues relating to the power of management had been much discussed in the past by this Committee. The Government had indicated that even these issues could be negotiated and that there existed regulatory procedures for these types of conflicts. The question of the existence of a proper power of management had nevertheless been raised, and the Employers believed that, in certain areas, the final decision was theirs and could not be shared. But there was no need to attempt to exclude these areas from collective bargaining by law. Concerning restrictions to the right of collective bargaining in the public administration, the Government stated that they were in part compensated by the fact that joint councils of Government and worker representatives met several times per year. It was important to recall that it was voluntary collective bargaining that the Convention was asking for, through the appropriate measures given national conditions. Dialogue must be interpreted as a first step in this sense and it should lead to greater progress. Generally, the Government must be encouraged to progress by the proper avenues and report on all changes that take place.

The Workers' members thanked the Government representative for his explanations before this Committee. The points raised by the Committee of Experts were now sufficiently well known by this Committee so that there was no need to go into detail. It was nevertheless useful to recall that in 1992, this Committee had criticized legislation which allowed unacceptable interference in collective bargaining. The Committee of Experts pointed out this year that the Government was seriously envisaging the repeal of section 15 of the Industrial Relations Act, and the Government representative also indicated that decisions to this end had been taken. It was to be hoped that this was the first sign of a more positive attitude from the Government with regard to standards. It was regrettable that no progress had been made concerning two other issues. The Government representative, who invoked the need to take account of the requirements of economic development, was requested to refer to paragraph 21 of the General Report of the Committee of Experts which underlined that the respect of standards of fundamental human rights must be observed regardless of economic circumstances or fluctuations. This Committee should associate itself with the request of the Committee of Experts for further information. It was appropriate to insist that the Government inform the Office of the measures that it envisaged taking in order to protect workers against acts of interference and discrimination.

The Employers' member of Malaysia asserted that the exclusion by section 13(3) of the Industrial Relations Act of matters relating to an employee's promotion, transfer, termination, dismissal or allocation of duties (management prerogatives) was not in contravention of the Convention. He underlined that section 13(3) did not grant unfettered rights to employers, as demonstrated by numerous decisions of Malaysian courts on this matter. For example, an employer could refuse to promote an employee only for proper cause and any trade union was free under the law to raise questions as to what was or was not proper cause. Moreover, the employers' prerogative of transfer was not unlimited and the courts had ruled that there should be no unreasonableness or want of bona fide on the part of the employer. Termination by way of retrenchment could not be carried out arbitrarily and the "last in, first out" principle had to be applied. Unjust dismissal could entitle the worker to reinstatement. All the above proved that employers were not free to exercise their prerogatives in an unlimited fashion. Therefore, section 13(3) did not impose any limitations and therefore was in line with the Convention. He took exception to the Experts' view that section 13(3) constituted "limitations" to the Convention. He welcomed the Experts' view on the very same issue in paragraph 250 of their 1994 General Survey on freedom of association for holding "tripartite discussions, for the preparation on a voluntary basis of guidelines for collective bargaining", instead of doing away with section 13(3). Moreover, nothing in Convention No. 98 provided for an unfettered right for unions to bargain for their members. To provide that matters such as promotion or transfer or allocation of duties should be covered by a collective agreement would amount to asserting that it was not the management which was responsible for managing the enterprise, which would indeed be contrary to commonly accepted practice worldwide.

The Government member of Indonesia considered that the Government of Malaysia had taken significant steps and achieved progress in this case. First, the Malaysian Government had approved the proposed repeal of section 15 of the Industrial Relations Act which limited the scope of collective agreements for so-called "pioneer enterprises". Moreover, there had been periodical meetings of the tripartite partners in the public sector. It was only a matter of time before the role of the Congress of Unions of Employees in the Public Sector would progress significantly.

The Workers' member from Pakistan wished to draw the attention of the Government representative to the observation of the Committee of Experts in paragraph 2 relating to section 13, subsection 3, which limited the right of collective bargaining on questions of promotion, transfer, employment, termination, dismissal and reinstatement. He disagreed with what the Government representative had asserted, that these questions were not subject to collective bargaining and were instead dealt with by judicial decisions. He disagreed because in his view Article 1 of Convention No. 98 required that workers should enjoy protection against anti-union activities. With respect to collective bargaining rights of public servants not engaged in the administration of the State, the speaker said that the Convention expressly required they had the right to negotiate and the right to collective bargaining. He recalled that the Committee of Experts had emphasized in its General Survey that it was essential that these workers take full part in collective bargaining and should have access to all financial, budgetary and other data enabling them to assess the situation. It did not suffice to say like the Government representative did that there was always consensus in general on these questions. One had to provide for collective bargaining to resolve cases of differences between workers and employers that might eventually arise. He urged the Government to review its legislation in the light of the observation made by the Committee of Experts, and particularly to amend section 15 of the Industrial Relations Act.

The Workers' member from Japan noted the positive tone of the statement made by the Government representative but felt uneasy given the support given by the Employers' member from Malaysia and the Government member of Indonesia, a country which had a very similar outlook regarding the observation of the Committee of Experts. He joined the Workers' members in expressing the hope that real and concrete progress would be made and that the Committee of Experts would then be able to further examine the case.

The Government representative reiterated that positive steps were being taken to bring changes to Malaysian legislation. In so far as the repeal of section 15 of the Industrial Relations Act was concerned, this would be discussed by Parliament in December 1994. Regarding the other two provisions, the National Labour Advisory Council was considering the matter and it was hoped that this Committee would come up with a suggestion as to how the law was to be reviewed in the not so distant future.

The speaker added that although all developing countries considered investment and development needs to be high priority issues, this did not mean sacrificing the interests of labour. Labour played a very important role in the Government's efforts to meet development and investment targets and would continue to do so under the guidance of responsible union leaders. Three major trade union centrals in the country were participating in the National Labour Advisory Council and it was hoped that, through these tripartite discussions with the employers, concrete progress would be made in the near future.

The Workers' members noted that the Government representative was trying to demonstrate that section 13(3) did not raise any problems in practice. If that was the case, it was up to the Government to prove it by furnishing the information requested by the Committee of Experts.

The Committee took note of the statement made by the Government representative and the discussion which followed. The Committee emphasized the fact that, for several years, the Committee of Experts had been making comments on restrictions on the scope of collective bargaining which resulted from the law and restrictions on the rights of employees in the public service to bargain collectively. The Committee, like the Committee of Experts, noted the explanations provided by the Government according to which the provisions referring to collective bargaining in pioneer enterprises were being repealed. It also noted that, in the private sector, matters excluded under the law from collective bargaining were in practice the subject of negotiation. It finally noted that, in the public service, joint committees examined the problems of application of the remuneration machinery recently set up. The Committee expressed the firm hope that restrictions on the scope of collective bargaining contained in the law would be repealed in the near future in order to bring the law into conformity with practice in the private sector, and that the Government would make every effort to encourage and promote voluntary negotiation of working conditions and remuneration of employees in the public service covered by the Convention. The Committee requested the Government to submit a detailed report to the Committee of Experts to allow it to assess to what extent real progress had been made in law and in practice in these areas.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

A Government representative noted section 13(3) of the Industrial Relations Act and its non-conformity with Article 4 of the Convention and that more detailed clarification of the explanations supplied to the Committee of Experts was necessary. Under section l3(3) of the Industrial Relations Act, 1967, the following matters, which the Government representative referred to as management functions, were excluded as subjects for collective bargaining: promotion; transfer; employment; terminations; dismissal and reinstatement; and assignment or allocation of duties or specific tasks to a worker. However, such matters could be raised by trade unions in discussions with an employer or employers' organisations, within or outside the course of collective bargaining, if these matters affected the individual worker. In his view, the trade union was therefore free to fully utilise its collective bargaining machinery to settle issues relating to terms and conditions of employment. The six matters excluded from collective bargaining had been the subject of negotiation, conciliation and arbitration, as well as decisions of the Industrial Court, High Court and Supreme Court, and amounted to 54.2 per cent of all disputes dealt with by the Department of Industrial Relations during the past five years. He considered that these six areas were internal management functions or prerogatives, and that the provision in question was merely a restatement of the rights of employers under contract law. These prerogatives were subject to limitations; for example, transfers could not be made mala fide, as a means of victimisation, as an unfair labour practice or for any other ulterior motive. He emphasised that the Industrial Relations Act provided sufficient protection for workers' rights. In his view, section 13(3) concerned matters leading to individual disputes, but had little relation to collective agreements. A further restriction on the exercise of the employers' rights was provided in section 5(2), which provided that such rights could only be exercised for proper cause. As regards the position of companies granted pioneer status under section 6 of the Promotion of Investments Act, 1966, the Government representative stated that trade unions in companies granted pioneer status were not allowed to conclude collective agreements granting benefits relating to rest days, hours of work, holidays, annual leave, sick leave and payment for extra work (referred to as non-monetary items) that were more favourable than those contained under Part XII of the Employment Act, 1955, unless the provisions were approved by the Minister of Human Resources. However, such trade unions and companies could without restriction conclude collective agreements regarding such matters as wages, bonuses, allowances, compassionate leave, paternity leave, unpaid leave, study leave, trade union leave, maternity leave, retirement benefit, and other terms and conditions of employment. The Government representative emphasised that although the repeal of section 15 of the Industrial Relations Act, 1967, was currently being discussed with the employers' organisation and workers, job creation was a priority because of the present circumstances of the country, and for this reason such a repeal would not be made until the appropriate circumstances existed. The restriction on the right to bargain collectively of employees in public administration (850,000 employees), pursuant to section 52 of the Industrial Relations Act, 1969, was primarily because of the differing objectives of the public and private sectors. The public sector was service rather than profit-oriented and therefore wages paid to public sector employees were not based on the same principles that applied to the private sector. All civil servants were governed by the same General Orders, and their duties were classified as "supporting elements" so that they were among those engaged in the "administration of the State". The Government representative stated that in the public sector negotiations and discussions took place at the national level; since the late 1970S five National Joint Councils for the public service had negotiated wage increases and working conditions and had engaged in consultation on behalf of public employees. Such negotiations resulted in a significant pay increase in 1989 and the offer of a New Remuneration System in 1991. In addition, a Joint Committee was formed on 30 October 1985. The Joint Committee signed a Joint Declaration on 6 June 1986 agreeing to meet regularly for the settlement of disputes arising from claims in respect of salary and other terms and conditions of employment of public administration employees. He emphasised that this was evidence that the Government did, in practice, negotiate with its employees on such matters.

The Workers' members recalled that these questions concerning the Convention had been raised by the Committee of Experts for a long time and that they were discussed in the Conference Committee in 1981, 1983 and 1985. They noted that the report and the replies of the Government had not shown any progress since 1985. Information should be communicated by the Government to the Office so that the extent to which new developments might have taken place could be examined by the Committee of Experts. The two major problems concern firstly the contents of the legislation under discussion, and secondly the attitude of the Government towards the supervisory system and the universality of standards. As regards the content of the legislation, it essentially concerns the Government's control over collective bargaining illustrated by three divergences between the national legislation and Article 4 of the Convention as mentioned by the Committee of Experts. The Government not only restricts the scope of collective bargaining but made the legislation in such a way that the workers could not be treated on equal footing with the employers, as is shown in section 13(3) of the Industrial Relations Act. The spirit of this legislation was confirmed by the Government, namely that questions enumerated in section 13(3) such as promotions, transfers, dismissals should not be the subject of negotiations because this could lead to prolonged strife since the managers are unlikely to agree to any erosion of their rights during the process of negotiating a collective agreement. This explanation demonstrates an imbalanced attitude of the Government to collective bargaining and also its paternalistic spirit. Besides, the legislation excludes the workers of pioneering enterprises from the possibility of concluding agreements during five years on such fundamental aspects of their working conditions as working hours, paid leave, annual or sick leave, which causes a problem, especially for the enterprises in the export processing zones. The Workers' members would never accept a selective or partial application of international labour standards. The possibility provided by the Act for the Minister to validate negotiations affecting these working conditions underlined further interventionism of the State and its attitude towards the parties. As to the attitude of the Government concerning the application of standards, particularly the universality of standards, the Workers' members observed that the Committee of Experts noted the Government's opinion that "there should, not be a too legalistic or technical approach taken over the application of ratified Conventions in this era of increasing protectionism adopted by certain trading blocs and that the attempt of developing countries to develop their economies and eradicate poverty should be looked at in a positive light". The Workers' members stated that such objectives of socio-economic development were normal but should not be put in opposition with the standards and fundamental rights enshrined in the Convention. They could not accept such an attitude of the Government and referred to the resolution concerning freedom of association and freedom of collective bargaining adopted by the 1lth Asian Regional Conference, as well as to their own statement during the general discussion and to the conclusions of the Committee on Freedom of Association in the Case No. 1552 concerning Malaysia in which that Committee recalled that fundamental human rights such as those guaranteed by the Convention should be respected whatever the level of development of the country. The Workers' members urged the Government to eliminate the restrictions contained in the legislation so as to bring it into conformity with the Convention and stated that a visit on the spot by the ILO would perhaps help to overcome the difficulties. They expressed their great concern of the situation of the application of the Convention in Malaysia because the trade union movement as a whole was concerned. It concerns a conflict between long-standing values, methods and principles of the ILO on the one hand and the Government's unacceptable interpretion of the obligations arising under the Convention on the other.

The Employers' members stated that the ideal of the Convention was free collective bargaining, but that the reality in many countries was far from this ideal. In Malaysia certain aspects regarding the functions of management could not be the subject of collective bargaining, although they were not outside of all regulatory measures because an appeal was possible to a tribunal. Such aspects as wages could be negotiated collectively, while other aspects were regulated in a different manner. Such situations were common in many countries and demonstrated that there was no absolute freedom of collective bargining. In Malaysia, therefore, there was no total restriction, but important exclusions remained, and the Government should reconsider the possibility of widening the scope of collective bargaining. As regards pioneer enterprises, especially those in export processing zones, although wages could be the object of collective bargaining, restrictions remained as regards some other working conditions; these could be the subject of collective bargaining but needed to be submitted for ministerial approval (which had never been refused). Such measures are usual and widespread so as to promote a new economy in a developing country, but they were not in conformity with the provisions of the Convention. The Government representative stated that it contemplated removing this prohibition because it considered that industry in protected zones was prosperous enough to be covered by normal legislation and treated on an equal footing with other branches; legislation could thus be brought into conformity with the Convention on this point. The Government should intensify its efforts in this regard. As concerns the restrictions of right to bargain for certain employees of the public service, the Government contemplated privatisation in this field. This was a positive move which would resolve the problem because private sector employees can bargain collectively. Nevertheless, concerning the public service, there remained a gap with the objectives of the Convention. The Employers' members wished that the Government would conform with the requirements of the Convention.

An Employers' member of Malaysia considered that the provisions under section 13(3) of the Act were "measures appropriate to national conditions" and were not incompatible with Article 4 of the Convention. Somebody's right is always subject to the right of others. The right of workers to collective bargain must be viewed against certain rights of employers relating, for example, to promotion, transfer and assignment of duties. Employers are responsible for managing the enterprise, although they cannot exercise their right unfairly. There are court cases against employers acting without just cause. Section 13(3) must be seen within the context of other legislative provisions and practices in Malaysia. Could one ever bargain in an unlimited way with regard to appointment, promotion, transfer or assignment of duties? The speaker hoped that the Committee would review the conclusion of the Committee of Experts relating to section 13(3) accordingly.

A Workers' member of Japan remarked that this case had been before the Committee for many years without progress. There were three questions: (i) limitation on the scope of negotiable matters; (ii) prohibition with regard to pioneer industries; and (iii) restriction on the right to bargain collectively for employees in public services. Although such restrictions exist in many countries in Asia, the Malaysian case was a serious one. The speaker expressed concern at the attitude of the Government and the impression given by the report that the situation appeared to have deteriorated. He pointed out that the Government's intention to take measures only when political, economic and social conditions of the country warranted it, was no assurance at all and would mean that the Government had the right to interpret the Convention as it liked. He also remarked that Malaysia, which used to have relatively liberal labour legislation, had gradually tightened its grip over trade union rights, while its economy developed at a high speed. He requested the Government representative to respond to the suggestion by the Committee of Experts that technical assistance from the Office could be requested for the purpose of bringing the law and practice into conformity with the Convention.

A Workers' member of the United States strongly supported the statement made by the Workers' spokesman. Noting the Government's statement of intention to improve the situation in each of the three areas discussed, he pointed out some contradictions in the first statement that the provision would not be repealed until the political, economic and social conditions of the country warranted it, and the subsequent statement that active steps were now being taken to repeal this provision. The speaker emphasised a need for the Government to submit these new undertakings for evaluation by the Committee of Experts.

A Workers' member of Malaysia indicated the improvement in political, economic and social conditions in Malaysia, with economic growth of 8.8 per cent, and an unemployment rate of about 4.4 per cent. As regards section 13(3), unionised workers may be able to talk with employers and apply pressure regarding these matters, but non-unionised workers would be helpless when section 13(3) protects rights of employers to hire and fire. The speaker hoped, regarding pioneer enterprises, that the matter would be dealt with in the country within a tripartite discussion. As to the public sector, the speaker pointed out that there was no collective bargaining right for the public service except for the matters regarding which the public service union submitted a claim to the Government. The Government considered, the Cabinet decided and the matter was referred to the union for acceptance, which is not real collective bargaining.

A Workers' member of the Netherlands requested the Office to explain the reason why this case had not been discussed since 1985. The speaker pointed out that the Convention not only granted the right to bargain collectively but also had a definite promotional character. As regards section 13(3), noting the Government's statement that workers could negotiate if they really wanted, he wondered why the Government put in the legislation that these elements should be excluded from collective bargaining.

A Workers' member of Romania stated that the workers of his country were worried by the attitude of the Malaysian Government regarding international labour standards, in particular this Convention, because such an attitude would be against the freedom of collective bargaining and values of the Constitution of the ILO. The universality of standards, in particular of free collective bargaining between two parties on equal footing was an essential value. Coming out of a totalitarian system which always refused the universality of standards, Romanian workers did not want such ideology to continue any longer.

A Workers' member of Uganda, noting that Malaysia was economically relatively well-placed, expressed surprise and disappointment as the Government stated that the prohibition of workers' rights was intended to promote investment, stimulate growth and generate employment opportunity and that the Government considered such matters as hours of work, holidays, annual and sick leave as not fundamental. The speaker expressed a worry that, if the suppression of workers' rights could not be stopped, it would threaten the good work done by the ILO and would also threaten other countries which grant such rights, because any country, needing to promote investment and to stimulate industrial growth, might follow the example of Malaysia. The speaker, referring to the Government's intention for privatisation, stated that there was no guarantee that the Government would not protect the investor after privatisation. He disagreed with the Employers' member of Malaysia in relating the rights of workers with the rights of employers.

A Workers' member of Pakistan referred to the General Survey on Freedom of Association and Collective Bargaining and noted that, according to the Government, privatisation would open the way to bargaining. As regards section 13(3), such issues as lay-off, retrenchment and promotion should not be excluded from bargaining and he looked forward to positive legislative developments in this area.

A Workers' member of Ecuador was particularly concerned by the case of Malaysia: there was no doubt about the importance attached to the Convention by both Workers' and Employers' members. As one of the objectives of collective bargaining was to contribute and to promote progress and economic development and to eliminate poverty, he was surprised that the Government felt that the Convention should be applied on the basis of political, economic and social conditions in a country. The economic situation was also of concern in Latin American countries; if the Government's criteria was followed, the application of this Convention would be a privilege of rich countries which less-favoured countries could not realise. This would be contrary to the principle of universality of standards. The idea that collective bargaining could hinder development and contribute to increased misery was, to say the least, inappropriate. Referring to the restrictions on collective bargaining rights of public service employees, the speaker believed that the activities of the National Joint Council - which the Government felt would allow partial application of the Convention - were totally insufficient. Concerning the privatisation of various state enterprises and its impact - anticipated by the Employers' spokesman - on the right of workers to collectively bargain, the speaker considered this not to be the issue: the question was whether there existed the right to collectively bargain as provided for in the Convention. As this case had been discussed for many years, he hoped that the Government would in the future make substantial progress.

A Workers' member of Germany supported the statement of the Workers' spokesman regarding, in particular, the right of public servants to bargain collectively; in this regard the Convention laid down the minimum standard. Under the Convention each State had to guarantee the right to organise and to bargain collectively and it is indispensible that enterprise management recognise the importance of collective bargaining at the enterprise level. It should be possible to fix wages and other conditions of work through collective bargaining with management. Both workers' and employers' organisations participate in this process; the setting of conditions of work is neither a privilege for workers nor a prerogative of management, but a right which belongs to both parties. In order to promote the development of one region or a part of the country, recourse could be had to financial incentives, protective measures, or other governmental policies; such development should not be promoted by limiting collective bargaining rights. When a State ratifies this Convention it undertakes to guarantee free collective bargaining. The authorities had to guarantee collective bargaining rights even in multinational enterprises and had to resist contrary pressures from such enterprises.

Another Workers' member of Malaysia stated that, although section 13(3) forbids collective bargaining on promotions and transfers, clauses on these subjects were in actual practice signed and agreed to in collective bargaining. Many transfers and promotions have even been successfully challenged. It was a wrong impression that the law prevented workers or unions from acting in these areas.

A Government member of the Congo stated that the problem under discussion contained aspects of both principle and practice; it was the practical aspect which interested him since a similar situation existed in his country. A balance should be found between the right of different categories of workers to negotiate collectively all the aspects of their working conditions and legitimate management prerogatives. In some developing countries workers had become practically like the employers during collective bargaining; this undoubtedly explained part of the situation in Malaysia. The protection of investors could be realised by, for example, prescribing in internal regulations the role of each institution, in particular that of trade unions. The systematic prohibition by public authorities of collective bargaining should be avoided; legislation making such provision should be modified. One should find a way in which, in practice, all concerned maintain their powers.

The representative of the Secretary-General replied to the question put by a Workers' member concerning the reasons why the Office did not include this case on the list of individual cases since 1985. The Office does not draw up this list. In fact the draft list of individual cases is elaborated in the Employers' and Workers' groups, and then is examined by the Officers of the Committee who then submit this list to the Committee for approval. The Secretariat does not play any role in this process, except for readily responding to any requests for information. Besides, the Committee of Experts made observations on this case in 1987, 1989, 1991 and 1992, that is to say, every year in which this Convention had to be examined.

The Government representative explained that the question of "attitude" as raised by many Workers' members was solely based on one's perception and predetermined values. Stressing that Malaysia certainly had better track records in the area of workers' rights compared to many other countries, he stated that he would not wish to be drawn into unnecessary debate on that subject-matter.

The Government representative stated that the rights of workers should be weighed against the rights of the employers, and that the denial of the latter would only be detrimental to workers' interests by leading to such things as bankruptcies. The right of the employers to manage did not restrict the workers' right to collective bargaining. He stressed that discussions had been taking place with the social partners on the possible deletion of section 15 relating to the restrictions on collective agreements in certain new undertakings, and as such Malaysia could not accept the assertion that there had been no progress made since the last report. It was also explained that the six issues stipulated in section 13(3) were not absolute and were increasingly being negotiated. As to the question of universality, he emphasised that one has to look and diagnose the situation in a particular country by looking into the context of the situation and the level of economic development. He further stressed that everyone including those in the Committee were duty bound to help workers find employment, share their incomes and improve their standard of living. He reiterated that in the public service there was negotiation and conciliation on matters pertaining to wages and conditions of service. The Government representative stated, regarding the possibility of technical assistance by the ILO, that if the ILO considers it necessary to send a mission, the Government would be glad to receive it.

The Workers' members stated that it was indispensable for the Government to communicate shortly a report for examination by the Committee of Experts. They were surprised to see the Government representative repeat the logic of the Employers' member of Malaysia that the rights of some limit the rights of others. They did not understand, regarding the Convention concerning collective bargaining and the possibility to reach agreement, how one could speak of limiting the right to negotiate and therefore to reach agreement. It concerns the freedom to discuss. The Workers' members recalled their earlier suggestion that if the Government considers that there remained problems of interpretation, it could call for assistance or a visit on the spot by the Office.

The Committee noted with some disappointment the information given by the Government, recalling that this case has been the subject of its concern on different prior occasions. It felt bound to emphasise the seriousness of the protection and promotion of the right to bargain collectively as guaranteed under the Convention. The Committee therefore urged the Government to reconsider its position and make use of the good services of the ILO in that respect. It hoped that the Government would send a report with full particulars to the ILO to enable the Committee to find the legislation to be in complete conformity with the Convention at one of its next sessions.

Direct Request (CEACR) - adopted 2025, published 114th ILC session (2026)

Article 1 of the Convention. Adequate protection against anti-union discrimination of public servants not engaged in the administration of the State. In its previous comments, the Committee observed that section 52(1) of the Industrial Relations Act (IRA) excludes public servants from the application of Parts II to VI of the IRA, including from the provisions on the protection against anti-union discrimination. It noted however that section 52(3) of the IRA establishes the possibility to extend the application of Part VI (unfair dismissal) to such statutory services as prescribed by Ministerial Order, after consultation with the relevant statutory authorities.

The Committee notes that according to the written information provided by the Government prior to the 2025 discussions in the Committee on the Application of Standards of the International Labour Conference (the Conference Committee), consultations had confirmed that all statutory bodies already have internal mechanisms under their enabling Acts to address dismissal matters, many of which reflect the protections in Part VI of the IRA. The Government also indicated that dedicated bodies under these Acts are empowered to hear and determine industrial disputes and operate in parallel to the Industrial Court. The Committee notes that the Government also indicated that the Attorney General’s Chambers advised against extending the application of Part VI of the IRA to other statutory bodies to avoid potential juridical overlaps. The Committee notes that the Government recognizes the need for legislative alignment to ensure clarity and consistency across public sector frameworks and indicated that the issue remained under active review. The Committee requests the Government to provide information on any steps taken to ensure clarity and consistency across public sector frameworks regarding protection against anti-union discrimination of public servants not engaged in the administration of the State.In the meantime, it also requests the Government to provide information on the applicable legislation governing the different statutory bodies, as well as its application in practice.

Observation (CEACR) - adopted 2025, published 114th ILC session (2026)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 113th Session, June 2025)

The Committee notes the discussion which took place in June 2025 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by Malaysia.

The Committee notes that the Conference Committee noted with concern that gaps remained in the protection against anti-union discrimination, lengthy recognition procedures and the need to promote the full development and utilization of collective bargaining. The Committee observes that the Conference Committee urged the Government, in consultation with the social partners, to take time-bound measures to: (i) remove all the remaining legal and practical obstacles to collective bargaining and to promote its development; (ii) ensure effective protection against acts of anti-union discrimination with dissuasive sanctions, and that victims of anti-union discrimination have the right to access justice and remedy; (iii) review recognition procedures for collective bargaining, with reasonable and adequate safeguards to prevent interference, simplifying and expediting the administrative and judicial processes; and (iv) enable collective bargaining machinery for public servants who are not engaged in the administration of the State. The Conference Committee also requested the Government to: (i) accept a technical advisory mission of the ILO before the next session of the Conference; and (ii) report any progress to the Committee of Experts on the measures taken to implement the above recommendations in line with the Convention by 1 September 2025.

The Committee notes the observations made by the Malaysian Trade Union Congress (MTUC), received on 29 August 2025, and the International Trade Union Confederation (ITUC), received on 2 September 2025, as well as the Government’s response thereto, which will be examined in the present comment. The Committee also notes the observations made by the International Organisation of Employers (IOE), received on 1 September 2025, concerning the discussions that took place at the Conference Committee on the Application of Standards with respect to the application of the Convention. The Committee further notes the observations made by the IndustriALL Global Union (IndustriALL), received on 6 December 2024, and the Government’s response thereto concerning the implementation of the Committee on Freedom of Association’s recommendations in Case No. 3409 (399th Report, June 2022, para. 229). The Committee trusts that the Government will pursue any efforts to find solutions regarding the concerns raised in that case regarding five dismissed union leaders.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes the Conference Committee’s request that the Government ensure effective protection against acts of anti-union discrimination with dissuasive sanctions, and that victims of anti-union discrimination have the right to access justice and remedy. In this respect, the Committee recalls that it noted that section 8 of the Industrial Relations Act (IRA) still provides for discretionary powers of the Director-General of Industrial Relations to refer or not a complaint on anti-union discrimination to the Industrial Court, and that it requested the Government to ensure that workers who are victims of anti-union discrimination have the right to directly lodge a complaint before the courts.

The Committee notes Government’s indications that most recent anti-union discrimination cases under section 8 of the IRA (i.e. 21 of the 25 cases filed in 2023 and 2024) were resolved by the Industrial Relations Department, and four were referred to the Industrial Court. It also notes that the Government provides aggregate statistics on dismissal claims under section 20 of the IRA without distinguishing anti-union cases, maintaining that these figures reflect the system’s strong capacity to deliver expeditious and effective remedies, including in such cases. The Committee notes however with regret that the Government has once again not provided the requested information on the outcome and duration of anti-union discrimination procedures. It observes that the ITUC continues to raise concerns as regards allegedly ineffective remedies for anti-union discrimination and lengthy procedures. Moreover, it notes that the MTUC alleges that, in 2024 and 2025, the National Union of Bank Employees (NUBE) filed over 70 complaints under sections 8, 39 and 59 of the IRA, which have either not been addressed or were dismissed, and that additional complaints dating back to 2019 remain unresolved. The Committee notes that the Government firmly rejects these allegations, emphasizing that all complaints, including those submitted by NUBE, were thoroughly investigated following due process, and that the decision to dismiss most of them was not based on arbitrariness but on the absence of sufficient credible evidence. The Government adds that the Director-General’s discretion to refer cases to the Industrial Court is limited by established administrative procedures and guided by principles of merit, equity and fairness, serving to filter out complaints that are trivial or vexatious, and therefore does not deny workers access to justice. Noting that the exercise of the discretion by the Director-General has been subject to ongoing conflict over several years, the Committee recalls its previous request that victims of anti-union discrimination should have direct access to the courts. The Committee once again recalls that effective protection against acts of anti-union discrimination requires rapid and effective procedures and remedies through reinstatement and adequate compensation, as well as sufficiently dissuasive sanctions. In this respect, the Committee urges the Government to provide information on: (i) the number of cases of anti-union discrimination filed and pending under sections 8, 20, 39 and 59 of the IRA; (ii) the outcome of these proceedings, including the remedies provided (such as compensation, reinstatement and penalties imposed); and (iii) the average duration of cases dealt with by the Industrial Relations Department, the Industrial Court and other courts. It also once again urges the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination have the right to directly lodge a complaint before the courts. The Committee also recalls its recommendation to consider the reversal of the burden of proof once a prima facie case is made.

Articles 2 and 4. Trade union recognition for the purposes of collective bargaining. The Committee notes the Conference Committee’s request that the Government review recognition procedures for collective bargaining, with reasonable and adequate safeguards to prevent interference, simplifying and expediting the administrative and judicial processes.

Procedure for recognition and recognition granted in practice. The Committee recalls that it noted that, in conformity with the provisions in the IRA and the Industrial Relations Regulations, the Director-General of Industrial Relations is competent to take a decision based on the conduct of a secret ballot, including in the case of a claim concerning the recognition of a trade union in the event that an employer refuses recognition (section 9(4)(A) of the IRA).

The Committee notes the Government’s indication that between 15 September 2024 (the date of the entry into force of the legislative amendments) and 30 April 2025, 29 new applications for trade union recognition were received by the Department of Industrial Relations, of which 17 were settled. It notes however with regret that the Government has once again not provided the requested information on whether recognition was granted (or not granted) in relation to these cases. It urges the Government to provide detailed information on the application in practice of the recognition procedures (particularly as regards section 9(4)(A)), including the number of processes for trade union recognition filed and those that remain pending, and their outcome (the number of recognitions granted or not granted, specifying the reasons for these decisions).

Adequate safeguards to prevent interference. The Committee notes that several speakers in the Conference Committee raised concerns about persistent barriers to union recognition and further notes the MTUC’s allegations of employer interference (such as vote suppression, intimidation, and restricted workplace access) which, according to the union, remain unaddressed by the Government. In this regard, the Committee notes the Government’s indication that all recognition claims are addressed objectively and in compliance with the safeguards provided for in the national legislation and that, in the case of the claim of the National Union of Drink and Food Industry Workers (NUDFIW) referred to by the MTUC, the Department of Industrial Relations conducted a secret ballot under its impartial and close supervision. Recalling that the recognition processes should provide safeguards to prevent acts of employer interference, the Committee once again requests the Government to provide information on any specific measures taken to prevent or repress acts of interference during the recognition process (such as any powers entrusted to the Department of Industrial Relations or other competent authorities, to prevent and address, at their own initiative, acts of interference that may take place during the recognition process). The Committee also once again requests the Government to specify whether any claims were actually brought against employer interference during the recognition procedure under sections 4, 5, 7 and 8 of the IRA, and to provide information on their outcome.

Exclusive bargaining rights. Minority unions. The Committee recalls that it noted that the IRA and the Industrial Relations Regulations, as amended, require, for a trade union seeking recognition in the event that an employer refuses recognition, a simple majority of votes cast by not less than half of the total number of workers entitled to vote (see section 2(1)(a) and 11 of the Industrial Relations Regulations).

In this context, it notes the allegations made by the MTUC that: (1) the NUDFIW obtained a clear majority of valid votes in May 2024 but was denied recognition by the Government; (2) the Electrical Industry Employees’ Union (EIEU) received 90 per cent support among 2,700 voters but was denied recognition by the Ministry in August 2025 due to insufficient turnout among the 6,000 employees in the bargaining unit (43.35 per cent). The Committee notes that the MTUC argues that the legal requirement for 50 per cent of all employees to vote is impossible to achieve in practice. It notes that the Government affirms that the NUDFIW and the EIEU did not meet the legal threshold for recognition and that the legal requirement for union recognition (at least 50 per cent employee participation and majority support among voters) was introduced through tripartite consultations, including with the MTUC, to ensure clear and representative workforce support. The Government argues that this system improves on the previous framework, which required a majority of all eligible employees to vote in favour of the union regardless of turnout. Recalling that the Committee had already welcomed certain amendments to the previous formula, it reiterates its view that the new formula still requires broad support by the workers in a bargaining unit, which might be difficult to achieve. The Committee therefore once again requests the Government to take, in consultation with the social partners, measures to ensure that, in situations where no union is declared the exclusive bargaining agent (for example, if a recognition ballot fails or turnout is too low), all unions in the unit are able to negotiate, jointly or separately, at least on behalf of their own members.

Duration of recognition proceedings. The Committee recalls its reiterated request, in light of the recent discussions in the Conference Committee, to ensure that the duration of the recognition process is reasonable. In this regard, it recalls that it previously noted that the average duration of the recognition procedure at the Department of Industrial Relations was from four to nine months and that a decision of recognition may be appealed before the courts.

While the Committee notes the Government’s indication that 17 of the 29 recognition applications received between 15 September 2024 and 30 April 2025 were concluded in under five months, it also notes that the Government has once again not provided any information on cases that were subject to an appeal before the courts. In this context, the Committee notes that in its latest report adopted in relation to Case No. 3414, the Committee on Freedom of Association noted with regret the excessive delays in the administrative and judicial proceedings relating to a recognition claim in a company that now ceased to exist, amounting to almost 15 years since the union first claimed recognition (411th Report, June 2025, para. 64). The Committee also notes that the ITUC reiterates its concerns over lengthy recognition procedures. The Committee once again firmly expects the Government to take measures to ensure that the administrative and judicial proceedings for the recognition of trade unions for the purpose of collective bargaining are reasonable. In this respect, it once again requests the Government to provide detailed information on the duration of the recognition proceedings, under sections 9(4)(A) of the IRA, including those that were treated administratively by the Department of Industrial Relations and those that were appealed and dealt with by the courts.

Concerning potential delays as a result of certain particularities in the recognition procedure, the Committee also recalls that it noted that the Committee on Freedom of Association in Case No. 3414 (401st Report, March 2023) observed that disagreements on the meaning of the terms of section 9(1) of the IRA (which prohibits the representation of workers employed in managerial, executive, confidential and security capacities together with other workers in a bargaining unit), had entailed excessively long administrative and judicial procedures under section 9(1)(A) of the IRA on the question of whether workers were entitled to vote in the secret ballot. In this respect, the Committee noted that there are no provisions providing for any definition of the categories under section 9(1)(a), (b), (c) and (d) of the IRA but that the question of whether a particular occupation falls into any of the above-mentioned categories is a matter to be determined by the Director-General of Industrial Relations, and that a relevant decision can be appealed before the courts.

In this respect, the Committee notes that the MTUC alleges that the EIEU faced a nine-month delay in its recognition application, which was ultimately rejected after 1,200 workers were arbitrarily reclassified as “confidential employees”. The Committee notes that the Government responds that in practice, the recognition application process has shown marked improvement in both speed and transparency, that all recognition applications were handled objectively and expeditiously and that the delay in rendering the decision concerning the EIEU resulted from a mandatory inquiry under section 9(1)(c) of the IRA – involving an assessment of employment designations, job functions and access to sensitive information to determine eligibility for union representation. The Committee also notes the MTUC’s observations and the Government’s response as regards the classification of certain employees as executive or non-executive staff at a financial institution currently under review by the Department of Industrial Relations. While recalling that these categories of workers are covered by the Convention, the Committee once again stresses that the exclusion of managerial and executive staff from the vote concerning the recognition of a trade union should be limited to those persons who genuinely represent the interests of the employer to avoid any risk of interference by the employer. The determination of any categories of workers excluded from the vote should be expeditious and the possibilities for the employer to challenge the decision strictly delimited and swiftly examined so that the said determination does not become an obstacle to the exercise of the right to collective bargaining. The Committee once again requests the Government to provide specific information as regards the number and duration of complaints filed and treated under section 9(1)(A) of the IRA involving an assessmentof the managerial, executive, confidential and security capacities of workers and their outcome. It also once again requests the Government to review the legal framework governing the procedure for recognition of unions for collective bargaining purposes, including as regards the above-mentioned issues in relation to section 9(1)(A) of the IRA in the absence of a definition in law of the above-mentioned categories of workers, with a view to significantly simplifying and expediting the administrative and judicial processes. In the meantime, the Committee requests the Government to provide information on any existing guidelines or criteria followed by the Director-General of Industrial Relations in the categorization of workers under section 9(1) of the IRA.

Restrictions on collective bargaining of public servants not engaged in the administration of the State. The Committee notes that the Conference Committee requested the Government to enable collective bargaining machinery for public servants who are not engaged in the administration of the State. In this respect, the Committee recalls that it previously noted the exclusion of public sector employees from the chapter in the IRA on collective bargaining (see section 52(1), read in conjunction with Part IV of the IRA) and that the functions of the National Joint Council (NJC) are to “give opinions and discuss”, “enable employees to propose changes for consideration by the Government” and “make recommendations”, and that the functions of the Departmental Joint Council, pursuant to section 3 of Service Circular 7, are to “enable employees to express opinions” and “actively participate in discussions”.

The Committee notes the reiterated comments made by the ITUC that public servants are only consulted but not integrated in the process of collective bargaining. It also notes the Government’s reiterated assertion that the NJC is not merely a consultative forum for public service unions and the Government’s reference to elements previously considered by the Committee. It further notes the Government’s indications that efforts are under way to progressively enhance the bargaining progress and that in 2024, the standard NJC consultation process was strengthened through targeted, multi-channel engagement with a broad range of public sector unions to support the development of the new Public Service Remuneration System (SSPA). Issued via Service Circular No. 1/2024, the SSPA reportedly received a 99.9 per cent acceptance rate, which the Government views as confirmation of the NJC framework’s legitimacy and effectiveness in shaping terms of employment. While taking due note of the strengthening of the standard NJC consultation process, the Committee recalls that the categories of public sector workers covered by the Convention (including public teachers, public healthcare workers, employees of state-owned enterprises, municipal employees and those in decentralized entities) should not only be consulted but should be able to collectively negotiate their employment and working conditions. The Committee once again requests the Government to take the necessary measures, in law and in practice, to enable collective bargaining machinery for public servants not engaged in the administration of the State and recalls that the Government can avail itself of the technical assistance of the Office in this respect.

Scope of collective bargaining. In its previous comments, the Committee noted that section 13(3) of the IRA provides for restrictions on the inclusion of subject matters in collective agreements, including issues such as: transfer; termination of services due to redundancy or reorganization; dismissal and reinstatement. It also noted that the same section provides that trade unions can raise questions of a general character in relation to these matters.

The Committee notes that the Government indicates that data shows that approximately 98 per cent of registered collective agreements since the amendment have included discussions – although not binding clauses – on managerial prerogatives. The Committee requests the Government to take the necessary measures to lift the broad legislative restrictions on the scope of collective bargaining, in order to promote the right to bargain freely between the parties, without any interference by the Government.

Migrant workers. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 28(1)(a) of the Trade Union Act, which provides that a person who is not a citizen of the Federation of Malaysia may not be elected to be a member of the executive entity of a trade union, unless the Minister of Human Resources considers that this is necessary for the representation of persons or interests of persons not residing within the Federation of Malaysia.

The Committee notes the Government’s indications that in January 2025, it introduced a policy change by granting a blanket ministerial exemption to a specific union, thereby allowing non-citizens to serve as union officers within that union without the need for individual approval. In the view of the Government, although the general requirement for case-by-case approval remains in place, this measure represents a positive step towards more inclusive union leadership and greater participation of migrant workers in trade union governance. The Committee takes due note of this first step. Recalling that the requirement of prior approval of the Minister of Human Resources for foreign workers to hold trade union office may hinder the right of trade unions to freely choose their representatives for the purpose of collective bargaining, the Committee once again requests the Government to take the necessary legislative measures to ensure that foreign workers are able to run for trade union office without prior authorization.

Compulsory arbitration.Noting an absence of information in relation to any legislative developments in this respect, the Committee once again requests the Government to provide information on the measures taken or envisaged to: (i) further delimit the categories of Government services in section 26(2) of the IRA and point 8 of the First Schedule of that Act, so as to ensure that compulsory arbitration may only be imposed on those public servants engaged in the administration of the State; and (ii) remove businesses and industries mentioned in point 10 of the First Schedule of the IRA from the list of essential services so that their workers can be afforded the full guarantees of the Convention.

Collective bargaining in practice. In its previous comments, the Committee noted with concern the very low coverage of collective bargaining and observed that according to public statistics available in ILOSTAT in 2018, the collective bargaining coverage rate in Malaysia was 0.4 per cent. The Committee considered that this very low coverage could be related to the restrictive requirements in law and in practice to engage in collective bargaining as discussed in its previous comments.

The Committee notes the Government’s indication that 274 collective agreements were registered in 2023 and 240 in 2024. It further notes that, based on the documentation communicated by the Government to the Conference Committee in 2025, these agreements covered sectors such as agriculture, mining, manufacturing, utilities, construction, trade, transport, accommodation and food services, information and communication, finance and insurance, education, health and social work, with the majority concluded in manufacturing (334), financial and insurance/takaful activities (34) and transportation and storage (27). The Committee requests the Government to continue to provide updated statistical information on the number of collective agreements concluded, disaggregated by sector. It also once again requests the Government to provide information on the overall number of collective agreements in force and the workers covered, as well as the proportion of the workforce covered by these agreements.

Referring to the corresponding request made by the Conference Committee in 2025, the Committee once again requests the Government to take the necessary action to remove all the remaining legal and practical obstacles to collective bargaining addressed in this comment and to take concrete measures to promote its full development and utilization. In this respect, it once again strongly encourages the Government to continue to avail itself of the technical assistance of the Office to work towards the full conformity of the national legislation with the principles of the Convention.

Noting that the Government welcomes the Conference Committee’s recommendation to accept a technical advisory mission from the ILO and is prepared to facilitate it before the next Conference session, the Committee expresses the hope that the Government will take full advantage of this opportunity to make concrete progress in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination of public servants not engaged in the administration of the State. In its previous comments, the Committee observed that section 52(1) of the Industrial Relations Act (IRA) excludes public servants from the application of Parts II to VI of the IRA, including from the provisions on the protection against acts of anti-union discrimination. It noted however that section 52(3) of the IRA establishes the possibility to extend the application of Part VI (representations for unfair dismissal) to such statutory services as prescribed by Ministerial Order, after consultation with the relevant statutory authorities.

The Committee notes the reiterated indications of the Government that discussions with the statutory authorities (and the Attorney General’s Chambers) regarding the potential extension of Part VI of the IRA to statutory services are ongoing. It also notes the Government’s reference to section 21 of the Trade Unions Act, which the Committee notes does not contain any explicit provisions on the protection against acts of anti-union discrimination for public servants not engaged in the administration of the State. The Committee therefore once again recalls the need to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State (including those who are not trade union officers) against acts of anti-union discrimination and to provide for effective and sufficiently dissuasive sanctions against those responsible for such acts. The Committee expresses the firm hope that the Government will be soon, following its consultation with the corresponding authorities, in a position to indicate the statutory services to which the Minister will extend the application of Part VI of the IRA and to provide information on its application in practice relating to public servants not engaged in the administration of the State.

Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

The Committee notes the response of the Government to the 2022 Observations of the National Union Bank Employees (NUBE) concerning, to a large extent, issues considered by the Committee on Freedom of Association in Case No. 3401.

Legislative reform. The Committee previously noted the comprehensive technical assistance provided by the Office in the context of the Labour Law and Industrial Relations Reform project (2016–26). It also noted the conclusions of the Committee on the Application of Standards of the International Labour Conference (Conference Committee) in 2022, requesting the Government to amend without delay the national legislation to bring it into conformity with the Convention. In this respect, the Committee welcomes the information provided by the Government about the coming into force, on 15 September 2024, of several amendments to the Industrial Relations Act (IRA), the Industrial Relations Regulations, the Trade Unions Act (TUA) and the Trade Union Regulations.

Article 1 of the Convention. Adequate protection against anti-union discrimination. In its previous comment, the Committee noted the observations by the International Trade Union Confederation (ITUC) on ineffective remedies for anti-union discrimination and lengthy procedures. The Committee also noted that the Conference Committee in 2022 requested the Government to ensure, in law and practice, adequate protection against anti-union discrimination, including through effective and expeditious access to courts, adequate compensation and the imposition of sufficiently dissuasive sanctions.

The Committee notes from the information provided by the Government that the majority of cases filed in 2023 under section 8 of the IRA (concerning anti-union discrimination) were resolved at the Industrial Relations Department, that the conciliation and mediation procedure at the Industrial Relations Department facilitates the expeditious settlement of cases, and that cases referred to the Industrial Court might involve a lengthy procedure. It notes however with regret that the Government has not provided the requested information on the outcome and duration of the procedures concerning anti-union discrimination cases. In this respect, the Committee also notes with regret that despite the recent legislative amendments, no changes have been made to section 8 of the IRA, which provides for discretionary powers of the Director-General of Industrial Relations to refer or not a complaint on anti-union discrimination to the Industrial Court, without the workers having the right to access the courts directly. The Committee once again recalls that effective protection against acts of anti-union discrimination requires rapid and effective procedures and remedies through reinstatement and adequate compensation, as well as sufficiently dissuasive sanctions. In this respect, the Committee requests the Government to provide information on: (i) the number of cases of anti-union discrimination filed and pending under section 8 of the IRA (concerning anti-union discrimination), and sections 20 and 59 of the IRA (concerning anti-union dismissals); (ii) the outcome of these proceedings, including the remedies provided (such as compensation, reinstatement and penalties imposed); and (iii) the duration of cases dealt with by the Industrial Relations Department, the Industrial Court and other courts. It also once again urges the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination have the right to directly lodge a complaint before the courts, and to provide information on the criteria followed by the Director-General of Industrial Relations to determine the actions to take in the treatment of anti-union discrimination cases, including to refer or not the matter to the courts. In this context, it also recalls its recommendation to consider the reversal of the burden of proof once a prima facie case is made.

Articles 2 and 4. Trade union recognition for the purposes of collective bargaining. Criteria and procedure for recognition. The Committee noted that the Conference Committee in 2022, having observed the concerns expressed during the discussions concerning ongoing challenges including instances of undue interference during the procedure, requested the Government to ensure that effective protection against undue interference is adopted and that the procedure for trade union recognition is simplified.

The Committee notes the Government’s reference to improvements in the recognition procedure. In this respect, it notes with satisfaction the coming into force of a number of amendments, including: (i) the removal of several provisions in the TUA, that provided for the possibility to refuse registration of a trade union in respect of a particular establishment, trade, occupation or industry, where another trade union exists, thereby allowing for the plurality of trade unions, and (ii) the removal of the restrictive definition of trade unions, pursuant to which workers employed in different industries were prohibited from establishing a single union or joining the same organization. Moreover, it notes that, in conformity with the provisions in the IRA and the Industrial Relations Regulations that have now come into force, the Director-General of Industrial Relations is competent to take a decision based on the conduct of a secret ballot in the following cases: (i) claims concerning the recognition of a trade union in the event that an employer refuses recognition (section 9(4)(A) of the IRA); (ii) applications concerning the recognition of the sole bargaining right to represent a group of workers, in the event that an employer has granted recognition to more than one trade union, and that there is no agreement between the trade unions as to which trade union shall exercise that right (section 12(A) of the IRA). The Committee notes the Government’s information, in response to its request on the application in practice of the recognition procedure, that 116 cases were handled by the Department of Industrial Relations, of which 96 were resolved. It notes however that the Government has not provided the requested information on whether recognition was granted (or not granted) in relation to these cases. Concerning the Committee’s reiterated request to ensure effective protection against undue interference in the recognition process, the Committee notes with regret that the Government limits itself to referring, once again, to the possibility to raise complaints with the Director-General of Industrial Relations (under sections 4, 5, 7 and 8 of the IRA), and that it does not provide information on any such claims that have been successfully brought, or on the measures taken, such as any competences entrusted to the Department of Industrial Relations or other competent authorities, to prevent and address, at their own initiative, acts of interference that may take place during the recognition process. Recalling that the recognition processes should provide safeguards to prevent acts of employer interference, the Committee once again requests the Government to provide information on any specific measures taken to prevent or repress acts of interference during the recognition process. It also requests the Government to specify whether any claims were actually brought against employer inference during the recognition procedure under sections 4, 5, 7 and 8 of the IRA, and provide information on their outcome. It once again requests the Government to provide detailed information on the application in practice of the recognition procedures (under sections 9(4)(A) and 12(A) of the IRA), including as regards the number of processes for trade union recognition filed and those that remain pending, and their outcome (i.e. the number of recognitions granted or not granted, specifying the reasons for these decisions).

Duration of recognition proceedings. The Committee recalls its reiterated request, in light of the discussions in the Conference Committee in 2022 and a considerable number of cases considered by the Committee on Freedom of Association over the years, to ensure that that the duration of the recognition process is reasonable. Having previously noted that the average duration of the recognition procedure at the Department of Industrial Relations was four to nine months, and that a decision of recognition may be appealed before the courts, the Committee notes that the Government does not provide any up-to-date information on the duration of the recognition procedure, especially as regards those cases that were subject to an appeal before the courts.

In this context, the Committee observes that the Committee on Freedom of Association examined the issue of administrative and judicial delays in the context of challenges to the recognition of a union by an employer, in Case No. 3414 and referred the legislative aspect of this case to it (401st Report, March 2023, paragraph 595). Concerning potential delays as a result of certain particularities in the recognition procedure, the Committee notes with interest the removal of the possibility of a “competency” check of a trade union seeking recognition (see mainly former sections 9(4)(A)(a) and 9(4)(B)(b) of the IRA). It notes however that the Committee on Freedom of Association observed that disagreements on the meaning of the terms of section 9(1) of the IRA (which was not amended and prohibits the representation of workers employed in managerial, executive, confidential and security capacities together with other workers in a bargaining unit), had entailed excessively long administrative and judicial procedures under section 9(1)(A) of the IRA on the question of whether workers were entitled to vote in the secret ballot. Noting that section 5(2)(b) and (c) of the IRA gives the right to employers to require a worker promoted to a managerial, an executive or a security position to cease membership of a trade union (except as in unions representing those categories of workers), the Committee also recalls that the NUBE, in its 2022 Observations alleges pseudo-promotions of their members to managerial positions to restrict union membership. In respect of the above, the Committee observes that there are no provisions providing for any definition of the categories under section 9(1) of the IRA but that the question of whether a particular occupation falls into any of the above-mentioned categories is a matter to be determined by the Director-General of Industrial Relations, and that a relevant decision can be appealed before the courts. While recalling that these categories of workers are covered by the Convention, the Committee stresses that the exclusion of managerial and executive staff from the vote concerning the recognition of a trade union should be limited to those persons who genuinely represent the interests of the employer to avoid any risks of interference by the employer. As a result, the determination of the categories, aimed at avoiding any risks of interference by the employer, should be limited to those persons who genuinely represent the interests of the employer. As a result, the determination of the categories of workers excluded from the vote should be expeditious and the possibilities for the employer to challenge the decision strictly delimited and swiftly examined so that the said determination does not become an obstacle to the exercise of the right to collective bargaining. The Committee once again firmly expects the Government to take measures to ensure that the administrative and judicial proceedings for the recognition of trade unions for the purpose of collective bargaining are reasonable. In this respect, it requests the Government to provide detailed information on the duration of the recognition proceedings, under sections 9(4)(A) and 12(A) of the IRA, including those that were treated administratively by the Department of Industrial Relations and those that were appealed and dealt with by the courts, with particular information as regards the number and duration of complaints filed and treated under section 9(1)(A) of the IRA. The Committee requests the Government to provide information on the impact of the recent legislative amendments on the duration of the recognition procedure, and to further review the legal framework governing the procedure for recognition of unions for collective bargaining purposes, including as regards the above-mentioned issues in relation to section 9(1)(A) of the IRA, with a view to significantly simplifying and expediting the administrative and judicial processes.

Exclusive bargaining rights. Minority unions. The Committee notes that the IRA and the Industrial Relations Regulations, as amended, require: (i) for a trade union seeking recognition in the event that an employer refuses recognition: a simple majority of votes cast by not less than half of the total number of workers entitled to vote (see section 2(1)(a) and 11 of the Industrial Relations Regulations); and (ii) for a trade union seeking sole bargaining rights: to obtain the highest number of votes (see section 12(A)(2), (3) and (4) of the IRA and section 2(1)(b) of the Industrial Relations Regulations). The Committee welcomes certain amendments to the formula in section 2(1)(a) and 11 of the Industrial Relations Regulations for a trade union seeking recognition (as regards the mode of calculation, namely the division in the number of votes in favour of a union by the number of votes cast, instead of, as in the former version, a division by the number of votes in favour of a union by the number of workers entitled to vote). It considers however that the new formula still requires broad support by the workers in a bargaining unit, which might be difficult to achieve. As highlighted in its previous comments, the Committee therefore requests the Government, to take, in consultation with the social partners, measures to ensure that, in situations where no union is declared the exclusive bargaining agent, all unions in the unit are able to negotiate, jointly or separately, at least on behalf of their own members. The Committee requests the Government to provide information in this respect.

Migrant workers. The Committee notes the reiterated indications of the Government that foreign workers are eligible to hold office upon approval of the Minister of Human Resources if it is in the interest of such a union and should the circumstances request as such. It also notes the Government’s reference to a schoolteachers’ union as an example of a trade union with most officers being non-Malaysian citizens. However, the Committee notes with regret that despite its reiterated requests, section 28(1)(a) of the Trade Union Act still provides that a person who is not a citizen of the Federation of Malaysia may not be elected to be a member of the executive entity of a trade union, unless the Minister of Human Resources considers that this is necessary for the representation of persons or interests of persons not residing within the Federation of Malaysia. Recalling that the requirement of prior approval of the Minister of Human Resources for foreign workers to hold trade union office may hinder the right of trade unions to freely choose their representatives for the purpose of collective bargaining, the Committee once again requests the Government to take the necessary legislative measures to ensure that foreign workers are able to run for trade union office without prior authorization.

Scope of collective bargaining. In its previous comments, the Committee noted that section 13(3) of the IRA provides for restrictions on the inclusion of subject matters in collective agreements relating to: (a) promotions; (b) transfers; (c) appointment of workers in case of vacancies; (d) termination of services due to redundancy; (e) dismissal, reinstatement; and (f) assignment or allocation of work. It also noted that the same section provides that trade unions can raise questions of a general character in relation to these matters.

The Committee notes the Government’s reiterated indications, in response to the Committee’s request, that section 13(3) is not compulsory and that if both parties agree, they may negotiate and include those matters in relevant collective agreements. The Government further contests the ITUC’s previous observation that section 13 of the IRA permits employers to dismiss questions of a general character raised by trade unions, and it indicates that in the event of a dispute on this matter, the aggrieved party may file a complaint under section 18 of the IRA as a trade dispute. The Government also indicates that the Department of Industrial Relations has not received any complaints regarding questions of a general character under section 13(3) of the IRA, and that the Department does not currently have data on the number of collective agreements that include the above-mentioned subject matters as this matter has not been specifically analysed. Taking due note of the above-mentioned indications, the Committee nevertheless observes that there appears to remain legal uncertainty on the practical application of section 13(3) of the IRA and its effect on the scope of negotiable issues. The Committee reiterates its invitation to the Government to consider lifting the broad legislative restrictions on the scope of collective bargaining, so as to promote the right to bargain freely between the parties, without any intervention by the Government.It once again requests the Government to provide information on the number of collective agreements that include the above-mentioned subject matters as negotiated subjects, as well as any complaints raised in this respect, and the outcome of relevant disputes as decided by the Industrial Relations Department and the courts.

Compulsory arbitration. The Committee had previously noted with interest that following amendments to certain provisions of the IRA (which have now entered into force) compulsory arbitration had been restricted to instances generally compatible with the Convention. However, it had also noted that section 26(2) provides that: trade disputes concerning “any Government service” and “the service of any statutory authority” may be referred to compulsory arbitration (with the consent of the King or State Authority); and it had also noted that the designation of a number of Government services in point 8 of the First Schedule of the IRA, may not be considered as services composed solely of public servants engaged in the administration of the State. It also noted that point 10 of the First Schedule, qualifies as essential services businesses and industries connected with the defence and security of the country (and recalled in this context that while the armed forces may be exempt from the provisions of the Convention, businesses and industries connected with them should be afforded the full guarantees of the Convention). Noting an absence of information in relation to any legislative developments as regards the issues noted above, the Committee once again requests the Government to provide information on the measures taken or envisaged to: (i) further delimit the categories of Government services in section 26(2) of the IRA and point 8 of the First Schedule of that Act, so as to ensure that compulsory arbitration may only be imposed on those public servants engaged in the administration of the State; and (ii) remove businesses and industries mentioned in point 10 of the First Schedule of the IRA from the list of essential services so that their workers can be afforded the full guarantees of the Convention.

Restrictions on collective bargaining of public servants not engaged in the administration of the State. In its previous comments, the Committee noted the exclusion of public sector employees from the chapter in the IRA on collective bargaining (see section 52(1), read in conjunction with Part IV of the IRA). In this respect, it also noted the ITUC’s allegations that public servants are only consulted, but not integrated in processes of collective bargaining. The Committee also noted that the National Joint Council (NJC) and the Departmental Joint Council appeared to have a consultative status as opposed to being used as a platform for collective negotiation on issues relating to terms and conditions of employment of public servants not engaged in the administration of the State.

The Committee notes that the Government reiterates its view that the NJC is not a forum for mere consultations with public sector unions. To corroborate this view, the Government refers to a number of elements, including that: (i) the minutes of the meetings in the NJC are signed by the parties of the NJC, implying a binding effect of any mutually-agreed decisions; (ii) the Government/employer is required, subject to financial and social implications, to transpose any decisions taken in the NJC into rules and regulations (i.e. service circulars); (iii) as a result of negotiations and bargaining in the NJC in 2022, three new service circulars were issued, which provide for improvements for public sector employees as regards their remuneration and benefits. While taking due note of all the elements above, including the advanced level of consultations, the Committee observes that the functions of the NJC as provided for in section 10 of Service Circular No. 6 are to “give opinions and discuss”, “enable employees to propose changes for consideration by the Government”, and “make recommendations”, and that the functions of the Departmental Joint Council, pursuant to section 3 of Service Circular 7 are to “enable employees to express opinions” and “actively participate in discussions”. The Committee therefore considers that the elements considered do not demonstrate the existence of a complete bargaining machinery on issues relating to the terms and conditions of employment of public servants not engaged in the administration of the State. Also recalling the conclusions of the Conference Committee in 2022 in this respect, the Committee therefore requests the Government to take the necessary measures, in law and practice, to enable collective bargaining machinery for public servants not engaged in the administration of the State.

Collective bargaining in practice. In its previous comment, the Committee noted with concern the very low coverage of collective bargaining and observed that according to public statistics available in ILOSTAT in 2018, the collective bargaining coverage rate in Malaysia was 0.4 per cent. The Committee considered that this very low coverage could be related to the restrictive requirements in law and practice to engage in collective bargaining as discussed in its previous observation.

The Committee notes that the Government refers to measures taken to increase the membership of trade unions in the country (including legislative amendments, the allocation of a special budget and training activities), as well as to the total number of trade union members (which had reached one million in 2024). The Committee notes however with regret, that the Government has still not provided any statistical information in relation to collective bargaining in the country. The Committee therefore once again requests the Government to provide updated statistical information on the number of collective agreements concluded and in force, the sectors concerned, and the number of workers covered by these agreements.

While welcoming again the above-mentioned amendments that entered into force on 15 September 2024, the Committee requests the Government to take the necessary action to remove all the remaining legal and practical obstacles to collective bargaining addressed in this comment and to take concrete measures to promote the full development and utilization of collective bargaining. In this respect, it strongly encourages the Government to continue to avail itself of the technical assistance of the Office to work towards the full conformity of the national legislation with the principles of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination of public servants not engaged in the administration of the State. The Committee had observed that while public servants are excluded from the provisions of the IRA on protection against act of anti-union discrimination, the new section 52(3) of the Act establishes a possibility to file representations for unfair dismissal that applies to any service of or any worker employed by a statutory authority, in which the Minister, after consultation with such authority, prescribes such application by an order in the Gazette (Part VI of the IRA). With respect to the public servants not engaged in the administration of the State, the Committee had requested the Government to: (i) indicate the statutory services to which the Minister extended the application of Part VI of the IRA; (ii) provide information on its application in practice; and (iii) indicate the specific legislative provisions which provide protection against acts of anti-union discrimination, in compliance with the Convention. The Committee notes the Government’s reply that: (i) engagement with statutory authorities is ongoing to explore mechanisms to implement section 52(3) of the IRA; and (ii) protection against act of anti-union discrimination for public servants is provided under article 135(2) of the Federal Constitution and the Public Officers (Conduct and Discipline) Regulations 1993. The Committee observes that: (i) while the Federal Constitution establishes that public servants (as defined in article 132) shall not be dismissed or have a reduction in rank without being heard, there is no explicit protection against acts of anti-union discrimination for public servants (in recruitment, employment and dismissals); and (ii) the Government does not provide further information on the specific provisions providing for protection against anti-union discrimination acts in Public Officers (Conduct and Discipline) Regulations 1993. The Committee recalls the need to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State (including those who are not trade union officers) against acts of anti-union discrimination and to provide for effective and sufficiently dissuasive sanctions against those responsible for such acts. The Committee trusts thatthe Government will be soon, following its consultation with the corresponding authorities, in a position to indicate the statutory services to which the Minister extended the application of Part VI of the IRA and to provide information on its application in practice relating to public servants not engaged in the administration of the State. The Committee further requests the Government to indicate the specific legislative provisions providing protection against acts of anti-union discrimination to the public servants not engaged in the administration of the State, as well as the sanctions and remedies applicable in such cases. The Committee requests the Government to provide a copy of the applicable legislation.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the National Union Bank Employees (NUBE) received on 1 September 2022 alleging the violation of trade union rights through the implementation of unilateral restructuring schemes, collective bargaining in bad faith, harassment of trade union members and denial of facilities by an enterprise in the banking sector, among other allegations. The Committee requests the Government to provide its comments in this respect.

The Committee also notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022 concerning the issues examined by the Committee, and the Government’s replies thereon.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion which took place in June 2022 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by Malaysia. The Committee notes that the Conference Committee noted with interest the amendments to the Industrial Relations Act 1967 (IRA) and the Employment Act 1955 (Employment Act), in 2021 and 2022 respectively and the prevailing concern regarding ongoing challenges in relation to the exercise of the collective bargaining rights, trade union discrimination and interference. The Committee observes that the Conference Committee requested the Government to: (i) amend without delay national legislation, specifically the Employment Act, the Trade Unions Act 1959 (TUA), and the IRA, in consultation with the social partners, to bring these laws into conformity with the Convention; (ii) ensure that the procedure for trade union recognition is simplified and that effective protection against undue interference is adopted; (iii) ensure that migrant workers can fully participate in collective bargaining, including by enabling them to run for trade union office; (iv) enable collective bargaining machinery in the public sector to ensure that public sector workers may enjoy their right to collective bargaining; (v) ensure, in law and practice, adequate protection against anti-union discrimination, including through effective and expeditious access to courts, adequate compensation and the imposition of sufficiently dissuasive sanctions. The Conference Committee also requested the Government to: (i) submit a report to the Committee of Experts by 1 September 2022 with information on the application of the Convention in law and practice, in consultation with the social partners; and (ii) continue to avail itself of the technical assistance of the ILO.

Ongoing legislative reform. The Committee notes the Government’s statement that the Employment Act was amended in 2022, and that the TUA, under the process to be amended at the Parliament, has been discussed with the social partners in 12 sessions held in August 2022. The Committee welcomes the Government’s indication that it will continue working closely with the Office through the Labour Law and Industrial Relations Reform project, and the social partners, including the Malaysian Trades Union Congress (MTUC) and the Malaysian Employers Federation (MEF), to ensure adequate protection against anti-union discrimination. The Committee notes that the Government avails itself of the technical assistance of the ILO to facilitate the review of the Trade Union Act and to contribute to achieving its full conformity with the Convention. The Committee requests the Government to provide information on any developments in this regard.

Article 1 of the Convention. Adequate protection against anti-union discrimination. Effective remedies and sufficiently dissuasive sanctions. The Committee notes the Government’s confirmation that section 8 of the IRA provides for procedures for non-criminal acts, while section 59 is related to semi-criminal cases. The Committee notes the Government’s indication that remedies for anti-union discrimination under sections 8 and 20 of the IRA are awarded by the Industrial Court based on the facts and merits of each case, and acting on the basis of equity, good faith and the substantial merits of the case. The Committee notes the Government’s indication that victims of anti-union discrimination may file complaints to the Director-General of Industrial Relations to start an inquiry, conciliate or investigate the complaints. The Committee observes that it is in the discretion of the Director-General to refer or not the complaint to the Industrial Court, without the worker having the right to access the courts directly, and there is no information regarding on what basis the decision to dismiss a complaint without referring it would be made. The Committee notes that at the discussion held at the Conference Committee, the Government indicated that the reforms to the IRA aim to enhance the existing dispute resolution system, as well as to enable any disputes arising to be resolved effectively, and expedite the procedures involved. However, the Committee notes the Government’s indication regarding the duration and number of procedures on cases on anti-union discrimination that: (i) from January 2021 until April 2022, 35 cases were filed (section 8 of the IRA), and 31 have been resolved by the Industrial Relations Department with an average duration of the proceedings from three to six months; and ii) cases referred by the Director-General of Industrial relations to the Industrial Court should be resolved within 12 months. The Committee notes with concern the ITUC’s observations according to which the remedies applied in cases of anti-union discrimination are inadequate because they usually consist of compensation in lieu of reinstatement and processes can last over two years. The Committee notes with regret that the Government does not provide information on the actual number of cases and duration of the proceedings before the Industrial Court nor on the sanctions applied and measures of compensation awarded for anti-union discrimination acts. The Committee observes that the Committee on Freedom of Association also examined the issue of effective protection against acts of anti-union discrimination in its Case No. 3409 and referred the legislative aspect of this case to it (399th Report, June 2022, paragraphs 227 and 229). Recalling that effective protection against acts of anti-union discrimination requires rapid and impartial procedures and remedies, as well as sufficiently dissuasive sanctions, the Committee urges the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination have the right to directly lodge a complaint before the courts and that such proceedings are rapid and effective and to ensure an effective protection through reinstatement, adequate compensation, and the imposition of sufficiently dissuasive sanctions. The Committee also recalls its recommendation to consider the reversal of the burden of proof once a prima facie case is made. The Committee further requests the Government to provide detailed information on: (i) the number of complaints filed, the duration of the proceedings, the remedies, and the sanctions and measures of compensation effectively imposed for acts of anti-union discrimination in accordance with the IRA; and (ii) the criteria followed by the Director-General of Industrial Relations to determine the actions to take in the treatment of anti-union discrimination cases, including to refer or not the matter to the courts.

Articles 2 and 4. Trade union recognition for purposes of collective bargaining. Criteria and procedure for recognition. The Committee had observed that in case of an employer’s refusal to grant recognition to a union: (i) the Director-General shall ascertain the scope of membership of the trade union on the date of the claim, whether it is in accordance with the union’s constitution; and (ii) by way of secret ballot, the Director-General, shall ascertain the percentage of workers, in respect of whom recognition is being sought, who indicate support for the trade union making the claim. The Committee had requested the Government to provide detailed information on the steps taken to ensure safeguards against employer interference during the recognition process. The Committee notes with regret that no detailed information has been provided by the Government in this regard. It notes, however, the Government’s indication at the Conference Committee that to safeguard against employers’ interference, sections 4, 5 and 8 of the IRA, are applied. The Committee observes that the IRA entered into partial effect on January 2021 and understands from the Government’s statement that several provisions including section 12A (exclusive bargaining agent) of the IRA will only enter into force upon amendment of the TUA. The Committee notes the initial Government’s statement that the actual impact of the amendments on the secret balloting process for trade union recognition, has not been visible due to COVID-19 restrictions. The Committee further notes the Government’s reply to the ITUC observations regarding the simplification of processes for trade union recognition, indicating that: (i) Malaysia entered the endemic phase of COVID-19 on 1 April 2022, and since then the secret ballot process has been conducted as per the amendment to the IRA; (ii) as of October 2022, 78 secret ballot processes have been conducted (78 employers and 26,521 employees involved); and, (iii) from 1 January to 31 October 2022, 261 cases have been reported regarding recognition with an average duration from one to six months for resolution (for voluntary recognition processes duration of resolution is about one month. For other cases legal intervention extends the duration of the process). The Committee notes however that the information provided does not specify the number of recognitions that were granted to trade unions. Taking due note ofthe Government’s indication regarding the implementation of the recognition procedures, envisaged by the amended provisions in the IRA, and recalling that these processes should provide safeguards to prevent acts of employer interference, the Committee requests the Government to continue to provide detailed information on the application in practice of these measures, including the number of processes for trade union recognition, the duration of these processes, and the outcomes (number of recognitions granted). The Committee further requests the Government to provide detailed information on the steps taken to ensure that safeguards against employer interference are applied in the process of application of sections 4, 5 and 8 of the IRA, including the specific measures in practice and sanctions applied when these cases occur.

Exclusive bargaining agent. The Committee notes that: (i) where more than one trade union has been accorded recognition, the exclusive bargaining agent will be determined among themselves; (ii) if there is no agreement by the workers or group of workers, the exclusive bargaining agent, the employer or trade union of employers or any trade union concerned, may make an application in writing so that the exclusive bargaining agent is ascertained by the Director-General of Industrial Relations by way of a secret ballot through the highest number of votes (section 12A of the IRA); and (iii) section 12A of the IRA is yet to be enforced and is subject to the amendment of the TUA, which is still pending. The Committee notes that the Government reiterates that a simple majority is a minimum requirement that shall be maintained, which has been also agreed by the social partners. The Committee had observed however that the IRA does not make reference to the simple majority threshold indicated by the Government for the determination of the exclusive bargaining agent. The Committee expresses the firm hope that the provisions related to the recognition of the exclusive bargaining agent will enter into force without delay (section 12A of the Industrial Relations Act), following the entering into force of the Trade Union Act that is still undergoing the process of amendment. The Committee requests the Government to provide information on all the developments in this regard.

Rights of minority unions. The Committee notes with regretthat the Government does not provide information on the measures taken or envisaged, in light of the consultations with the social partners held as part of the reform of the TUA (which will provide for measures for application of section 9A), to ensure that, in situations, where no union is declared the exclusive bargaining agent, collective bargaining can still be exercised by the existing unions. The Committee is therefore bound to request once again the Government to specify the measures taken or envisaged, in light of the reforms of the Industrial Relations Act and the forthcoming amendments to the Trade Union Act,to ensure that, in situations where no union is declared the exclusive bargaining agent, all unions in the unit are able to negotiate, jointly or separately, at least on behalf of their own members.

Duration of recognition proceedings. The Committee notes the Government’s indication that the average duration of the recognition process is of four to nine months, and that the decision on recognition from the Director-General of Industrial Relations may be appealed for judicial review. In this respect, the Committee recalls that the average duration of the recognition procedure, must be “reasonable”, and that an average duration of nine months is excessively long (2012 General Survey on the fundamental Conventions, paragraph 232). The Committee urges the Government to take the necessary measures to ensure that the duration of the recognition process is reasonable, and to provide information on the measures adopted in this respect.

Migrant workers. The Committee welcomes the Government’s indication at the Conference Committee that: (i) foreign workers are eligible to become members of a trade union and are eligible to hold office upon approval of the Minister if it is in the interest of such union; (ii) the IRA does not impose restrictions on migrant workers to engage in collective bargaining; and (iii) as of 2022 a total of 27,964 foreign workers are members of 16 registered trade unions (increasing from 2,874 workers in 2019). The Committee takes note, however, of the Government’s reply to the ITUC’s observations that the referred Minister’s approval only acts as a security measure to make sure the election is transparent and fair. The Committee observes that this condition may hinder the right of trade unions to freely choose their representatives for collective bargaining purposes. It notes that the Committee on Freedom of Association also examined this issue and invited the Government to provide information on any legislative development in this regard to the Committee of Experts (Case No. 2637, 397th Report, March 2022, paragraph 32). The Committee therefore requests the Government to take, in consultation with the social partners, the necessary legislative measures to ensure that foreign workers are able to run for trade union office without prior authorization.The Committee further requests the Government to take the necessary measures to ensure the full utilization of collective bargaining by migrant workers and to provide information in this respect.

Scope of collective bargaining. The Committee notes the Government’s indication reiterating that: (i) section 13(3) (restrictions on “internal management prerogatives”– promotions, transfers, appointment of workers in case of vacancies, termination of services due to redundancy, dismissal, reinstatement and assignment or allocation of work) shall be retained to maintain industrial harmony and speed up the collective bargaining process; (ii) the provision is not compulsory as if both parties agree, they may negotiate on those subject matters; and (iii) trade unions can raise questions of a general character relating to transfers, termination of services due to redundancy, dismissal, reinstatement and assignment or allocation of work. The Committee notes with concerntheITUC’s observations indicating that while workers are allowed to raise general questions, the provisions also allow employers to dismiss those questions. The Committee observes that it remains unclear how questions of a general character relating to matters that are within the scope of legislative restrictions on collective bargaining can be raised in practice. The Committee further observes that the Committee on Freedom of Association also examined the issue of raising general questions and the scope of collective bargaining and referred the legislative aspect of the case to this Committee (Case No. 3401, 397th Report, March 2022, paragraphs 499 and 502). The Committee therefore requests the Government, once again, to indicate the practical implications of the amendment of section 13(3) of the Industrial Relations Act on the scope of collective bargaining, in particular to clarify the meaning of the new wording – questions of a general character and the way in which these questions are raised and dealt with in practice. The Committee requests the Government to provide information on the number of collective agreements that include “internal management prerogatives” as negotiated subjects. The Committee reiterates its invitation to the Government to consider lifting the broad legislative restrictions on the scope of collective bargaining, so as to promote the right to bargain freely between the parties, without any intervention by the Government.

Compulsory arbitration. The Committee had noted withinterest that the amendments to the IRA restrict compulsory arbitration to instances generally compatible with the Convention. However, it had also noted that the reference in section 26(2) to “any Government service” and “the service of any statutory authority”, as well as the reference to a number of Government services in point 8 of the First Schedule, may go beyond what can be considered as public servants engaged in the administration of the State. Furthermore, point 10 of the First Schedule, qualifies as essential services businesses and industries connected with the defence and security of the country, while they should be afforded the full guarantees of the Convention. The Committee notes the Government’s indication that the IRA amendments will be enforced after the TUA’s amendment is completed. The Committee trusts that the amendments will enter into force without delay, once the legislative process for the Trade Union Act amendments, noted above, is completed. The Committee requests the Government to provide information on the amendments and measures taken or envisaged, in consultation with the social partners, to: (i) further delimit the categories of Government services in section 26(2) and point 8 of the First Schedule, so as to ensure that compulsory arbitration may only be imposed on those public servants engaged in the administration of the State; and (ii) remove businesses and industries mentioned in point 10 of the First Schedule from its scope of application.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other working conditions and emphasized that simple consultations with unions of public servants not engaged in the administration of the State did not meet the requirements of Article 4 of the Convention. The Committee notes the ITUC’s observations indicating that public servants are only consulted and not integrated in processes of collective bargaining. The Committee notes the Government’s indication that: (i) to ensure the welfare of public servants and collective bargaining there is engagement between employers and employees in the public sector; (ii) the Public Service Department has provided a platform through the National Joint Council (NJC) (which is inclusive of all public servants) and the Departmental Joint Council (DJC) to ensure that the welfare of public servants is heard; (iii) the NJC, as a form of joint consultation, is required to convene once a year to discuss proposals and matters on remuneration and service principles, innovation and productivity initiatives, and other amendments proposed to existing policies; and (iv) the DJC meets three times a year, and provides a means for public servants to communicate with management and express their opinions and views. The Committee observes that: (i) the Government submits the Service Circular No. 6/2020 and Service Circular No. 7/2020 (in Malay), related to the functioning of the National Joint Council and the Departmental Joint Council; (ii) the Councils appear to have a consultative status as opposed to being used as a platform for collective negotiation on issues relating to terms and conditions of employment of public servants. The Committee notes with regret that the Government does not provide information on collective bargaining and agreements concluded in the public sector. The Committee, therefore, requests the Government to: (i) provide further information regarding how the different Councils ensure the right to collective bargaining, and not only consultation rights, in conformity with Article 4 of the Convention; and (ii) provide information on collective bargaining undertaken in the public sector, including the number of agreements concluded and the number of workers covered by those agreements.

Collective bargaining in practice. The Committee had requested the Government to provide statistical information in relation to collective bargaining in the country. The Committee observes with regret that the Government refers to statistical information that is not provided. The Committee also notes that the Government made reference, at the Conference Committee, to progressive efforts to enhance the procedure and process on the right to strike and collective bargaining with the social partners. The Committee observes that no specific measures are further indicated by the Government. The Committee also notes the concerns expressed by the ITUC as to the low percentage of workers covered by collective agreements (1 to 2 per cent) and the declining level of trade union density (6 per cent). The Committee notes with concern the very low coverage of collective bargaining, indicated by the ITUC,and observes that according to public statistics available in ILOSTAT as of 2018, the collective bargaining coverage rate in Malaysia was of 0.4 per cent. The Committee considers that this very low coverage could be related to the restrictive requirements in law and practice to engage in collective bargaining discussed above. The Committee therefore requests the Government to take the necessary action to remove all the legal and practical obstacles to collective bargaining addressed in this comment and to take concrete measures to promote the full development and utilization of collective bargaining. The Committee further requests the Government to provide updated statistical information on the number of collective agreements concluded and in force, the sectors concerned, and the number of workers covered by these agreements, as well as on any additional measures undertaken under the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination of public servants not engaged in the administration of the State. The Committee observes that section 52 of the Industrial Relations Act (IRA) excludes any Government service or any service of any statutory authority or any workman employed by Government or by any statutory authority from the application of Parts II to VI of the IRA, including on protection against acts of anti-union discrimination. The Committee observes, however, that as a result of the current labour law review, section 52(3) was added to the IRA which stipulates that the application of Part VI (representations for unfair dismissal) shall be extended to any service of or any worker employed by a statutory authority, in which the Minister, after consultation with such authority, prescribes such application by an order in the Gazette. While taking due note of this amendment and of the potential extension of the scope of unfair dismissal claims to certain public servants, the Committee understands that the general exclusion of workers employed by the Government or any statutory authority from the protection against acts of anti-union discrimination under the IRA remains in place and the possibility for these workers to challenge unfair dismissals, including for anti-union reasons, is dependent on the Minister’s prior determination of the statutory authorities concerned. In line with the above, the Committee requests the Government to indicate the statutory services to which the Minister extended the application of Part VI of the IRA and to provide information on its application in practice relating to public servants not engaged in the administration of the State. In view of the exclusion contained in section 52 of the IRA, the Committee further requests the Government to indicate the applicable legislative provisions which provide protection against acts of anti-union discrimination of public servants not engaged in the administration of the State, in compliance with the Convention.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Malaysian Trades Union Congress (MTUC), received on 30 August 2019, denouncing violations of the Convention in practice, including numerous instances of anti-union discrimination, employer interference and violations of the right to collective bargaining in a number of enterprises. The Committee further notes that specific violations of the Convention in practice were also previously denounced in the 2016, 2017 and 2018 observations of the International Trade Union Confederation (ITUC) and the 2015 MTUC observations and regrets that the Government has not yet provided its reply to these concerns. The Committee requests the Government to take the necessary measures to address all of the above allegations, in particular to ensure that allegations of anti-union discrimination and interference are rapidly investigated, that effective remedies are ordered and that sufficiently dissuasive sanctions are imposed on the perpetrators. The Committee trusts that the Government will be in a position to provide detailed information in this regard.

Ongoing legislative reform. The Committee previously noted that a holistic review of the main labour laws (including the Employment Act, 1955, the Trade Union Act, 1959 and the Industrial Relations Act, 1967 (IRA)) was ongoing in the country. The Committee welcomes the Government’s indication that it has been working closely with the Office in the labour law review and that the IRA has been amended through the Industrial Relations (Amendment) Act, 2020, with effect from January 2021. The Committee will address the amendments to the IRA in more detail below. It further notes the Government’s statement that the Employment Act and the Trade Union Act are currently undergoing the due processes to be amended and tabled at the Parliament. The Committee trusts that the Government’s continued cooperation with the Office will facilitate the review of the Employment Act and the Trade Union Act and contribute to achieving full conformity of these laws with the Convention. The Committee requests the Government to provide information on any developments in this regard.

Article 1 of the Convention. Adequate protection against anti-union discrimination. Effective remedies and sufficiently dissuasive sanctions. In its previous comment, the Committee requested the Government to provide detailed information on the general remedies effectively imposed for acts of anti-union discrimination dealt with through sections 5 and 8 of the IRA (referral of a complaint to the Director-General or to the Industrial Court and used in the vast majority of reported anti-union discrimination cases), as well as the sanctions and measures of compensation in relation to anti-union discrimination acts under section 59 of the IRA (a process before a criminal court with a higher standard of proof (beyond reasonable doubt), explicitly providing for penal sanctions and the possibility of reinstatement, but only used in less than 6 per cent of reported cases). In light of that information, the Committee requested the Government to take any necessary measures to ensure that the rules and procedures relating to anti-union discrimination afford adequate protection, without placing on victims a burden of proof that constitutes a major obstacle to establishing liability and ensuring an appropriate remedy.

The Committee notes that, with a view to expediting the procedure with respect to anti-union discrimination, the Government indicates that under section 8 as amended, the Director-General of Industrial Relations may take any steps or make enquires to resolve the matter and if not solved, may, if he/she thinks fit, refer the matter directly to the Industrial Court without having to first refer the matter to the Minister. The Committee observes however that the Director-General would appear to retain certain discretion in this regard and it is not evident on what basis the decision not to refer a case would be made. As regards effective remedies for anti-union discrimination, the Committee notes the Government’s indication that the amendments to section 30(6A) of the IRA allow the Industrial Court to have at its disposal a full range of remedies to be awarded to a worker dismissed for anti-union reasons. In this respect, the Committee further observes with interest that: (i) section 33B of the IRA, as amended, stipulates that an award of the Industrial Court for reinstatement or reemployment of a worker may not be subject to a stay of proceedings by any court; and (ii) pursuant to new section 33C, a worker dissatisfied with an award of the Industrial Court may appeal to the High Court within 14 days of receiving the award, suggesting that the Industrial Court’s decision will be subject to appeal on facts and law. While welcoming these amendments, the Committee observes that the Government does not provide information on the remedies imposed in practice for acts of anti-union discrimination dealt with through section 8 of the IRA, nor on the sanctions and measures of compensation awarded in practice for anti-union discrimination acts under section 59 of the IRA. The Committee therefore requests the Government once again to: (i) provide detailed information on the general remedies imposed in practice for acts of anti-union discrimination dealt with through sections 5, 8 and 20 of the IRA, whether by the Director-General or the Industrial Court, especially in view of the above amendments to the relevant provisions, as well as on the sanctions and measures of compensation awarded in practice in relation to anti-union discrimination acts under section 59 of the IRA; (ii) in light of this information, to take any necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint directly before the courts in order to access expeditiously adequate compensation and the imposition of sufficiently dissuasive sanctions and recalls its recommendation to consider reversal of the burden of proof once a prima facie case is made; and (iii) to provide information on the average duration of the proceedings under section 8 of the IRA, in view of the amendments to expedite the process, as well as on the number of cases in which the complaint was resolved by the Director-General, as opposed to instances referred to the Industrial Court.

Articles 2 and 4. Trade union recognition for purposes of collective bargaining. Criteria and procedure for recognition. Exclusive bargaining agent. The Committee recalls that under section 9 of the IRA, when an employer rejects a union’s claim for voluntary recognition for the purpose of collective bargaining, the union has to inform the Director-General who should take appropriate action, including a competency check through a secret ballot, to ascertain whether the union has secured the required ballot (50 per cent plus one) of the workers or class of workers, in respect of whom recognition is being sought. Having observed the concerns raised by the MTUC and the ITUC in this regard (the use of the total number of workers on the date of the request and not at the time of the ballot, leading to large discrepancies, as well as the lack of protection against employer interference in the secret ballot procedure), the Committee requested the Government to take the necessary steps to ensure that the recognition process provides safeguards to prevent acts of interference and that if no union reaches the required majority to be declared the exclusive bargaining agent, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members.

The Committee notes the Government’s indication that: (i) the recognition process was reviewed, in consultation with the social partners, and is, in the Government’s view, adequate; (ii) concerns pertaining to the formula currently used for the secret ballot have been acknowledged and will be reviewed subject to consultations and views from stakeholders through the National Labour Advisory Council; (iii) a simple majority is a minimum requirement which will be maintained in order for a trade union to become exclusive bargaining agent and the social partners agree with it; and (iv) the Government continuously takes the necessary steps to ensure that the recognition process provides safeguards to prevent acts of interference and the parties may lodge a complaint in case of interference under section 8 and 18 of the IRA. The Committee observes in this regard that the main amendments to section 9 relate to expediting the process, addressed in more detail below, and to clarifying that, in case of refusal to grant recognition by the employer: (i) the Director-General shall ascertain the scope of membership of the trade union on the date of the claim, whether it is in accordance with the union’s constitution (instead of ascertaining the competence of the trade union to represent the workers concerned, as previously stipulated by the IRA); and (ii) by way of secret ballot, the Director-General, shall ascertain the percentage of workers, in respect of whom recognition is being sought, who indicate support for the trade union making the claim (instead of ascertaining the percentage of workers who are members of the trade union making the claim, as previously stipulated). While taking due note of the above, the Committee observes that the Government does not provide details as to the steps it indicates it is taking to ensure safeguards against employer interference during the recognition process and understands from the Government’s report that the formula used in the secret ballot by the Director-General to ascertain the percentage of workers who support the union, in case of employer’s refusal to grant recognition (denounced by the MTUC and the ITUC), needs to be further reviewed. It observes that the Committee on Freedom of Association also examined allegations of employers’ refusal to recognize trade unions as collective bargaining agents and the weaknesses of the existing secret ballot process and referred the legislative aspect of the case to this Committee (see Case No. 3334, 391st Report, October 2019, paragraphs 374 and 382 and 393rd Report, March 2021, paragraphs 28 and 31). The Committee wishes to recall in this regard that the recognition procedure should seek to assess the representativeness existing at the time the ballot vote takes place to take into consideration the actual size of the workforce in the bargaining unit and that the process should provide safeguards to prevent acts of employer interference. In line with the above, the Committee trusts that any further necessary amendments will be made to the secret ballot process, in consultation with the social partners, so as to effectively address the concerns raised by the trade unions in this respect, and to ensure that the recognition process as a whole, regarding both the initial employer response and the verification procedure with the Director-General, provides safeguards to prevent acts of employer interference. The Committee trusts that the amendments already made to the recognition process will contribute to these efforts and requests the Government to indicate their effect in practice. The Committee further requests the Government to provide additional details on the steps the Government indicates it is taking to ensure sufficient safeguards against employer interference in the recognition process.

The Committee further observes, in relation to the recognition procedure and the right to collective bargaining, that additional amendments were made to the IRA, but are not yet in force, adding new section 12A relating to exclusive bargaining rights. The Committee understands that this provision was introduced to govern situations where more than one trade union obtains recognition for the purpose of collective bargaining and provides for a procedure to determine which trade union will benefit from the exclusive bargaining rights to represent the workers (agreement among the unions or determination by the Director-General, including through a secret ballot based on the highest number of votes). Noting in this regard the Government’s general indication that simple majority is a requirement for a trade union to become an exclusive bargaining agent but observing that the law does not make reference to this threshold, the Committee requests the Government to specify the manner in which collective bargaining rights are granted and exercised when no trade union has reached the 50 per cent requirement once section 12A comes into force and to provide information on its application in practice. In this regard, the Committee also requests the Government to indicate whether in situations where no union is declared the exclusive bargaining agent, collective bargaining can be exercised, jointly or separately, by all unions in the unit, at least on behalf of their own members.

Duration of recognition proceedings. In its previous comment, the Committee requested the Government to provide additional information on the administrative and legal actions undertaken by the Department of Industrial Relations to expedite the recognition process and to take any necessary measures to further reduce the length of proceedings. The Committee notes the Government’s indication that the amendments to the IRA confer the powers to determine the matters related to the recognition of trade unions previously vested in the Minister of Human Resources to the Director-General of Industrial Relations, thus expediting the dispute resolution processes relating to claims for recognition by trade unions. Welcoming these amendments, the Committee requests the Government to indicate the effect they have on the recognition procedure, in particular to indicate the average duration of the process, both for voluntary recognition and for instances where recognition is determined by the Director-General. Further observing that section 9(6) of the IRA providing for the final nature of the decision on recognition by the Director-General has been deleted, the Committee requests the Government to indicate whether such decision may now be appealed by the concerned union or the employer.

Migrant workers. In its previous comment, the Committee welcomed the Government’s statement that current laws do not prohibit foreign workers from becoming trade union members but observed that the Government did not provide any information on the announced legislative amendment to enable non-citizens to run for election for union office if they have been legally residing in the country for at least three years or in response to a series of concerns that had been previously noted by the Committee. The Committee regrets that the Government’s report is limited to reiterating that foreign workers are eligible to becoming members of a trade union and to hold trade union office upon approval of the Minister, if it is in the interest of such union (a condition which, in the Committee’s views, hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes) and does not elaborate on any of the concerns previously raised on limitations on collective bargaining of migrant workers in practice. The amendments to the IRA also do not seem to address these issues. The Committee therefore reiterates its request to the Government to take the necessary measures to ensure the full utilization of collective bargaining by migrant workers, including as to enabling foreign workers to run for trade union office, and to provide information on any developments in this regard, whether legislative or other.

Scope of collective bargaining. In its previous comment, the Committee expressed firm hope that section 13(3) of the IRA would be amended in the near future to remove its broad restrictions on the scope of collective bargaining (restrictions with regard to transfer, dismissal and reinstatement, some of the matters known as “internal management prerogatives”). The Committee notes the Government’s indication that while section 13(3) was retained during the labour law reform, so as to maintain industrial harmony and speed up the collective bargaining process, the provision is not obligatory in that, if both parties agree, they may negotiate the subject matters stipulated therein. The Government adds that additional amendments were introduced to section 13(3) of the IRA, allowing trade unions to raise questions of a general character relating to transfers, termination of services due to redundancy, dismissal, reinstatement and assignment or allocation of work. While welcoming these amendments, the Committee considers that it remains unclear how the possibility to raise questions of a general character on matters that are within the scope of legislative restrictions on collective bargaining would be articulated in practice. The Committee therefore requests the Government to indicate the practical implications of the amendment of section 13(3) of the IRA on the scope of collective bargaining, in particular to clarify the meaning of the new wording – questions of a general character. While further noting the Government’s indication that the parties may, if they agree, negotiate the matters prohibited by section 13(3) of the IRA, the Committee invites the Government to consider lifting the broad legislative restrictions on the scope of collective bargaining, so as to promote the right to bargain freely between the parties, without any intervention by the Government.

Compulsory arbitration. In its previous comment, the Committee noted that section 26(2) of the IRA allows compulsory arbitration by the Minister of Labour of his own motion in case of failure of collective bargaining and expressed hope that the Government would take any necessary measures to ensure that the legislation only authorizes compulsory arbitration in essential services in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. The Committee notes the Government’s statement that amendments have been made to section 26(2) of the IRA, enabling trade unions to engage freely and voluntarily in collective bargaining, except in certain situations, but that this provision is not yet enforced. The Committee observes, in particular, that pursuant to the new wording of section 26(2) of the IRA, the Minister may of his/her own motion refer any trade dispute to the court if satisfied that it is expedient to do so provided that where the trade dispute relates to a refusal to commence collective bargaining or a deadlock in collective bargaining, reference to the court shall not be made without the consent in writing of the parties, unless: (a) the trade dispute relates to the first collective agreement; (b) the trade dispute refers to any essential services specified in the First Schedule; (c) the trade dispute would result in acute crisis if not resolved expeditiously; or (d) the parties to the trade dispute are not acting in good faith to resolve the trade dispute expeditiously. The Committee notes with interest that the amendments made restrict compulsory arbitration to instances generally compatible with the Convention, except to the extent that the reference in section 26(2) to “any Government service” and “the service of any statutory authority”, as well as the reference to a number of Government services in point 8 of the First Schedule, may go beyond what can be considered as public servants engaged in the administration of the State, and point 10 of the First Schedule, which considers as essential services businesses and industries connected with the defence and security of the country (while the armed forces may be exempt from the provisions of the Convention, businesses and industries connected with them should be afforded the full guarantees of the Convention). In line with the above, the Committee trusts that these amendments will enter into force without delay and invites the Government to continue to engage with the social partners with a view to: (i) further delimiting the categories of Government services in section 26(2) and point 8 of the First Schedule, so as to ensure that compulsory arbitration may only be imposed on those public servants engaged in the administration of the State; and (ii) removing businesses and industries mentioned in point 10 of the First Schedule from its the scope of application.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other working conditions and emphasized that simple consultations with unions of public servants not engaged in the administration of the State did not meet the requirements of Article 4 of the Convention. The Committee notes that the Government, on the one hand, asserts that it has taken the necessary measures to ensure that public officers are given fair opportunities to collectively bargain over wages and remuneration and other working conditions, in conformity with Article 4 of the Convention, subject to the applicable laws and regulations governing the employment of civil servants, and on the other hand, reiterates that collective bargaining is done through the National Joint Council and the Departmental Joint Council, as stipulated in Service Circular No. 6/2020 and Service Circular No. 7/2020, or through direct engagement with the Government. While taking due note of the above, the Committee observes that the Government does not provide any details as to the content of the Circulars or the measures it indicates it has taken to ensure that public officers are given fair opportunities to collectively bargain, that section 52 of the IRA explicitly excludes workers employed by the Government or any statutory authority from the collective bargaining machinery of the Act and that it, therefore, remains unclear what precise substantial changes were made to the existing regime of collective bargaining in the public sector. In line with the above, the Committee requests the Government to provide further information in this respect, in particular to: (i) indicate the concrete changes made to the existing regime of collective bargaining in the public sector; (ii) to specify the content of Service Circular No. 6/2020 and Service Circular No. 7/2020 or any other applicable legal provisions, which, according to the Government, ensure that public servants can bargain collectively in conformity with Article 4 of the Convention; and (iii) provide information on collective bargaining undertaken in the public sector and any agreements concluded.

Collective bargaining in practice. In its previous comment, the Committee requested the Government to provide statistical information in relation to collective bargaining in the country. The Committee notes that the Government refers to statistical information by the Industrial Court but observes that no such information has been provided. It further notes that the Government points to additional measures taken to promote the full development and utilization of collective bargaining under the Convention, including engagement sessions with the social partners during the process of legislative amendments and industrial visits conducted to workplaces to promote industrial harmony. The Committee notes, however, the concerns expressed by the MTUC as to the low percentage of workers covered by collective agreements (1 to 2 per cent) and the declining level of trade union density (6 per cent). The Committee encourages the Government to continue to provide statistical information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2018, including allegations of anti-union discrimination. The Committee notes with concern that, despite its requests, the Government has not provided any comments on past ITUC observations, nor on the additional information it had declared to the Committee on the Application of Standards of the International Labour Conference (the Conference Committee) in June 2016 it would provide on the Malaysian Trades Union Congress (MTUC) allegations of 2015 concerning anti-union discrimination and interference. The Committee urges the Government to provide its comments on the 2016, 2017 and 2018 ITUC observations concerning violations of the Convention in practice, as well as on the allegations of anti-union discrimination and interference raised in 2015 by the MTUC.

With regard to the holistic review previously announced by the Government on the main labour laws (including the Employment Act, 1955, the Trade Unions Act, 1959 and the Industrial Relations Act, 1967 (IRA)), the Committee notes that the Government indicates that the holistic review continues with the assistance of the Office and several tripartite engagement sessions have been conducted; and that the amended version of the IRA is expected to be tabled before Parliament by the second quarter of 2019. The Committee firmly hopes that, with the technical assistance of the Office, the Government will take into account the following comments it reiterates to ensure the full conformity of these Acts with the Convention and that it will be in a position to note progress in the near future. The Committee requests the Government to provide information on any developments in this regard.

Article 1 of the Convention. Adequate protection against anti-union discrimination. In its previous observation, the Committee had noted that in the past years the vast majority of reported anti-union discrimination cases were addressed through the protection procedure set out in sections 5 and 8 of the IRA (neither providing for specific sanctions, nor acknowledging explicitly the possibility of reinstatement) and that in less than 6 per cent of reported cases, use was made of the procedure concerning anti-union discrimination offences set out in section 59 of the IRA (explicitly providing for penal sanctions and the possibility of reinstatement). The Committee requested the Government to provide further detailed information as to: (i) the sanctions and compensations relating to acts of anti-union discrimination, especially in those cases where anti-union discrimination was dealt with through sections 5 and 8 of the IRA; and (ii) the factors explaining the limited use of section 59 of the IRA which sets specific sanctions for anti-union discrimination acts. The Committee notes that the Government indicates that the aggrieved parties prefer the easier and flexible process (through conciliation) provided for under section 8 of the IRA – as opposed to section 59 which requires an investigation and process before a criminal court, since the complaint is quasi-criminal in nature, and where the standard of proof is high (beyond reasonable doubt). Noting that the Government only answered to its request for information on the factors explaining the limited use of section 59, the Committee recalls the need to ensure that all procedures set out to address anti-union discrimination afford adequate protection – including adequate compensation and sufficiently dissuasive sanctions. While recognizing that criminal procedures provide for strict standards of proof, the Committee recalls the importance of avoiding obstacles to bringing an action and obtaining an appropriate remedy for anti-union discrimination (see General Survey on the fundamental Conventions, 2012, paragraph 192). In this regard, the Committee notes that reversing the burden of proof by placing the burden on the employer once a prima facie case has been made is one of the preventive mechanisms used by a number of States to afford protection against anti-union discrimination while many other States have, in such cases, lowered the burden of proof applicable to workers. The Committee considers that placing on workers the burden of proving beyond reasonable doubt that the act in question occurred as a result of anti-union discrimination in order to access adequate protection would constitute a dissuasive obstacle to bringing an action and obtaining an appropriate remedy. The Committee requests the Government to: (i) provide detailed information on the general remedies effectively imposed to acts of anti-union discrimination dealt with through sections 5 and 8 of the IRA, as well as the sanctions and measures of compensation in relation to anti-union discrimination acts under section 59 of the IRA; and (ii) in light of this information take any necessary measures, in consultation with the social partners and with the technical assistance of the Office in the context of the review of the IRA, to ensure that the rules and procedures relating to anti-union discrimination afford adequate protection – including adequate compensation and sufficiently dissuasive sanctions, without placing on victims a burden of proof that constitutes a major obstacle to establishing liability and ensuring an appropriate remedy.

Articles 2 and 4. Trade union recognition for purposes of collective bargaining. Criteria and procedure for recognition. The Committee had noted in its previous comments that, under section 9 of the IRA, should an employer reject a union’s claim for voluntary recognition for the purpose of collective bargaining: (i) the union has to inform the Director-General of Industrial Relations (DGIR) for the latter to take appropriate action, including a competency check; (ii) the competency check is undertaken through a secret ballot to ascertain whether the union has secured the required ballot (50 per cent plus one) of the work people or class of work people, in respect of whom recognition is being sought. The Committee had also noted that the MTUC and the ITUC had raised a number of concerns on the application of this procedure (alleging that the DGIR uses the total number of workers on the date that the union requested recognition rather than those at the ballot, which given the length of the procedure may impede the recognition of a union enjoying a majority support; that in certain instances more than 50 per cent of the workforce, being migrant, had repatriated to their home country but were considered as counting against the union for the purposes of the secret ballot; and that the secret ballot procedure does not provide protection to prevent interference from the employer). In light of the foregoing, the Committee had: (i) recalled that the recognition procedure should seek to assess the representativeness existing at the time the ballot vote takes place to take into consideration the actual size of the workforce in the bargaining unit, and that the process should provide safeguards to prevent acts of interference; and (ii) requested the Government to ensure that the right to collective bargaining is guaranteed when no union reaches the required majority to be declared the exclusive bargaining agent.

While taking due note of the Government’s response that it does not impose any restrictions on minority trade unions to recruit members and re-submit a new claim for recognition in order to obtain majority, the Committee observes that this does not address the issue of the right to bargain collectively when no union reaches the required majority. The Committee therefore requests once again the Government to take, in consultation with the social partners and in the context of the review of the IRA, the necessary steps to ensure that the recognition process provides safeguards to prevent acts of interference, and that if no union reaches the required majority to be declared the exclusive bargaining agent, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members.

Duration of proceedings for the recognition of a trade union. In its previous report, the Government had indicated that the average duration of the recognition process was: (i) just over three months in proceedings resolved by voluntary recognition; and (ii) four-and-a-half months for claims resolved by the Department of Industrial Relations which do not involve judicial review. The Committee had considered that the duration of proceedings could still be excessively long and requested the Government to take any necessary measures to further reduce the length of proceedings for the recognition of trade unions. The Committee notes that the Government indicates that it is working towards improving the process, noting in particular that the Department of Industrial Relations is taking administrative and legal actions to expedite the process, and that the IRA is under holistic review. The Committee requests the Government to provide additional information as to the actions undertaken by the Department of Industrial Relations to expedite the process; and, in consultation with the social partners and in the context of the abovementioned review exercise, take any necessary measures to further reduce the length of proceedings for the recognition of trade unions.

Migrant workers. In its previous comments the Committee: (i) considered that the requirement for foreign workers to obtain the permission from the Minister of Human Resources in order to be elected as trade union representatives hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes; (ii) welcomed the Government’s statement that current laws do not prohibit foreign workers from becoming trade union members and that a legislative amendment would be introduced to enable non-citizens to run for election for union office if they have been legally residing in the country for at least three years; and (iii) noted the concerns raised by the Worker members at the 2016 Conference Committee that migrant workers faced a number of practical obstacles to collective bargaining, including the typical two-year duration of their contracts, their vulnerability to anti-union discrimination and a recent judicial decision in the paper industry ruling that migrant workers under fixed-term contracts could not benefit from the conditions agreed in collective agreements. The Committee observes that the Government: (i) on the one hand, reiterates that it does not impose any restriction on migrant workers to engage in collective bargaining – a right that is recognized in the IRA to all workers, including migrant workers, which may cast their votes in the recognition process, participate in negotiations and enjoy the benefits of collective agreements; but (ii) on the other hand, it does not provide any information on the measures it had announced or in response to the concerns that had been noted by the Committee, some of which are of a practical nature. The Committee requests the Government to inform it on the amendments made to the IRA as announced and which would address the concerns previously raised, so as to ensure the full utilization of collective bargaining by migrant workers, including as to enabling foreign workers to run for trade union office. The Committee requests the Government to provide information on any development in this respect.

Scope of collective bargaining. The Committee had previously urged the Government to amend section 13(3) of the IRA, which contains restrictions on collective bargaining with regard to transfer, dismissal and reinstatement (some of the matters known as “internal management prerogatives”) and to initiate tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining. In its previous observation the Committee had welcomed the Government’s indication that section 13(3) would be amended to remove its broad restrictions on the scope of collective bargaining. The Committee notes that the Government indicates that it is in the process of amending the IRA in accordance with the requirements of the Labour Chapter of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, in particular as to section 13(3). Firmly hoping that section 13(3) of the IRA will be amended in the near future to remove its broad restrictions on the scope of collective bargaining, the Committee requests the Government to provide information on any development in this respect.

Compulsory arbitration. In its previous comments, the Committee had noted that section 26(2) of the IRA allows compulsory arbitration, by the Minister of Labour of his own motion in case of failure of collective bargaining. The Committee had requested the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. In a similar vein, the Committee observes that the Committee on Freedom of Association (CFA) referred to it the follow-up of the legislative aspects of Case No. 3126, and requested the Government to bring its legislation and practice concerning the referral of interest disputes to compulsory arbitration into conformity with the principles of freedom of association (see 383rd Report, October 2017, paragraph 454). The Committee notes that in its latest report the Government indicates that it needs more information and time before any amendment is made to change the current laws and policy on compulsory arbitration and welcomes the Government’s statement that it is working with the Office to ensure the amendments to the legislation are in compliance with international labour standards. The Committee hopes that with the technical assistance of the Office the Government will take any necessary measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other working conditions. The Committee notes that the Government reiterates once again that, through the National Joint Council (which includes trade unions and associations in the public sector) and the Departmental Joint Council, representatives of public employees can hold discussions with and make proposals to the Government, on matters including terms and condition of service, training, remuneration, promotions and benefits. The Government adds that major trade unions, such as the Congress of Unions of Employees in the Public and Civil Services Malaysia (CUEPACS) and the National Union of the Teaching Professions Malaysia (NUTP) have been known to approach the Government directly to request for improvements in the terms and conditions of their members. The Government further asserts that while the approval of any improvements is at the Government’s discretion, Act 177 provides a dispute settlement mechanism, including the referral of a trade dispute of any governmental or statutory authority service to the Industrial Court, and that public employees may launch industrial actions such as strike and picketing (though these rights have never been exercised by public service unions, as they have never declared any deadlock in any discussion). The Government concludes that, in general, the current practice of negotiating terms and conditions of service of public employees has the rules and spirit of collective bargaining, although to a certain extent it is not in full conformity with international labour standards. In this respect, the Committee, while recognizing the singularity of the public service which allows special modalities, must recall again that it considers that simple consultations with unions of public servants not engaged in the administration of the State do not meet the requirements of Article 4 of the Convention. The Committee urges the Government to take the necessary measures to ensure, for public servants not engaged in the administration of the State, the right to bargain collectively over wages and remuneration and other working conditions, in conformity with Article 4 of the Convention, and recalls that the Government may avail itself of the technical assistance of the Office.

Application of the Convention in practice. The Committee had noted in its previous observation that the Worker members of the 2016 Conference Committee had raised concerns over the low percentage of workers covered by collective agreements in the country (according to them, 1 to 2 per cent despite the unionization rate of almost 10 per cent). Noting that the Government did not provide the statistical information requested, the Committee reiterates its request to the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 concerning legislative matters and allegations of anti-union discrimination, including anti-union dismissals and non-recognition of unions. The Committee requests the Government to provide its comments in this respect, as well as to the allegations of specific violations of the Convention in practice made by the ITUC in 2016.

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments made in 2016.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee takes note of the discussion held in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2016 on the application of the Convention by Malaysia. It notes that the Conference Committee requested the Government to: (i) provide further detailed information regarding the announced repeal of section 13(3) of the Industrial Relations Act 1967 (IRA) on the limitations with respect to the scope of collective bargaining; (ii) report in detail on the holistic review of the national labour legislation described above to the next meeting of the Committee of Experts in November 2016; (iii) ensure that public sector workers not engaged in the administration of the State may enjoy their right to collective bargaining; (iv) provide detailed information on the scope of bargaining in the public sector; (v) review section 9 of the IRA in order to guarantee that the criteria and procedure for union recognition are brought in line with the Convention; (vi) undertake legal and practical measures to ensure that remedies and penalties against acts of anti-union discrimination are effectively enforced; and (vii) ensure that migrant workers are able to engage in collective bargaining in practice. The Committee notes that the Conference Committee further called upon the Government to avail itself of the technical assistance of the Office with a view to implementing its recommendations and ensuring that its law and practice are in compliance with the Convention.

The Committee takes note of the information provided by the Government to the Conference Committee in June 2016 as to the outcome of the judicial proceedings concerning matters raised in the observations of the World Federation of Trade Unions (WFTU) and the National Union of Bank Employees (NUBE) of 2014. The Committee further notes the information provided by the Government to the Conference Committee on the observations of the ITUC and the Malaysian Trades Union Congress (MTUC) of 2015, including the Government’s indication, as to allegations of anti-union discrimination and interference, that out of eight complaints raised by the MTUC, three had been resolved and five were pending before the Industrial Court or the relevant authority, and that the Government would submit detailed comments in writing. The Committee requests the Government to provide such comments concerning these allegations.

With regard to the holistic review announced by the Government on the main labour laws (including the Employment Act, 1955, the Trade Unions Act, 1959 and the IRA), the Committee welcomes the Government’s indication that it is in the process of drafting amendments with the technical assistance of the Office to ensure conformity with the Convention. The Committee trusts that, with the technical assistance of the Office, the Government will take into account the following comments to ensure the full conformity of these Acts with the Convention and it requests the Government to provide information on any developments in this regard.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes that the Government informs that in the period from 2013 to 2015 the Department of Industrial Relations enforced the laws protecting against anti-union discrimination in 51 cases: 48 cases pertaining to section 8 of the IRA and three cases pertaining to section 59 of the IRA. In this respect, the Committee observes that two different kinds of protection against anti-union discrimination are indeed set out in the IRA. Firstly, section 5 of the IRA broadly prohibits anti-union discrimination in relation to both union membership and participation in union activities, including at the recruitment stage. Under section 8 of the IRA, such prohibition is enforced through general remedies: in case of dismissal, the general dismissal procedures provided in the law, and otherwise the intervention of the Director-General for Industrial Relations to seek a resolution and, failing that, the Labour Court, which “may make such award as may be deemed necessary and appropriate”.

Secondly, section 59 of the IRA singles out certain anti-union discrimination acts as offences (namely, the dismissal or other prejudicial treatment by reason of becoming a member or an officer of a trade union or the undertaking of certain activities by trade unionists). The commission of offences under section 59 is punished with imprisonment for a term not exceeding one year or a fine not exceeding 2,000 Malaysian ringgit (MYR) (approximately US$479) or both, as well as payment of lost wages and “where appropriate direct the employer to reinstate the workman”. From the information provided by the Government, the Committee observes that in the past years the vast majority of reported anti-union discrimination cases were addressed through the protection procedure set out in sections 5 and 8 of the IRA (neither providing for specific sanctions, nor acknowledging explicitly the possibility of reinstatement) and that in less than 6 per cent of reported cases use was made of the procedure concerning anti-union discrimination offences set out in section 59 of the IRA (explicitly providing for penal sanctions and the possibility of reinstatement). Recalling that, under the Convention, all acts of anti-union discrimination should be adequately prevented through the imposition of dissuasive sanctions and adequate compensation, the Committee requests the Government to provide further detailed information as to: (i) the sanctions and compensations effectively imposed to anti-union discrimination acts, especially in those cases where anti-union discrimination acts were dealt with through sections 5 and 8 of the IRA; and (ii) the factors explaining the limited use of section 59 of the IRA which sets specific sanctions for anti-union discrimination acts.

Articles 2 and 4. Trade union recognition for purposes of collective bargaining. Criteria and procedure for recognition. The Committee had noted in its previous comments that, under section 9 of the IRA, should an employer reject a union’s claim for voluntary recognition for the purpose of collective bargaining, the union has to: (i) inform the Director-General of Industrial Relations (DGIR) for the latter to take appropriate action, including a competency check; (ii) the competency check is undertaken through a secret ballot to ascertain the percentage of the work people or class of work people, in respect of whom recognition is being sought, who are members of the trade union making the claim; and (iii) when the matter is not resolved by the DGIR, the Minister decides on the recognition, a decision that may be subject to judicial review by the High Court. The Committee notes that the Government informed the Conference Committee that the main criterion for recognition is the majority support (50 per cent plus one) from employees through secret ballot. The Committee also takes note of the concerns raised by Worker members at the Conference Committee, and by the MTUC in its 2015 observation, that the DGIR uses the total number of workers on the date that the union requested recognition rather than those at the ballot, which given the length of the procedure may impede the recognition of a union enjoying a majority support, and that in certain instances more than 50 per cent of the workforce, being migrant, had repatriated to their home country but were considered as counting against the union for the purposes of the secret ballot. The Committee further notes the concern raised by the ITUC that the secret ballot procedure does not provide protection to prevent interference from the employer. The Committee finally notes that the Government indicates in its latest report that a holistic review of the recognition procedure will be carried out in its next legislative review exercise. The Committee observes that the recognition procedure should seek to assess the representativeness existing at the time the ballot vote takes place (this would not be the case if, for example, the quorum is set in relation to the workforce that existed at a much earlier date, after which there may have been important fluctuations in the number of employees in the bargaining unit), and that the process should provide safeguards to prevent acts of interference. Moreover, the Committee considers that, to promote the development and utilization of collective bargaining, if no union reaches the majority required to be declared the exclusive bargaining agent, minority unions should be able to group together to attain such majority or at least be given the possibility to bargain collectively on behalf of their own members. The Committee requests the Government, in consultation with the social partners and in the context of the review of the recognition process, to ensure that the process provides safeguards to prevent acts of interference, and that if no union reaches the required majority to be declared the exclusive bargaining agent, minority unions may be able to group together to attain such majority or at least be given the possibility to bargain collectively on behalf of their own members.

Duration of proceedings for the recognition of a trade union. In its previous report the Government had indicated that the average duration of the recognition process was: (i) just over three months in proceedings resolved by voluntary recognition; and (ii) four-and-a-half months for claims resolved by the Industrial Relations Department which do not involve judicial review. The Committee had considered that the duration of proceedings could still be excessively long. In its information provided to the Conference Committee the Government noted that the length of the process varies, depends on the cooperation of the parties and may be subject to judicial review. Not having received any indication from the Government as to measures carried out or planned in this regard, the Committee again requests the Government to, in consultation with the social partners and in the context of the abovementioned review exercise, take any necessary measures to further reduce the length of proceedings for the recognition of trade unions.

Migrant workers. In its previous comments, considering that the requirement for foreign workers to obtain the permission from the Minister of Human Resources in order to be elected as trade union representatives hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes, the Committee requested the Government to take measures in order to modify the legislation. The Committee notes the Government’s statement that current laws do not prohibit foreign workers from becoming trade union members and welcomes its indication that a legislative amendment will be introduced to enable non-citizens to run for election for union office if they have been legally residing in the country for at least three years. The Committee finally notes the concerns raised by the Worker members at the Conference Committee that migrant workers faced a number of practical obstacles to collective bargaining, including the typical two-year duration of their contracts, their vulnerability to anti-union discrimination and a recent judicial decision in the paper industry ruling that migrant workers under fixed-term contracts could not benefit from the conditions agreed in collective agreements. Recalling the Conference Committee’s request to ensure that migrant workers are able to engage in collective bargaining in practice, the Committee requests the Government to take any measures to ensure that the promotion of the full development and utilization of collective bargaining under the Convention is fully enjoyed by migrant workers, and to provide information on any development in this respect.

Scope of collective bargaining. The Committee had previously urged the Government to amend section 13(3) of the IRA, which contains restrictions on collective bargaining with regard to transfer, dismissal and reinstatement (some of the matters known as “internal management prerogatives”) and to initiate tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining. The Committee welcomes the Government’s indication that section 13(3) will be amended to remove its broad restrictions on the scope of collective bargaining. The Committee requests the Government to provide information on any development in this respect.

Compulsory arbitration. In its previous comments, the Committee had noted that section 26(2) of the IRA allows compulsory arbitration, by the Minister of Labour of his own motion in case of failure of collective bargaining. The Committee had requested the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. The Committee noted the Government’s indication in previous reports that, although the provision accords discretionary powers to the Minister to refer a trade dispute to the Industrial Court for arbitration, practically, the Minister has never exercised such power in an arbitrary manner and only makes a decision upon receipt of a notification from the Industrial Relations Department that the conciliation has failed to resolve the dispute amicably. The Committee once again recalls that the imposition of compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement raises problems in relation to the application of the Convention. Therefore, the Committee once again reiterates its previous comments and urges the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other employment conditions. The Committee notes that the Government indicates once again that, through the National Joint Council and the Departmental Joint Council, representatives of public employees have other platforms to hold discussions and consultations with the Government, on matters including terms and condition of service, training, remuneration, promotions and benefits. The Committee, while recognizing the singularity of the public service which allows special modalities, must again reiterate that it considers that simple consultations with unions of public servants not engaged in the administration of the State do not meet the requirements of Article 4 of the Convention. The Committee urges the Government to take the necessary measures to ensure, for public servants not engaged in the administration of the State, the right to bargain collectively over wages and remuneration and other employment conditions, in conformity with Article 4 of the Convention, and recalls that the Government may avail itself of the technical assistance of the Office.

Application of the Convention in practice. The Committee notes that the Worker members of the Conference Committee raised concerns over the low percentage of workers covered by collective agreements in the country (according to Worker members, 1 to 2 per cent despite the unionization rate of almost 10 per cent). The Committee requests the Government to provide information concerning the number of collective agreements concluded, specifying the sectors, the level of bargaining and the number of workers covered, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2016, concerning matters addressed by the Committee as well as allegations of specific violations of the Convention in practice. The Committee requests the Government to provide its comments in this respect.

Follow-up to the conclusions in the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee takes note of the discussion held in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2016 on the application of the Convention by Malaysia. It notes that the Conference Committee requested the Government to: (i) provide further detailed information regarding the announced repeal of section 13(3) of the Industrial Relations Act 1967 (IRA) on the limitations with respect to the scope of collective bargaining; (ii) report in detail on the holistic review of the national labour legislation described above to the next meeting of the Committee of Experts in November 2016; (iii) ensure that public sector workers not engaged in the administration of the State may enjoy their right to collective bargaining; (iv) provide detailed information on the scope of bargaining in the public sector; (v) review section 9 of the IRA in order to guarantee that the criteria and procedure for union recognition are brought in line with the Convention; (vi) undertake legal and practical measures to ensure that remedies and penalties against acts of anti-union discrimination are effectively enforced; and (vii) ensure that migrant workers are able to engage in collective bargaining in practice. The Committee notes that the Conference Committee further called upon the Government to avail itself of the technical assistance of the Office with a view to implementing its recommendations and ensuring that its law and practice are in compliance with the Convention.

The Committee takes note of the information provided by the Government to the Conference Committee in June 2016 as to the outcome of the judicial proceedings concerning matters raised in the observations of the World Federation of Trade Unions (WFTU) and the National Union of Bank Employees (NUBE) of 2014. The Committee further notes the information provided by the Government to the Conference Committee on the observations of the ITUC and the Malaysian Trades Union Congress (MTUC) of 2015, including the Government’s indication, as to allegations of anti-union discrimination and interference, that out of eight complaints raised by the MTUC, three had been resolved and five were pending before the Industrial Court or the relevant authority, and that the Government would submit detailed comments in writing. The Committee requests the Government to provide such comments concerning these allegations.

With regard to the holistic review announced by the Government on the main labour laws (including the Employment Act, 1955, the Trade Unions Act, 1959 and the IRA), the Committee welcomes the Government’s indication that it is in the process of drafting amendments with the technical assistance of the Office to ensure conformity with the Convention. The Committee trusts that, with the technical assistance of the Office, the Government will take into account the following comments to ensure the full conformity of these Acts with the Convention and it requests the Government to provide information on any developments in this regard.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes that the Government informs that in the period from 2013 to 2015 the Department of Industrial Relations enforced the laws protecting against anti-union discrimination in 51 cases: 48 cases pertaining to section 8 of the IRA and three cases pertaining to section 59 of the IRA. In this respect, the Committee observes that two different kinds of protection against anti-union discrimination are indeed set out in the IRA. Firstly, section 5 of the IRA broadly prohibits anti-union discrimination in relation to both union membership and participation in union activities, including at the recruitment stage. Under section 8 of the IRA, such prohibition is enforced through general remedies: in case of dismissal, the general dismissal procedures provided in the law, and otherwise the intervention of the Director-General for Industrial Relations to seek a resolution and, failing that, the Labour Court, which “may make such award as may be deemed necessary and appropriate”.

Secondly, section 59 of the IRA singles out certain anti-union discrimination acts as offences (namely, the dismissal or other prejudicial treatment by reason of becoming a member or an officer of a trade union or the undertaking of certain activities by trade unionists). The commission of offences under section 59 is punished with imprisonment for a term not exceeding one year or a fine not exceeding 2,000 Malaysian ringgit (MYR) (approximately US$479) or both, as well as payment of lost wages and “where appropriate direct the employer to reinstate the workman”. From the information provided by the Government, the Committee observes that in the past years the vast majority of reported anti-union discrimination cases were addressed through the protection procedure set out in sections 5 and 8 of the IRA (neither providing for specific sanctions, nor acknowledging explicitly the possibility of reinstatement) and that in less than 6 per cent of reported cases use was made of the procedure concerning anti-union discrimination offences set out in section 59 of the IRA (explicitly providing for penal sanctions and the possibility of reinstatement). Recalling that, under the Convention, all acts of anti-union discrimination should be adequately prevented through the imposition of dissuasive sanctions and adequate compensation, the Committee requests the Government to provide further detailed information as to: (i) the sanctions and compensations effectively imposed to anti-union discrimination acts, especially in those cases where anti-union discrimination acts were dealt with through sections 5 and 8 of the IRA; and (ii) the factors explaining the limited use of section 59 of the IRA which sets specific sanctions for anti-union discrimination acts.

Articles 2 and 4. Trade union recognition for purposes of collective bargaining. Criteria and procedure for recognition. The Committee had noted in its previous comments that, under section 9 of the IRA, should an employer reject a union’s claim for voluntary recognition for the purpose of collective bargaining, the union has to: (i) inform the Director-General of Industrial Relations (DGIR) for the latter to take appropriate action, including a competency check; (ii) the competency check is undertaken through a secret ballot to ascertain the percentage of the work people or class of work people, in respect of whom recognition is being sought, who are members of the trade union making the claim; and (iii) when the matter is not resolved by the DGIR, the Minister decides on the recognition, a decision that may be subject to judicial review by the High Court. The Committee notes that the Government informed the Conference Committee that the main criterion for recognition is the majority support (50 per cent plus one) from employees through secret ballot. The Committee also takes note of the concerns raised by Worker members at the Conference Committee, and by the MTUC in its 2015 observation, that the DGIR uses the total number of workers on the date that the union requested recognition rather than those at the ballot, which given the length of the procedure may impede the recognition of a union enjoying a majority support, and that in certain instances more than 50 per cent of the workforce, being migrant, had repatriated to their home country but were considered as counting against the union for the purposes of the secret ballot. The Committee further notes the concern raised by the ITUC that the secret ballot procedure does not provide protection to prevent interference from the employer. The Committee finally notes that the Government indicates in its latest report that a holistic review of the recognition procedure will be carried out in its next legislative review exercise. The Committee observes that the recognition procedure should seek to assess the representativeness existing at the time the ballot vote takes place (this would not be the case if, for example, the quorum is set in relation to the workforce that existed at a much earlier date, after which there may have been important fluctuations in the number of employees in the bargaining unit), and that the process should provide safeguards to prevent acts of interference. Moreover, the Committee considers that, to promote the development and utilization of collective bargaining, if no union reaches the majority required to be declared the exclusive bargaining agent, minority unions should be able to group together to attain such majority or at least be given the possibility to bargain collectively on behalf of their own members. The Committee requests the Government, in consultation with the social partners and in the context of the review of the recognition process, to ensure that the process provides safeguards to prevent acts of interference, and that if no union reaches the required majority to be declared the exclusive bargaining agent, minority unions may be able to group together to attain such majority or at least be given the possibility to bargain collectively on behalf of their own members.

Duration of proceedings for the recognition of a trade union. In its previous report the Government had indicated that the average duration of the recognition process was: (i) just over three months in proceedings resolved by voluntary recognition; and (ii) four-and-a-half months for claims resolved by the Industrial Relations Department which do not involve judicial review. The Committee had considered that the duration of proceedings could still be excessively long. In its information provided to the Conference Committee the Government noted that the length of the process varies, depends on the cooperation of the parties and may be subject to judicial review. Not having received any indication from the Government as to measures carried out or planned in this regard, the Committee again requests the Government to, in consultation with the social partners and in the context of the abovementioned review exercise, take any necessary measures to further reduce the length of proceedings for the recognition of trade unions.

Migrant workers. In its previous comments, considering that the requirement for foreign workers to obtain the permission from the Minister of Human Resources in order to be elected as trade union representatives hinders the right of trade union organizations to freely choose their representatives for collective-bargaining purposes, the Committee requested the Government to take measures in order to modify the legislation. The Committee notes the Government’s statement that current laws do not prohibit foreign workers from becoming trade union members and welcomes its indication that a legislative amendment will be introduced to enable non-citizens to run for election for union office if they have been legally residing in the country for at least three years. The Committee finally notes the concerns raised by the Worker members at the Conference Committee that migrant workers faced a number of practical obstacles to collective bargaining, including the typical two-year duration of their contracts, their vulnerability to anti-union discrimination and a recent judicial decision in the paper industry ruling that migrant workers under fixed-term contracts could not benefit from the conditions agreed in collective agreements. Recalling the Conference Committee’s request to ensure that migrant workers are able to engage in collective bargaining in practice, the Committee requests the Government to take any measures to ensure that the promotion of the full development and utilization of collective bargaining under the Convention is fully enjoyed by migrant workers, and to provide information on any development in this respect.

Scope of collective bargaining. The Committee had previously urged the Government to amend section 13(3) of the IRA, which contains restrictions on collective bargaining with regard to transfer, dismissal and reinstatement (some of the matters known as “internal management prerogatives”) and to initiate tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining. The Committee welcomes the Government’s indication that section 13(3) will be amended to remove its broad restrictions on the scope of collective bargaining. The Committee requests the Government to provide information on any development in this respect.

Compulsory arbitration. In its previous comments, the Committee had noted that section 26(2) of the IRA allows compulsory arbitration, by the Minister of Labour of his own motion in case of failure of collective bargaining. The Committee had requested the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. The Committee noted the Government’s indication in previous reports that, although the provision accords discretionary powers to the Minister to refer a trade dispute to the Industrial Court for arbitration, practically, the Minister has never exercised such power in an arbitrary manner and only makes a decision upon receipt of a notification from the Industrial Relations Department that the conciliation has failed to resolve the dispute amicably. The Committee once again recalls that the imposition of compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement raises problems in relation to the application of the Convention. Therefore, the Committee once again reiterates its previous comments and urges the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other employment conditions. The Committee notes that the Government indicates once again that, through the National Joint Council and the Departmental Joint Council, representatives of public employees have other platforms to hold discussions and consultations with the Government, on matters including terms and condition of service, training, remuneration, promotions and benefits. The Committee, while recognizing the singularity of the public service which allows special modalities, must again reiterate that it considers that simple consultations with unions of public servants not engaged in the administration of the State do not meet the requirements of Article 4 of the Convention. The Committee urges the Government to take the necessary measures to ensure, for public servants not engaged in the administration of the State, the right to bargain collectively over wages and remuneration and other employment conditions, in conformity with Article 4 of the Convention, and recalls that the Government may avail itself of the technical assistance of the Office.

Application of the Convention in practice. The Committee notes that the Worker members of the Conference Committee raised concerns over the low percentage of workers covered by collective agreements in the country (according to Worker members, 1 to 2 per cent despite the unionization rate of almost 10 per cent). The Committee requests the Government to provide information concerning the number of collective agreements concluded, specifying the sectors, the level of bargaining and the number of workers covered, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations received on 1 September 2015 of the International Trade Union Confederation (ITUC) and of the Malaysian Trades Union Congress (MTUC), concerning matters addressed by the Committee as well as allegations of anti-union discrimination and interference in several sectors, including dismissals and non-recognition of unions. The Committee requests the Government to provide its comments in this respect.

The Committee further notes that, in response to the 2014 observations of the World Federation of Trade Unions (WFTU) and the National Union of Bank Employees (NUBE), the Government states that the matters raised therein are the object of two cases pending before the Industrial Court of Malaysia. The Committee requests the Government to provide information on the outcome of the judicial proceedings.

The Committee also notes the Government’s statement that Malaysia is currently conducting a holistic review of its main labour laws – the Employment Act 1955, the Trade Unions Act 1959 and the Industrial Relations Act 1967 (IRA). The Committee firmly trusts that the Government will take into account the following comments to ensure the full conformity of these Acts with the Convention and, recalling that the technical assistance of the ILO is at its disposal, it requests the Government to inform of any developments in this regard.

Articles 1 and 4 of the Convention. Trade union recognition for purposes of collective bargaining. Duration of proceedings for the recognition of a trade union. In its previous comments, the Committee had considered that the average duration of proceedings for the recognition of a union for collective bargaining purposes indicated by the Government (nine months) was excessively long, and requested the Government to take measures to modify the legislation in order to reduce the length of proceedings. The Committee notes that, in response to this request, the Government states that the average duration of the recognition process is: (i) just over three months in proceedings resolved by voluntary recognition; and (ii) four-and-a-half months for claims resolved by the Industrial Relations Department, when these do not lead to judicial review. The Government thus affirms that a number of cases were settled in less than the nine-month average previously noted, depending on whether the parties concerned cooperated and whether they resorted to judicial review. Considering that the duration of proceedings can still be excessively long, the Committee requests the Government, in consultation with the social partners, to take any necessary measures to modify the legislation in order to further reduce the length of proceedings for the recognition of trade unions.

Criteria and procedure for recognition. The Committee had noted in its previous comments that, under section 9 of the IRA, should an employer reject a union’s claim for voluntary recognition for the purpose of collective bargaining, the union has to: (i) inform the Director General of Industrial Relations (DGIR) for the latter to take appropriate action, including a competency check; and (ii) when the matter is not resolved by the DGIR, the Minister decides on the recognition, a decision that may be subject to judicial review by the High Court. The Committee had requested the Government to provide information concerning the requirements to fulfil the competency check and the criteria applicable to the decisions of the DGIR and/or the Minister. The Committee notes the Government’s indication that recognition on a mandatory basis is granted subject to the competency of the trade union concerned to represent the particular workpeople and the strength of their membership. The Government indicates that the competency check is stipulated under section 9(4A)(b), which refers to a secret ballot to ascertain the percentage of the workpeople or class of workpeople, in respect of whom recognition is being sought, who are members of the trade union making the claim. The Committee also notes that the MTUC criticizes the methodology to ascertain majority for union recognition by secret ballot, noting that the Industrial Relations Department is using the total number of workers on the date sought by the union instead of the total number of the participants in the ballot and that in certain instances more than 50 per cent of the workforce was migrant and had repatriated to their home country, yet was considered as counting against the union for the purposes of the secret ballot. The Committee requests the Government to provide further information on the criteria and procedure to assess the competency of a trade union to be recognized for the purposes of collective bargaining, including the percentage required in a secret ballot to attain recognition and the workers considered to calculate the percentage (whether those present at the ballot or the total number of workers and, in the latter case, the methodology and data used for such determination).

Refusal to apply orders of recognition and of reinstatement In its previous comments, addressing the ITUC’s observations to apply any sanctions against employers who opposed the directives of the authorities granting trade union recognition or refused to comply with Industrial Court orders to reinstate unlawfully dismissed workers, the Committee had requested the Government to provide: (i) details about the institutional operation of the Legal Division of the Industrial Relations Department; and (ii) information and statistics on any sanctions against employers opposing such directives or refusing to comply with reinstatement orders. The Committee duly notes the information provided by the Government: (i) on the composition and functioning of the Legal Division of the Industrial Relations Department; and (ii) that in the last two years no cases have been reported: (a) regarding employers opposing the directives of the authorities granting trade union recognition, except in cases where the employer obtained a stay from court due to judicial review; or (b) regarding employers refusing to comply with Industrial Court orders to reinstate unlawfully dismissed workers. The Committee also notes the observations of the ITUC and the MTUC alleging continued difficulties to ensure the recognition of trade unions, anti-union discrimination practices, and backlog of cases in the Industrial Courts in Penang and Kuala Lumpur. Taking note of the information provided by the Government, as well as of the allegations of the ITUC and the MTUC, the Committee trusts that the Government will take any necessary measures to ensure the availability and swift operation of efficient remedies to protect workers against anti-union discrimination and to ensure compliance with the decisions regarding union recognition.

Migrant workers. In its previous comments, considering that the requirement for foreign workers to obtain the permission from the Minister of Human Resources in order to be elected as trade union representatives, hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes, the Committee requested the Government to take measures in order to modify the legislation. The Committee notes that the Government simply states in its report that it has taken note of the request. Firmly hoping that it will soon be in a position to observe progress on the matter, the Committee reiterates its previous request.

Scope of collective bargaining. The Committee had previously urged the Government to take measures to amend the legislation so as to bring section 13(3) of the IRA, which contains restrictions on collective bargaining with regard to transfer, dismissal and reinstatement (some of the matters known as “internal management prerogatives”), into full conformity with Article 4 of the Convention. The Committee notes that the Government: (i) once again indicates in its report that it intends to retain said provision to maintain industrial harmony and speed up the collective bargaining process; (ii) states that if both parties agree they may negotiate the provisions under section 13(3) during the collective bargaining process; and (iii) notes that the issue will be addressed in the holistic review of labour laws currently taking place. The Committee observes that section 13(3) of the IRA provides that the abovementioned excluded matters may not be included by a trade union in its proposals for collective bargaining. The Committee recalls again, in this regard, that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention; and tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties. The Committee once again requests the Government to take measures to amend section 13(3) of the IRA so as to remove these restrictions on collective bargaining matters, and to initiate tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining.

Compulsory arbitration. In its previous comments, the Committee had noted that section 26(2) of the IRA allows compulsory arbitration by the Minister of Labour of his own motion in case of failure of collective bargaining. The Committee had requested the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. The Committee notes that the Government reiterates that, although the provision accords discretionary powers to the Minister to refer a trade dispute to the Industrial Court for arbitration, in practice the Minister only makes the referral when conciliation has failed to resolve the dispute amicably, and when the dispute is referred to the DGIR. The Government also indicates that the matter will be addressed in the holistic review of labour laws under way. The Committee recalls that the imposition of compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement raises problems in relation to the application of the Convention. Reiterating its previous comments, the Committee urges the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure the right of public servants not engaged in the administration of the State to bargain collectively over wages, remuneration and other employment conditions. The Committee notes with regret that the Government, invoking the peculiarities of the public service, once again reiterates that the right to collective bargaining cannot be extended to employees of the public sector. The Government once again points out that the public service can discuss with its employer on matters concerning conditions of work through the Joint National Council and the Joint Agency Council. Nevertheless, the Committee, while recognizing the singularity of the public service which allows special modalities, considers that simple consultation with unions of public servants not engaged in the administration of the State do not meet the requirements of Article 4 of the Convention. Therefore, the Committee urges the Government once again to take the necessary measures to guarantee the right of public servants not engaged in the administration of the State to bargain collectively over wages, remuneration and other employment conditions, in conformity with Article 4 of the Convention.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee takes note of the observations provided by the World Federation of Trade Unions (WFTU) and by the National Union of Bank Employees (NUBE) in a communication received on 9 January 2014. The Committee requests the Government to provide its comments in this respect.

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous comments.

Articles 1 and 4 of the Convention. Trade union recognition for purposes of collective bargaining. Duration of proceedings for the recognition of a trade union. In its previous comments, the Committee had noted the comments by the International Trade Union Confederation (ITUC) reiterating issues previously raised by the Committee regarding long delays in the treatment of union claims to obtain recognition for collective bargaining purposes. The Committee had requested the Government to submit more precise information on the ITUC’s comments in the light of the provisions of the Industrial Relations Act (IRA) and to indicate the average duration of proceedings for the recognition of a union, as well as the requirements for obtaining recognition. The Committee notes the Government’s indication that, under the new legislations, the average duration of proceedings for the recognition of a union is nine (9) months, provided that the parties involved do not challenge the process through judicial review in the court or raise issues that could cause delays. The Committee considers that this average duration of proceedings is excessively long and requests the Government to take measures to modify the legislation in order to reduce the length of proceedings for the recognition of trade unions.

Procedure of recognition. The Committee further notes that the Government indicates that, in order to be accorded recognition, the relevant union has to undergo a competency check (conducted by the Industrial Relations Department) to ascertain whether the majority of the class of workers of the enterprise had become members of the union seeking recognition. However, the Committee notes that the Government makes no reference to the applicable legislation. The Committee therefore requests the Government to indicate what the requirements in order to fulfil the competency check are and to indicate the relevant legislative provisions applicable.

In addition, the Committee notes that the Government indicates in its report that, in claims for recognition, once the trade union concerned has served Form A on the company, the employer shall have 21 days to either accord the recognition or to reject the claim. Should the company reject the claim for recognition, either at the end of the 21 days or any time before that, then the union has to inform the Director General of Industrial Relations (DGIR) within 14 days after receiving such notification by the company. The DGIR will then take appropriate action. The Committee further notes that section 9(5) of the IRA states that the Minister has the final say on whether recognition is to be accorded by the employers to the unions. However, an aggrieved party may apply for a judicial review at the High Court against the decision. While recalling again the excessive length of these proceedings, the Committee requests the Government to indicate the criteria applicable to the decisions of the DGIR and/or the Minister.

Sanctions applicable for refusal to apply orders of recognition and of reinstatement. In its previous comments, the Committee had noted the Government’s statement about the comments previously made by the International Trade Union Confederation (ITUC) with regard to the inefficiency of labour courts concerning the application of the provisions of the Convention. On this matter, the Committee had noted the ITUC’s comments that the Government failed to apply any sanctions against employers who opposed the directives of the authorities granting trade union recognition or who have refused to comply with Industrial Court orders to reinstate unlawfully dismissed workers. The Committee had requested the Government to submit its observations on these matters.

The Committee notes the Government’s indication that: (i) the Industrial Court has jurisdiction for trade disputes under section 26 of the IRA and in cases of dismissals under section 20 of the IRA; (ii) under section 56(1), (3) and (4) and section 60 of the IRA, there are procedures and sanctions applicable against employers who opposed the directives of the authorities granting trade union or who have refused to comply with Industrial Court orders to reinstate unlawfully dismissed workers; and (iii) the Industrial Relations Department has set up a Legal Division to initiate legal proceedings against any errant party that contravenes the law. In these circumstances, the Committee requests the Government to provide details about the composition and functioning of the Legal Division of the Industrial Relations Department, and to provide a copy of its Rules of Procedures. The Committee also requests the Government to provide information and statistics on any sanctions against employers who opposed the directives of the authorities granting trade union recognition or who have refused to comply with Industrial Court orders to reinstate unlawfully dismissed workers in the last two years.

Migrant workers. In its previous comments, the Committee had noted that, although foreign and local workers enjoy equal rights; migrant workers can join a union but cannot be elected as trade union officers under the Trade Union Act. In this respect, the Committee had recalled that workers, including migrant workers, should enjoy the right to elect their representatives freely and it had requested the Government to communicate its observations on the exercise of trade union rights by migrant workers in law and in practice. The Committee notes the Government’s indication that: (i) to form and to be elected as trade union representatives, the foreign workers require permission from the Minister of Human Resources; (ii) there are currently trade unions who have foreign workers as members; and (iii) foreign workers have been appointed as representatives of certain trade unions. The Committee considers that the requirement for foreign workers to obtain the permission from the Minister of Human Resources in order to be elected as trade union representatives hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes. The Committee requests the Government to take measures in order to modify the legislation.

Scope of collective bargaining. The Committee had previously urged the Government to amend the legislation so as to bring section 13(3) of the IRA, which contains restrictions on collective bargaining with regard to transfer, dismissal and reinstatement (some of the matters known as “internal management prerogatives”), into full conformity with Article 4 of the Convention. The Committee notes with regret that the Government indicates in its report that there is no need to amend the said provision and reiterates that: (i) section 13(3) of the IRA is not intended to limit collective bargaining, but rather to provide for the right of employers to run their business in the most efficient way and to protect from abuse of the collective bargaining process; and (ii) these requirements are not absolute and matters relating to them may be brought to the Industrial Relations Department and, if no settlement is reached, the matter may be referred to the Industrial Court for adjudication (section 13(8) of the IRA). The Committee further notes the case law Sarawak Commercial Banks Association v. Sarawak Bank Employees’ Union, submitted by the Government. Nevertheless, the Committee considers that section 13 of the IRA restricts the scope of negotiable matters. The Committee recalls that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 250). The Committee therefore once again requests the Government to amend section 13(3) of the IRA so as to remove these restrictions on collective bargaining matters and to initiate tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining.

Compulsory arbitration. In its previous comments, the Committee had noted that section 26(2) of the IRA allows compulsory arbitration, by the Minister of Labour of his own motion even in case of failure of collective bargaining. The Committee had requested the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. The Committee notes that the Government reiterates that, although the provision accords discretionary powers to the Minister to refer a trade dispute to the Industrial Court for arbitration, practically, the Minister has never exercised such power in an arbitrary manner and only makes a decision upon receipt of a notification from the Industrial Relations Department that the conciliation has failed to resolve the dispute amicably. The Committee once again recalls that the imposition of compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement raises problems in relation to the application of the Convention. Therefore, the Committee once again reiterates its previous comments and urges the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other employment conditions. The Committee notes with regret that the Government, invoking the peculiarities of the public service, once again reiterates that it will maintain the policy of not engaging in that kind of collective bargaining with the employees of the public sector. The Government once again points out that trade unions can express their views on matters concerning conditions of work through the National Joint Council and the Departmental Joint Council. Nevertheless, the Committee, while recognizing the singularity of the public service which allows special modalities, considers that simple consultation with unions of public servants not engaged in the administration of the State do not meet the requirements of Article 4 of the Convention. Therefore, the Committee urges the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other employment conditions, in conformity with Article 4 of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government indicates in its report and response to the comments made by the International Trade Unions Confederation (ITUC) on 24 August 2010 that the amendments to the Trade Union Act, 1959, and the Industrial Relations Act (IRA), 1967, have been approved by Parliament and came into effect on 28 February 2008, and that the Industrial Relations Regulations 2009 were subsequently enacted on 8 October 2009. According to the Government, the amendments to the IRA provide, inter alia, for a fast and efficient procedure for recognition for collective bargaining purposes. The Committee also notes the conclusions reached by the Committee on Freedom of Association in Case No. 2301 (353rd Report of the Committee on Freedom of Association, paragraphs 133–140, and the 356th Report, March 2010). The Committee therefore requests the Government to transmit a copy as soon as possible of the final version of the abovementioned legislation.

Articles 1 and 4 of the Convention. Trade union recognition for purposes of collective bargaining. Duration of proceedings for the recognition of a trade union. In its previous comments, the Committee had noted the comments by the ITUC reiterating issues previously raised by the Committee regarding long delays in the treatment of union claims to obtain recognition for collective bargaining purposes. The Committee had requested the Government to submit more precise information on the ITUC’s comments in the light of the provisions of the IRA and to indicate the average duration of proceedings for the recognition of a union, as well as the requirements for obtaining recognition. The Committee notes the Government’s indication that, under the new legislations, the average duration of proceedings for the recognition of a union is nine (9) months, provided that the parties involved do not challenge the process through judicial review in the court or raise issues that could cause delays. The Committee considers that this average duration of proceedings is excessively long and requests the Government to take measures to modify the legislation in order to reduce the length of proceedings for the recognition of trade unions.

Procedure of recognition. The Committee further notes that the Government indicates that, in order to be accorded recognition, the relevant union has to undergo a competency check (conducted by the Industrial Relations Department) to ascertain whether the majority of the class of workers of the enterprise had become members of the union seeking recognition. However, the Committee notes that the Government makes no reference to the applicable legislation. The Committee therefore requests the Government to indicate in its next report what the requirements in order to fulfil the competency check are and to indicate the relevant legislative provisions applicable.

In addition, the Committee notes that the Government indicates in its report that, in claims for recognition, once the trade union concerned has served Form A on the company, the employer shall have 21 days to either accord the recognition or to reject the claim. Should the company reject the claim for recognition, either at the end of the 21 days or anytime before that, then the union has to inform the Director General of Industrial Relations (DGIR) within 14 days after receiving such notification by the company. The DGIR will then take appropriate action. The Committee further notes that section 9(5) of the IRA states that the Minister has the final say on whether recognition is to be accorded by the employers to the unions. However, an aggrieved party may apply for a judicial review at the High Court against the decision. While recalling again the excessive length of these proceedings, the Committee requests the Government to indicate the criteria applicable to the decisions of the DGIR and/or the Minister.

Sanctions applicable for refusal to apply orders of recognition and of reinstatement. In its previous comments, the Committee had noted the Government’s statement about the comments previously made by the ITUC with regard to the inefficiency of labour courts concerning the application of the provisions of the Convention. On this matter, the Committee had noted the ITUC’s comments that the Government failed to apply any sanctions against employers who opposed the directives of the authorities granting trade union recognition or who have refused to comply with Industrial Court orders to reinstate unlawfully dismissed workers. The Committee had requested the Government to submit its observations on these matters.

The Committee notes the Government’s indication that: (i) the Industrial Court has jurisdiction for trade disputes under section 26 of the IRA and in cases of dismissals under section 20 of the IRA; (ii) under section 56(1), (3) and (4) and section 60 of the IRA, there are procedures and sanctions applicable against employers who opposed the directives of the authorities granting trade union or who have refused to comply with Industrial Court orders to reinstate unlawfully dismissed workers; and (iii) the Industrial Relations Department has set up a Legal Division to initiate legal proceedings against any errant party that contravenes the law. In these circumstances, the Committee requests the Government to provide details about the composition and functioning of the Legal Division of the Industrial Relations Department, and to provide a copy of its Rules of Procedures. The Committee also requests the Government to provide information and statistics on any sanctions against employers who opposed the directives of the authorities granting trade union recognition or who have refused to comply with Industrial Court orders to reinstate unlawfully dismissed workers in the last two years.

Migrant workers. In its previous comments, the Committee had noted that, although foreign and local workers enjoy equal rights; migrant workers can join a union but cannot be elected as trade union officers under the Trade Union Act. In this respect, the Committee had recalled that workers, including migrant workers, should enjoy the right to elect their representatives freely and it had requested the Government to communicate its observations on the exercise of trade union rights by migrant workers in law and in practice. The Committee notes the Government’s indication that: (i) to form and to be elected as trade union representatives, the foreign workers require permission from the Minister of Human Resources; (ii) there are currently trade unions who have foreign workers as members; and (iii) foreign workers have been appointed as representatives of certain trade unions. The Committee considers that the requirement for foreign workers to obtain the permission from the Minister of Human Resources in order to be elected as trade union representatives hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes. The Committee requests the Government to take measures in order to modify the legislation.

Scope of collective bargaining. The Committee had previously urged the Government to amend the legislation so as to bring section 13(3) of the IRA, which contains restrictions on collective bargaining with regard to transfer, dismissal and reinstatement (some of the matters known as “internal management prerogatives”), into full conformity with Article 4 of the Convention. The Committee notes with regret that the Government indicates in its report that there is no need to amend the said provision and reiterates that: (i) section 13(3) of the IRA is not intended to limit collective bargaining, but rather to provide for the right of employers to run their business in the most efficient way and to protect from abuse of the collective bargaining process; and (ii) these requirements are not absolute and matters relating to them may be brought to the Industrial Relations Department and, if no settlement is reached, the matter may be referred to the Industrial Court for adjudication (section 13(8) of the IRA). The Committee further notes the case law Sarawak Commercial Banks Association v. Sarawak Bank Employees’ Union, submitted by the Government. Nevertheless, the Committee considers that section 13 of the IRA restricts the scope of negotiable matters. The Committee recalls that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 250). The Committee therefore once again requests the Government to amend section 13(3) of the IRA so as to remove these restrictions on collective bargaining matters and to initiate tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining.

Compulsory arbitration. In its previous comments, the Committee had noted that section 26(2) of the IRA allows compulsory arbitration, by the Minister of Labour of his own motion even in case of failure of collective bargaining. The Committee had requested the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. The Committee notes that the Government reiterates that, although the provision accords discretionary powers to the Minister to refer a trade dispute to the Industrial Court for arbitration, practically, the Minister has never exercised such power in an arbitrary manner and only makes a decision upon receipt of a notification from the Industrial Relations Department that the conciliation has failed to resolve the dispute amicably. The Committee once again recalls that the imposition of compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement raises problems in relation to the application of the Convention. Therefore, the Committee once again reiterates its previous comments and urges the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services, in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other employment conditions. The Committee notes with regret that the Government, invoking the peculiarities of the public service, once again reiterates that it will maintain the policy of not engaging in that kind of collective bargaining with the employees of the public sector. The Government once again points out that trade unions can express their views on matters concerning conditions of work through the National Joint Council and the Departmental Joint Council. Nevertheless, the Committee, while recognizing the singularity of the public service which allows special modalities, considers that simple consultation with unions of public servants not engaged in the administration of the State do not meet the requirements of Article 4 of the Convention. Therefore, the Committee urges the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other employment conditions, in conformity with Article 4 of the Convention.

The Committee reminds the Government that it may avail itself of the ILO’s technical assistance so as to bring its law and practice into full conformity with the Convention if it so wishes.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) on 29 August 2008, according to which the Government in the National Labour Advisory Council (tripartite body) did not consult with the labour movement with regard to the tabling of the Industrial Relations (Amendment) Bill 2007 which restricts union rights in the process of recognition by the employer (i.e. the secret ballot of workers to be undertaken allows the employer to manipulate the size of the bargaining unit for the purpose of the election, etc.). The Committee notes that the Government refers to tripartite consultation concerning the Bill; thus, it requests the Government to submit detailed observations to permit it to examine the Bill’s conformity with the Convention and to provide a copy of the Bill once adopted.

The Committee notes the comments by the ITUC reiterating issues previously raised by the Committee regarding long delays in the treatment of union claims to obtain recognition for collective bargaining purposes. The Committee notes that, according to the 2006 Government report, the cause of the delay is mainly due to the time taken by legal proceedings lodged either by trade unions or an employer against the decision of the Director-General of Trade Unions (DGTU) on issues of competency or membership verifications. The Committee notes that, according to the Government, the Bill is shortening the timeframe for recognition of trade unions. The Committee requests the Government to submit more precise information on the ITUC’s comments in the light of the provisions of the Bill and to indicate the average duration of proceedings for the recognition of a union, as well as the requirements for obtaining recognition.

The Committee notes the Government’s statement about the comments previously made by the ITUC with regard to the inefficiency of labour courts concerning the application of the provisions of the Convention. The Government indicated that: (1) efforts are made to further increase the number of Industrial Court chairmen who will be assigned to deal with cases in designated areas; (2) recently implemented and computerized case management in the Court will help the Court President to monitor more closely cases in the courts; and (3) this process is supposed to expedite the issuance of awards. On this matter, the Committee notes the ITUC’s comments that the Government failed to apply any sanctions against employers who opposed the directives of the authorities granting trade union recognition or who have refused to comply with Industrial Court orders to reinstate unlawfully dismissed workers. The Committee requests the Government to submit its observations on these matters.

Restrictions on collective bargaining for certain categories of worker. The Committee had urged the Government to repeal section 15 of the Industrial Relations Act (IRA), which limited the scope of collective agreements for companies granted “pioneer status”, for instance with respect to election campaigns. The Committee notes with satisfaction the deletion of section 15 of the IRA due to the amendment of the aforementioned legislation.

The Committee notes that, according to the ITUC, 2.6 million migrant workers in Malaysia are prevented by law from organizing or applying to register a trade union and are barred from serving as officers of a trade union. The ITUC adds that the system for registering migrant workers discourages them from asserting their rights because it grants total discretion to employers to terminate workers for virtually any reason. The Committee notes that, according to the Government, foreign and local workers enjoy equal rights; migrant workers can join a union but cannot be elected as trade union officers. Recalling that workers, including migrant workers, should enjoy the right to elect their representatives freely, the Committee requests the Government to communicate its observations on the exercise of trade union rights by migrant workers in law and in practice.

Scope of collective bargaining. The Committee had previously urged the Government to amend the legislation so as to bring section 13(3) of the IRA, which contains restrictions on collective bargaining with regard to transfer, dismissal and reinstatement (some of the matters known as “internal management prerogatives”), into full conformity with Article 4 of the Convention. The Committee notes that the Bill amends section 13 by inserting three subject matters in a proposal for a collective agreement (training to enhance skills and knowledge of the workmen; annual review of the wage system; and a performance-based remuneration system). The Committee notes that according to the Government: (1) section 13(3) of the IRA is not intended to limit collective bargaining, but rather to provide for the right of employers to run their business in the most efficient way and to protect from abuse of the collective bargaining process; (2) these requirements are not absolute and matters relating to them may be brought to the Industrial Relations Department and, if no settlement is reached, the matter may be referred to the Industrial Court for adjudication; and (3) in matters concerning transfers, parties are allowed to discuss the procedures for promotion of a general character. The Committee underlines that section 13 of the IRA restricts the scope of negotiable matters. The Committee reiterates therefore that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 250) and once again requests the Government to amend section 13(3) of the IRA so as to remove these restrictions on collective bargaining matters. Furthermore, the Committee requests the Government to indicate whether there are any judicial decisions by the Industrial Court on this point and, if so, to transmit copies of the same in its next report.

Compulsory arbitration. The Committee notes that section 26(2) of the IRA allows compulsory arbitration, by the Minister of Labour of his own motion even in case of failure of collective bargaining. The Committee recalls that arbitration imposed by the authorities at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention, and thus the autonomy of bargaining partners (see General Survey, op. cit., paragraph 257). Therefore, the Committee requests the Government to take measures to ensure that the legislation only authorizes compulsory arbitration in essential services in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis.

Restrictions on collective bargaining in the public sector. The Committee had previously requested the Government to provide information on the possibility of collective bargaining under the auspices of the National Joint Council and the Departmental Joint Council.

The Committee notes that the Government states that: (1) it has its own forum, i.e. the National Joint Council and the Department Joint Council, to discuss grievances in the public sector and to consider any suggestions to improve terms and conditions of employment of public servants; (2) the outcomes of consultations pertaining to salaries and remuneration are subject to the decision of the Cabinet Committee on Establishment and Salaries of Employees in the Public Sector, and are to be tabled and legislated in Parliament; and (3) it maintains its position of not recognizing the right to collective bargaining of public servant unions not engaged in the administration of the State.

The Committee recalls that, while the principle of autonomy of the parties to collective bargaining is valid as regards public servants covered by the Convention, the special characteristics of the public service require some flexibility in its application. Thus, legislative provisions allowing Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations, or to establish an overall “budgetary package”, within which the parties may negotiate monetary or standard-setting clauses (i.e. reduction of working hours, varying wage increases according to levels of remuneration), are compatible with the Convention, provided they leave a significant role to collective bargaining (see General Survey, op. cit., paragraphs 261–264). The Committee considers that simple consultation with unions of public servants not engaged in the administration of the State do not meet the requirements of Article 4 of the Convention. The Committee requests the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other employment conditions.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s reports and the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 10 August 2006. The ICFTU’s comments principally refer to matters previously raised by the Committee as well as to allegations of long delays in the disposition of claims for union recognition, and the establishment of a trade union by an employer in order to avoid recognizing and bargaining with another trade union. The Committee requests the Government to submit its observations thereon.

1. Article 4 of the Convention. Collective bargaining in “pioneer enterprises”. Previously, the Committee had urged the Government to repeal section 15 of the Industrial Relations Act (IRA), which limits the scope of collective agreements for companies granted “pioneer status”, and had requested a copy of the repealing legislation upon its adoption. The Committee notes the Government’s indication that discussions on the IRA with representatives of the employers and trade unions were in their final stages: the amendments to the IRA, which include the repeal of section 15, were expected to be submitted to Parliament for the December 2005 sitting. In this connection, the Committee, recalling that the repeal of section 15 of the IRA has been delayed for several years, once again urges the Government to ensure that there are no further delays in the repeal of this legislation and to keep it informed of developments respecting the adoption of the amendments to the IRA.

2. Restrictions on collective bargaining over certain issues. The Committee had previously urged the Government to amend the legislation so as to bring section 13(3) of the IRA, which contains restrictions on collective bargaining with regards to transfer, dismissal and reinstatement (some of the matters known as “internal management prerogatives”), into full conformity with Article 4 of the Convention. The Committee notes the Government’s statement that section 13(3) of the IRA is not intended to limit collective bargaining, but rather to provide for the right of employers to run their business in the most efficient way and to protect from the abuse of the collective bargaining process. The Government further indicates that these requirements are not absolute; matters relating to them may be brought to the Industrial Relations Department and, where no settlement is reached, the matter is referred to the Industrial Court for adjudication. The Committee notes this information. It recalls, in this respect, that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 250) and once again urges the Government to amend section 13(3) of the IRA so as to remove the restrictions on collective bargaining. The Committee also requests the Government to indicate whether there are any decisions of the Industrial Court where the restrictions set forth in section 13(3) were successfully challenged and, if so, to transmit copies of the same in its next report.

3. Restrictions on collective bargaining in the public sector. The Committee had previously requested the Government to provide information on the scope of collective bargaining under the auspices of the National Joint Council and the Departmental Joint Council. Specifically, it had asked the Government to indicate whether any limitations on the agreements produced by the consultations taking place within these bodies exist – particularly as to terms and conditions of service, the remuneration structure, and the form and scope of any agreements reached. In this regard, the Committee notes the Government’s statement that the outcomes of consultations pertaining to salary and remuneration are subject to the decision of the Cabinet Committee on Establishment and Salaries of Employees in the Public Sector, and are to be tabled and legislated in Parliament. In these circumstances, the Committee recalls that, while the principle of autonomy of the parties to collective bargaining is valid as regards public servants covered by the Convention, the special characteristics of the public service described above require some flexibility in its application. Thus, legislative provisions allowing Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations, or to establish an overall “budgetary package”, within which the parties may negotiate monetary or standard-setting clauses (i.e. reduction of working hours, varying wage increases according to levels of remuneration), are compatible with the Convention, provided they leave a significant role to collective bargaining (see General Survey, op. cit. paragraphs 261-264). The Committee considers that subjecting all of the outcomes reached by the Councils’ consultations on salaries and remuneration to the approval of the authorities, in particular the Cabinet Committee on Establishment and Salaries of Employees in the Public Sector, is not in conformity with Article 4 of the Convention. It requests the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively, including over wages and remuneration, in keeping with the abovementioned principle on collective bargaining in the public sector.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the information contained in the Government’s report. It will examine this information at its next session, in the framework of the regular reporting cycle.

The Committee notes that the Government’s report does not contain a reply to the third point raised in its previous observation concerning collective bargaining in the public service (see 2004 observation, 75th Session). The Committee requests the Government to send its reply to this point in its next report which is due in 2006.

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

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.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report does not contain a full reply to its previous comments. It hopes that the next report will include full information on the matters raised in its previous observation.

For a number of years the Committee has been commenting on the need to repeal section 15 of the Industrial Relations Act (IRA) which limits the scope of collective agreements for companies granted "pioneer status". Since 1994, the Government has indicated to the Committee that the provision was in the process of being repealed; however, the Committee notes that, according to the Government, the repealing legislation has been inadvertently delayed in order to accommodate other amendments to the Act, so that the Act could meet the rapidly changing work environment. Given that section 15 of the IRA constitutes a violation of Article 4 of the Convention, and that six years have passed since the Government indicated that the appropriate amendments would be made, the Committee urges the Government to ensure there are no further delays in repealing section 15, and to forward a copy of the repealing legislation as soon as it is adopted.

With respect to the Committee’s previous comments concerning the restrictions on collective bargaining contained in section 13(3) of the IRA, the Committee notes that the Government reiterates its view that issues pertaining to such things as transfer, dismissal and reinstatement essentially refer to individual rights which could not be predetermined in a collective agreement, since this would affect the rights of management to manage. The Committee must again recall that issues such as transfer, dismissal and reinstatement should not be excluded from the scope of collective bargaining. While a collective agreement would not normally deal with individual cases of transfer, dismissal and reinstatement, it should be possible to include for example, as is often found in the collective agreements in many countries, the general criteria and procedures concerning these issues. The Committee urges the Government to amend the legislation to bring section 13(3) into full conformity with Article 4 of the Convention.

A further provision of the IRA has also been a subject of comment for many years, namely section 52, which provides for certain restrictions on the right to bargain collectively for public servants, other than those engaged in the administration of the State. Lacking detailed information, the Committee has not been in a position to determine whether genuine collective bargaining exists in this sector or merely consultation. In this regard, the Government again points to the role of the national joint councils in providing an avenue for discussion and negotiation on terms and conditions of employment, including salaries, of public servants. While the Committee has in the past noted this information, it once more requests the Government to provide specific information on how collective bargaining is encouraged and promoted in practice between public employers and public servants. In particular, the Committee would welcome information on the number of employees covered, and the specific issues discussed. The Committee again requests the Government to provide this information as well as examples of the process that has been followed to reach specific collective agreements for public servants.

The Committee requests the Government to indicate in its next report the steps taken or envisaged to bring the abovementioned provisions into full conformity with the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the information provided by the Government in its report, and the supplementary information forwarded.

2.  For a number of years the Committee has been commenting on the need to repeal section 15 of the Industrial Relations Act (IRA) which limits the scope of collective agreements for companies granted "pioneer status". Since 1994, the Government has indicated to the Committee that the provision was in the process of being repealed; however, the Committee notes that, according to the Government, the repealing legislation has been inadvertently delayed in order to accommodate other amendments to the Act, so that the Act could meet the rapidly changing work environment. Given that section 15 of the IRA constitutes a violation of Article 4 of the Convention, and that six years have passed since the Government indicated that the appropriate amendments would be made, the Committee urges the Government to ensure there are no further delays in repealing section 15, and to forward a copy of the repealing legislation as soon as it is adopted.

3.  With respect to the Committee’s previous comments concerning the restrictions on collective bargaining contained in section 13(3) of the IRA, the Committee notes that the Government reiterates its view that issues pertaining to such things as transfer, dismissal and reinstatement essentially refer to individual rights which could not be predetermined in a collective agreement, since this would affect the rights of management to manage. The Committee must again recall that issues such as transfer, dismissal and reinstatement should not be excluded from the scope of collective bargaining. While a collective agreement would not normally deal with individual cases of transfer, dismissal and reinstatement, it should be possible to include for example, as is often found in the collective agreements in many countries, the general criteria and procedures concerning these issues. The Committee urges the Government to amend the legislation to bring section 13(3) into full conformity with Article 4 of the Convention.

4.  A further provision of the IRA has also been a subject of comment for many years, namely section 52, which provides for certain restrictions on the right to bargain collectively for public servants, other than those engaged in the administration of the State. Lacking detailed information, the Committee has not been in a position to determine whether genuine collective bargaining exists in this sector or merely consultation. In this regard, the Government again points to the role of the national joint councils in providing an avenue for discussion and negotiation on terms and conditions of employment, including salaries, of public servants. While the Committee has in the past noted this information, it once more requests the Government to provide specific information on how collective bargaining is encouraged and promoted in practice between public employers and public servants. In particular, the Committee would welcome information on the number of employees covered, and the specific issues discussed. The Committee again requests the Government to provide this information as well as examples of the process that has been followed to reach specific collective agreements for public servants.

5.  The Committee requests the Government to indicate in its next report the steps taken or envisaged to bring the abovementioned provisions into full conformity with the Convention.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the discussion that took place at the Conference Committee on the Application of Standards in June 1999.

The Committee notes with regret that the Government's report has not been received. It must therefore repeat its previous observation on the following matters:

1. Further to its previous comments, the Committee notes the Government's statement that section 15 of the Industrial Relations Act (IRA), which limits the scope of collective agreements for companies granted "pioneer status", is in the process of being amended and that a copy of the repealing legislation will be forwarded to the ILO as soon as it is passed by Parliament. The Committee recalls however that the Government has been referring to "positive measures to repeal section 15" since 1994, and would therefore request it to ensure that section 15 of the IRA is repealed shortly, and to provide a copy of the repealing legislation as soon as it is adopted. 2. The Committee had also referred to the restrictions on collective bargaining contained in section 13(3) of the IRA, with regard to certain matters known as internal management prerogatives (i.e. transfer, dismissal and reinstatement). The Committee considered that issues such as transfer, dismissal and reinstatement should not be excluded from the scope of collective bargaining. The Committee therefore requests the Government to indicate, in its next report, the steps taken or envisaged to bring section 13(3) of the IRA into conformity with Article 4 of the Convention. 3. In relation to the Committee's comments on certain restrictions on the right to bargain collectively for public servants other than those engaged in the administration of the State (section 52 of the IRA), the Committee would once again request the Government to provide specific information on how collective bargaining is encouraged and promoted in practice between public employers and public servants other than those engaged in the administration of the State, for example, by supplying information on the number of collective agreements concluded, the different categories and numbers of employees covered, the number of public sector unions acting as bargaining agents, etc.

The Committee asks the Government to provide information on all these points in its next report.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information supplied by the Government in its report.

1. Further to its previous comments, the Committee notes the Government's statement that section 15 of the Industrial Relations Act (IRA), which limits the scope of collective agreements for companies granted "pioneer status", is in the process of being amended and that a copy of the repealing legislation will be forwarded to the ILO as soon as it is passed by Parliament. The Committee recalls however that the Government has been referring to "positive measures to repeal section 15" since 1994, and would therefore request it to ensure that section 15 of the IRA is repealed shortly, and to provide a copy of the repealing legislation as soon as it is adopted.

2. In its previous comments, the Committee had referred to the restrictions on collective bargaining contained in section 13(3) of the IRA, with regard to matters known as internal management prerogatives (i.e. promotion, transfer, employment, termination, dismissal and reinstatement). The Government had indicated previously that such matters could not be predetermined in a collective agreement, as a predetermined agreement on such matters would ultimately affect the rights of management to manage. In addition, the Government had emphasized that internal management prerogatives did not grant unfettered rights to employers, as demonstrated by numerous decisions of the Malaysian courts. The Committee considers that while issues such as promotion, employment and termination could eventually be considered as matters for management decision-making as part of its freedom to manage the enterprise, the other issues, namely transfer, dismissal and reinstatement, should not be excluded from the scope of collective bargaining. The Committee therefore requests the Government to indicate, in its next report, the steps taken or envisaged to bring section 13(3) of the IRA into conformity with Article 4 of the Convention.

3. In relation to the Committee's comments on certain restrictions on the right to bargain collectively for public servants other than those engaged in the administration of the State (section 52 of the IRA), the Government indicates once again that the Congress of Unions of Employees in the Public and Civil Services (CUEPACS), the officers of the Joint Councils and the Public Services Department meet on a regular basis to discuss issues affecting employees in the public service. Through these discussions, the public sector unions do contribute to the deliberations on remunerations, terms and conditions of employment and the resolution of anomalies arising therefrom. The Government emphasizes that the National Joint Councils provide a sufficient avenue for discussion and negotiation on salary and terms and conditions of employment of public servants and that CUEPACS as a national centre for public servants, plays an important and responsible role in protecting the interests of public servants, including wage negotiation.

While taking note of this information, the Committee would once again request the Government to provide specific information on how collective bargaining is encouraged and promoted in practice between public employers and public servants other than those engaged in the administration of the State, for example, by supplying information on the number of collective agreements concluded, the different categories and numbers of employees covered, the number of public sector unions acting as bargaining agents, etc.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

1. Further to its previous comments, the Committee notes the Government's statement that it has formally approved the proposed repeal of section 15 of the Industrial Relations Act, which limits the scope of collective agreements for companies granted "pioneer status", and that positive measures are being taken to repeal this provision. The Committee requests the Government to send a copy of the repealing legislation as soon as it is adopted. 2. With reference to the Committee's previous comments on the scope of section 13(3) of the Industrial Relations Act, the Government once again indicates that the matters excluded by that provision from collective bargaining and known as internal management prerogatives (i.e. promotion, transfer, employment, termination, dismissal and reinstatement), are subject to negotiation, conciliation, arbitration and judicial decisions and can be raised at any time as and when they arise, as opposed to other matters covered in collective agreements that are negotiated at specific intervals. Moreover, in the Government's view, such matters cannot be predetermined in a collective agreement, as a predetermined agreement on such matters would ultimately affect the rights of management to manage. In addition, the Government emphasizes that the internal management prerogatives do not grant unfettered rights to employers, as demonstrated by numerous decisions of the Malaysian Courts as follows: (i) an employer can refuse to promote a worker only for proper cause and the trade union that represents the worker is free under the law to raise questions as to what is and what is not proper cause; (ii) the employers' prerogative of transfer is not unlimited. The Courts had ruled that there should be no unreasonableness or want of mala fide on the part of the employer; (iii) termination by way of retrenchment could not be carried out arbitrarily. The principle of "last in, first out" had to be applied; (iv) unjust dismissal could entitle the worker to reinstatement; (v) to provide that matters such as allocation of duties be covered by collective agreement, would be tantamount to asserting that it is not the management which is responsible for managing the enterprise, which is contrary to the commonly accepted practice worldwide. The Committee notes with interest that there is a degree of judicial protection as regards these internal management prerogatives which also appear to be subject to some level of bargaining in practice. The Committee therefore requests the Government to take the necessary steps to ensure that its legislation no longer excludes those management prerogatives which are not purely internal from collective bargaining, in conformity with the Convention as well as with national practice and judicial precedents. 3. In relation to the Committee's comments on certain restrictions on the right to bargain collectively for public servants other than those engaged in the administration of the State (section 52 of the Industrial Relations Act), the Government indicates that the Congress of Unions of Employees in the Public and Civil Services (CUEPACS), the officers of the Joint Councils and the Public Services Department meet on a regular basis to discuss issues affecting employees in the public service. Through these discussions, the public sector unions do contribute to the deliberations on remunerations, terms and conditions of employment and the resolution of anomalies arising therefrom. For instance, in the current claims for salary adjustments, CUEPACS has had meetings with the Prime Minister, and through these meetings, some understanding has been arrived at. The Government emphasizes that the National Joint Councils provide a sufficient avenue for discussion and negotiation on salary and terms and conditions of employment of public servants and that CUEPACS as a national centre for public servants, plays an important and responsible role in protecting the interests of public servants, including salary negotiation. The Committee takes note of this information and would request the Government to provide information on how collective bargaining is encouraged and promoted in practice between public employers and public servants other than those engaged in the administration of the State, for example, the number of collective agreements concluded, the different categories and numbers of employees covered, the number of public sector unions acting as bargaining agents, etc.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee notes the information supplied by the Government in its reports as well as the detailed discussion which took place at the Conference Committee in June 1994.

Further to its previous comments, the Committee notes the Government's statement that it has formally approved the proposed repeal of section 15 of the Industrial Relations Act, which limits the scope of collective agreements for companies granted "pioneer status", and that positive measures are being taken to repeal this provision.

The Committee requests the Government to send a copy of the repealing legislation as soon as it is adopted.

2. With reference to the Committee's previous comments on the scope of section 13(3) of the Industrial Relations Act, the Government once again indicates that the matters excluded by that provision from collective bargaining and known as internal management prerogatives (i.e. promotion, transfer, employment, termination, dismissal and reinstatement), are subject to negotiation, conciliation, arbitration and judicial decisions and can be raised at any time as and when they arise, as opposed to other matters covered in collective agreements that are negotiated at specific intervals. Moreover, in the Government's view, such matters cannot be predetermined in a collective agreement, as a predetermined agreement on such matters would ultimately affect the rights of management to manage. In addition, the Government emphasizes that the internal management prerogatives do not grant unfettered rights to employers, as demonstrated by numerous decisions of the Malaysian Courts as follows: (i) an employer can refuse to promote a worker only for proper cause and the trade union that represents the worker is free under the law to raise questions as to what is and what is not proper cause; (ii) the employers' prerogative of transfer is not unlimited. The Courts had ruled that there should be no unreasonableness or want of mala fide on the part of the employer; (iii) termination by way of retrenchment could not be carried out arbitrarily. The principle of "last in, first out" had to be applied; (iv) unjust dismissal could entitle the worker to reinstatement; (v) to provide that matters such as allocation of duties be covered by collective agreement, would be tantamount to asserting that it is not the management which is responsible for managing the enterprise, which is contrary to the commonly accepted practice worldwide. The Committee notes with interest that there is a degree of judicial protection as regards these internal management prerogatives which also appear to be subject to some level of bargaining in practice. The Committee therefore requests the Government to take the necessary steps to ensure that its legislation no longer excludes internal management prerogatives from collective bargaining, in conformity with the Convention as well as with national practice and judicial precedents.

3. In relation to the Committee's comments on certain restrictions on the right to bargain collectively for public servants other than those engaged in the administration of the State (section 52 of the Industrial Relations Act), the Government indicates that the Congress of Unions of Employees in the Public and Civil Services (CUEPACS), the officers of the Joint Councils and the Public Services Department meet on a regular basis to discuss issues affecting employees in the public service. Through these discussions, the public sector unions do contribute to the deliberations on remunerations, terms and conditions of employment and the resolution of anomalies arising therefrom. For instance, in the current claims for salary adjustments, CUEPACS has had meetings with the Prime Minister, and through these meetings, some understanding has been arrived at. The Government emphasizes that the National Joint Councils provide a sufficient avenue for discussion and negotiation on salary and terms and conditions of employment of public servants and that CUEPACS as a national centre for public servants, plays an important and responsible role in protecting the interests of public servants, including salary negotiation.

The Committee takes note of this information and would request the Government to provide information on how collective bargaining is encouraged and promoted in practice between public employers and public servants other than those engaged in the administration of the State, for example, the number of collective agreements concluded, the different categories and numbers of employees covered, the number of public sector unions acting as bargaining agents, etc.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

1. Further to its previous comments, the Committee notes with interest the Government's indication in its report that it is actively considering repealing section 15 of the Industrial Relations Act, which limits the scope of collective agreements for so-called "pioneer enterprises" and others, and that a Cabinet paper was being prepared for the Government's consideration.

The Committee asks the Government to keep it informed on any further progress and to send a copy of the repealing legislation as soon as it is adopted.

2. The Committee notes the information supplied by the Government, in answer to its previous comments, on the scope of section 13(3) of the Industrial Relations Act. The Government again states that the matters excluded by that provision from collective bargaining (i.e. promotion, transfer, employment, termination, dismissal and reinstatement) have been subject to negotiation, conciliation and arbitration, as well as judicial decisions and that they amounted to 54.2 per cent of all disputes dealt with by the Department of Industrial Relations during the past five years. The Government also stresses that these matters, considered as internal management prerogatives, are subject to legal limitations.

The Committee understands, from the information available, that the matters referred to above are indeed commonly bargained and it therefore would ask the Government to take the necessary steps to lift the above-mentioned limitations in order to bring its legislation into line with the Convention and with wide national practice.

3. The Committee further notes, in relation to its comments on certain restrictions on the right to bargain collectively for employees in the public administration other than those engaged in the administration of the State (section 52 of the Industrial Relations Act) that the National Joint Councils, as set up in 1992, provide equal representation to workers' organizations and government officials, and that they meet at least twice a year. Meetings have been convened to discuss implementation problems of the "New Remuneration System". At the levels of ministries and departments, workers' organizations are represented in the Department Joint Councils, which are expected to meet five times annually to discuss and solve problems on public sector wages and employment.

While noting this information the Committee again asks the Government to encourage and promote the full development and utilization of machinery for voluntary negotiation between public employers and public servants other than those engaged in the administration of the State - such as teachers - with a view to the regulation of the terms and conditions of employment of the said workers.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee recalls its previous observations concerning inconsistencies between the national legislation and Article 4 of the Convention which covered the following points:

- limitations on the scope of matters open to collective bargaining (section 13(3) of the Industrial Relations Act, 1967);

- the prohibition from including in collective agreements for so-called "pioneer enterprises" and for any other industry which might be specified by the Minister, provisions that are more favourable than those contained in Part XII of the Employment Ordinance, 1955 (section 15 of the Industrial Relations Act); and

- restrictions on the right to bargain collectively for employees in public administration other than those engaged in the administration of the State (section 52 of the Industrial Relations Act).

In general, the Committee takes note of the Government's view that there should not be a legalistic or technical approach taken over the application of ratified Conventions in this era of increasing protectionism adopted by certain trading blocs and that the attempts by developing countries to develop their economies and eradicate poverty should be looked at in a positive light. Noting further that the Government undertakes to take appropriate measures to amend its laws as and when the political, economic and social conditions of the country warrant it, the Committee points out that the Government's aims would be assisted rather than obstructed by the functioning of a full and free system of collective bargaining, such as promoted by Article 4 of the Convention. Moreover, while aware of the various socio-economic pressures facing member States, the Committee would recall that it has always carried out its task of monitoring the application of ratified Conventions on the basis of the universality of standards, assessing the effect given to the obligations arising from ratification irrespective of the political, social or economic systems or level of development prevailing.

1. The Committee notes the information supplied in the Government's reports, in particular its comments that those areas listed in section 13(3) of the Industrial Relations Act are regarded as common law rights of employers which should not be the subject of negotiations because this could lead to prolonged strife since managers are unlikely to agree to any erosion of their rights during the process of negotiating a collective agreement. As in past reports, it stresses that workers and unions nevertheless can raise these issues with employers if employers exercise their rights unfairly or with mala fide, and can even raise them as trade disputes subject to conciliation proceedings and referral to the Industrial Court. The Committee notes with interest that according to the Government's report when disputes arose over dismissals of workers, retrenchments and layoffs, promotions, allocation of duties, transfers, demotions and other management prerogatives they were treated in the same manner as proposals for collective agreements are treated, namely through negotiations, conciliation and arbitration. The Committee is of the opinion that the legislative exclusion from bargaining of certain matters relating to conditions of employment (such as those in this case: promotion, transfer, appointment, dismissal and assignment of duties) is not compatible with Article 4 (General Survey, 1983, paras. 307 and 311). It accordingly again asks the Government to take steps to bring section 13 into line with the obligations arising under the Convention - and with its description of the actual practice concerning these issues which is equivalent to collective bargaining practices in Malaysia.

2. Regarding the Committee's comments on section 15 of the Industrial Relations Act, the Government states that the granting of pioneer status to certain industries is part of its various strategies within its macro strategy to promote investment, stimulate industrial growth and generate greater employment opportunities; it stresses that section 15 does not limit negotiations on monetary items (wages, allowances) but only on hours of work, holidays, annual leave and sick leave and this only for a period of five years. It points out that this is not a complete ban since the parties can negotiate more favourable terms in these industries and seek the approval of the Minister; he has to date never rejected any such request made to him. The Committee notes these various comments but indicates that this provision is contrary to the principles set forth in Article 4 which aims at voluntary collective bargaining free of the obligation of submitting concluded agreements to administrative authorities for approval (General Survey, paras. 308 and 311). Noting with interest that the Minister has never rejected an agreement which accords more favourable terms on these items, the Committee invites the Government once again to amend section 15's limitation on bargaining.

3. The Committee takes note of the Government's statements that the exclusion of public services from certain provisions of the Act is due to the differing objectives of the public and private sectors; public sector wage adjustments involve nearly 850,000 employees and can have serious implications on the government budget; the existence of the five national joint councils (NJCs) for the public service testifies to the fact that a form of negotiation and consultation is afforded to these employees which led, in 1989 and 1991, to significant pay rises. The Government adds that it has started privatising certain public enterprises, such as the Department of Telecommunications and the Electricity Board, following which the employees concerned can bargain collectively. Moreover, the NJCs will undergo a major review to suit the New Remuneration System for the public sector, to be implemented as of 1 January 1992. The Committee points out that the consultations in the NJCs are not sufficient since any resulting recommendations must be submitted for final approval to the Cabinet Committee and thus are out of the hands of the bargaining parties. Since, in the Committee's opinion, this system does not fully afford employees who are not in the category of public servants covered by Article 6 of the Convention the right to bargain, it would ask the Government to ensure that the public servants not engaged in the administration of the State (such as those serving in public utilities) enjoy the right fully to negotiate their terms and conditions of employment - just as private sector employees do. It also recalls that any concerns as to the cost implications of such bargaining could be addressed through persuading the parties to have regard voluntarily to major economic and social policy considerations and the general interest, so that persuasion is used rather than constraint (General Survey, para. 313). In this connection the Committee asks the Government to supply information in its next report on the implementation of the New Remuneration System for the public sector. The Committee draws the Government's attention to the fact that the Office is at its disposal for any technical assistance that it may wish to request in relation to these three long-standing matters.

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

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.

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

The Committee notes with regret that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee recalls that its comments concerned a number of provisions of the Industrial Relations Act of 1967: - the exclusion from collective bargaining of matters concerning promotion, transfers, recruitment, dismissal without notice, the assignment of jobs (section 13(3) of the Industrial Relations Act of 1967, as amended in 1980); - the prohibition from including, in collective agreements for so-called "pioneer enterprises" and in all other enterprises specified by the Minister, provisions that are more favourable than those contained in Part XII of the Employment Ordinance, 1955 (section 15 of the Act); - restrictions on the right to bargain collectively for employees in public administrations other than those engaged in the administration of the State (section 52 of the Act). 1. Restrictions on the scope of collective bargaining. With regard to section 13(3), in its previous observation the Committee noted that, according to the information supplied by the Government, the matters excluded by virtue of the Act from the scope of collective bargaining were in fact negotiated. The Committee suggested that the Government could repeal this provision in order to bring its legislation into accordance with its practice and with the Convention on this point. In its last report, the Government indicates that, within the framework of its industrial development policy, the objective of which is economic growth, employment must be able to develop without undue hinderances. It adds that, rather than withdrawing the legal restrictions regarding collective bargaining, it is for the social partners to remove these restrictions through collective negotiation. It also states that the Act gives the opportunity to negotiate questions of a general nature concerning the procedure of promotions and that in the event of refusal by an employer, a trade union may make representations to the Minister. With regard to section 15 of the Act of 1967, which, according to the Government, is only a reserve provision to protect the so-called "pioneer enterprises", the Committee notes the Government's statement in its last report to the effect that this provision is one of the measures that it has taken to promote investment, that it furthers industrial growth and employment and that it is essential in view of the cutback in public expenditure and the emphasis given to the development of the private sector. The Committee once again points out that, even though collective bargaining may in practice cover matters excluded under the 1967 Act by section 13, and that section 15 of the 1967 Act only concerns newly constituted enterprises for a period of five years, giving their workers the minimum employment conditions established by law, these provisions nevertheless are contrary to the principles set forth in Article 4 of the Convention which lays down that measures shall be taken to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by this means. It therefore requests the Government to supply information in its next report on the measures that have been taken or are envisaged in order to remove the restrictions on collective bargaining contained in the law. 2. With regard to the restrictions on the right to bargain collectively of employees in public administrations, the Government indicates that it is not entirely true that these employees cannot bargain collectively since five National Joint Councils provide them with this opportunity. The Government adds, in this connection, that for five years serious negotiations have taken place within these councils and have resulted in a substantial wage rise for civil service employees. The Committee notes this information, but points out that although discussions have taken place in National Joint Councils, their recommendations, and those of the salary commissions (which may be re-examined by the Public Service Tribunal), are submitted for approval to the Cabinet Committee, which makes the final decision. In the Committee's opinion, this system does not fully afford employees in public administrations who are not in the category of public servants covered by Article 6 of the Convention, the right to negotiate collectively their terms and conditions of employment as set out in Article 4 of the Convention. The Committee once again requests the Government to take steps to grant employees in public administrations other than public servants engaged in the administration of the State the right to negotiate collectively, without the intervention of the public authorities.

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The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

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.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report and recalls that its comments concerned a number of provisions of the Industrial Relations Act of 1967:

- the exclusion from collective bargaining of matters concerning promotion, transfers, recruitment, dismissal without notice, the assignment of jobs (section 13(3) of the Industrial Relations Act of 1967, as amended in 1980);

- the prohibition from including, in collective agreements for so-called "pioneer enterprises" and in all other enterprises specified by the Minister, provisions that are more favourable than those contained in Part XII of the Employment Ordinance, 1955 (section 15 of the Act);

- restrictions on the right to bargain collectively for employees in public administrations other than those engaged in the administration of the State (section 52 of the Act).

1. Restrictions on the scope of collective bargaining. With regard to section 13(3), in its previous observation the Committee noted that, according to the information supplied by the Government, the matters excluded by virtue of the Act from the scope of collective bargaining were in fact negotiated. The Committee suggested that the Government could repeal this provision in order to bring its legislation into accordance with its practice and with the Convention on this point.

In its last report, the Government indicates that, within the framework of its industrial development policy, the objective of which is economic growth, employment must be able to develop without undue hinderances. It adds that, rather than withdrawing the legal restrictions regarding collective bargaining, it is for the social partners to remove these restrictions through collective negotiation. It also states that the Act gives the opportunity to negotiate questions of a general nature concerning the procedure of promotions and that in the event of refusal by an employer, a trade union may make representations to the Minister.

With regard to section 15 of the Act of 1967, which, according to the Government, is only a reserve provision to protect the so-called "pioneer enterprises", the Committee notes the Government's statement in its last report to the effect that this provision is one of the measures that it has taken to promote investment, that it furthers industrial growth and employment and that it is essential in view of the cutback in public expenditure and the emphasis given to the development of the private sector.

The Committee once again points out that, even though collective bargaining may in practice cover matters excluded under the 1967 Act by section 13, and that section 15 of the 1967 Act only concerns newly constituted enterprises for a period of five years, giving their workers the minimum employment conditions established by law, these provisions nevertheless are contrary to the principles set forth in Article 4 of the Convention which lays down that measures shall be taken to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by this means.

It therefore requests the Government to supply information in its next report on the measures that have been taken or are envisaged in order to remove the restrictions on collective bargaining contained in the law.

2. With regard to the restrictions on the right to bargain collectively of employees in public administrations, the Government indicates that it is not entirely true that these employees cannot bargain collectively since five National Joint Councils provide them with this opportunity. The Government adds, in this connection, that for five years serious negotiations have taken place within these councils and have resulted in a substantial wage rise for civil service employees.

The Committee notes this information, but points out that although discussions have taken place in National Joint Councils, their recommendations, and those of the salary commissions (which may be re-examined by the Public Service Tribunal), are submitted for approval to the Cabinet Committee, which makes the final decision. In the Committee's opinion, this system does not fully afford employees in public administrations who are not in the category of public servants covered by Article 6 of the Convention, the right to negotiate collectively their terms and conditions of employment as set out in Article 4 of the Convention.

The Committee once again requests the Government to take steps to grant employees in public administrations other than public servants engaged in the administration of the State the right to negotiate collectively, without the intervention of the public authorities.