Caso individual (CAS) - Discusión: 1992, Publicación: 79ª reunión CIT (1992)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Malasia (Ratificación : 1961)

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.