Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 411, Junio 2025

Caso núm. 3401 (Malasia) - Fecha de presentación de la queja:: 30-DIC-20 - En seguimiento

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

1. 48. The Committee last examined this case (submitted in 2020) concerning allegations of the failure of the Government to provide protection in law and practice against repeated anti-union acts by the employer, including harassment, victimization and anti-union dismissals of trade union leaders and members, as well as non-compliance with a concluded agreement and deliberate delays in negotiations of a collective agreement, at its meeting in March 2022 [see 397th Report, paras 480–502].  On that occasion, the Committee issued the following recommendations [see 397th Report, para. 502]:
   • (a) The Committee trusts that any future negotiations between the parties will be conducted in good faith, with the aim of avoiding excessive delays and keeping in mind the benefits of constructive dialogue for the establishment and maintenance of harmonious labour relations. The Committee expects the Government to continue to take any necessary measures to facilitate such negotiations between the parties.
   • (b) The Committee requests the Government to provide to the Committee of Experts further information on the practical application of section 13(3) of the IRA, as amended, in particular on the interaction between the legislative restrictions on negotiable issues and the possibility to raise questions of a general character in this regard, and refers this legislative aspect of the case to the Committee of Experts.
   • (c) Given the Government’s commitment to address the concerns raised in this case, the Committee requests the Government to continue to engage with the parties with a view to solving any outstanding issues concerning the allegations of anti-union termination or suspension of NUBE members and to ensure that, where appropriate, adequate remedies are provided to the concerned workers, allowing for reinstatement and compensation. It also requests the Government to provide information on the outcome of the judicial proceedings in the two cases concerning allegations of anti-union dismissals of NUBE representatives.
   • (d) The Committee trusts that the Government will remain vigilant as to any future dismissals or other measures targeting the complainant’s members, so as to ensure that they are not motivated by anti-union reasons and that the NUBE is allowed to conduct its activities in a climate that is free from harassment, threats or efforts to discredit the union or its leaders. It also trusts that the police and other State authorities are regularly sensitized to trade union rights, so as to avoid harassment or intimidation of unionists by public authorities.
2. 49. In its communication dated 16 December 2022, the National Union of Bank Employees (NUBE), the complainant in this case, alleges that the Government has not taken any actions in relation to the recommendations made by the Committee and has continued to fail to provide protection against anti-union acts by the Hong Kong and Shanghai Banking Corporation (HSBC) Bank Malaysia Berhad (hereinafter: the bank) against the complainant and its members, as well as non-compliance with agreements concluded between the complainant and the bank, and deliberate delays in the negotiation of a new collective bargaining agreement.
3. 50. In particular, the complainant indicates that the number of pending disputes filed under sections 8, 39(a) and 59(d) of the Industrial Relations Act against the bank increased to 300 complaints, and that the Government does not make any attempt to resolve them. Among the alleged anti-union actions by the bank, the complainant refers to the outsourcing of union members’ job functions, falsely promoting union members so as to restrict trade union membership, and obstruction of access to the workplace. The complainant contests the Government’s previous observations that it has met with the parties multiple times to facilitate the resolution of the issues. According to the complainant, only one inspection was conducted but had not resulted in any actions by the Ministry of Human Resources, despite confirmation by the inspection of the genuine nature of the complaints. The complainant further alleges that the difficulty concerning anti-union discrimination cases also relates to the concurrent jurisdiction of the Industrial Court and the Common Law Court and lengthy judicial procedures. The complainant believes that the Ministry of Human Resources is favouring the bank over the complainant and alleges in this respect that while various complaints made by the complainant against the bank since 2019 remain pending, a complaint filed by the bank in 2021 to prevent the union from carrying out its legitimate activities was referred to the Industrial Court by the Ministry of Human Resources. Furthermore, concerning the alleged anti-union dismissals of two union officials in September 2018, the complainant indicates that the cases of these officials were only heard by the Industrial Court in August 2022, after the officials had been unemployed for four years, which had resulted in serious concerns with regard to their income and livelihoods.
4. 51. The complainant provides additional information in relation to the alleged non-compliance with an outsourcing and restructuring agreement concluded in 2010 between the bank and the complainant. The complainant reiterates that the unilateral implementation of restructuring schemes, outsourcing and retrenchment of workers on a very large scale, as carried out by the bank without any consultation, was in breach of that agreement and the applicable collective agreement. It adds that the decision of the High Court, which declared the 2010 outsourcing and restructuring agreement legally invalid because it was not submitted to the Industrial Court for official recognition, was challenged and scheduled to be heard by the Court of Appeal in March 2023. The complainant claims that the bank deliberately avoided submitting the agreement to the court. The complainant indicates that the lack of any response or measures to prevent the bank from outsourcing, despite numerous appeals and reminders, had led the complainant to file an application against the Minister of Human Resources in the High Court (Civil Court) in April 2022. The complainant further alleges that the bank continues to show a non-cooperative attitude in refusing to attend meetings of the Standing Committee set up under that collective bargaining agreement and has continued to delay negotiations for a new collective agreement for the period of 2022–25, following the expiration of the collective agreement for the period of 2019–22.
5. 52. The complainant further indicates that on 30 August 2022, it organized a peaceful picket in front of the bank’s premises with over 500 members. It alleges that during the picketing, around 50 police officers harassed, intimidated, and obstructed the picketers, taking close-up photos and threatening arrest for participation in the picket, which had been previously announced to the police. The complainant also refers to the assault of four union officials by police officers, during the course of which one union official was dragged with the intention to make him fall and cause him injury. The complainant alleges that false accusations of obstructing and insulting the police were made in the aftermath of this industrial action against two union officials to cover up the wrongful actions of the police during the picket. It alleges that in September 2022, two of their union officials were separately summoned, with one of them, Mr Chee, being arrested and charged in November 2022 for the above-mentioned offences under the Penal Code and Minor Offences Act, with his bail having been set above the maximum amount foreseen in the law. The complainant adds that it lodged a complaint to the Department of Integrity and Standard Compliance against the police for abuse of power, and the investigation is ongoing.
6. 53. The Government provides its observations in communications dated 30 September 2022, 3 February, 12 September and 20 February 2023, and 10 September 2024.
7. 54. Concerning the Committee’s recommendation (a), the Government indicates that both parties have agreed to use the dispute settlement procedure provided for in their collective agreement.
8. 55. With regard to recommendation (c), the Government indicates that in February 2023, the Industrial Court awarded Ms Sarimah and Mr Sethupathy reinstatement to their former or an equivalent position in the bank, without loss of seniority, service, bonuses, or other benefits, monetary or otherwise, including salary adjustments and increments that would have been earned had the claimants not been dismissed. It adds that the dispute over the unfair dismissal has been resolved by the parties, and that no further complaints have been received by the Ministry of Human Resources through the Department of Industrial Relations.
9. 56. With regard to recommendation (d), the Government expresses its commitment to ensure that all parties, including unions, members of the unions, enforcement agencies and state authorities are aware of and adhere to national policies and regulations, including trade union rights, in upholding social justice and industrial harmony.
10. 57. The Committee welcomes the information provided by the Government concerning the February 2023 decision of the Industrial Court regarding Ms Sarimah and Mr Sethupathy, who the Government indicates have both been awarded reinstatement to their former or an equivalent position in the bank, without any loss of seniority, service, bonuses, or other benefits, including salary adjustments and increments that would have been earned had the claimants not been dismissed. The Committee further notes from the Government’s response that the dispute has been resolved by the parties, and that no further complaints have been received. Finally, the Committee notes with respect to recommendation (b) that the Committee of Experts on the Application of Conventions and Recommendations has taken up this matter in its 2024 comment as requested.
11. 58. The Committee observes from the complainant’s allegations in 2022 that there were 300 anti-union cases pending at the Ministry of Human Resources under sections 8, 39(a) and 59(d) of the Industrial Relations Act and that, more generally, issues relating to anti-union discrimination cases include lengthy judicial procedures. The Committee notes that the complainant contests the Government’s previous observations as to the level of efforts undertaken by the Ministry of Human Resources to resolve the relevant issues. While the Government indicates that no new further complaints have been received at the Ministry of Human Resources, the Committee observes that it does not specifically refer to the numerous cases that the complainant stated were pending in 2022. While the range of measures referred to by the complainant are both vast and general, the Committee wishes to recall as a general matter that anti-union discrimination is one of the most serious violations of freedom of association as it may jeopardize the very existence of trade unions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1072]. The Committee expects that, should there be any pending complaints, the Government will ensure that they are rapidly and effectively addressed.
12. 59. The Committee notes that the complainant alleges deliberate delays by the bank in the negotiations for a collective bargaining agreement, concerning the period of 2022–25, and the bank’s refusal to attend the meetings of the Standing Committee set up under the existing collective bargaining agreement. The Committee notes the Government’s indication that both parties have agreed to use the dispute settlement procedure provided for in their collective agreement and requests the Government and the complainant to provide information on the outcome.
13. 60. The Committee also notes the complainant’s allegations regarding harassment and intimidation of trade unionists by the police during and following a peaceful picket on 30 August 2022. The Committee notes that the complainant refers to criminal charges brought against Mr Chee in November 2022 for obstructing and insulting the police, as well as to ongoing investigations by the Department of Integrity and Standard Compliance following the complainant’s application relating to the abuse of power by the police. The Committee notes that while the Government emphasizes that it is committed to ensuring that all parties, including enforcement agencies and state authorities, are aware of and adhere to national policies and regulations, including trade union rights, it provides no information with regard to these new allegations. The Committee therefore requests the Government to provide its observations regarding allegations of criminal charges brought against the trade union official, Mr Chee, the current status of that case and of other investigations in relation to the alleged abuse of power by the police.