4 – Systematic violations of rights
The ITUC Global Rights Index

Malaysia

The ITUC affiliate in Malaysia is the Malaysian Trades Union Congress (MTUC).

In practice

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Suspected union-busting tactics at Malaysian Airlines31-10-2015

In June 2015 Malaysian Airlines Systems Berhad (MAS Bhd) transferred their assets and airline business to a newly created separate legal entity, Malaysian Airlines Berhad(MAB). The 20,000 MAS Bhd employees lost their jobs, and only 14,000 were taken on by MAB, the new company that took over the Malaysian Airlines, leaving 6,000 out of work. At the same time, the in-house trade unions that existed in MAS Bhd effectively ceased to exist, leaving MAB free of trade unions. Both the former MAS and the new MAB are government owned.

The National Union of Flight Attendants Malaysia (NUFAM) duly applied to the new employer MAB for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. in a letter dated 11 September 2015. However, MAB did not respond to that application within the 21 days stipulated by law, to either grant recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. or notify it of the grounds for refusing recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. .

NUFAM then reported the matter in writing to the Director General for Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
on 6 October 2015, again as required by law, in order that the authorities take such steps or make such enquiries to ascertain the “… the competence of the trade union of workmen concerned to represent any workmen or class of workmen….” in MAB. Over 40 days later, the DG for Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

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had not responded to NUFAM.

NUFAM feared that the government-owned airline was mimicking the union-busting behaviour of private-sector companies. Companies have been known to in the past form a new separate legal entity, and then transfer assets and business from the existing company to the new entity, thereby killing off existing unions – forcing workers to start all over again to form, register and get recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. of their unions in the new entity. This strategy has also been used to get rid of workers’ leaders and union activists who stood up against exploitation.

Timber company continues to deny workers union recognition14-05-2015

Sabah Forest Industries (SFI) filed a judicial review on 14 May 2015 seeking to quash a ministerial order on the eligibility of its employees to vote in a secret ballot on whether they wanted to be represented by the Sabah Timber Industry Employees Union (STIEU). SFI workers had been battling for 24 years for union recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. , but had been thwarted at every turn by the company’s legal manoeuvres. Two previous attempts to file for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. , in 2003 under the now defunct Sabah Forest Industries Employees Union and in 2010 as STIEU, had ended with SFI management successfully filing for judicial review. Yet STIEU’s 2010 secret ballot results following its claim for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. revealed it had the support of 85.9 per cent of SFI workers.

Sadly a stark reminder of the need for a union to protect workers’ welfare came on 12 July 2015 when Yiki Janing, aged 51, died at the chip mill division at the SFI’s plant in Sipitang while operating machinery. SFI was accused of failing to install a fence on the conveyor machine, which caused the death of Mr. Yaning. In December 2015 the company was formally charged with failing to ensure its workers’ safety, health and welfare.

By the end of 2015 STIEU had still not achieved recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. . In the meantime, STIEU reported that SFI was trying to revive the defunct in-house union, and to urge some employees to file cases against STIEU leaders before the Trade Union Activities Department, in an effort to divide members and harass leaders.

Meanwhile, further to complaints filed by the Building and Wood Workers International (BWI), the company is under investigation by the Forest Stewardship Council (FSC) and Compliance Advisory Ombudsman of the World Bank for its anti-union practices and failure to comply with ILO International Labour Organization A tripartite United Nations (UN) agency established in 1919 to promote working and living conditions. The main international body charged with developing and overseeing international labour standards.

See tripartism, ITUC Guide to international trade union rights
Conventions 87 and 98 as required in certification systems and Performance Standards.

Tobacco workers arrested for picketing30-04-2015

Malaysian police arrested 11 workers from the National Union of Tobacco Industry Workers (NUTIW) at a picket near a factory close to Jalan University, Petaling Jaya, Selangor, on 23 April 2015. They were taken to the Seapark Police Station and detained overnight. The British American Tobacco (BAT) Berhad employees had taken to the streets to express their dissatisfaction over a voluntary separation scheme (VSS) offered to about 50 workers by the company. The first to lose their jobs were the union leaders.

Proposed legislative changes will weaken unions10-06-2015

The Secretary General of the Malaysian Trades Union Congress (MTUC) N. Gopal Kishnam warned that the legislative changes proposed under the “11th Malaysia Plan” announced in June 2015 would weaken industrial workers’ ability to collectively bargain with their employers.

The text of the 11th Plan states that amendments will be made to the Employment Act 1955, Trades Union Act 1959 and Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

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Act 1967. Those amendments would “address the rigidity of existing dismissal processes” and “increase flexibility in working hours and registration of trade union membership”.

The Human Resources Ministry, tasked with amending the laws, had not yet announced what these specific amendments would be, but the Malaysian Employers Federation (MEF) set out its proposals for what they should contain.

The MTUC expressed concern about several of the MEF’s proposals, especially on the reclassification of dismissals. In the case of in so-called voluntary separation schemes (VSS), for example, workers have to choose between two unpalatable options. Gopal cited a case where workers at a factory were given two choices: either sign up to a new employment agreement where they will no longer be union members or take the company’s VSS. “Staying on with the company is even worse because there will be no union to protect their interests and their welfare will not be covered by a collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
agreement.”.

The MTUC suspects that companies are resorting to more and more coercive VSS and Mutual Separation Schemes (MSS) in order to shed workers or bring down salary costs. “Unlike a retrenchment scheme, you don’t have to inform and justify your reasons to the ministry with a VSS and MSS scheme.” “The end result with such practices is that more and more workers are forced to give up their rights to unionise”, said Gopal. “It’s union-busting.”

Railway workers dismissed for picketing 09-05-2014

A total of 97 leaders and activists of the Railwaymen’s Union of Malaya (RUM) were dismissed by KTMB (Malayan Railways Ltd) for taking part in a picket on 9 May 2014 over safety concerns arising from the use of old locomotives. Both the RUM president, Abdul Razak Md Hasan, and deputy president, R. Subramanian, were among those dismissed. Eighty-eight KTMB members were issued with show-cause notices (which require them to make a court appearance to explain why legal action should not be taken against them). In November it was reported that the sacked workers would be reinstated, further to lobbying by the Malaysian Trade Union Congress.

Sabah Forest Industries prevents unionisation09-02-2015

Sabah Forest Industries (SFI) has been using numerous tactics to prevent the formation of an independent union independent union A trade union that is not affiliated to a national union. Can also be a union that is not dominated by an employer.

See yellow union

, the Sabah Timber Employees Union (STIEU). Workers have been struggling for trade union recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. since the early 2000s. The company publicly declared that it was committed to not opposing the formation of a union and that it was willing to facilitate this process. However, in reality it continues to deny workers the right to freedom of association freedom of association The right to form and join the trade union of one’s choosing as well as the right of unions to operate freely and carry out their activities without undue interference.

See Guide to the ITUC international trade union rights framework
. The Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
Department ordered SFI to submit the list of the employees eligible to vote in union elections by 21 August 2014. SFI is still delaying the submission of the list arguing the union must prove its competency first.

Backlog of cases09-02-2015

A serious backlog of cases is building up at the Industrial Courts in Penang and Kuala Lumpur after the contracts of four senior Industrial Court chairmen were not renewed. This is not the first time the Court has been left vacant, but the problem is more acute now because the contracts of all four expired around the same time in August 2014.

Union busting tactics in the electronics sector09-02-2015

On 1-2 October 2014, workers in Malaysia voted for union representation by the Electronic Industry Employees Union (EIEU) at electronics manufacturer Infineon Technologies, despite strong pressure and union busting union busting Attempts by an employer to prevent the establishment of a trade union or remove an existing union, e.g. by firing union members, challenging unions in court, or by forming a yellow union. tactics by management. Workers at the Kulim-based plant in northwest Malaysia initially asked the company management for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. of their union in April 2014. However, Infineon rejected the union’s demands and refused to enter a constructive dialogue with workers. EIEU was subsequently forced to pursue a long bureaucratic recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. procedure, while the company tried to destroy the workers’ efforts at organising organising The process of forming or joining a trade union, or inducing other workers to form or join one. . In a bid to prevent union presence, the company tried to claim the factory was not producing electronic components. Eventually, Infineon agreed to a secret ballot of the entire workforce. In the run-up to the vote, the company regularly provided negative briefings against EIEU and threatened workers. Nonetheless, more than half of the workers voted in favour of having the union at the plant.

Malaysia Airlines attacks union09-02-2015

On 14 February 2014, Malaysia Airlines started disciplinary proceedings against 30 members of the National Union of Flight Attendants Malaysia (NUFAM) as well as its General Secretary, Mohd Akram bin Osman, for having allegedly participated in an “illegal gathering” on 27 November 2013 at the Ministry of Human Resources in Putrajaya.

NUFAM is a registered trade union, and has sought recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. for collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
purposes from Malaysian Airlines. When the company refused to recognise the union, the Director General of the Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
Department conducted a secret ballot vote in which 62.73 per cent of workers voted in support of NUFAM. However, on 4 October 2013, Malaysia Airlines challenged this decision by filing an application for a judicial review in the High Court.

On 29 November 2013, Malaysia Airlines terminated the employment contract of Ismail Nasaruddin, President of NUFAM, for a speech he gave in his capacity as union leader without conducting a disciplinary inquiry and without giving him the opportunity to respond to the allegations.

In December 2013, disciplinary proceedings were initiated against 10 NUFAM members for comments they made in their Facebook group.

Refusal to recognise unions31-03-2013

In March 2013, the Workers Union of the West Territory Electronic Industries picketed outside the Human Resources Ministry to protest against their employers’ refusal to acknowledge the existence of unions in their respective companies. Union president Wan Noorul Azhar Mohd Hanafiah said the companies arbitrarily bust unions by sacking the presidents, threatening union members and forming in-house unions.

The Director General of Trade Unions (Ministry of Human Resources) can refuse to register a trade union without giving any reason for the refusal and can withdraw registration, and is thus given very broad discretion in deciding these matters. Unions that do not register, or whose registration has been denied or withdrawn, are considered illegal organisations. The decisions by the Director General of Trade Unions (Ministry of Human Resources) and the Minister of Human Resources cannot be appealed to any Court.

Secret ballot system abused31-01-2011

Workers opt for the union that is to represent them by mandatory secret ballot. The Immigration Department and the employers prohibit foreign workers from taking part in these elections or any union activities. The Department of Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
(DGIR), however, includes them in the overall figures for the purpose of determining union membership. This can heavily dilute the votes in favour of a union and often results in the denial of union recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. . Furthermore, according to the Regulations, workers who do not vote are considered to be against the union. Even those who have passed away are required to vote.

10,000 workers denied collective bargaining rights28-09-2011

On 28 September, the Malaysian Trade Union Congress (MTUC) submitted a memorandum to the Ministry of Human Resources Malaysia (MOHR) listing and detailing the trade unions’ struggle to achieve collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
rights in nine companies involving more than 10,000 workers. According to the MTUC, as a result of MOHR’s failure and inefficiency, union recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. , which is a prerequisite for collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
rights, remain unresolved for seven years. The MTUC called for a review of the regulations which were often applied to delay and deny unions’ claims for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. .

Many employers refuse to respond to the Department of Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
’ (DGIR) and Department of Trade Unions’ (DGTU) request for information on their company’s industrial activity and a list of their employees’ names, despite the 2008 amendments to the Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

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Act 1967, aiming to address numerous weaknesses and resolve recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. claims. In some cases employers even refuse to allow officers from the DGIR and DGTU to enter the company premises.

Furthermore, after the implementing regulations were drawn up, unions were not properly informed about the submission requirements of the new regulations. This, despite the fact that according to the DGIR, the use of the old form invalidates the claim and then unions have to withdraw their claim and wait for six months before filing a new one. This rule is considered illegal by the MTUC.

Many arbitrary rulings from the DGIR invalidated several unions’ claims for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. . This happened at Renesas Semiconductor (formerly NEC). Despite showing proof of delivery and the company’s confirmation of receipt, the DGIR has ruled that since the union’s claim was hand delivered by the president of the union, it was deemed invalid. The union made four unsuccessful attempts to send the claim by mail. The union subsequently reported to the DGIR that Renesas Semiconductor had refused to accept delivery.

The Electrical Industry Workers’ Union’s claim for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. at the Formosa Prosonic Manufacturing and Liebherr Appliances companies remained unresolved for nearly four years and the DGIR claimed that it was powerless to do anything.

Finally, the MOHR and the DGIR have imposed a ban on picketing picketing Demonstration or patrolling outside a workplace to publicise the existence of an industrial dispute or a strike, and to persuade other workers not to enter the establishment or discourage consumers from patronising the employer. Secondary picketing involves picketing of a neutral establishment with a view to putting indirect pressure on the target employer. or any form of action to protest against employers’ refusal to accord recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. .

Prohibition on migrant workers’ organising30-11-2009

Approximately 2.6 million migrant workers in Malaysia (25% of total workforce) are prevented by law from organising organising The process of forming or joining a trade union, or inducing other workers to form or join one. . The Malaysian Trades Union Congress claims that companies intimidate migrant workers to prevent them from joining the union and then use the fact that they are not members to deny recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. to unions by claiming they have the support of less than 50% of the workforce. Notices placed on migrant work permits state that these workers are prohibited to join unions. The system for registering migrant workers discourages workers from asserting their rights because it grants total discretion to employers to terminate workers for virtually any reason.

Union recognition is arbitrary and extremely slow30-11-2009

Obtaining a response from an employer to a request for union recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. should take a maximum of 21 days. However, in reality this takes much longer if a dispute occurs, because the matter must be taken to the Director General of Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
, the Director General of Trade Unions (DGTU) and then the Minister of Human Resources, who has the final say, unless that is challenged in the High Court. Some applications take as long as three to five years.

In a previous complaint to the ILO International Labour Organization A tripartite United Nations (UN) agency established in 1919 to promote working and living conditions. The main international body charged with developing and overseeing international labour standards.

See tripartism, ITUC Guide to international trade union rights
, the Malaysian Trades Union Congress (MTUC) listed cases in which the DGTU had arbitrarily denied organisational and collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
rights to more than 8,000 workers in manufacturing companies. Longstanding complaints from the MTUC and its affiliates over the cumbersome process to obtain union recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. and collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
have also remained unresolved despite changes to the Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
Act. The amendments stipulated specific measures to resolve the unions’ claim for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. within a period of six months. Unfortunately, government authorities have claimed that they cannot enforce the amendments because of the absence of appropriate regulations.

Ban on general confederations30-11-2009
Free organising hampered in electronics industry30-11-2009

The government continues to bar the formation of national unions in the electronics industry and only allows the creation of in-house, enterprise-level electronics unions.

Vague laws open up to abuse by employers30-11-2009

The law forbids managers and workers in executive positions from organising organising The process of forming or joining a trade union, or inducing other workers to form or join one. , but a definition of this category of workers is not provided in the law. This has led to extensive abuse by most employers to deny union membership rights and remove experienced union leaders, often by interpreting the managerial and executive category as including supervisors, assistant supervisors, section leaders and lower-level supervisory personnel. Another legal provision that is widely misused by the employers concerns the requirement that trade unions apply for recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. from the employers. The latter use this to delay union recognition recognition The designation by a government agency of a union as the bargaining agent for workers in a given bargaining unit, or acceptance by an employer that its employees can be collectively represented by a union. and thwart efforts by unions to organise and bargain collectively.

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