Malaysia
The ITUC affiliate in Malaysia is the Malaysian Trades Union Congress (MTUC).
Legal
Freedom of association / Right to organise
Freedom of association
The right to freedom of association is enshrined in the Constitution.
The right to freedom of association is recognised by law but strictly regulated.
Anti-Union discrimination
The law prohibits anti-union discrimination, but does not provide adequate means of protection against it.
Barriers to the establishment of organisations
- Power to refuse official registration on arbitrary, unjustified or ambiguous grounds
- 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 Unions that do not register, or whose registration has been denied or withdrawn, are considered illegal organisations.
- Absence of recourse to an independent body in the event of administrative refusal to register a trade union
- 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.
- Restrictions on trade unions’ right to establish branches, federation and confederation or to affiliate with national and international organisations
- The Trade Union Act requires that trade unions seek prior permission from the Director General of Trade Unions (Ministry of Human Resources) before affiliating with any "consultative body...established outside of Malaysia".
Restrictions on workers’ right to form and join organisations of their own choosing
- Single trade union system imposed by law and/or a system banning or limiting organising at a certain level (enterprise, industry and/or sector, regional and/or territorial, national)
- The Director General of Trade Unions (Ministry of Human Resources) can specify the sector and category in which a union is+I53 permitted to organise. The Trade Unions Act limits trade union membership to workers in similar trades. General unions are prohibited.
Restrictions on trade unions’ right to organise their administration
- Restrictions on the right to freely draw up their constitutions and rules
- The First Schedule of article 38(1) of the Trade Unions Act provides an excessively detailed list of the provisions that must appear in the rules of every trade unions. In addition, pursuant to article 26 of the same Act, members under eighteen years of age cannot participate in a number of decision-making processes, including strike ballots.
- Restrictions on the right to elect representatives and self-administer in full freedom
- Any member of a trade union of workmen who participates in an illegal strike ceases to be a member of the trade union, and thereafter shall not be eligible to become a member of any trade union except with the prior approval of the Director General in writing.
- Restrictions on the right to freely organise activities and formulate programmes
- The Malaysian Penal Code requires police permission for public gatherings of more than five people. Furthermore, any violation of the rules applying to the management of union funds and properties is punishable by a prison sentence not exceeding two years, or to a fine not exceeding two thousand ringgit or to both (article 49 of the Trade Unions Act). Failure to keep account books in the prescribed manner is punishable by a fine not exceeding one thousand ringgit, or to imprisonment for a term not exceeding six months, or to both (article 57 of the same Act).
- Administrative authorities’ power to unilaterally dissolve, suspend or de-register trade union organisations
- The Director General of Trade Unions (Ministry of Human Resources) may deregister a union if s/he finds that two or more registered trade unions exist in a "particular establishment, trade, occupation or industry". The Director General has the authority to suspend a branch of a trade union if s/he "is satisfied" that the branch has contravened any part of the Act or the rules of the union. The Minister of Human Resources may also suspend a trade union for up to six months in the interests of national security or the public. Pursuant to article 18 of the Trade Unions Act, the Minister may suspend in his absolute discretion, but with the concurrence of the Minister responsible for internal security and public order, by order published in the Gazette for a period not exceeding six months any trade union, or any class or description of trade unions, which in his opinion is, or is being, used for purposes prejudicial to or incompatible with, the interests of the security of, or public order in, Malaysia or any part thereof.
- Other external interference allowed by law
- Article 29 (3) of the Trade Unions Act provides that any person who is disqualified to be employed by a trade union under the law and has himself so employed without first obtaining the exemption of the Minister, shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year, or to a fine not exceeding two thousand ringgit, or to both.
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office
- Other civil servants and public employees
- Employees working in the defence industry or in prisons do not have the right to form or join trade unions.
- Non-national or migrant workers
- Under the Trade Union Act (TUA) and the Industrial Relations Act, a migrant worker can join an existing labour union and participate in its activities. However, Article 28(a) of the TUA requires that any union officer must be a citizen of Malaysia. The Ministry of Home Affairs also sets out a series of conditions connected to the issuance of work permits to migrant workers. One of these conditions is an absolute ban on migrant workers' joining any sort of association.
- Managerial and supervisory staff
- Industrial unions are prohibited from organising employees in managerial and executive positions. A 2007 Industrial Relations Act amendment adds "executive" and "security" employees to the classifications of "managerial" and "confidential" staff who are not protected against anti-union discrimination, but then fails to define the parameters of "executive" and "security" services. The amended law+E76 also provides that the Director General of Trade Unions (Ministry of Human Resources) and the Minister of Human Resources have absolute authority to determine designations of workers' status as "executive", "security", "managerial" and "confidential" staff.
Right to collective bargaining
Right to collective bargaining
The right to collective bargaining is recognised by law but strictly regulated.
Barriers to the recognition of collective bargaining agents
- Absence of criteria or discretionary, unclear or unreasonable criteria for determining representative organisations
- The Industrial Relations Act provides that a trade union must apply for recognition from the employer, who can recognise the union, deny recognition or appeal to the Director General of Trade Unions (Ministry of Human Resources) for a ruling on the representativity of the union. If a union fails to report to the Minister of Human Resources within 14 days about the employer’s refusal to recognise it, the union’s application for recognition is considered withdrawn. Workers in a union that has its recognition withdrawn have no protection against dismissal. The Act requires that a union’s representativity be determined by a secret ballot of the workers. However, the law fails to provide any safeguards against employer manipulation of the size of the bargaining unit (e.g. by adding temporary workers) for the purpose of the election.
Restrictions on the principle of free and voluntary bargaining
- Exclusion of certain matters from the scope of bargaining (e.g. wages, hours)
- The Industrial Relations Act narrowly restricts collective bargaining to activities that include making provisions for training to enhance skills, for an annual review of the wage system and for a performance-related remuneration system. Hiring and firing, transfer and promotion, dismissal and reinstatement fall outside the scope of collective bargaining.
- Prohibition or limitation of collective bargaining at a certain level (local, regional, territorial, national; enterprise, industry, sector or general)
- Collective bargaining is restricted in companies in “pioneer” industries, such as the electronics industry.
- Compulsory conciliation and / or binding arbitration procedure in the event of disputes during collective bargaining, other than in essential services
- The Industrial Relations Act allows the Minister of Labour to initiate compulsory arbitration at his/her own volition.
Limitations or ban on collective bargaining in certain sectors
- Other civil servants and public employees
- In the public sector, the joint council system limits public sector unions to a consultative role, which means they are only entitled to "express their point of view" on principles regarding wages and working conditions.
Right to strike
Right to strike
The right to strike is recognised by law but strictly regulated.
Barriers to lawful strike actions
- Obligation to observe an excessive quorum or to obtain an excessive majority in a ballot to call a strike
- Two thirds of the members of a trade union must vote in favour of a strike in a secret ballot, and the ballot must include a resolution that stipulates "the nature of the acts to be carried out or to be avoided during the strike". The results of the ballot are passed to the Director General of Trade Unions (Ministry of Human Resources) for verification.
Ban or limitations on certain types of strike actions
- Restrictions with respect to the objective of a strike (e.g. industrial disputes, economic and social issues, political, sympathy and solidarity reasons)
- Trade unions are not allowed to go on strike for disputes relating to trade union registration or illegal dismissals. Sympathy strikes are not permitted.
- Restrictions with respect to the level or scope of a strike (e.g. (enterprise, industry and/or sector, regional and/or territorial, national)
- General strikes are not permitted.
Undermining of the recourse to strike actions or their effectiveness
- Excessive civil or penal sanctions for workers and unions involved in non-authorised strike actions
- Penalties for executive committee members of a union who engage in an illegal strike include fines and imprisonment for up to one year. Rank and file workers who engage in an illegal strike are considered by the government to be automatically stripped of their union membership and cannot join another trade union in the future without the written approval of the Director General of Trade Unions (Ministry of Human Resources).
Limitations or ban on strikes in certain sectors
- Discretionary determination or excessively long list of “essential services” in which the right to strike is prohibited or severely restricted
- Essential services are very broadly defined and include health care, education and transportation.
In practice
In mid-September 2021, the UK’s National Contact Point (NCP) for the Organisation for Economic Cooperation and Development (OECD) agreed to accept the complaints by the National Union of Bank Employees (NUBE) Malaysia and UNI Global Union against HSBC Bank Malaysia Bhd for its unfair treatment of bank workers.
In July, NUBE lodged 93 reports against HSBC Bank Malaysia chief executive officer Stuart Milne for retrenching workers during the Covid-19 pandemic.
NUBE Secretary-General J. Solomon said HSBC has breached six guidelines by deliberately delaying negotiations during collective bargaining; harassing and victimising NUBE members and union representatives for their participation in industrial action; denying union representatives entry to workplaces for the purpose of meeting union members; failing to appropriately engage in dispute resolution proceedings; undertaking an outsourcing process, including “forced” voluntary and mutual separation, and failing to consult with NUBE ahead of this process; and denying NUBE members and employees access to their workstations and work.
He said his organisation was forced to bring the issue to the attention of the UK NCP after local authorities failed to help find solutions to issues raised in the past years.
Malaysia’s National Union of Transport Equipment and Allied Industries Workers (NUTEAIW) filed a complaint in July 2021 with the International Labour Organization’s (ILO) Committee on Freedom of Association about anti-union discrimination at HICOM, an assembler for automotive brands Volkswagen, Mercedes-Benz and Mitsubishi.
Five local NUTEAIW leaders were still out of work five years after HICOM dismissed 32 NUTEAIW members for attending a union briefing after working hours, outside of company premises, in February 2016. The briefing was about a deadlock in the collective bargaining, and the company accused the workers of “tarnishing the image” of the company.
After mediation meetings at the industrial relations department, 27 union members were reinstated. However, the company refused to reinstate the remaining five local union leaders. NUTEAIW exhausted all domestic legal avenues, and all courts failed to uphold the unionists’ right to participate in legitimate union activities – hence the decision to turn to the ILO. As the NUTEAIW general secretary, N. Gopal Kishnam, said: “The government has violated article 1(2)(b) of ILO Convention 98 stating that workers shall enjoy adequate protection against dismissal because of participating in union activities outside working hours.”
The workers won termination compensation in court but failed to gain reinstatement.
HICOM has a notorious record of union-busting in Malaysia. In 2013, HICOM and its sister company Isuzu HICOM dismissed 18 NUTEAIW members for exercising their political rights.
Malaysia’s National Union of Employees in Companies Manufacturing Rubber Products (NUECMRP) is calling on Toyo Tyre Malaysia to respect the first secret ballot result and recognise them as a negotiating partner.
Toyo Tyre Malaysia, a subsidiary of Japanese Toyo Tires Group, has been discriminating against IndustriALL affiliate NUECMRP since the union sent a request of recognition in April 2014. An in-house union was quickly set up and recognised by the company.
With the intervention of the Industrial Relations Department, NUECMRP won the first secret ballot and the support of 52 per cent of the workers. In accordance with the law, the minister of human resources granted the recognition to NUECMRP.
Denying the recognition, Toyo Tyre applied for a judicial review to challenge the validity of the name list of workers used in the secret ballot, which had been provided by the company itself. After a long legal battle, the court overturned the minister’s decision and ordered a new secret ballot.
Abdullah Hussaini Bin Mohd Salleh, NUECMRP general secretary, says that in the days leading up to the second polling date on 18 August, the company allowed the in-house union to put up banners calling for the rejection of NUECMRP, workers were intimidated, and the vote was not secret.
The ITF-affiliated National Union of Flight Attendants of Malaysia (NUFAM) represents cabin crew at Malaysia Airlines. The company has long maintained that crew supervisors count as management rather than staff and therefore are ineligible for union representation.
The federal court’s decision ends a lengthy process during which the airline has attempted to challenge supervisors’ labour rights at multiple levels of the judiciary. Several groups, including the Malaysian Trades Union Congress, have called on the airline to immediately recognise NUFAM as the legitimate representative of supervisors for collective bargaining purposes.
The ITF airports organising programme coordinator said: “In the middle of the Covid-19 crisis, the protection of union membership and collective bargaining is more important for workers than ever.”
Malaysian union leader N. Gopalkishnam has faced government harassment since airing safety concerns in a report for Channel 4 News in the UK.
On 16 June, Channel 4 News in the UK revealed the failure of the biggest rubber glove manufacturer in the world, Top Glove, to comply with the social distancing rules imposed by Malaysian authorities. The investigative report also exposed the poor living conditions of migrant workers at the company.
The general secretary of National Union of Transport Equipment and Allied Industries Workers (NUTEAIW), N. Gopalkishnam, commented in the video that the violation of the COVID-19 prevention protocol puts the entire Top Glove workforce at risk. He declared that the government should focus instead on taking serious steps to ensure the safety and health of workers in factories exporting personal protective equipment. He urged the UK National Health Service (NHS) to stop buying medical gloves from the company.
Due to this comment, made in solidarity with the workers at the rubber glove factory, Home Ministry officers called Gopalkishnam several times and visited NUTEAIW’s office without prior notice. A meeting was arranged on the morning of 24 July.
UEM Group Berhad, a Malaysian government-linked company (GLC), through its subsidiary, Edgenta UEMS, is currently engaged in a vicious union-busting campaign, aggressively victimising frontline hospital cleaners and their worksite union officials.
Since early 2020, the hospital janitors have been confronted by problems of widespread union- busting activities in all of the company’s hospitals, such as deliberate changing of workers’ working hours and shift unilaterally without prior consent.
Workers active in the union have also been punished by arbitrarily being transferred out to hospitals far away from their residence. Additionally, the company is forbidding union activities by disallowing union worksite committees to have discussions with workers, even during their legitimate break time, and by threatening disciplinary action against union officials.
The Timber Employees Union of Peninsula Malaysia (TEUPM) in Ekowood, one of Malaysia’s biggest hardwood flooring companies, continued to organise workers throughout 2020 despite long-standing attempts by the management to undermine it.
The union said that management has undermined union elections on two separate occasions. TEUPM said that since 2016, it has made several attempts to be voluntarily recognised by Ekowood, which holds ISO, FSC and PEFC chain of custody certificates. The union said that with the certificates, the company has committed to observe local Malaysian law and respect workers’ rights to representation. However, management has hindered the conduct of union elections.
On 4 September 2019, a secret ballot union election was organised by the Industrial Relations Department and agreed by both parties. However, management invited workers, many of whom are migrant workers, to a team-building outing on the same day. Another union election was set on 8 October. Management reportedly escalated its anti-union efforts with the discovery of an audio recording, allegedly from a workers’ meeting organised by management, wherein a manager is identified as threatening workers who would vote in favour of the union with income and housing denial, and even deportation.
TEUPM reported this to the Industrial Relations Department, leading to the BWI Asia-Pacific office in Kuala Lumpur contacting the Malaysian Timber Certification Council (MTCC). As a result, the MTCC sent a letter to the certificate holder on 3 October 2019 warning of the possibility of serious infringement of its standard requirements if Ekowood continues interfering with workers’ rights.
To this date, Ekowood has taken no steps to finally recognise the union and continues to harass and threaten workers and their representatives.
The Timber Industry Employees Union of Sarawak (TIEUS) issued a statement on 23 August 2019 stating that the Shin Yang Group had instructed workers not to take part in a secret ballot on 25 August. The ballot was being held to decide whether the workers were in favour of forming a union.
The workers were employed by timber company Zedtee Plywood Sdn Bhd, a logging company based in Sarawak, part of the Shin Yang group that was already infamous for causing environmental devastation and for its disregard for human rights.
Zedtee conducted a string of meetings with workers who were eligible to vote in the secret ballot elections, instructing them not to vote, reported TIEUS president Agat Sagai. He explained that the majority of the company’s 1,000 workers were migrants, and as their immigration status was tied to their employment, they did not feel like they could afford to speak out or vote against the company. It was, he pointed out, a clear violation of the right to freedom of association.
The company began the meetings after seeing a Facebook post in which the union had held an out-of-work-hours activity educating Zedtee workers about their rights as workers and how to participate in the union election.
A Zedtee Plywood worker, who declined to be named fearing management reprisal, said workers were “briefed” daily not to attend the secret ballot, let alone vote. He said the briefings were conducted by factory manager Chan Souh Teng; production manager Mr Hwan; and engineering manager Lau Sie Kuk. He said the names of those eligible to vote had been posted on their factory notice board and he had seen familiar names of workers who had already resigned from the factory on that list.
Hong Kong and Shanghai Bank Corporation Malaysia is legally bound by collective agreements with the MTUC-affiliated bank federation, NUBE, and the sectoral agreement with the Malayan
Commercial Banks Association (MCBA) to consult the trade union on employment matters, including outsourcing.
A new collective bargaining agreement (CBA) was signed in 2019 after a lapse of three years as a result of the bank’s procrastination and tactics to dilute several benefits provided for in the sectoral agreement. The company further refused to honour the ONE HSBC Outsourcing and Restructuring Agreement signed with NUBE in 2010; the Agreement lays out the consultation procedure pertaining to the sectoral agreement on outsourcing and retrenchment matters.
The Employment Act 1955 mandates that the employer submit a retrenchment notification form 30 days in advance of implementing the Voluntary Separation Scheme (VSS). The Code of Conduct for Industrial Harmony between the Ministry of Human Resources, the Malaysian Council of Employers’ Organisations and the MTUC provides for consultation with the trade union before making retrenchment decisions. The bank has ignored these legal obligations.
In a bid to promote the VSS, more than 500 customer service bankers were retrenched while the jobs were later found by NUBE to have been outsourced to Malaysian vendors owned by HSBC in the UK as well as service providers in India and Sri Lanka.
On 21 October 2019, the Industrial Court, based on a procedural point that the ONE HSBC Agreement had not been registered, turned down NUBE’s request for an injunction order to stop the implementation of VSS, which the union claimed violated the Agreement. Since the union picket staged in 2018, cases of anti-union dismissals of union leaders and shop stewards have been pending. Nineteen members have received warning letters threatening them against joining union activities. The company has been refusing to attend mediation meetings to resolve the issues.
Union members demonstrated outside the headquarters of Edgenta Mediserve Sdn Bhd in Ipoh on 17 May 2019, protesting that the healthcare company’s senior executives had issued threats against workers who were members of the National Union of Workers in Hospital Support and Allied Services (NUWHSAS).
The protesters accused the company of union busting by its having threatened to take disciplinary action against staff who had been involved in union activities. “Some of our members had been threatened they would be removed from their job if they continue to be active,” said the union’s executive secretary, M. Sarasvathy.
She explained that harassment started in 2017 when the union asked to negotiate a collective agreement for workers with the company. In September 2018, the company’s subsidiary signed an agreement with the union, allowing its members to cast their votes from September to November according to a designated time and place. “However, some of the company’s supervisors threatened the staff not to cast votes or face the consequences,” she said. Sarasvathy further alleged that the workers were also bullied and transferred from one section to the other, while those who wanted to attend Labour Day events were told not to do so or they would be sacked.
“We have sent complaint letters to the company and the Human Resources Ministry, and even lodged 15 police reports, but to no avail.”
On 13 January 2019, a consultation meeting was held with more than 60 participants from 31 national unions, two international union peak bodies, NGOS and the Malaysian Trade Union Congress to discuss the Malaysian government’s plan to amend the Employment Act 1955. A first consultation meeting, also organised by IndustriALL, was held on 9 December 2018 during which issues such as parental leave, maximum weekly working hours and improving retirement benefits were discussed.
Among key amendments discussed at the 13 January meeting were an increase to freedom of association and collective bargaining rights, with a particular focus on strengthening the statutory provisions regarding the formation and registration of trade unions and recognition of collective agreements.
The working group is also proposing further amendments that reduce the ability of the government to deregister or suspend unions, requiring that any such decision must be referred to a court. The proposed amendments will also include a prohibition on restricting strikes or declaring a strike unlawful or invalid.
The meeting, which was officiated by Datuk Abdul Halim Mansor, president of MTUC and moderated by Bruno Periera and Gopal Kishnam, will submit its proposed amendments to the Minister ahead of its scheduled tabling in March 2019.
An overwhelming majority (72.33 per cent) of members of the Sabah Timber Employees Union (STIEU) at Sabah Forest Industries (SFI) in Sipitang, Malaysia, voted to form a union via a secret ballot election on 29 October 2018. SFI has a long history of obstructing its workers from forming a trade union on its premises, and had refused to allow workers to conduct the ballot on site or during work hours. The secret ballot was held on the premises of a nearby school, with workers voting during their lunch break.
This ballot victory comes after many attempts by SFI over previous years to prevent its workers from forming a union, using lengthy and expensive judicial review procedures. In October 2017 SFI’s appeal to the Kota Kinabalu Federal Court was dismissed; however, the Court’s failure to provide a written copy of the decision was further used to prevent the secret ballot process from proceeding until the new human resources minister, M Kula Segaran, intervened.
The successful ballot will enable the workers at Sipitang to begin collective bargaining.
About 200 members of the National Union of Banking Employees (NUBE) gathered outside the Hong Kong and Shanghai Banking Corporation Ltd (HSBC) headquarters in Leboh Ampang to protest against the failure of the management to honour its agreement.
Nube secretary-general J. Solomon said the employees deserved what they were promised and it was an injustice to deny or cut the perks they were entitled to under a collective agreement signed between the bank and the union. Instead, HSBC had opted to “shortchange” and intimidate employees so that they would resign without compensation.
He said, although it was a longstanding problem, the situation had worsened with the appointment of a new chief executive officer in April. Since then, he said, there had been a further tightening on employee benefits.
He added that union members were disappointed that an international bank like HSBC was treating its employees so shabbily. ”We are not asking for something that is not in the agreement. We are just asking them to honour the collective agreement. We have proposed dialogues, but even that has been shot down.”
The old collective agreement had lapsed for more than a year, but HSBC has yet to meet union officials to discuss its renewal.
“The union also found out that the company, under the name of restructuring exercise, had outsourced employees’ duties to an outside firm without any consultation with the union,” Solomon said, adding that the re-delegation of duties of that sort was against the agreement that they had agreed on.
In October 2017 Human Resources Minister Richard Riot decided not to refer the claim of about 3,600 Malaysian Airlines (MAS) workers, claiming wrongful dismissal and reinstatement, to the industrial court – hence denying these workers the right for their claim to be heard speedily and determined.
The workers were among those who lost their jobs in June 2015 in a wave of mass lay-offs by government-owned Malaysian Airlines. The Malaysian government transferred the assets of Malaysian Airlines Systems Berhad (MAS Bhd) to a newly created separate legal entity, Malaysian Airlines Berhad (MAB), terminated all employees in the previous company – and then re-employed selected workers in the new company. The government then passed a new law that made the new company specifically not liable for the actions and liabilities of the old company. The exercise was described by some observers as possibly the biggest union-busting exercise of recent times, as six of the trade unions were in-house unions, and the exercise effectively wiped out all of them.
The Human Resources Ministry quarterly report 3/2017 September (Employment and Labour Statistics) shows there are no statistics on workplace inspections to ensure that worker and trade union rights are not being violated. Similarly there are no statistics to record the investigation and prosecution of employers who have violated labour laws and fundamental worker rights, or about information or complaints received or about employers found guilty. The only available labour statistics concern occupational health and safety.
Members of the IUF-affiliated National Union of Hotel, Bar and Restaurant Workers Peninsular Malaysia (NUHBRW) at Shangri-La’s Rasa Sayang Resort and Spa have won back their collective agreement and restored collective bargaining rights after a 13-year fight.
In December 2004 Shangri-La Hotels closed its Rasa Sayang Resort in Penang for renovation and reopened as Rasa Sayang Resort and Spa in September 2006. However, Shangri-La claimed that while all of the workers returned to work at the renovated hotel, it was a “new” hotel and the wages and benefits under the existing collective agreement no longer applied.
NUHBRW members launched protest actions against the unilateral termination of the collective agreement and took the case to the Industrial Court. The union won a favourable decision which reaffirmed the union’s collective bargaining rights, but Shangri-La launched a costly legal battle to assert its power to unilaterally impose new terms of employment.
Finally, in April 2017, the Federal Court upheld the Industrial Court decision and ordered Shangri-La to restore the terms and conditions of the collective agreement retroactive to 2006.
INFINEON Technologies (Malaysia) Sdn Bhd dismissed Muhammad Zulfadlee Thye Bin Abdullah, the president of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) on 13 December 2016. He was accused of “malingering”, implying an unjustified absence, on 18 October 2016. Zulfadlee actually had a medical certificate for four days, from 18 to 21 October, because he was suffering from gallstones. The problem appears to be his last minute decision to briefly attend a union activity that had been organised for that day, at the behest of other colleagues. Six other members of the executive committee of the union, including the vice-president and the secretary, were also targeted and subjected to disciplinary action further to the union activity, attended by over 40 colleagues. No one else was sanctioned for their participation in the event organised by the Selangor Division of the Malaysian Trade Union Congress (MTUC), other than the union leaders. Zulfadlee had worked for the company for 18 years and had an exemplary record. When he appealed against his dismissal, the company refused to reinstate him, citing serious misconduct.
The MTUC pointed out that the union was about to begin negotiations on a new collective agreement at INFINEON, and that the disciplinary measures appeared to be aimed at instilling fear.
Sabah Forest Industries (SFI) has consistently used judicial review proceedings to delay and effectively deny recognition to the Sabah Timber Industries Employees Union (STIEU). On 27 June 2016 the Sabah High Court dismissed a recent judicial review of a decision by the Malaysian Minister of Human Resources ordering the SFI to recognise the union, in March 2015.
This was the third time SFI had used judicial review proceedings to undermine union recognition and avoid collective bargaining. Despite the Sabah High Court’s dismissal of the judicial review, SFI filed yet another appeal to that decision on 22 July 2016. SFI, which is owned by the Indian multinational paper company BILT, also wilfully ignored a decision of the Forest Stewardship Council (FSC) that found breaches of ILO Core Conventions 87 and 98. The Ombudsman for the investment arm of the World Bank, which has a total of USD 250 million invested in SFI’s parent company, was also investigating SFI and BILT’s anti-union behaviour.
It seemed clear that the constant applications for a judicial review were simply a tactic designed to delay union recognition for long enough to trigger a new election period, taking the union back to the beginning of the process again. Without some kind of intervention, STIEU fear they may be locked in this cycle indefinitely.
On 8 March 2016 an industrial court found Renesas Semiconductor KL guilty of union busting. The events that led to the court case cover several years, beginning with the founding of the Electro-nics Industry Employees Union-Western Region Peninsular Malaysia (EIEU-WRPM) in December 2009. The company refused to recognise the union, and instead set up an in-house union in early 2010. It offered the post of president of the new in-house union to the president of the EIEU local, Wan Noorulazhar, which he refused. He was subsequently redeployed to a post below his status, and in 2011 was sacked in what the judge described as “manifestly a union-busting tactic”.
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 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 or notify it of the grounds for refusing recognition.
NUFAM then reported the matter in writing to the Director General for Industrial Relations 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 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 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.
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 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 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.”
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, but had been thwarted at every turn by the company’s legal manoeuvres. Two previous attempts to file for recognition, 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 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. 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 Conventions 87 and 98 as required in certification systems and Performance Standards.
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.
Sabah Forest Industries (SFI) has been using numerous tactics to prevent the formation of an independent union, the Sabah Timber Employees Union (STIEU). Workers have been struggling for trade union recognition 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. The Industrial Relations 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.
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.
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 tactics by management. Workers at the Kulim-based plant in northwest Malaysia initially asked the company management for recognition 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 procedure, while the company tried to destroy the workers’ efforts at organising. 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.
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 for collective bargaining purposes from Malaysian Airlines. When the company refused to recognise the union, the Director General of the Industrial Relations 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.
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.
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 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, which is a prerequisite for collective bargaining 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.
Many employers refuse to respond to the Department of Industrial Relations’ (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 Act 1967, aiming to address numerous weaknesses and resolve recognition 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. 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 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 or any form of action to protest against employers’ refusal to accord recognition.
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 (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. 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.
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.
Approximately 2.6 million migrant workers in Malaysia (25% of total workforce) are prevented by law from organising. 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 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.
So far, the government has failed to apply any sanctions against employers who have opposed its directives granting trade union recognition or who have refused to comply with industrial court orders to reinstate illegally dismissed workers. In some cases, companies have used tactics such as changing their name to thwart workers’ legal efforts.
Obtaining a response from an employer to a request for union recognition 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, 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, the Malaysian Trades Union Congress (MTUC) listed cases in which the DGTU had arbitrarily denied organisational and collective bargaining 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 and collective bargaining have also remained unresolved despite changes to the Industrial Relations Act. The amendments stipulated specific measures to resolve the unions’ claim for recognition within a period of six months. Unfortunately, government authorities have claimed that they cannot enforce the amendments because of the absence of appropriate regulations.
The law forbids managers and workers in executive positions from organising, 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 from the employers. The latter use this to delay union recognition and thwart efforts by unions to organise and bargain collectively.
Because of the ban on forming general confederations of trade unions, the Malaysian Trades Union Congress (MTUC), which covers both private and public sectors and has 500,000 members, is not recognised as a trade union confederation in law. Instead, the MTUC is registered under the Societies Act and therefore does not have the right to conclude collective bargaining agreements nor to undertake industrial action.