Malaysia is unwilling to relinquish executive control over the trades union movement despite repeated recommendations by the International Labour Organisation (ILO) to rectify the situation by amending the relevant laws accordingly.

Last June, the world body's technical committee made recommendations to facilitate the conformity of national labour laws with established principles of freedom of association following complaints from the Malaysian Trades Union Congress (MTUC).

It noted that certain provisions in the Trade Unions Act 1959 (TUA) and the Industrial Relations Act 1967 (IRA) conflicted sharply with freedom of association principles.

Thus, said the committee, the "combined effect" is that trade unions' existence and activities are "strictly controlled and permanently subject to the discretionary powers of the administrative authorities".

Citing the definition of trade unions, it said: "... the government does not deny its restrictive character but justifies it by admitting readily that amending the legislation would enable the formation of general unions.

"...which might be led by persons having nothing to do with the activities or interests of unions, and pursuing political or even subversive aims.

"The government considers that the present system contributes to the orderly growth of trade unions which in turn contributes to industrial harmony in the country."

More general unions

Malaysia has ratified the Right to Organise and Collective Bargaining Convention 1949 but not the Freedom of Association and Protection of the Right to Organise Convention 1948.

The government, in a reply to the ILO dated Dec 18 last year, admitted that ratifying the 1948 convention would open the floodgates to the formation of more general unions.

The ILO committee said that despite clear and specific recommendations made in response to similar complaints filed against the Malaysian government over the last 15 years, there has been "no significant progress".

Reiterating previous recommendations, the committee wants certain provisions to be amended in order to reduce the wide discretionary powers granted to "the responsible official", in this case the Director-General of Trade Unions (DGTU).

This is to ensure free recognition and registration of the chosen workers' organisations both in law and in practice, the committee added.

The MTUC filed the complaints to the ILO on Sept 22, 2003.

Restrictive provisions

When contacted, Malaysian Trades Union Congress (MTUC) secretary-general G Rajasekaran confirmed that the government had done nothing following the ILO's recommendations last year.

"It only submitted a generalised reply. Even the type of amendments being proposed are not indicative that the points made in the ILO recommendations are being addressed," he said.

"In fact, it would be to the contrary with the provisions becoming more restrictive."

The government is currently drafting amendments to the TUA and the IRA, sparking fear of a further erosion of workers' rights and an additional layer of executive control to an already-stifled labour movement.

Rajasekaran believed that in its present form, the proposed amendments would turn the DGTU into the "labour supremo".

"The proposals do not in any way indicate or reflect the government's intention to address long-standing problems or heed the ILO recommendations," he added.
The MTUC is a member of the tripartite National Labour Advisory Council that is consulted over decisions regarding labour policies and laws.

However, the government has kept details of the proposed amendments to the TUA and IRA under a tight lid.

On the proposed changes to the IRA, the veteran unionist said there may be some improvements especially in reducing the time taken to process applications for trade union recognition.

"It attempts to give the Director-General of Industrial Relations more authority and power to act in the absence of a speedy response by an employer in recognising a trade union, a delay that sometimes stretches into years."

Extensive control objected

Among its complaints, the MTUC said the government imposed "severe conditions and restrictions" on the establishment and development of trade unions through the TUA, thus encouraging in-house unions that are dominated by employers.

The MTUC said this was achieved primarily through the "arbitrary and far-reaching powers" granted by law to the DGTU.

"...for the past 30 years, the DGTU has consistently refused the establishment of an industrial union for more than 100,000 workers in the electronics industry, allowing only company-based unions in that sector," the MTUC cited as example.
"(Since 2000), the DGTU has arbitrarily denied organisational and collective bargaining rights to more than 8,000 workers in the manufacturing companies (as per the list attached)."

For this, the ILO committee recommended that the government immediately direct the DGTU to grant the affected workers in 23 named companies representational and collective bargaining rights.

The MTUC also objected to the "extensive and detailed control" given to the DGTU under the TUA over workers' organisations and most of their internal affairs such as scope of membership, size, composition of the exco, objects and investments.

It was against such absolute discretion which includes the prohibition on political activities and restrictions on affiliation to federations and consultative bodies abroad.

"The DGTU is not only given wide powers to refuse to register or to de-register a union if it is likely to be used for unlawful purposes, but there is no (legal) criteria for reaching a decision," stated the MTUC complaint.

It also noted the ineffectiveness of provisions for judicial review due to the judiciary's general reluctance to review a legal power and the tendency to accept as conclusive decisions made accordingly.