2010 Annual Survey of violations of trade union rights - Malaysia

Population: 27,500,000
Capital: Kuala Lumpur
ILO Core Conventions Ratified: 29 – 98 – 100 – 105 (denounced) – 138 – 182

No improvements were made in the problems that have plagued the trade union movement for years. The Malaysian government's failure to implement the new provisions under the Industrial Relations Act 1967 to resolve union recognition claims frustrated union representation for thousands of workers. The authorities continue to have far-reaching powers to regulate trade unions, which operate in a restrictive legal environment.

Trade union rights in law

The restrictions that apply to trade union rights are extensive. While freedom of association is guaranteed in the Constitution, the Director General of Trade Unions (DGTU) within the Ministry of Human Resources has vast powers to refuse to register a union or withdraw union registration, and her/his decisions cannot be appealed in court. In addition, a union must also obtain recognition from the employer, and may be suspended by the authorities for up to six months if deemed in the interest of national security or the public. Trade union membership is limited to workers in similar trades, and the DGTU can determine the sector and category in which a union may organise.

The right to collective bargaining is restricted, especially in "pioneer industries", and many important issues fall outside the scope of bargaining. The Minister of Labour can also initiate compulsory arbitration at her/his own volition. Unions in the public sector have merely a consultative role, and can only "express their point of view".

Furthermore, the right to strike, although not specifically recognised, is very limited, and the procedures prior to a strike are cumbersome. Unions may not strike over disputes relating to trade union registration or illegal dismissals, and both sympathy strikes and general strikes are forbidden. Participation in an unlawful strike carries hefty penalties.

Trade union rights in practice and violations in 2009

Background: In April, Malaysia's new prime minister Najib Tun Razak promised to "uphold civil liberties" and exhibit "regard for the fundamental rights of the people." However, freedom of expression and freedom of assembly were still restricted for government critics. Najib and his ministers continued to defend repressive laws in the name of public security, and Malaysian authorities continued to harass human rights activists.

Ban on general confederations: 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.

Vague laws open up to abuse by employers: 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.

Union recognition is arbitrary and extremely slow: 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.

Inefficient labour courts: 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.

Prohibition on migrant workers' organising: 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.

Free organising hampered in electronics industry: 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.

Migrants' rights committee members attacked: On 14 February, an attack on the office of a Burma Workers' Rights Protection Committee (BWRPC) in Kuala Lumpur left two of its staff seriously injured. BWRPC member Lin Lin said he and a colleague suffered serious injuries after being beaten by a gang of around 20 men believed to have been hired by the employer of 15 Burmese women who had taken shelter at the office. The women said they had fled the factory where they were working because they were being forced to work without pay.

Traffickers arrested: On 21 July, Malaysian police said that they had arrested five immigration officers on charges of selling undocumented migrants from Burma to human traffickers. Investigations revealed that the officers took Burmese migrants who lived in Malaysia to Malaysia's northern border with Thailand and handed them to human traffickers in exchange for up to 600 ringgit (USD 170) each. The traffickers then took the migrants into Thailand and told them to pay 2,000 ringgit (USD 570) each for their freedom or they would be forced to work in the fishing industry.

Bargaining agreement disregarded: On 26 August and 11 September, members of the National Union of Hotel, Bar and Restaurant Workers (NUHBRW-IUF) protested outside the Melia Hotel in Kuala Lumpur after the hotel unilaterally decided to outsource the stewarding department. The decision of the management was done without consultation with the NUHBRW and in violation of the current collective bargaining agreement.

Indonesian domestic workers abused and tortured: On 26 October, police reported that Ms. Mautik Hani, an Indonesian maid who was severely beaten by her Malaysian employer, had died. Police found Mautik Hani on 26 October unconscious in the bathroom at her employer's residence with her hands and feet bound. Her face and body were covered with scars and bruises. On 8 June, Ms. Siti Hajar, another Indonesian maid who had been repeatedly tortured for a period of almost three years, was able to escape from her employer's home and seek refuge in the Indonesian Embassy in Kuala Lumpur. Ms. Siti Haja was badly scarred from the beating and having boiling water poured on her. After this incident was exposed, Indonesia temporarily halted the sending of domestic workers to Malaysia. On 13 June, Antara reported that another housemaid, Ms. Nurul Wijayanti, was recently found dead in her employer's house. She allegedly committed suicide, according to an official at the Indonesian Embassy in Kuala Lumpur.

On 2 September, Malaysia's Home Ministry announced that Indonesian domestic workers working in Malaysia would be given one day off each week and allowed to keep their passports while working in Malaysia. These terms were agreed upon by Malaysia and Indonesia at their third meeting of the Working Committee on the Recruitment and Placement of Indonesian Maids on 20 August. As of November, Indonesia and Malaysia were still negotiating a revised bilateral agreement including a special Malaysian task force to deal with employer abuse and a higher minimum wage. The Malaysian Trades Union Congress (MTUC) also reiterated its call to the government to allow foreign maids to form a union or at least an association to protect their interests. MTUC Secretary-General, G. Rajasegaran, told a press conference that the 300,000 maids in Malaysia, unlike in neighbouring countries, were not protected by any legislation.