2011 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

Anti-union attitudes still persists among private employers and collective bargaining agreements are not always respected. Abuse of migrant workers is widespread and forced labour remains a serious issue. 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 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 2010

Background: Malaysia still enforced the Internal Security Act (ISA) and other detention-without-trial laws. The Barisan Nasional (BN – National Front) government continued to use repressive laws to repress civil society and the media. Over 60 individuals, including Selangor state assemblyperson Dr Nasir Hashim and other state law-makers, were arrested for exercising their right to assemble peacefully on 5 December. Police continued the arbitrary use of lethal force in their duties killing 17 and two cases of custodial deaths. The trial of Anwar Ibrahim, a key figure in the Malaysian opposition, started with doubts over it being independent and fair. The Malaysian Trade Union Congress (MTUC) protested against proposals to introduce amendments to existing labour laws, urging the government to implement minimum wage laws. The only group that benefited from the setting of a minimum wage was the Ikatan Relawan Rakyat Malaysia (RELA) when RELA members work as part-time security guards. RELA is regarded as a vigilante arm of the government that arrests, detains, and harasses migrant labourers.

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.

Government must act on abuse of migrant workers: On 24 March, Amnesty International released a report urging the Malaysian government to act to combat widespread abuse of migrant workers and reform labour laws to give them better protection. Michael Bochenek, Amnesty's director of policy, said "There is no effective system either of workplace inspection ... nor is there any effective redress for workers who want to bring individual complaints." Malaysian firms depend on foreign labourers, with migrants making up more than a fifth of the country's work force. Around two million labourers are thought to work legally in the country with another one million working illegally.

Throughout 2010, the Malaysian Trade Union Congress (MTUC) received more than 400 complaints from migrant workers relating to non payment of wages, arbitrarily and unexplained wage deductions, breach of the labour laws on working hours, overtime pay, annual leave, paid public holidays and weekly days of rest. In a number of cases, MTUC found that affected migrant workers were repatriated before labour court proceedings could decide on the complaint. The government maintains contradicting regulations on the right of migrant workers to join a trade union. The Ministry of Human Resources says that migrant workers can join a trade union but the Immigration Department under the Home Affairs Ministry continues to maintain a condition in the work permit prohibiting union membership.

On 18 May, Malaysia's Prime Minister Najib Razak said that officials had failed to settle a dispute over working conditions for Indonesian maids in his country after Jakarta banned the flow of such migrants. Najib said the two sides still had to agree on a minimum wage after talks with Indonesian President, Susilo Bambang Yudhoyono.

Government frustrates union recognition: In early January, the Electrical Industry Workers' Union (EIWU) highlighted a series of recognition claims pending since 2007 and 2008. They cited the case of Panasonic Communication that has been pending for over 14 months and the case of Panasonic AVC Networks since February 2007.

FBC fails to abide by CBA: Federal Power Cables (FBC) has failed to abide by provisions of its collective bargaining agreement (CBA) with the International Metalworkers' Federation (IMF) affiliated Electrical Industry Workers' Union (EIWU) when it refused to grant the contractually required bonus and annual wage increments to more than 300 EIWU members. After EIWU attempts to negotiate with FBC on the wage issues failed, about 200 EIWU members began a peaceful picket in front of the company plant on 19 May. Maniyan Poovan, General Secretary of EIWU, said that FBC has overtly engaged in illegal actions in an attempt to bust the EIWU. The FBC's Managing Director has openly stated that he does not like national unions like the EIWU, but preferred in-house unions. He has also offered incentives for EIWU members to leave the union by granting them conditions of employment more favourable than those contained in the CBA. FBC management officials started issuing 'show-cause' letters to workers who took sick leave and approved annual leave. EIWU shop stewards have also received the show-cause letters which could lead to disciplinary action, including dismissal. Maniyan said the picket would continue in an effort to resolve the pending disputes.

Employers attempt to bust unions: Since a labour dispute between Airod and the Airod Executives Union (AEU) was referred to the Industrial Court two years ago, Airod officials have harassed and retaliated against the union and its members in an attempt to bust the union. First, Airod unilaterally withdrew the union's dues check-off provisions that have been in effect since 2001. Airod then announced annual salary increments for all employees, including management staff, but specifically excluded all members of the AEU. In January, AEU filed unfair labour practice charges with the Director General of Industrial Relations (DGIR). The DGIR has done nothing for six months to resolve the problem.

French-owned Clipsal, an electrical plug manufacturing company in Shah Alam, withdrew the union dues check-off provisions for the EIWU which has been in place for more than 25 years in an attempt to bust the union. Clipsal officials stopped the check-off for union dues after EIWU increased union dues, despite EIWU members being in favour of the increase. The Malaysian Trades Union Congress (MTUC) will submit a complaint to the Paris-based OECD to contest Clipsal's actions.

Migrant workers unfairly dismissed: On 28 April, a supervisor of Maxter Glove Manufacturing Sdn Bhd at its factory in Selangor, Malaysia, (Maxter) dismissed Thu Maung, a Burmese migrant worker. Thu Maung's dismissal was in retaliation for filing a complaint over his working conditions with the Labour Department on 23 March. The complaints alleged that Maxter: 1) had wrongfully deducted the fee that employers have to pay when they employ migrant workers from the worker's wages; 2) had unlawfully deducted the medical check-up fees of RM1000 from the worker's wages; 3) had wrongfully withheld 2 months wages; 4) had failed to provide migrant workers with accommodation; and 5) had not been giving the workers one rest day per week. According to Thu Maung, about 1 month after he lodged the complaint, Maxter officials started intimidating workers.

The Malaysian Trade Union Congress (MTUC) successfully intervened to assist 26 Burmese migrant workers who were dismissed by Jogoya Restaurant based in Starhill Shopping Centre in Kuala Lumpur on 2 March without reason. With the MTUC's assistance the workers were able to secure a large back pay settlement and pay for air tickets to return to Burma.

Anti-union attitudes persist: Putrajaya Holdings Sdn (PJH), a subsidiary of Petronas, attempted to remove members of the recently organised Union of Employees in the Construction Industry (UECI), a Malaysian Trades Union Congress (MTUC) affiliate. After UECI submitted its claim for recognition on 13 March, PJH officials attempted to coerce the 120 UECI members to resign and then be rehired as outsourced employees. All workers refused to comply with management's demands. MTUC was due to file a report on the unlawful activities of PJH Management to the Director General of Industrial Relations (DGIR).

On 27 December, the MTUC wrote to Minister of Human Resources, S. Subramaniam to register MTUC's objections to the conduct of a union representation election at Spenser Gloves Manufacturing Bhd (Spenser), formerly known as Seal Polymer Industries Bhd. The letter documented Spenser's illegal conduct prior to the election and the government's long delay in holding the ballot.

Migrant workers die, suffer abuse: A three-day protest by more than 5,000 migrant workers over the death of a Nepali co-worker ended on 17 August following a four-point agreement between JCY SDB BHD Company, a computer parts manufacturer in Johor Baru, and the company's workers. According to fellow Nepali workers, Karna Bahadur Gharti Magar of Rolpa died on 14 August due to a delay in getting treatment for a serious illness caused by company negligence. On 4 August, another Nepali worker, Buddi Lal Mahato, also died due to lack of timely treatment. He was working at Lii Hen Furniture Company and suffered from a high fever.

On 18 September, Malaysian police in the northern state of Penang arrested a man and his wife for burning their 26-year-old maid from Indonesia with a hot iron and scalding water. The police also charged the man for repeatedly raping the woman. Of the estimated 300,000 maids in Malaysia, Indonesians make up 90% while Filipinas constitute 8%. Indonesian Embassy second secretary (consular affairs), Susapto Anggoro Broto, said Malaysia was the most problematic of all the Asian countries that take in Indonesian maids.

Human trafficking and forced labour: In July, 63 women from Indonesia were rescued from the house of businessman Lee In Chiew, 49, in Perlis State. The women, none of whom had working permits or visas, were forced to work long hours cleaning houses, often without pay, for over two years. Three of the women escaped and called for help.

On 25 October, Malaysian police rescued eight women enslaved at a tearoom and a massage parlour in Kuala Lumpur. Initial information showed that the women were hired from Vietnam to work for a Vietnamese woman and her Malaysian husband. The women were promised good pay and working conditions, but the couple confiscated all their documents upon arrival in Malaysia and forced them to work without pay.