About Time: Labour Reform and Ratification of C87 in Malaysia

Abstract

18 | International Union Rights | 26/3 TOWARDS UNIVERSAL RATIFICATION OF C87 AND 98 Trade unions represent one of the few institutions capable of achieving some measure of equity and social justice for workers. However, trade unionism in Malaysia, being that of the state-employerdominated model, has faced challenges from both employers and the government in bringing about necessary changes to some of the restrictive provisions in the Trade Union Act 1959 (TUA), the Industrial Relations Act 1967 (IRA) and the Employment Act 1955 (EA). A far bigger challenge has been the ratification of ILO Convention 87 (Freedom of Association and Protection of Right to Organise Convention, 1948). Article 10 of the Malaysian Federal Constitution guarantees citizens of their right to freedom of speech, the right to assemble peacefully and without arms, and the right to freedom of association. The protection of worker rights with regard to unionisation and participation in the activities of trade unions is also emphasised in Sections 7 and 8 of the Employment Act 1955 (EA). This protection of worker rights is further strengthened by Section 4 of the IRA which stipulates that that no person shall interfere with, restrain or coerce a workman or an employer in the exercise of his rights to form and assist in the formation of and join a trade union and to participate in its lawful activities. However, in reality, the State exercises great control over that right. The Malaysian Trades Union Congress (MTUC), the oldest national labour centre in Malaysia, representing approximately half a million members in unions affiliated to it, has long argued that C87 is an indispensable principle of any democratic society, where parliamentary democracy is being practiced. Many attempts have been made by MTUC to exert pressure on the government to finally ratify C87 but have not been successful thus far. However, it has been relentless in its call for the ratification of this convention. Seeking ratification of Convention 87 Available records show that MTUC had first raised the issue of the ratification of C87, with the Malaysian government, at the Standing Committee meeting of the then National Joint Labour Advisory Council on 7 September 1971. Over the years, the MTUC had at numerous fora and nationwide campaigns, demanded that the Malaysian government revise the key labour laws, as well as ratify C87. Despite MTUC undertaking an extensive study of the restrictive core labour legislation and their impact on freedom of association, and the blunt recommendations by the ILO Committee for Freedom Association in 2003, there was little change on the part of the Malaysian Government. More recently, the Worker members at the 105th ILC session (2016) noted that the Malaysian government had failed to address the major shortcomings in its laws and practices, as well as its institutional framework. The deficiencies concerned key issues including trade union recognition, compulsory arbitration, scope of collective bargaining and antiunion discrimination. The Worker members also expressed serious concerns over various discriminatory tactics used by certain employers against workers engaged in union activities, and the lack of remedies and dissuasive sanctions applied to errant employers. Importance of Convention 87 The right to freedom of association, as enshrined in C87, is the yardstick in which a democratic nation is measured. This right guarantees that workers should be able to form and join trade unions free from interference from the employers and government. The objective of C87 is to ensure workers’ freedom to associate into organisations of their own choosing. In addition, this convention stipulates that the trade unions will be autonomous bodies with the right to draw up their own constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. The industrial relations system in Malaysia is one that has extensive state control, a high degree of managerial prerogative, little bargaining power for labour and inadequate protection of labour’s rights and interests. The labour laws are generally incongruent with C87, which give rise to serious concerns. Some key arguments on the need to ratify C87 are as follows: ■ When International Labour Conventions are ratified by the national authority for making laws, such as the Malaysian Parliament, they become binding international...