Informe provisional - Informe núm. 277, Marzo 1991

1. 406. In a communication dated 20 October 1990 the International Metalworkers' Federation (IMF) presented allegations of violations of trade union rights against the Government of Malaysia. The Government sent its observations on these allegations by a communication of 9 January 1991.
2. 407. Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 408. This is the latest in a series of complaints presented by the IMF alleging denial of the right of workers in the electronics industry in Malaysia to establish or join the trade union of their choice. In this instance, the workers concerned are employed by Harris Solid State Sdn. Bhd., which is a wholly-owned subsidiary of an American multinational, the Harris Corporation.
2. 409. In January 1989 a union known as RCA Sdn. Bhd. Employees' Union was registered under the Trade Union Act 1959. This was the first in-house union to be set up in the electronics industry in Malaysia, and was established in the face of considerable opposition from the company and from the Government.
3. 410. In 1989 the company changed its name to Harris Solid State Sdn. Bhd. (HSS). This had the consequence that the RCA Sdn. Bhd. Employees' Union was de-registered under Malaysian law, and had to fight for re-registration. This was duly secured in January 1990.
4. 411. On 21 September 1990 the parent company announced its decision to wind up HSS and to absorb it into Harris Advanced Technology Sdn. Bhd. (HAT). According to the complainant, 23 union activists at the HSS plant were dismissed, without being given the option to transfer to HAT. These workers all had between four and 16 years' service with the company under its various names. The company issued a public statement to the effect that the 23 employees had been offered work with HAT, but had rejected the offer. The complainant states that this is untrue, and goes on to point out that in recent months HAT had "recruited hundreds of new employees in various positions".
5. 412. The complainant alleges that these dismissals killed off the only in-house union in the electronics industry, and was clearly aimed at intimidating other electronics workers to forever abandon the idea of forming a union for themselves.

B. The Government's reply

1. 413. In a very brief reply, the Government indicates that the RCA Sdn. Bhd. Employees' Union was originally registered on 31 January 1989. That company changed its name to HSS on 8 August 1989. Following this change it became necessary for the union to change its name as well as the scope of its membership rule in order to embrace the employees of HSS. The union made applications to effect the necessary changes on 4 December 1989, and they were approved on 2 January 1990. The process of change of name did not require the union to be de-registered as alleged. The union was merely required to obtain its members' consent to the proposed change.
2. 414. Workers in the electronics industry are not denied the right to associate. Besides the union which is the subject of the present complaint, there are four other in-house unions in the industry. Two of these are in companies which manufacture purely electronic products, whilst the others are in companies which manufacture a mixture of electronic and electrical products.
3. 415. The Government emphasises that in the Malaysian system in-house unions are truly independent bodies, which enjoy the same rights, powers and privileges as national unions. They can be "as free and as capable and even as militant as their leaders make them out to be". They are not employer-dominated, as can be seen from the aggressive manner in which the HSS Employees' Union pursued its claims against their employer. Furthermore, these in-house unions are free to affiliate with both national and international trade union co-ordinating bodies.

C. The Committee's conclusions

1. 416. The complainant has alleged that workers at the Malaysian subsidiary of an electronics company had, in the face of obstruction from the employer and the Government, established an in-house union. This union was then de-registered, and had to seek fresh registration, as a consequence of a restructuring of the company in 1989. A further restructuring in 1990 allegedly resulted in the dismissal of 23 union activists, and the destruction of the union. None of these allegations are supported by any kind of documentary evidence.
2. 417. The Government explains that the restructuring in 1989 did not necessitate the de-registration of the RCA Sdn. Bhd. Employees' Union. All that was required was for the union to change its name and membership rule so as to include the employees of the new company. The Committee has expressed on a number of occasions the view that workers in the electronics industry in Malaysia do not enjoy the right to establish and to join the trade unions of their choice as guaranteed by the principles of freedom of association. Nevertheless, in the present case the employees of the local subsidiary of the Harris Corporation had established a trade union, which had been registered under the relevant legislation. The Government has explained that the restructuring of the company in 1989 necessitated certain changes in the rules of that union. On the basis of the evidence presented to the Committee, these changes do not appear to have involved any breach of the principles of freedom of association. Accordingly, the Committee considers that this aspect of the case does not call for further examination.
3. 418. The complainant has also alleged that 23 union members lost their employment on account of their union activities in the context of a further restructuring of the company's activities in 1990. It also alleges that this restructuring resulted in the destruction of the union. The Government has not provided any response to these allegations. Since the allegations involve loss of employment of trade union activists, the Committee must now call upon the Government to provide its observations upon this aspect of the case as a matter of priority. In doing so, the Committee would remind the Government that the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. If the procedure protects governments against unreasonable accusations, governments on their side should recognise the importance for their own reputation of formulating, so as to allow objective examination, detailed replies to the allegations brought against them (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 59). It would also remind the complainant that the Committee has always insisted that allegations of breaches of the principles of freedom of association must be as fully supported as possible by evidence of specific infringements of trade union rights (Digest, op. cit., para. 43).