Freedom of association / Right to organise
Freedom of association
The right to freedom of association is enshrined in the Constitution.
The right to freedom of association is recognised by law but strictly regulated.
Anti-Union discrimination
The law prohibits anti-union discrimination, but does not provide adequate means of protection against it.
Restrictions on workers’ right to form and join organisations of their own choosing
- Single trade union system imposed by law and/or a system banning or limiting organising at a certain level (enterprise, industry and/or sector, regional and/or territorial, national)
- The Director General of Trade Unions (Ministry of Human Resources) can specify the sector and category in which a union is+I53 permitted to organise. The Trade Unions Act limits trade union membership to workers in similar trades. General unions are prohibited.
Barriers to the establishment of organisations
- Power to refuse official registration on arbitrary, unjustified or ambiguous grounds
- The Director General of Trade Unions (Ministry of Human Resources) can refuse to register a trade union without giving any reason for the refusal and can withdraw registration, and is thus given very broad discretion in deciding these matters. Unions that do not register, or whose registration has been denied or withdrawn, are considered illegal organisations.
Restrictions on trade unions’ right to organise their administration
- Restrictions on the right to freely organise activities and formulate programmes
- The Malaysian Penal Code requires police permission for public gatherings of more than five people. Furthermore, any violation of the rules applying to the management of union funds and properties is punishable by a prison sentence not exceeding two years, or to a fine not exceeding two thousand ringgit or to both (article 49 of the Trade Unions Act). Failure to keep account books in the prescribed manner is punishable by a fine not exceeding one thousand ringgit, or to imprisonment for a term not exceeding six months, or to both (article 57 of the same Act).
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office
- Other civil servants and public employees
- Employees working in the defence industry or in prisons do not have the right to form or join trade unions.
- Administrative authorities’ power to unilaterally dissolve, suspend or de-register trade union organisations
- The Director General of Trade Unions (Ministry of Human Resources) may deregister a union if s/he finds that two or more registered trade unions exist in a "particular establishment, trade, occupation or industry". The Director General has the authority to suspend a branch of a trade union if s/he "is satisfied" that the branch has contravened any part of the Act or the rules of the union. The Minister of Human Resources may also suspend a trade union for up to six months in the interests of national security or the public. Pursuant to article 18 of the Trade Unions Act, the Minister may suspend in his absolute discretion, but with the concurrence of the Minister responsible for internal security and public order, by order published in the Gazette for a period not exceeding six months any trade union, or any class or description of trade unions, which in his opinion is, or is being, used for purposes prejudicial to or incompatible with, the interests of the security of, or public order in, Malaysia or any part thereof.
- Non-national or migrant workers
- Under the Trade Union Act (TUA) and the Industrial Relations Act, a migrant worker can join an existing labour union and participate in its activities. However, Article 28(a) of the TUA requires that any union officer must be a citizen of Malaysia. The Ministry of Home Affairs also sets out a series of conditions connected to the issuance of work permits to migrant workers. One of these conditions is an absolute ban on migrant workers' joining any sort of association.
- Absence of recourse to an independent body in the event of administrative refusal to register a trade union
- The decisions by the Director General of Trade Unions (Ministry of Human Resources) and the Minister of Human Resources cannot be appealed to any Court.
- Managerial and supervisory staff
- Industrial unions are prohibited from organising employees in managerial and executive positions. A 2007 Industrial Relations Act amendment adds "executive" and "security" employees to the classifications of "managerial" and "confidential" staff who are not protected against anti-union discrimination, but then fails to define the parameters of "executive" and "security" services. The amended law+E76 also provides that the Director General of Trade Unions (Ministry of Human Resources) and the Minister of Human Resources have absolute authority to determine designations of workers' status as "executive", "security", "managerial" and "confidential" staff.
- Restrictions on trade unions’ right to establish branches, federation and confederation or to affiliate with national and international organisations
- The Trade Union Act requires that trade unions seek prior permission from the Director General of Trade Unions (Ministry of Human Resources) before affiliating with any "consultative body...established outside of Malaysia".
- Other external interference allowed by law
- Article 29 (3) of the Trade Unions Act provides that any person who is disqualified to be employed by a trade union under the law and has himself so employed without first obtaining the exemption of the Minister, shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year, or to a fine not exceeding two thousand ringgit, or to both.
- Restrictions on the right to freely draw up their constitutions and rules
- The First Schedule of article 38(1) of the Trade Unions Act provides an excessively detailed list of the provisions that must appear in the rules of every trade unions. In addition, pursuant to article 26 of the same Act, members under eighteen years of age cannot participate in a number of decision-making processes, including strike ballots.
- Restrictions on the right to elect representatives and self-administer in full freedom
- Any member of a trade union of workmen who participates in an illegal strike ceases to be a member of the trade union, and thereafter shall not be eligible to become a member of any trade union except with the prior approval of the Director General in writing.
Right to collective bargaining
Right to collective bargaining
The right to collective bargaining is recognised by law but strictly regulated.
Restrictions on the principle of free and voluntary bargaining
- Exclusion of certain matters from the scope of bargaining (e.g. wages, hours)
- The Industrial Relations Act narrowly restricts collective bargaining to activities that include making provisions for training to enhance skills, for an annual review of the wage system and for a performance-related remuneration system. Hiring and firing, transfer and promotion, dismissal and reinstatement fall outside the scope of collective bargaining.
- Prohibition or limitation of collective bargaining at a certain level (local, regional, territorial, national; enterprise, industry, sector or general)
- Collective bargaining is restricted in companies in “pioneer” industries, such as the electronics industry.
Limitations or ban on collective bargaining in certain sectors
- Other civil servants and public employees
- In the public sector, the joint council system limits public sector unions to a consultative role, which means they are only entitled to "express their point of view" on principles regarding wages and working conditions.
Barriers to the recognition of collective bargaining agents
- Absence of criteria or discretionary, unclear or unreasonable criteria for determining representative organisations
- The Industrial Relations Act provides that a trade union must apply for recognition from the employer, who can recognise the union, deny recognition or appeal to the Director General of Trade Unions (Ministry of Human Resources) for a ruling on the representativity of the union. If a union fails to report to the Minister of Human Resources within 14 days about the employer’s refusal to recognise it, the union’s application for recognition is considered withdrawn. Workers in a union that has its recognition withdrawn have no protection against dismissal. The Act requires that a union’s representativity be determined by a secret ballot of the workers. However, the law fails to provide any safeguards against employer manipulation of the size of the bargaining unit (e.g. by adding temporary workers) for the purpose of the election.
- Compulsory conciliation and / or binding arbitration procedure in the event of disputes during collective bargaining, other than in essential services
- The Industrial Relations Act allows the Minister of Labour to initiate compulsory arbitration at his/her own volition.
Right to strike
Right to strike
The right to strike is recognised by law but strictly regulated.
Ban or limitations on certain types of strike actions
- Restrictions with respect to the objective of a strike (e.g. industrial disputes, economic and social issues, political, sympathy and solidarity reasons)
- Trade unions are not allowed to go on strike for disputes relating to trade union registration or illegal dismissals. Sympathy strikes are not permitted.
- Restrictions with respect to the level or scope of a strike (e.g. (enterprise, industry and/or sector, regional and/or territorial, national)
- General strikes are not permitted.
Limitations or ban on strikes in certain sectors
- Discretionary determination or excessively long list of "essential services" in which the right to strike is prohibited or severely restricted
- Essential services are very broadly defined and include health care, education and transportation.
Barriers to lawful strike actions
- Obligation to observe an excessive quorum or to obtain an excessive majority in a ballot to call a strike
- Two thirds of the members of a trade union must vote in favour of a strike in a secret ballot, and the ballot must include a resolution that stipulates "the nature of the acts to be carried out or to be avoided during the strike". The results of the ballot are passed to the Director General of Trade Unions (Ministry of Human Resources) for verification.
Undermining of the recourse to strike actions or their effectiveness
- Excessive civil or penal sanctions for workers and unions involved in non-authorised strike actions
- Penalties for executive committee members of a union who engage in an illegal strike include fines and imprisonment for up to one year. Rank and file workers who engage in an illegal strike are considered by the government to be automatically stripped of their union membership and cannot join another trade union in the future without the written approval of the Director General of Trade Unions (Ministry of Human Resources).