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Restrictive laws squeeze workers
If they are to have their rights restored, workers must realise the power of their votes

by by K George
Aliran Monthly 2003:11

kgeorge (5K)
George: Obnoxious amendments were introduced to the Trade Unions Act
Trade union rights are basically human rights as far as rights such as freedom of association, freedom of expression, peaceful assembly and protection from slavery and forced labour are concerned. To enable us to identity the basic union rights, it is necessary to have a glimpse of the International Labour Organisation Conventions No. 87, 98 and 151.

The ILO is part of the United Nations Organization. ILO Conventions are adopted at its annual conference, participants of which consist of two government delegates each from member countries and one delegate each from employers’ federations and workers’ organisations of the respective countries.

According to Convention No.87, workers and employers shall have full freedom to organise themselves. The organisations shall draw up their own constitution and rules, elect their leaders in full freedom and organise their administration and activities without any interference by the government. The organizations shall not be dissolved or suspended by the administrative authority, which is the government.

No condition should be imposed by the government on the organisations’ right to establish or join a federation/confederation and to affiliate with international organizations.

Granting of legal personality shall not involve restrictions on the above rights.

Under Convention No. 98, it is the responsibility of the government to protect workers against anti-union discrimination and victimisation by employers and against domination of workers' organisations by any acts including financial contributions. The government should also establish machinery for the purpose of ensuring respect for the right to organise.

There is nothing extraordinary in these Conventions. These rights adopted by the ILO are more or less based on the Universal Declaration of Human Rights. Workers especially need these guarantees to protect themselves against exploitation by employers who wield financial power and political influence.

Shockingly Restrictive

If one is concerned over the plight of working people, one would be shocked to find that Malaysian labour law is extremely restrictive and even prohibitive when compared to the rights guaranteed by the ILO Conventions.

In this article, I wish to highlight some of the provisions in the Trade Unions Act (TUA) 1959. While the TUA confers legal personality to trade unions it has numerous provisions contrary to the ILO Conventions. As the nation progressed, more and more obnoxious amendments were introduced to the Act, the worst being the 1980 amendments, which were in fact the brainchild of Dr. Mahathir Mohamad.

The Director General of Trade Union (DGTU) shall have general supervision, direction and control of matters relating to trade unions (section 3). Under section 4A, which was introduced in 1980, he shall exercise all such powers, discharge all such duties and perform all such functions as may be necessary for carrying out the provisions of the Act.

start_quote (1K) Who makes up the electorate? At least 90 per cent of them are workers and their families. end_quote (1K)
Under colonial, rule the workers were allowed to form General Unions, which means the membership could comprise all categories of workers. This right has been systematically withdrawn vide section 9 of the Act, which says Malaysian workers are only allowed to form unions within a particular trade, occupation or industry.

It does not stop at that. The DGTU is empowered to refuse registration of a trade union vide section 12(3) if he or she is of the opinion that:

  • the union is likely to be used for unlawful purposes, or
  • any of the objectives of the union are unlawful, or
  • the constitution of the union conflicts with the provision of the Act.
He can also reject the registration of a trade union if there is in existence another union catering for similar workers. The operative condition is “in his opinion.” What a blow to the concept of freedom of association!

Blow Against Basic Freedoms

Section 15(2) says if there is more than one union in existence in a particular trade, occupation or industry, the DGTU may cancel the certificates of all unions other than the union, which has the largest number of members. It is yet another slap on the freedom of association.

The DGTU is empowered to suspend a branch of a union if he is satisfied that the branch has contravened the provisions of the Act or the rules of the union. Is it not more proper and sensible for the DGTU to direct the union head office to do this unpleasant job?

It is also within the power of the DGTU to disqualify an elected executive of a trade union or a federation of trade unions by specifying the grounds for such disqualification (section 28(2)).

Even in employing a worker, a union has to get clearance from the DGTU as required under section 29 of the Act. If an employer claims his or her workers have no right to be members of a particular union, the DGTU is empowered to make a decision based on his own opinion. For instance, a trade union catering for drink workers was ordered not to enrol workers involved in the Horlicks business by one DGTU. Subsequently another DGTU reversed that decision. Another example: our government and the court ruled that electronic workers are different from electrical workers!

While the government has given permission for trade unions to invest in business enterprises and cooperatives, it is mandatory under section 49 for the union concerned to obtain prior approval from the Director General before the investment is carried out. Violation of this condition carries a penalty of two years’ imprisonment and/or RM2, 000 fine.

Sections 50 to 57 in Part VIII of the Act deal with union funds and finance, the accounting procedure etc. The Director General can enter a trade union office and inspect all its books and records. He can also freeze the funds of a trade union.

The primary purpose of all these restrictive provisions in the Act, it is claimed, is to protect the funds of the union, which belongs to the members. But the fact is that there have been instances of union money being mismanaged and misappropriated. Haven’t you heard that union money has been used to gamble in the stock market, to invest in questionable economic ventures; and to provide interest-free loans to union leaders?

What Have The Authorities Done?

Under section 71, the Director General can seek information on any of the activities of a trade union by summoning any person to his office. The Director General may administer oaths to and examine any person on oath summoned before him.

Even for international affiliation, the trade union must obtain the prior approval of the Director General vide section 76B; he must also be furnished with the constitution and the details of the officers of the international organization concerned. He is also empowered under section 76C to order the trade union to withdraw from the international organization.

The provisions enumerated in this article are in total violation of the rights guaranteed by the ILO Conventions. In fact there are several more obnoxious provisions in the Act. Not many democratic countries have imposed so much restrictions and prohibitions on the rights of the working people.

Political parties, NGOs, and concerned citizens have frequently criticised the Internal Security Act, the Police Act, the Printing Presses and Publications Act, and the Universities and University Colleges Act. But seldom - very seldom - do we hear them highlighting the atrocious provisions of Malaysian labour laws affecting more than 10 million workers .

Do the workers know the pathetic situation of their own rights? Who are our law makers? They are the members of the Dewan Rakyat whom we elect by casting our votes.

Who makes up the electorate? At least 90 per cent of them are workers and their families. When they reach the ballot box, some think of their race or their religion; some remember the kenduri and gifts received; many others are influenced by the propaganda dished out by our pliant mass media. The workers tend to forget their struggle for the equitable distribution of the nation’s wealth, the restoration of their dignity, the establishment of an egalitarian society, freedom and peace.

It is time the workers realised that they can succeed if only they ensure they have trustworthy representatives in the Dewan Rakyat who are committed to the cause of the workers. It is the duty and responsibility of the trade union leaders to impress on the working people the power of their votes - and not to depend on senators and Datuks.

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