Malaysia - CLR

LABOUR RIGHTS INDEX 2022

Trade Union Indicator

The Labour Rights Index 2022 (LRI 2022) is a de-jure index covering 135 economies and structured around the working lifespan of a worker. In total, 46 questions or evaluation criteria are scored across 10 indicators. The overall score is calculated by taking the average of each indicator, with 100 being the highest possible score. The Index uses a rating system, ranging from “Total Lack of Decent Work” to “Decent Work”. The Labour Rights Index aims at an active contribution to the Sustainable Development Goals, by providing necessary (complementary) insights into de jure provisions on issues covered in particular by SDG8 (Decent Jobs), SDG 5 (Gender Equality), SDG 10 (Reduced Inequalities) and SDG 16 (Strong Institutions). The Index is based on national labour legislation, applicable on 1 January 2022. The Index does not take into account COVID-19 related labour market measures in its scoring.

Malaysia’s overall score is 48 out of 100. The overall score for Malaysia is lower than the regional average observed across South East Asia (62.33). Within the South East Asia region, the highest score is observed for Viet Nam (75).

Malaysia ratified Convention No. 98 on the Right to Organise and Collective Bargaining in 1961 but has not ratified Convention No. 87 on Freedom of Association and Protection of the Right to Organise (1948).

Labour Rights Index 2022

48/100

LRI Country Score

0/100

Trade Union Indicator

8.7 %

Trade union density rate (%)

0.4 %

Collective bargaining coverage rate (%)

-

SDG indicator 8.8.2

4

ITUC Global Rights Index 2022 Ratings

Question

Answer

Score

Legal Basis

Violation

Does the law allow workers to form and join unions of their own choice?

No

0 §10 of the Federal Constitution of Malaysia 1957; §27 of Trade Union Act 1959; Industrial Relations Act 1967

Does the law allow workers to bargain collectively with employers through their representative unions?

No

0 §9 & 13-17 of the Industrial Relations Act 1967; CEACR C98 Obs. 2021

Does the law provide for the right to strike?

No

0 §25A of the Trade Union Act 1959; §38-50 of the Industrial Relations Act 1967

Does the law prohibit employers from terminating employment contracts of striking workers?

No

0 §46 of the Industrial Relations Act 1967

Textual sources

A : National Law

National Labour Legislation

B : CEACR

CEACR: ILO Committee of Experts on Application of Conventions and Recommendations (latest report)

C : ITUC

ITUC: ITUC Global Rights Index 2022

D : USDOS

USDOS: US Department of States' Country Reports on Human Rights Practices 2021

LRI Country Score
The Labour Rights Index has 10 indicators and 46 sub-indicators. The LRI Country score averages 10 indicators and ranges between 0 and 100. The lowest and highest scorers are Nigeria (29/100) and Belgium/Greece (96/100). https://labourrightsindex.org/

Trade Union Indicator
The trade union indicator is composed of 4 sub-indicators. Scoring is done through the binary method (0 or 1). The score ranges between 0-100.

Trade union density rate (%)
The trade union density rate conveys the number of union members who are employees as a percentage of the total number of employees in the country. For updated statistics on trade union density, please check ILOSTAT.

Collective bargaining coverage rate (%)
The collective bargaining coverage rate conveys the number of employees whose pay and/or conditions of employment are determined by one or more collective agreement(s) as a percentage of the total number of employees in the country. For updated statistics on collective bargaining coverage, please check ILOSTAT.

SDG indicator 8.8.2
SDG indicator 8.8.2 measures national compliance with fundamental labour rights (freedom of association and collective bargaining or FACB). It ranges from 0 to 10, with 0 being the best possible score (indicating higher levels of compliance with FACB rights) and 10 the worst (indicating lower levels of compliance with FACB rights). It is based on six ILO supervisory body textual sources and national legislation.
For an updated assessment on SDG indicator 8.8.2, please check ILOSTAT.

ITUC Global Rights Index 2022 Ratings
The ITUC Global Rights Index depicts the world’s worst countries for workers by rating 148 countries on a scale from 1 to 5+ on the degree of respect for workers’ rights. Violations are recorded each year from April to March. For a detailed description of ratings and methodology, please follow the link.

To find an ITUC affiliate in your country, please check the LINK:

Violations

ILO Committee of Experts on Application of Conventions and Recommendations (CEACR)

CEACR C98 Obs. 2021

Compulsory arbitration. In its previous comment, the Committee noted that section 26(2) of the IRA allows compulsory arbitration by the Minister of Labour of his own motion in case of failure of collective bargaining and expressed hope that the Government would take any necessary measures to ensure that the legislation only authorizes compulsory arbitration in essential services in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. The Committee notes the Government’s statement that amendments have been made to section 26(2) of the IRA, enabling trade unions to engage freely and voluntarily in collective bargaining, except in certain situations, but that this provision is not yet enforced. The Committee observes, in particular, that pursuant to the new wording of section 26(2) of the IRA, the Minister may of his/her own motion refer any trade dispute to the court if satisfied that it is expedient to do so provided that where the trade dispute relates to a refusal to commence collective bargaining or a deadlock in collective bargaining, reference to the court shall not be made without the consent in writing of the parties, unless: (a) the trade dispute relates to the first collective agreement; (b) the trade dispute refers to any essential services specified in the First Schedule; (c) the trade dispute would result in acute crisis if not resolved expeditiously; or (d) the parties to the trade dispute are not acting in good faith to resolve the trade dispute expeditiously. The Committee notes with interest that the amendments made restrict compulsory arbitration to instances generally compatible with the Convention, except to the extent that the reference in section 26(2) to “any Government service” and “the service of any statutory authority”, as well as the reference to a number of Government services in point 8 of the First Schedule, may go beyond what can be considered as public servants engaged in the administration of the State, and point 10 of the First Schedule, which considers as essential services businesses and industries connected with the defence and security of the country (while the armed forces may be exempt from the provisions of the Convention, businesses and industries connected with them should be afforded the full guarantees of the Convention). In line with the above, the Committee trusts that these amendments will enter into force without delay and invites the Government to continue to engage with the social partners with a view to: (i) further delimiting the categories of Government services in section 26(2) and point 8 of the First Schedule, so as to ensure that compulsory arbitration may only be imposed on those public servants engaged in the administration of the State; and (ii) removing businesses and industries mentioned in point 10 of the First Schedule from its the scope of application.

Violations

National Labour Legislation

§25A of the Trade Union Act 1959

25A. Strikes and lock-outs.(1) No trade union of workmen shall call for a strike, and no member thereof shall go onstrike, and no trade union of employers shall declare a lock-out-(a) in the case of a trade union of workmen, without first obtaining the consentby secret ballot of at least two-thirds of its total number of members who areentitled to vote and in respect of whom the strike is to be called; and in the caseof a trade union of employers, without first obtaining by secret ballot theconsent of at least two-thirds of its total number of members who are entitledto vote;(b) before the expiry of seven days after submitting to the Director General theresults of such secret ballot in accordance with section 40 (5);(c) if the secret ballot for the proposed strike or lockout has become invalid orof no effect by virtue of section 40 (2), (3), (6) or (9);(d) in contravention of, or without complying with, the rules of the trade union;(e) in respect of any matter covered by a direction or decision of the Ministergiven or made in any appeal to him under this Act; or(f) in contravention of, or without complying with, any other provision of thisAct or any provision of any other written law.(2) Any trade union which, and every member of its executive who, commences, promotes,organises or finances any strike or lock-out which is in contravention of subsection (1)shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding twothousand ringgit, or to imprisonment for a term not exceeding one year, or to both, and afurther fine of one hundred ringgit for every day during which such offence continues.(3) Any member of a trade union of workmen who commences, participates in, orotherwise acts in furtherance of, any strike which is in contravention of subsection (1) shallforthwith cease to be a member of the trade union, and thereafter such member shall not beeligible to become a member of any trade union except with the prior approval of theDirector General in writing; and the trade union of which he has so ceased to be a membershall forthwith-(a) remove the name of such member from its membership register;(b) inform the Director General and the member concerned of such removal;and(c) exhibit conspicuously in its registered office in a place where it may beeasily read a list of members whose names are so removed.(4) The Director General may, where he is satisfied that subsection (1) has beencontravened by any person and the trade union concerned has failed to carry out theprovisions of subsection (3), or where there is undue delay in so doing, after suchinvestigation as he deems necessary, order the trade union to remove forthwith the namesof the members concerned from its membership register.(5) The satisfaction of the Director General under subsection (4) that subsection (1) hasbeen contravened by any person may be arrived at regardless as to whether or not there isany prosecution of any person for contravention of the said subsection (1).(6) Any registered trade union which, and every member of its executive who, fails tocomply with subsection (3) or with an order of the Director General under subsection (4)shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding onethousand ringgit, and a further fine of one hundred ringgit for every day during which suchoffence continues.(7) In every proceedings for an offence under this section the onus of proving that therequirements specified in subsection (1) have been complied with shall be on the tradeunion, the member of its executive or the member of the trade union, as the case may be.