Collective bargaining is the best mechanism to attain a cordial relationship between employers and employees. It is also an effective forum to agree on terms and conditions of employment. In order to achieve such purposes, industrial relations systems in a country must provide legal mechanism to enable parties to bargain collectively with a view to concluding a collective agreement. The ILO has adopted a convention providing a framework for member states to enact laws that would facilitate such a mechanism. In this respect, Malaysia has enacted the Industrial Relations Act 1967, which provides among others a mechanism for collective bargaining. In this article we argue on the extent of the right of Malaysian workers to collective bargaining in the context of the ILO standards. Here we argue that despite the legal mechanism available that facilitates collective bargaining between the two parties, Malaysian workers and their trade unions face some difficulties in bargaining with their employers.
Type Research Article Information Asian Journal of Comparative Law , Volume 1 , 2006 , pp. 1 - 20 Copyright © Faculty of Law, National University of Singapore 2014Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
1 See Caire , Guy , “ Freedom of Association and Economic Development ”, ( Geneva : ILO , 1997 ) at 78 Google Scholar . Trade union weakness in developing countries is attributable to factors such as: smallness of size, lack of competent and purposeful leadership, apathy from the rank and file, etc..
3 See Forde , M. , “ The European Convention on Human Rights and Labour Law ” ( 1983 ) 31 American Journal of Comparative Law 301 at 314 CrossRefGoogle Scholar .
4 Arthurs , Harry “ Understanding Labour Law: The Debate on Industrial Pluralism ” ( 1985 ) 1 Current Legal Problems 83 CrossRefGoogle Scholar .
5 See Cordova , E. “ Collective Bargaining ” in Blanpain , R , ed., Comparative Labour Law and Industrial Relations , 2nd ed., ( Deventer : Kluwer , 1985 ) 308 Google Scholar .
6 See Annotation to the case of Council of Civil Service Unions and Others v. Minister for the Civil Service [1985] 5 ILLR 35 at 52.
7 See E. Cordova in R. Blanpain, supra n. 5 at 309.
8 See M. Forde, supra n.3 at 315. In Sweden, for instance, the 1936 Act on the Right to Organise and Negotiate guarantees under section 4 ‘the right to institute negotiation regarding conditions of employment or relations between employers and employees in general.” See Schmidt and Dahlstrom v. Sweden Eur. Ct. HR, Series A, No. 21 (1976).
9 See Guy Caire, supra n.1, 26.
10 This was an observation of a member of the ILO Conference Committee who was trying to emphasize the fact that the non-ratification of C78 by Malaysia would diminish the freedom of association of Malaysian workers. See the General Observations of the Conference Committee on the Application of Conventions and Recommendations, in Documents on Malaysia available at ILOLEX: .
11 See the ILO Declaration of Fundamental Principles and Rights at Work of 1998. See also Convention No. 154 concerning the promotion of collective bargaining; the Convention was adopted in 1981. This Convention does not supercede Convention No. 98. The aim behind its adoption was to ginger up member States towards making more efforts in achieving the objectives behind the earlier instruments on freedom of association.
12 See Paul Weiler, “Reconcilable Differences: New Directions in Canadian Labour Law”, Carswell Toronto, 1980, 25; John Pencavel, “The legal framework for collective bargaining in developing economies” (1996) at 10.
13 See Harry Arthurs, supra n. 4 at 84.
14 See Paul Weiler, supra n.12 at 26. 16 Ibid. at 30.
16 Herzog , Peter , “ The Legal Nature of Collective Agreements ” ( 1986 ) 34 American Journal of Comparative Law 317 CrossRefGoogle Scholar .
17 See Klare , Karl E. “ Labour Law as Ideology: Toward a New Historiography of Collective Bargaining Law ,” ( 1981 ) 4 Industrial Relations Law Journal 450 Google Scholar .
18 The debate concerning the relationship between economic development and industrial relations has been more intense in Southeast Asia than in any other region. For more information regarding ‘the close relationship between economic development and industrial relations’, see Kuruvilla , Sarosh and Venkataratnam , C.S. “ Economic development and industrial relations: the case of South and Southeast Asia ,” ( 1996 ) 27 Industrial Relations Journal , 14 CrossRefGoogle Scholar . Note especially the assertion at p.21 that “… in the successful countries of Southeast Asia, industrial relations policies and institutions are closely tied to economic development strategies, and as economic development strategies change, so do IR policies and practices.” Noteworthy is also this assertion at p.12: “There is evidence that the goals of export oriented industrialisation and a restrictive and exclusive labour policy are highly congruent.” As to whether there is, in reality, a conflict between labour law and economic development, see Schregle , Johannes “ Labour Law and development in South-east Asia ,” ( 1976 ) 113 International Labour Review 283 Google Scholar . Schregle admits that there could be conflict between the goals of development which may for instance necessitate keeping wage costs within competitive limits and the protective goals of labour law which may for instance involve the fixing of minimum wage in order to bring about a more equitable form of income distribution. According to him, there is no magic formula for the resolution of this conflict. But he clearly cautions against a unitary approach in solving the problem. In his view, “. the only practical and feasible procedure is negotiation between trade unions, employers, government planners and politicians, a give-and-take process reflecting the ever changing societies of the countries concerned.” See p.292. Schregle further predicts that “trade unions will increasingly insist on the removal of those statutory provisions which in some Southeast Asian countries still obstruct the development of strong and representative trade unions with full freedom to organize themselves in the way they choose.” See p.298.
19 In an article published as recently as the year 2002, Professor Anantaraman informs us that the Malaysian restrictive industrial relations model is conducive to foreign direct investments. According to the learned professor, “Within the perspective of the Malaysian Industrial relations strategy, development imperatives have been given precedence over the rights of trade unions of workmen to autonomous existence. Since the rights of trade unions and workers are seen as subordinate elements to the transcendental goal of economic development, state policy towards labor has generally been extended to control worker organisations rather than to enlist their cooperation in the nation's development effort.” See Anantaraman , V. “ The Malaysian Model of Industrial Relations: Is it Conducive to Foreign Direct Investment? ” ( 2002 ) 4 M.L.J. cxxii Google Scholar .
20 See Guy Caire, Freedom of Association and Economic Development (Geneva: ILO, 1977).