Observation (CEACR) - adopted 2025, published 114th ILC session (2026)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Malaysia (Ratification: 1961)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 113th Session, June 2025)

The Committee notes the discussion which took place in June 2025 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by Malaysia.

The Committee notes that the Conference Committee noted with concern that gaps remained in the protection against anti-union discrimination, lengthy recognition procedures and the need to promote the full development and utilization of collective bargaining. The Committee observes that the Conference Committee urged the Government, in consultation with the social partners, to take time-bound measures to: (i) remove all the remaining legal and practical obstacles to collective bargaining and to promote its development; (ii) ensure effective protection against acts of anti-union discrimination with dissuasive sanctions, and that victims of anti-union discrimination have the right to access justice and remedy; (iii) review recognition procedures for collective bargaining, with reasonable and adequate safeguards to prevent interference, simplifying and expediting the administrative and judicial processes; and (iv) enable collective bargaining machinery for public servants who are not engaged in the administration of the State. The Conference Committee also requested the Government to: (i) accept a technical advisory mission of the ILO before the next session of the Conference; and (ii) report any progress to the Committee of Experts on the measures taken to implement the above recommendations in line with the Convention by 1 September 2025.

The Committee notes the observations made by the Malaysian Trade Union Congress (MTUC), received on 29 August 2025, and the International Trade Union Confederation (ITUC), received on 2 September 2025, as well as the Government’s response thereto, which will be examined in the present comment. The Committee also notes the observations made by the International Organisation of Employers (IOE), received on 1 September 2025, concerning the discussions that took place at the Conference Committee on the Application of Standards with respect to the application of the Convention. The Committee further notes the observations made by the IndustriALL Global Union (IndustriALL), received on 6 December 2024, and the Government’s response thereto concerning the implementation of the Committee on Freedom of Association’s recommendations in Case No. 3409 (399th Report, June 2022, para. 229). The Committee trusts that the Government will pursue any efforts to find solutions regarding the concerns raised in that case regarding five dismissed union leaders.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes the Conference Committee’s request that the Government ensure effective protection against acts of anti-union discrimination with dissuasive sanctions, and that victims of anti-union discrimination have the right to access justice and remedy. In this respect, the Committee recalls that it noted that section 8 of the Industrial Relations Act (IRA) still provides for discretionary powers of the Director-General of Industrial Relations to refer or not a complaint on anti-union discrimination to the Industrial Court, and that it requested the Government to ensure that workers who are victims of anti-union discrimination have the right to directly lodge a complaint before the courts.

The Committee notes Government’s indications that most recent anti-union discrimination cases under section 8 of the IRA (i.e. 21 of the 25 cases filed in 2023 and 2024) were resolved by the Industrial Relations Department, and four were referred to the Industrial Court. It also notes that the Government provides aggregate statistics on dismissal claims under section 20 of the IRA without distinguishing anti-union cases, maintaining that these figures reflect the system’s strong capacity to deliver expeditious and effective remedies, including in such cases. The Committee notes however with regret that the Government has once again not provided the requested information on the outcome and duration of anti-union discrimination procedures. It observes that the ITUC continues to raise concerns as regards allegedly ineffective remedies for anti-union discrimination and lengthy procedures. Moreover, it notes that the MTUC alleges that, in 2024 and 2025, the National Union of Bank Employees (NUBE) filed over 70 complaints under sections 8, 39 and 59 of the IRA, which have either not been addressed or were dismissed, and that additional complaints dating back to 2019 remain unresolved. The Committee notes that the Government firmly rejects these allegations, emphasizing that all complaints, including those submitted by NUBE, were thoroughly investigated following due process, and that the decision to dismiss most of them was not based on arbitrariness but on the absence of sufficient credible evidence. The Government adds that the Director-General’s discretion to refer cases to the Industrial Court is limited by established administrative procedures and guided by principles of merit, equity and fairness, serving to filter out complaints that are trivial or vexatious, and therefore does not deny workers access to justice. Noting that the exercise of the discretion by the Director-General has been subject to ongoing conflict over several years, the Committee recalls its previous request that victims of anti-union discrimination should have direct access to the courts. The Committee once again recalls that effective protection against acts of anti-union discrimination requires rapid and effective procedures and remedies through reinstatement and adequate compensation, as well as sufficiently dissuasive sanctions. In this respect, the Committee urges the Government to provide information on: (i) the number of cases of anti-union discrimination filed and pending under sections 8, 20, 39 and 59 of the IRA; (ii) the outcome of these proceedings, including the remedies provided (such as compensation, reinstatement and penalties imposed); and (iii) the average duration of cases dealt with by the Industrial Relations Department, the Industrial Court and other courts. It also once again urges the Government to take the necessary measures to ensure that workers who are victims of anti-union discrimination have the right to directly lodge a complaint before the courts. The Committee also recalls its recommendation to consider the reversal of the burden of proof once a prima facie case is made.

Articles 2 and 4. Trade union recognition for the purposes of collective bargaining. The Committee notes the Conference Committee’s request that the Government review recognition procedures for collective bargaining, with reasonable and adequate safeguards to prevent interference, simplifying and expediting the administrative and judicial processes.

Procedure for recognition and recognition granted in practice. The Committee recalls that it noted that, in conformity with the provisions in the IRA and the Industrial Relations Regulations, the Director-General of Industrial Relations is competent to take a decision based on the conduct of a secret ballot, including in the case of a claim concerning the recognition of a trade union in the event that an employer refuses recognition (section 9(4)(A) of the IRA).

The Committee notes the Government’s indication that between 15 September 2024 (the date of the entry into force of the legislative amendments) and 30 April 2025, 29 new applications for trade union recognition were received by the Department of Industrial Relations, of which 17 were settled. It notes however with regret that the Government has once again not provided the requested information on whether recognition was granted (or not granted) in relation to these cases. It urges the Government to provide detailed information on the application in practice of the recognition procedures (particularly as regards section 9(4)(A)), including the number of processes for trade union recognition filed and those that remain pending, and their outcome (the number of recognitions granted or not granted, specifying the reasons for these decisions).

Adequate safeguards to prevent interference. The Committee notes that several speakers in the Conference Committee raised concerns about persistent barriers to union recognition and further notes the MTUC’s allegations of employer interference (such as vote suppression, intimidation, and restricted workplace access) which, according to the union, remain unaddressed by the Government. In this regard, the Committee notes the Government’s indication that all recognition claims are addressed objectively and in compliance with the safeguards provided for in the national legislation and that, in the case of the claim of the National Union of Drink and Food Industry Workers (NUDFIW) referred to by the MTUC, the Department of Industrial Relations conducted a secret ballot under its impartial and close supervision. Recalling that the recognition processes should provide safeguards to prevent acts of employer interference, the Committee once again requests the Government to provide information on any specific measures taken to prevent or repress acts of interference during the recognition process (such as any powers entrusted to the Department of Industrial Relations or other competent authorities, to prevent and address, at their own initiative, acts of interference that may take place during the recognition process). The Committee also once again requests the Government to specify whether any claims were actually brought against employer interference during the recognition procedure under sections 4, 5, 7 and 8 of the IRA, and to provide information on their outcome.

Exclusive bargaining rights. Minority unions. The Committee recalls that it noted that the IRA and the Industrial Relations Regulations, as amended, require, for a trade union seeking recognition in the event that an employer refuses recognition, a simple majority of votes cast by not less than half of the total number of workers entitled to vote (see section 2(1)(a) and 11 of the Industrial Relations Regulations).

In this context, it notes the allegations made by the MTUC that: (1) the NUDFIW obtained a clear majority of valid votes in May 2024 but was denied recognition by the Government; (2) the Electrical Industry Employees’ Union (EIEU) received 90 per cent support among 2,700 voters but was denied recognition by the Ministry in August 2025 due to insufficient turnout among the 6,000 employees in the bargaining unit (43.35 per cent). The Committee notes that the MTUC argues that the legal requirement for 50 per cent of all employees to vote is impossible to achieve in practice. It notes that the Government affirms that the NUDFIW and the EIEU did not meet the legal threshold for recognition and that the legal requirement for union recognition (at least 50 per cent employee participation and majority support among voters) was introduced through tripartite consultations, including with the MTUC, to ensure clear and representative workforce support. The Government argues that this system improves on the previous framework, which required a majority of all eligible employees to vote in favour of the union regardless of turnout. Recalling that the Committee had already welcomed certain amendments to the previous formula, it reiterates its view that the new formula still requires broad support by the workers in a bargaining unit, which might be difficult to achieve. The Committee therefore once again requests the Government to take, in consultation with the social partners, measures to ensure that, in situations where no union is declared the exclusive bargaining agent (for example, if a recognition ballot fails or turnout is too low), all unions in the unit are able to negotiate, jointly or separately, at least on behalf of their own members.

Duration of recognition proceedings. The Committee recalls its reiterated request, in light of the recent discussions in the Conference Committee, to ensure that the duration of the recognition process is reasonable. In this regard, it recalls that it previously noted that the average duration of the recognition procedure at the Department of Industrial Relations was from four to nine months and that a decision of recognition may be appealed before the courts.

While the Committee notes the Government’s indication that 17 of the 29 recognition applications received between 15 September 2024 and 30 April 2025 were concluded in under five months, it also notes that the Government has once again not provided any information on cases that were subject to an appeal before the courts. In this context, the Committee notes that in its latest report adopted in relation to Case No. 3414, the Committee on Freedom of Association noted with regret the excessive delays in the administrative and judicial proceedings relating to a recognition claim in a company that now ceased to exist, amounting to almost 15 years since the union first claimed recognition (411th Report, June 2025, para. 64). The Committee also notes that the ITUC reiterates its concerns over lengthy recognition procedures. The Committee once again firmly expects the Government to take measures to ensure that the administrative and judicial proceedings for the recognition of trade unions for the purpose of collective bargaining are reasonable. In this respect, it once again requests the Government to provide detailed information on the duration of the recognition proceedings, under sections 9(4)(A) of the IRA, including those that were treated administratively by the Department of Industrial Relations and those that were appealed and dealt with by the courts.

Concerning potential delays as a result of certain particularities in the recognition procedure, the Committee also recalls that it noted that the Committee on Freedom of Association in Case No. 3414 (401st Report, March 2023) observed that disagreements on the meaning of the terms of section 9(1) of the IRA (which prohibits the representation of workers employed in managerial, executive, confidential and security capacities together with other workers in a bargaining unit), had entailed excessively long administrative and judicial procedures under section 9(1)(A) of the IRA on the question of whether workers were entitled to vote in the secret ballot. In this respect, the Committee noted that there are no provisions providing for any definition of the categories under section 9(1)(a), (b), (c) and (d) of the IRA but that the question of whether a particular occupation falls into any of the above-mentioned categories is a matter to be determined by the Director-General of Industrial Relations, and that a relevant decision can be appealed before the courts.

In this respect, the Committee notes that the MTUC alleges that the EIEU faced a nine-month delay in its recognition application, which was ultimately rejected after 1,200 workers were arbitrarily reclassified as “confidential employees”. The Committee notes that the Government responds that in practice, the recognition application process has shown marked improvement in both speed and transparency, that all recognition applications were handled objectively and expeditiously and that the delay in rendering the decision concerning the EIEU resulted from a mandatory inquiry under section 9(1)(c) of the IRA – involving an assessment of employment designations, job functions and access to sensitive information to determine eligibility for union representation. The Committee also notes the MTUC’s observations and the Government’s response as regards the classification of certain employees as executive or non-executive staff at a financial institution currently under review by the Department of Industrial Relations. While recalling that these categories of workers are covered by the Convention, the Committee once again stresses that the exclusion of managerial and executive staff from the vote concerning the recognition of a trade union should be limited to those persons who genuinely represent the interests of the employer to avoid any risk of interference by the employer. The determination of any categories of workers excluded from the vote should be expeditious and the possibilities for the employer to challenge the decision strictly delimited and swiftly examined so that the said determination does not become an obstacle to the exercise of the right to collective bargaining. The Committee once again requests the Government to provide specific information as regards the number and duration of complaints filed and treated under section 9(1)(A) of the IRA involving an assessmentof the managerial, executive, confidential and security capacities of workers and their outcome. It also once again requests the Government to review the legal framework governing the procedure for recognition of unions for collective bargaining purposes, including as regards the above-mentioned issues in relation to section 9(1)(A) of the IRA in the absence of a definition in law of the above-mentioned categories of workers, with a view to significantly simplifying and expediting the administrative and judicial processes. In the meantime, the Committee requests the Government to provide information on any existing guidelines or criteria followed by the Director-General of Industrial Relations in the categorization of workers under section 9(1) of the IRA.

Restrictions on collective bargaining of public servants not engaged in the administration of the State. The Committee notes that the Conference Committee requested the Government to enable collective bargaining machinery for public servants who are not engaged in the administration of the State. In this respect, the Committee recalls that it previously noted the exclusion of public sector employees from the chapter in the IRA on collective bargaining (see section 52(1), read in conjunction with Part IV of the IRA) and that the functions of the National Joint Council (NJC) are to “give opinions and discuss”, “enable employees to propose changes for consideration by the Government” and “make recommendations”, and that the functions of the Departmental Joint Council, pursuant to section 3 of Service Circular 7, are to “enable employees to express opinions” and “actively participate in discussions”.

The Committee notes the reiterated comments made by the ITUC that public servants are only consulted but not integrated in the process of collective bargaining. It also notes the Government’s reiterated assertion that the NJC is not merely a consultative forum for public service unions and the Government’s reference to elements previously considered by the Committee. It further notes the Government’s indications that efforts are under way to progressively enhance the bargaining progress and that in 2024, the standard NJC consultation process was strengthened through targeted, multi-channel engagement with a broad range of public sector unions to support the development of the new Public Service Remuneration System (SSPA). Issued via Service Circular No. 1/2024, the SSPA reportedly received a 99.9 per cent acceptance rate, which the Government views as confirmation of the NJC framework’s legitimacy and effectiveness in shaping terms of employment. While taking due note of the strengthening of the standard NJC consultation process, the Committee recalls that the categories of public sector workers covered by the Convention (including public teachers, public healthcare workers, employees of state-owned enterprises, municipal employees and those in decentralized entities) should not only be consulted but should be able to collectively negotiate their employment and working conditions. The Committee once again requests the Government to take the necessary measures, in law and in practice, to enable collective bargaining machinery for public servants not engaged in the administration of the State and recalls that the Government can avail itself of the technical assistance of the Office in this respect.

Scope of collective bargaining. In its previous comments, the Committee noted that section 13(3) of the IRA provides for restrictions on the inclusion of subject matters in collective agreements, including issues such as: transfer; termination of services due to redundancy or reorganization; dismissal and reinstatement. It also noted that the same section provides that trade unions can raise questions of a general character in relation to these matters.

The Committee notes that the Government indicates that data shows that approximately 98 per cent of registered collective agreements since the amendment have included discussions – although not binding clauses – on managerial prerogatives. The Committee requests the Government to take the necessary measures to lift the broad legislative restrictions on the scope of collective bargaining, in order to promote the right to bargain freely between the parties, without any interference by the Government.

Migrant workers. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 28(1)(a) of the Trade Union Act, which provides that a person who is not a citizen of the Federation of Malaysia may not be elected to be a member of the executive entity of a trade union, unless the Minister of Human Resources considers that this is necessary for the representation of persons or interests of persons not residing within the Federation of Malaysia.

The Committee notes the Government’s indications that in January 2025, it introduced a policy change by granting a blanket ministerial exemption to a specific union, thereby allowing non-citizens to serve as union officers within that union without the need for individual approval. In the view of the Government, although the general requirement for case-by-case approval remains in place, this measure represents a positive step towards more inclusive union leadership and greater participation of migrant workers in trade union governance. The Committee takes due note of this first step. Recalling that the requirement of prior approval of the Minister of Human Resources for foreign workers to hold trade union office may hinder the right of trade unions to freely choose their representatives for the purpose of collective bargaining, the Committee once again requests the Government to take the necessary legislative measures to ensure that foreign workers are able to run for trade union office without prior authorization.

Compulsory arbitration.Noting an absence of information in relation to any legislative developments in this respect, the Committee once again requests the Government to provide information on the measures taken or envisaged to: (i) further delimit the categories of Government services in section 26(2) of the IRA and point 8 of the First Schedule of that Act, so as to ensure that compulsory arbitration may only be imposed on those public servants engaged in the administration of the State; and (ii) remove businesses and industries mentioned in point 10 of the First Schedule of the IRA from the list of essential services so that their workers can be afforded the full guarantees of the Convention.

Collective bargaining in practice. In its previous comments, the Committee noted with concern the very low coverage of collective bargaining and observed that according to public statistics available in ILOSTAT in 2018, the collective bargaining coverage rate in Malaysia was 0.4 per cent. The Committee considered that this very low coverage could be related to the restrictive requirements in law and in practice to engage in collective bargaining as discussed in its previous comments.

The Committee notes the Government’s indication that 274 collective agreements were registered in 2023 and 240 in 2024. It further notes that, based on the documentation communicated by the Government to the Conference Committee in 2025, these agreements covered sectors such as agriculture, mining, manufacturing, utilities, construction, trade, transport, accommodation and food services, information and communication, finance and insurance, education, health and social work, with the majority concluded in manufacturing (334), financial and insurance/takaful activities (34) and transportation and storage (27). The Committee requests the Government to continue to provide updated statistical information on the number of collective agreements concluded, disaggregated by sector. It also once again requests the Government to provide information on the overall number of collective agreements in force and the workers covered, as well as the proportion of the workforce covered by these agreements.

Referring to the corresponding request made by the Conference Committee in 2025, the Committee once again requests the Government to take the necessary action to remove all the remaining legal and practical obstacles to collective bargaining addressed in this comment and to take concrete measures to promote its full development and utilization. In this respect, it once again strongly encourages the Government to continue to avail itself of the technical assistance of the Office to work towards the full conformity of the national legislation with the principles of the Convention.

Noting that the Government welcomes the Conference Committee’s recommendation to accept a technical advisory mission from the ILO and is prepared to facilitate it before the next Conference session, the Committee expresses the hope that the Government will take full advantage of this opportunity to make concrete progress in this respect.

The Committee is raising other matters in a request addressed directly to the Government.