Dear a complaint against Malaysia before the Committee on

Dear members of the Malaysian
Trades Union Congress,

Within this legal memorandum I will
provide you with a legal advice regarding the ability to bring a complaint
against Malaysia before the Committee on Freedom of Association. Also, I will
analyse weather the solidarity strike by the 300 workers of “Meronas”, the
dismissal of 25 Letroni striking workers, and the arrest of the 23 “Letroni” violent
workers comply with the principles in the relevant ILO Convention(s).

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First of all, I will define the
legal issue of this case. Malaysia is a member of the ILO. However, it has
refused to ratify ILO Conventions No. 87,105 and 111. The main legal question
in this case is: are the actions of
Malaysia regarding the workers on strike comply with the principles of the
relevant ILO conventions and provisions?

Second of all, I will start my
legal analysis with the main facts in this case. On 28 September 2017, in Kuala
Lumpur, 150 workers from “Letroni” an oil and gas company organized a peaceful
strike in front of the premises of the company. The strikers were demanding
respect of health and safety standards by “Letroni” because more than 20
workers died since the beginning of 2017. In accordance with Malaysian Trade
Union Law (No. 8/2016) this strike was contrary to the law. The law prescribes
at least one-third of the workers to vote in favour of the strike, but only 150
from 1650 workers went to strike. On 30 September 2017, the national labour
court declared this strike unlawful in accordance to MTUL. Despite the
judgement, the strike didn’t stop.

In the light of this events, on 1
October 2017, 300 workers from “Meronas” another oil and gas company, organized
a one-day strike in solidarity with the “Letroni” workers. On the same date
also this strike was declared unlawful by the national labour court. On 2
October 2017, “Letroni” dismissed 25 of the 150 striking workers. It occurred,
on 12 October 2017, the demonstration escalated into violence and 23 “Letroni”
striking workers started vandalizing streets and people. None of the workers
that ware dismissed on the 2 October were among that group of people. Day
later, this group of 23 workers was arrested in accordance with the Malaysian
Criminal Code. 

Thirdly, I will provide the
relevant legal provisions. In this case the right to strike is the main issue. The
right to strike is regulated by different legal instruments of the UN, the ILO
and the EU which gives it universal character. The right to strike is not
directly mentioned by the UDHR1 but it derives indirectly
from art. 20 “everyone to peaceful assembly and association”2. The right is also
mentioned in ICESCR3.
According to art. 2 (a) ILO4, all Members, even those
that did not ratified the Convention in question have an obligation arising
from the fact of the membership. The Member must act in good faith promoting,
respecting and realizing in accordance with the constitution. Under sub (a) it
explicitly stated the principle of freedom of association.

One of the important legal
instruments of the ILO is the Convention no. 87 on freedom of association and
protection of the right of association5. The convention states
that an organisation of workers have several rights for organization among
which are activities, meaning the right to strike and other forms of pressure. Under
the digest of decisions and principles of the Freedom of Association Committee6, the right to strike7 falls under the Freedom of
Association. Art 526 and 527 Freedom of Association8, stated that workers who
defend their socio-economic interests should be able to use strike as action to
support. Art. 534 Freedom of Association9 stated that a sympathy
strike is lawful if its supporting a peaceful strike. Also, according to art.
661-663, 666 Freedom of Association10, the dismissal of workers
because of a strike is a serious discriminatory breach and is contrary to ILO
Convention No. 9811. Article 671-673 Freedom
of Association12
states, that no one cannot be arrested and imprisoned in connotation with the
organization or participation of a peaceful strike.

Fourthly, I will apply the
abovementioned relevant legal provisions to the case. According to the UDHR is
determined that the right to strike is a universal right. Malaysia is a Member
to the ILO Conventions, so the fact that it hasn’t ratified Convention No. 8713, relevant to this case,
doesn’t mean that it doesn’t have obligation regarding this Convention. As
stated in art. 2 ILO14, the fact of only a
membership is enough to expect that a member will act in good faith, respecting
and promoting the obligation of the constitution. The strike by 150 workers of
“Letroni” was declared unlawful, however the workers were defending its
socio-economic interest as there were more than 20 death incidents in the
company by action of a peaceful strike. The sympathy strike by the 300 workers
of  “Meronas” was declared unlawful too,
but in accordance with the provision of the Freedom of Association it is a
lawful act if it is supporting  a
peaceful strike, which in this case the strike was. The fact that 25 from 150 workers
that were striking were dismissed by the “Letroni” is contrary to the articles
of the Freedom of Association and it has a discriminatory breach.  The provisions of the Freedom of Association,
state that its contrary to the provisions to be arrested because of the strike.
However, the fact that 23 workers that were striking got arrested is lawful. The
provisions are talking about a peaceful strike, since the group of the 23 workers
started violence during the strike, the provisions are not applicable to that
matter anymore and the State can impose any proportionate sanction.

To conclude, I will describe my
findings and provide you with my legal advice. After finishing my legal
analysis and applying relevant legal provisions I came to the conclusion that
almost all actions of Malaysia regarding the workers on strike does not comply
with the relevant ILO Conventions and provisions. Therefore, I strongly believe
that the Malaysian Trades Union Congress is able to bring a complaint against
Malaysia before the Committee on Freedom Association.

1 The Universal Declaration of Human Rights 

2 Article 20 of The Universal Declaration of Human Rights 

3 The International
Covenant on Economic, Social and Cultural Right

4 Art. 2 ILO
Declaration on Fundamental Principles and Rights at Work

5 Convention No. 87
on Freedom of Association and Protection of the Right to Organise Convention
1948

6 Freedom of
Association: Digest of decisions and principles of the Freedom of Association
Committee of the Governing Body of the ILO

7 Para 10,
Importance of the strike and its legitimate exercise, Freedom of Association:
Digest of decisions and principles of the Freedom of Association Committee of
the Governing Body of the ILO

8 Art. 526 – 527 Freedom of
Association: Digest of decisions and principles of the Freedom of Association
Committee of the Governing Body of the ILO

9 Art.534 Freedom of
Association: Digest of decisions and principles of the Freedom of Association
Committee of the Governing Body of the ILO

10 Art.661-663,666,
Freedom of Association: Digest of decisions and principles of the Freedom of
Association Committee of the Governing Body of the ILO

11 Convention No. 98, right to
organise and Collective Bargaining Convention 1949

12 Art.671-673 Freedom of Association:
Digest of decisions and principles of the Freedom of Association Committee of
the Governing Body of the ILO

13 Convention No. 87
on Freedom of Association and Protection of the Right to Organise Convention
1948

14 Art. 2 ILO
Declaration on Fundamental Principles and Rights at Work