A former senior official of the human resources ministry has identified grey areas in the Trade Unions Act 1959 which have stymied the effective management of trade unions, but contended that this does not justify wholesale changes to the law.

Chen Voon Shian, now a labour consultant, said any review should be guided by the need to provide clarity and to meet new challenges.

However, he cautioned against arbitrary changes because extensive amendments had been made to the Act in 1971 and 1980.

"The principal aim then was to regulate the activities of workers' organisations, many of which had been under the influence of communists or their sympathisers," he told malaysiakini in an interview.

The ministry has again proposed amendments to the Act, triggering worry that tighter executive control could be exerted over the labour movement and interpretation of freedom of association.

While not involved in the drafting of the latest proposals, Chen participated in previous processes to amend the Act.

He served in the department of trade union affairs for 28 years. This was followed by a three-year stint as the deputy to the director-general of trade unions (DGTU) before he retired almost 12 years ago.

He said many of the earlier amendments were designed as "safeguards" to prevent or curtail disruptive activities that could be prejudicial to national economic or security interests. These provisions remain "intact to this day".

"If the proposals are due to perceived economic threats by unionists, the Act has stringent provisions on strikes, for example, which make it difficult to organise workers. Furthermore, unionists and unionised workers are bound by other laws.

"This is where the government must strike a balance between protecting workers' rights and economic security."

Prevailing ambiguity

On the need to amend some provisions, he said this "should aim to correct defective provisions or remove ambiguity".

"For instance, the territorial restriction on union membership and secret balloting in a recognition claim has to be changed because this is unfair to trade unions," he said.

Citing the word 'similar' found in provisions seeking trade union recognition, Chen said this has come to be defined as 'similar in the opinion of the DGTU'. It has thus allowed wide discretionary powers in determining "similar trades" or industries.

"Due to its subjective nature, discretionary powers can be arbitrary and wide open to abuse," he explained.

"A proper mechanism and clear legal guidelines in the exercise of discretionary powers should be in place to ensure the veracity of the DGTU's decision and to prevent or reduce subjective or erroneous decisions."

This would resolve contention over what constitutes "similar trades" in allowing trade unions to be recognised as part of the registration process.

Making a distinction was problematic in the case of unions in the electrical and electronics sectors, where the DGTU refused to recognise a single entity on grounds that these are dissimilar industries. However, in-house unions are allowed in the electronics sector.

Chen also said it would be timely to amend the provision on the secret ballot to determine the stance of the members in a recognition claim, because the process is unfair to trade unions.

Two standard procedures - verification and secret balloting - are currently used before trade union recognition claims are approved by the DGTU.

He proposed three ways to modify the balloting process.

"Both parties could agree to conduct a secret ballot or the workers could be specifically asked if they want to be represented for collective bargaining. Or, a minimum of 50 percent of eligible workers could be asked to be present for voting to be validated."

He said the recognition procedure should either be conducted by the department of trade unions or industrial relations in order to prevent extensive delays.

Protective function

However, he did not see the need for revision of provisions on the DGTU's powers of enforcement over management of union funds because these are sufficiently stringent at present.

A crucial intention of the Act, said Chen, is to protect union funds from being misused or misappropriated or used extravagantly.

"The collection and accounting of funds are strictly governed in the Act, including the purposes for and the manner in which the funds are spent.

"The DGTU is also empowered to freeze a union's bank accounts or apply for a court injunction restraining unauthorised or unlawful expenditure of union funds."

He said the DGTU can get a court order compelling the full return of all monies that have been unlawfully spent or withheld by any officer, employee or member of a union.

"To handle allegations of misappropriation, the DGTU can either apply for an injunction to block the use of the money or apply for an individual to return the entire sum," he said.

"The Act clearly spells out how funds are to be spent, including the need for executive council approval where a large sum is involved."

Chen pointed out that there are provisions empowering the DGTU to conduct inspections on trade unions or into any irregularity or complaint against any union.

Where an offence is believed to have been committed, the DGTU may obtain a search warrant to conduct a search, inspection or examination on the union's premises, seize or detain any article or document found therein.

The question is whether the duty is being discharged effectively, he said in relation to the government move to enhance the DGTU's powers under the latest proposals.

"Any attempt to increase these powers would no doubt incur the wrath of the trade unions," he noted.