Maersk Medical A/S V The Labour Movement's International Forum (AIF)

Overview

NCP Decision Accepted
Current Status Closed
Date Submitted 01/02/2002
Date Closed 11/05/2005
Case Duration 170 weeks and 5 days
Host Country Malaysia  (Non-adhering country)
Issue(s) Right to representation; right to collective bargaining
Provisions Cited IV.1-a  IV.4-a  IV.8   
Case Description The Danish Labour Movement’s International Forum AIF, an NGO connected to the trade unions, raised a case with the Danish NCP in February 2002 concerning Maersk Medical A/S a Malaysian subsidiary ofMaersk Medical Inc., which was part of the Maersk Group, Denmark’s largest company, which operates in a diverse range of sectors.

The employees had signed that they wanted to join the union. The company referred to requirements in the Malaysian Trade Unions Act, which stipulates that the trade union has to be recognised as competent in the single company by the Department of Trade Union under the Ministry of Labour. After several rejections Rubbers finally achieved recognition as competent in 1988, which Mærsk Medical Inc disputed. As a result, the issue was pending in the legal system of Malaysia for several years due to appeals first by the employer and then the trade union.

In November 2003, the Court of Appeal ruled that the union was to be acknowledged, a decision which was challenged by the company. In August 2004, the Federal Court dismissed the application by the enterprise and upheld the decision of the Court of Appeal. Hence the Federal Court reaffirmed the Recognition Order by the Minister directing the company to recognise that the union was valid and right in law. The NCP however did not want to take any further action until this had been confirmed.

I

Developments The Danish NCP complained about the campaigning activities of the complainant AIF, which led AIF to write to the Danish Ombudsman requesting clarification. The Danish ombudsman in turn requested clarification so AIF wrote to the Investment Committee of the OECD.
Outcome The Danish NCP finally concluded the case in May 2005, after the Malaysian Supreme Court had ruled in favour of the trade union. The NCP informed the AIF that the company had begun negotiations with the union to reach a collective bargaining agreement. At a meeting held on the 11 May 2005, the Danish NCP requested the company to respect the Guidelines.

Organisations

Lead NCP Denmark NCP : Independent Expert Body 

Companies

Multinational Company Maersk Medical A/S (Home country: Denmark)
Subsidiary Maersk Medical Inc (Home country: Malaysia)

Complainants

Lead Complainant AIF

TUAC Analysis

Did the NCP publish its initial assessment? status-icon
Did the case involve parallel proceedings? status-icon
Was the existence of parallel proceedings an obstacle to the NCP accepting the case? status-icon
Was the businsess relationship other than that of a subsidiary? status-icon
Was the nature of the business relationship an obstacle to the NCP accepting the case? status-icon
Did the NCP inform other relevant government departments about its acceptance of this case? status-icon
Did the NCP offer mediation or conciliation? status-icon
Did the company accept the offer of mediation or conciliation? status-icon
Did the complainant(s) accept the offer of mediation or conciliation? status-icon
Was mediation or conciliation held? status-icon
Was mediation or conciliation conducted by a professional mediator? status-icon
Did the parties reach agreement? status-icon
If yes, did the NCP publish this agreement following the consent of the parties? status-icon
If mediation was refused or failed did the NCP make an assessment of whether the company had breached the Guidelines? status-icon
Did the NCP conduct in-host country fact finding? status-icon
Did the NCP make recommendations to the company on the future implementation of the Guidelines? status-icon
Did the NCP publish its final statement or report? status-icon
Did the NCP provide for follow-up of the agreement/recommendations? status-icon
Did the NCP inform other relevant government departments about its final statement or report? status-icon
Did the NCP inform public pension funds about its final statement or report? status-icon
Did the NCP apply any consequences in this case? status-icon
Did the NCP follow the indicative timescales set out in the procedural guidance? status-icon
Was there a positive outcome for the workers involved in this case? status-icon
Did the filing of the case under the Guidelines have a positive impact for the workers involved? status-icon
Did the lead NCP play a positive role? status-icon
If different, did the home NCP play a positive role? status-icon

TUAC Assessment

The NCP reported that it was difficult to uncover the details of the court case and its progress through the Malaysian court system. In addition, the Danish employers’ organisation was reported to be not fully cooperative at the beginning of the process.

Moreover, in 2003, Mærsk Medical Inc was in the process of breing taken over by Nordic Capital, one of the leading Nordic private capital companies, which operates under the name Unomedical. The parent company is still headquartered in Denmark.

The company and the NCP appear to have been using the existence of legal proceedings in the host country as a reason not to address the issue.

Implications

Confidentiality; the the role of campaigns in the context of the Guidelines