Decision

Initial Assessment: NUBE and UNI Global Union complaint to the UK NCP about HSBC

Published 15 September 2021

Summary of the UK NCP decision

1) The UK National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises (the Guidelines) has decided to partially accept the complaint from the National Union of Bank Employees (NUBE) and UNI Global Union about HSBC Malaysia Berhad (HBMY).

2) The complainants allege that HBMY has breached certain articles under Chapter V of the Guidelines (Employment and Industrial Relations) in the course of:

a) their approach to collective bargaining with NUBE and subsequent industrial action; and

b) their employment practices and actions towards union member employees.

3) The UK NCP has decided that some of the issues raised by the complainants merit further examination. As such, the UK NCP accepts the complaint under Chapter V, paragraph 1b, paragraph 3 and paragraph 8 of the Guidelines.

4) The UK NCP has decided not to accept for further examination the issues in relation to Chapter V, paragraph 4a and paragraph 7 of the Guidelines.

5) This initial assessment decision is made based on the information supplied by the parties. The decision to partially accept the complaint is not a finding against HBMY and does not mean that the UK NCP considers the company has acted inconsistently with the Guidelines.

Substance of the complaint

6) The complainants are:

• National Union of Bank Employees (NUBE)

• UNI Global Union

7) The complaint was initially made by NUBE, a trade union based in Malaysia. NUBE is established under the Trade Union Act 1959 and describes itself as Malaysia’s third largest trade union.

8) NUBE is affiliated to UNI Global Union, an international union organisation representing more than 20 million workers from over 150 different countries.^{[footnote 1]} NUBE requested that UNI Global Union be added as a complainant in June 2021.

9) The complaint was raised about HSBC Bank Malaysia Berhad (HBMY), a subsidiary of HSBC Holdings Plc, a British multinational investment bank and financial services company. NUBE said at the time of the initial complaint that HBMY employ around 1,000 workers who are NUBE members. HBMY commented in August 2021 that HBMY employs around 507 NUBE members.

10) The complainants allege that HBMY has not observed the Guidelines by:

• deliberately delayed negotiations during collective bargaining

• harassing and victimising NUBE member and union representative employees for their participation in industrial action taken in response to the breakdown in negotiations

• denying union representatives entry to HBMY workplaces for the purposes of meeting union members

• failing to appropriately engage in dispute resolution proceedings with NUBE

• undertaking an outsourcing process including a voluntary redundancy scheme and failing to consult with NUBE ahead of this process, and

• denying NUBE member employees access to their workstations and work

11) The complainants say that HBMY should address these issues by, among other things, negotiating in good faith in relation to collective bargaining and the outsourcing process and voluntary redundancy scheme. The complainants further say that HBMY should engage in dispute resolution with NUBE, including appropriately compensating workers who have been terminated or disciplined because of the industrial action.

12) HBMY accepted an invitation from the UK NCP to respond to the complaint, and denies the allegations made by the complainants. HBMY argued that it has already, and continues to, engage constructively in discussions with NUBE, including dispute resolution proceedings such as those facilitated by the Malaysian Director General of Industrial Relations under Malaysian labour legislation.

13) HBMY denies the allegation that it deliberately delayed negotiations and further denies the allegations that they have engaged in harassment or victimisation of union members. HBMY claim that there is no evidence that HBMY has prevented employees from joining or forming trade unions or participating in legitimate trade union activities in the collective bargaining process. HBMY acknowledge that one specific union representative was refused access to HBMY offices but deny that this was a breach of the Guidelines.

14) HBMY deny that the outsourcing process raised by the complainants is in breach of the Guidelines and refuted the allegations that they are denying union members access to their workstations.

OECD Multinational Enterprises Guidelines provisions cited

15) The complainants refer to the following provisions of the Guidelines:

Chapter V – Employment and Industrial Relations

Enterprises should, within the framework of applicable law, regulations and prevailing labour relations and employment practices and applicable international labour standards:

• Paragraph 1, B: Respect the right of workers employed by the multinational enterprise to have trade unions and representative organisations of their own choosing recognised for the purpose of collective bargaining, and engage in constructive negotiations, either individually or through employers’ associations, with such representatives with a view to reaching agreements on terms and conditions of employment.

• Paragraph 3: Promote consultation and co-operation between employers and workers and their representatives on matters of mutual concern.

• Paragraph 4, A: Observe standards of employment and industrial relations not less favourable than those observed by comparable employers in the host country.

• Paragraph 7: In the context of bona fide negotiations with workers’ representatives on conditions of employment, or while workers are exercising a right to organise, not threaten to transfer the whole or part of an operating unit from the country concerned nor transfer workers from the enterprises’ component entities in other countries in order to influence unfairly those negotiations or to hinder the exercise of a right to organise.

• Paragraph 8: Enable authorised representatives of the workers in their employment to negotiate on collective bargaining or labour-management relations issues and allow the parties to consult on matters of mutual concern with representatives of management who are authorised to take decisions on these matters.

The Initial Assessment process

16) The Initial Assessment process is a decision on whether the issues raised merit further examination. It does not determine whether the company has acted consistently with the Guidelines.

17) The OECD procedural guidance to NCPs state that generally issues are dealt with by the NCP of the country in which the issues have arisen. When an issue arises in a non-adhering country (in this instance, Malaysia) the NCP of the country where the multinational enterprise is based can deal with the complaint. In this instance the UK NCP will deal with the complaint about HBMY.

UK NCP Handling process

Date	Action
30 December 2020	The UK NCP received the complaint.
30 December 2020	The UK NCP acknowledged receipt of the complaint by return email to the complainants and informed them that they will be in touch regarding handling.
5 January 2021	The UK NCP emailed HSBC Holdings plc seeking an appropriate person to respond to complaint.
8 January 2021	The UK NCP sent the complaint to HSBC Holdings plc and offered an opportunity to respond.
3 February 2021	The UK NCP was contacted by HBMY, acknowledging receipt of the complaint, and asking for an extension to provide their response.
8 March 2021	The UK NCP received a letter from HBMY in response to the complaint. Due to technical difficulties, four annexes were not successfully received alongside this letter.
15 March 2021	The UK NCP received 4 annexes to the letter from HBMY responding to the complaint.
30 March 2021	The UK NCP shared HBMY’s response with NUBE and offered an opportunity to submit further evidence to support their complaint, as well as the opportunity to comment on the factual accuracy of certain aspects of HBMY’s response.
14 April 2021	The UK NCP received a response from NUBE confirming their intention to share further information and requesting an extension to provide this information.
21 April 2021	The UK NCP received an email from NUBE requesting a further extension to provide information.
29 April 2021	The UK NCP received further information from NUBE.
14 May 2021	The UK NCP shared the further information received from NUBE with HBMY.
8 June 2021	The UK NCP received further representations from NUBE.
9 June 2021	The UK NCP advised NUBE that further representations could not be accepted at this stage of the complaint.
15 June 2021	The UK NCP shared the further representations with HBMY and advised that these representations were being disregarded.
18 June 2021	NUBE requested to add UNI Global Union as a complainant.
21 July 2021	The UK NCP provided a draft Initial Assessment to the parties and asked for comments.
3-4 August 2021	The UK NCP received comments from both parties in response to the draft Initial Assessment.
4 August 2021	The UK NCP retrieved emails sent by HBMY on 8 June 2021, 1 July 2021 and 21 July 2021 which had not been well received.

18) All documents provided in the complaint and response were shared with both parties.

19) The UK NCP offered each party a meeting to explain the process. Neither party requested a meeting with the UK NCP.

UK NCP decision

20) The UK NCP has decided that some of the issues raised by the complainants merit further examination. As such, the UK NCP accepts the complaint under Chapter V, paragraph 1b, paragraph 3 and paragraph 8 of the Guidelines.

21) The UK NCP has decided not to accept the complaint for further examination under Chapter V, paragraph 4a and paragraph 7 of the Guidelines.

22) The UK NCP took the following points into account when considering whether the complainants’ concerns merited further consideration:

Identity of the complainants and their interest in the matter

23) The UK NCP is satisfied that NUBE has an interest in bringing this complaint in their capacity as the trade union representing union members employed by HBMY, who are alleged to be directly affected by the issues raised in this complaint.

24) The UK NCP accepted the addition of UNI Global Union as an additional complainant as they are providing expert advice to NUBE in the course of the complaint. Whether the issue is material and substantiated

25) Within the scope of the Initial Assessment, the complainants have provided sufficient information for the UK NCP to conclude that some of the issues identified merit further examination.

26) The complainants provided information in support of their complaint, comprising details of alleged activities including dates of negotiations to support the allegation of delays to collective bargaining, named alleged victims and dates of certain alleged incidents relating to allegations of terminations, suspensions and barring access to union members. When viewed alongside HBMY’s response confirming certain details of the activities and instances described in the complaint, the UK NCP is satisfied that there is enough information to merit further examination in relation to Chapter V paragraph 1b, paragraph 3, and paragraph 8.

27) However, in relation to Chapter V, paragraph 4a, the complainants have not provided evidence to support their allegation that HBMY is failing to observe standards of employment and industrial relations not less favourable than those observed by comparable employers in the host country in connection with the voluntary redundancy scheme. The UK NCP has therefore decided not to accept this aspect of the complaint for further examination.

28) Further, in relation to Chapter V, paragraph 7, no evidence was provided to substantiate the allegation that the outsourcing process involved the company’s operations in another country. The complainants have therefore not provided enough evidence to demonstrate that this paragraph has been breached. The UK NCP has therefore decided not to accept this aspect of the complaint for further examination.

Whether there seems to be a link between the enterprise’s activities and the issues raised

29) The UK NCP finds that there is a sufficient link between the enterprise’s activities and the issues raised as they relate directly to the actions of HBMY.

Relevance of applicable law and procedures, including court rulings

30) In addition to the Guidelines, the complaint includes references to several international instruments including the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policies and the ILO 1998 Declaration of the Fundamental Principles and Rights at Work.

31) The complaint further refers to Malaysian law, including the Industrial Relations Act 1967, the Employment Act 1955 and the Malaysian Code of Conduct for Industrial Harmony. The complaint also refers to contractual disputes in Malaysian courts.

How similar issues have been, or are being, treated in other domestic or international proceedings

32) HBMY argue that the issues which form the subject of the complaint are materially subject to existing proceedings in the Malaysian courts and that findings by the UK NCP on the issues raised risk prejudicing the ongoing proceedings. The UK NCP shared the parallel proceedings guidance with HBMY and will treat any application by HBMY to suspend proceedings in accordance with this guidance.

33) In their response to the complaint HBMY refer to 2 legal cases heard in Malaysia in 1995, Syarikat Hong Leong Assurance v Wong Yuen Hock and Milan Auto v Wong Seh Yen. This reference is in relation to the position in Malaysian law in relation to whether an employer must hold a domestic inquiry before taking disciplinary action.^{[footnote 2] [footnote 3]}

Whether consideration of the specific issue would contribute to the purpose and effectiveness of the Guidelines

34) HBMY argues that consideration of the complaint would not further the purpose and effectiveness of the Guidelines as there are options for conciliation and mediation available to the parties locally.

35) The UK NCP note that there has already been considerable engagement between the parties involved in the specific instance. The UK NCP has considered the information provided by the complainants and believe it would serve the purpose and effectiveness of the Guidelines to further examine the issues within the remits of the Guidelines in order to assist the parties to come to a resolution.

Next steps

36) The conclusions reached by the UK NCP in this Initial Assessment are based on the information it has been provided by the parties.

37) The UK NCP will formally ask the parties whether they are willing to engage in mediation with the aim of resolving the issues. Subject to their response, the UK NCP will liaise with the parties to arrange mediation meetings. If these meetings achieve a resolution, the UK NCP will reflect this in a Final Statement without making a determination on whether the enterprise acted consistently with the Guidelines.

38) If a mediated/conciliated solution is not possible, the UK NCP will conduct a further examination into the issues and will reflect the outcome in a Final Statement that will include a determination on whether HBMY acted consistently with the OECD Guidelines.

1. As seen on UNI Global Union’s website in June 2021. ↩

2. Syarikat Hong Leong Assurance v Wong Yuen Hock [1995] 2 MLJ 753 ↩

3. Milan Auto v Wong Seh Yen [1995] 3 MLJ 537 ↩