Words: 2133
Relations system in the country operates within the legal framework of the Industrial Relations Act, 1967 and the Industrial Relations Regulations, 1980, which is applicable throughout Malaysia. The preamble to the Industrial Relations Act has this to say : To provide for the regulation of the relations between employers and workmen and their trade unions, and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom.
The Act is self-contained. It replaces all previous legislation pertaining to industrial relations but continue to encourage democratic self-government in industry by providing safeguards to legitimate rights, prerogatives and interest of workmen and employers and their trade unions, as well as ensuring the speedy and just settlement of trade disputes, so as not to prejudice public and national interests.
A synopsis of the Act are explained below : Part I of the Industrial Relations Act sets out the definitions of some of the terms used therein. Of particular importance is the definition of strike which includes any act or omission by a body of workmen acting in combination or under a common understanding, which is intended to or does result in any limitation, restriction, reduction or cessation of or dilatoriness in the performance or execution of the whole or any part of the duties connected with their employment.
Part II relates to the rights of workmen and employers and their trade unions and prohibition on workmen, employers and their trade in respect of certain acts such as anti-trade union activity, victimisation and other unfair labour practices. Any complaint of any contravention of this Part of the Act may be lodged in writing to the Director General of Industrial Relations who may take such steps as he deems necessary to resolve the complaint. Where it is not resolved he shall notify the Minister, who if he thinks fit may refer the complaint to the Industrial Court for hearing.
Section 6 makes it obligatory on the part of an employer to grant a workman leave of absence of a reasonable period for the performance of his duties as a trade union officer; and the employer is further obliged to grant such leave with pay if the workman’s absence is to represent the members of his trade union on matters concerning his employer. Part III deals with the question of recognition of trade unions. It provides the basic procedure to be followed in the determination of a claim for recognition.
Under this Part, a workmen’s union may not seek recognition in respect of workmen employed in managerial, executive, confidential or security capacities, if the majority of its membership consists of workmen not employed in any of these capacities. If the claim is not otherwise resolved, it may be reported in writing to the Director General who may take such steps as he may consider necessary to resolve the matter. For this purpose he is vested with power under Sec. B to require the trade union of workmen, the employer or the trade union of employers to furnish information necessary and may also seek the Director General of Trade Unions’ decision on the competence of the trade union to represent the workmen in respect of whom recognition is sought. Where the matter is not resolved the Director General shall notify the Minister for a decision, which may include a decision as to who are workmen employed in a managerial, executive, confidential or security capacity. A decision of the Minister under this Part shall be final and shall not be questioned in any court. This Part also prohibits : workmen from going on strike or picket for whatever reason during the pendency of proceedings under this Part or after the decision of the Minister by reason of any dissatisfaction with such decision. • employer from declaring a lock-out or dismissing a workmen (except on disciplinary grounds, retirement, expiry of a fixed term contract, non-confirmation of a probationer and medically boarded out) once a trade union of workmen has served in writing on the employer a claim for recognition. This Part also prohibits other trade unions from making a claim for recognition or be accorded recognition while a claim for recognition is pending.
Part IV sets out the procedure to be followed in the submission of wage claims and collective bargaining and for the form and content of collective agreements. Under this Part in Section 13(3), certain common law rights of an employer such as promotion, transfer, employment, termination of service on grounds of redundancy or reorganisation, dismissal and reinstatement of a workmen on disciplinary grounds, assignment or allocation of duties, cannot be included in the proposals of a trade union of workmen for a collective agreement.
This part also has provisions to encourage provision for training, annual review of wages and performance-based remuneration system. Part V of the Industrial Relations Act, 1967 relates to reference of trade disputes for conciliation. Either party may report to the Director General of Industrial Relations any trade dispute which has not been resolved by the parties themselves for conciliation and settlement. • The Minister may at any time intervene in a trade dispute of his own motion if he deems it necessary. prohibits strikes and lock-out after a dispute has been reffered to the Industrial Court or any matters that is covered by a collective agreement This Part also empowers the Director General of Industrial Relations to direct any person engaged in or connected directly or indirectly with the dispute to attend conciliation meetings and to furnish all necessary information relating to the matters in dispute. This part also stipulates who would represent the parties during conciliation proceedings. Sec. 19(B)(2) however prohibits representation by an Advocate, adviser and consultant in particular.
Part VI provides that if a workman, regardless as to whether he is a member of a trade union of workmen, considers that he has been dismissed by his employer without just cause or excuse, he may within sixty days of such dismissal, make his representation in writing to the Director General to be reinstated in his former employment. If the representation remains unsettled after the Director General has taken such steps as the considers it necessary or expedient to bring about a settlement, the Minister is notified accordingly, who may, if the thinks fit, refer it to the Industrial Court for an award.
Part VII contains provisions for : • the parties to a trade dispute to jointly request the Minister to refer a trade dispute to the Industrial Court; and • for the Minister to refer on his own motion any trade dispute to the Industrial Court if he is satisfied that it is expedient so to do; provide that in the case of a trade dispute in any Government service or in the service of ant statutory authority, such reference shall not be made except with the consent of the Yang Di Pertuan Agong (King) or State Authority as the case may require.
This part also has provisions for the Industrial Court to observe when making an award under subsction 20(3) to consider the factors in Second Schedule. Part VIII pertains to the establishment and functioning of a Committee of Investigation or a Board of Inquiry. This Part is meant to cater for issues or disputes which may not be amenable to be dealt with under the normal forms or methods of settlement and are considered useful in the promotion of good employer-employee relations.
The Minister is given the power to appoint a Committee consisting of one or more persons or a Board consisting of a Chairman and such other persons as the Minister thinks fit to inquire into the facts, causes and circumstances of a dispute referred to it and to submit its report. Any report of a Board Inquiry is required to be tabled as soon as may be before the Parliament. Part IX relates to trade disputes, strikes and lock-outs and matters arising therefrom.
Pupils are not permitted to take part in trade disputes and any pupil convicted or found guilty or an offence under this Part is liable to expulsion from this school. This Part (Section 39 & 41) also provides that intimidation, willful and malicious breach of contract liable to injure person or property are illegal and the commission of which renders the offender liable to punishment.
Peaceful and orderly picketing in furtherance of a trade dispute is permitted under Section 20 provided that such picketing is carried out at or near the place where a workmen works and where a trade dispute exists. It will be illegal however for one or more persons to attend at or near a place of employment where a workman works if such attendance is, by nature of its manner or number, calculated to intimidate any person in the place or to obstruct the approach thereto or egress therefrom or to lead to a breach of the peace.
Section 40 prohibits pickets in these circumstances: • during the pendency of the proceedings of a Board of Inquiry appointed by the Minister under Part VIII and seven days after the conclusion of such proceedings; • after a trade dispute or matter has been referred to the Industrial Court and the parties concerned have been notified of such reference; • after the Yang DiPertuan Agong or State Authority, in the case of a trade dispute relating to any Government service or the service of, any statutory authority has withheld consent to the reference of the dispute to the Industrial Court and the parties concerned have been notified thereof. Section 43 imposes certain restrictions on strikes and lock-outs in essential services. No such workman shall go on strike or such employer lock-out without giving the opposite side notice within 42 days before resorting to such section and within 21 days of giving such notice or before the expiry of the date specified in such notice. It has been made compulsory for the employer who serves or receives such notice to report to the Director General particulars of the notice.
Section 44 prohibits a strike or lock-out under any of the following circumstances : • during the pendency of the proceedings of a Board of Inquiry appointed by the Minister under Part VIII and seven days after the conclusion of such proceedings; • after a trade dispute or matter has been referred to the Industrial Court and the parties concerned have been notified of such reference; • after the Yang DiPertuan Agong or State Authority, in the case of a trade dispute relating to any Government service or the service of, any statutory authority has withheld consent to the reference of the dispute to the Industrial Court and the parties concerned have been notified thereof; • in respect of any of the matters covered by a collective agreement taken cognizance of by the Industrial Court or by an award; and • in respect of any of the matters covered under Section 13(3) and listed as management prerogatives. Any strike or lock-out declared in contravention of this Part or any other written law, if it has any other object than the furtherance of a trade dispute between the workmen and the employer concerned is illegal. It is also an offence for any person to give financial aid in direct furtherance or support of any illegal strike or lock-out. Offences under this part are seizable in nature and no bail shall be granted. Under Section 52, it is stipulated that Parts II, III, IV, V and VI i. e. arts dealing with the Protection of Rights of Workmen and Employers and their Trade Unions, Recognition and Scope of Representations of Trade Unions, Collective Bargaining and Collective Agreements, Conciliation and representation on Dismissals are not applicable to any Government service or to any service of any authority or to any workman employed by them. Part IXA contains provisions related to investigation and prosecution. Among the provisions are the appointment of an investigating officer and his powers to conduct investigation. Part X contains miscellaneous provisions relating to, among other matters, procedures to be followed in cases of non-compliance of awards or collective agreements which have been taken cognizance of by the Industrial Court, the enforcement of subsequent orders and general penalties for contravention of certain sections of the Act.
Section 59 of this Part also makes it an offense to dismiss a workman or injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice under certain circumstances. Any employer contravening this section in liable on conviction to imprisonment for a term not exceeding one year or a fine not exceeding two thousand ringgit or to both. Industrial harmony however, cannot be dealt with without the interplay of two other important legislations and they are the the Employment Act, 1955 and Trade Unions Act, 1959. Together with the Industrial Relations Act, 1967, they form the basis of the Industrial Relations system in Malaysia.