The Industrial Relations Act provides ways for settlement of trade disputes between employers and employees.
No person shall interfere with, restrain or coerce a workman or an employer in the exercise of his rights to form, to join trade union or to participate in its lawful activities.
No trade union of workmen and no trade union of employers shall interfere with each other in the establishment, functioning or administration of that trade union.
No employer or trade union of employers and no person shall provide financial support any trade union in order to assert influence over it..
Employers and their trade unions are prohibited from:
(a) imposing any condition in a contract of employment seeking to restrain the right of a person to join a trade union, or to continue his membership in a trade union;
(b) refusing to employ any person on the ground that he is or is not a member or an officer of a trade union;
(c ) discriminating against any person in regard to employment, promotions on the ground that he is or is not a member or officer of a trade union;
(d) dismissing or threatening to dismiss a workman when he intends to become or persuade others to become member of a trade union or when he participate in activities of his trade union.
Similarly, no workman or trade union of workmen and no person acting on behalf of such trade union shall -
(a) except with the consent of the employer, persuade at the employer’s place of business during working hours a workman of the employer to join or refrain from joining a trade union. ;
(b) intimidate any person to become or refrain from becoming or to continue to be or to cease to be a member or officer of a trade union; or
(c ) induce any person to refrain from becoming or cease to be a member or officer of a trade union.
Trade union of workmen with majority membership of the following capacities:
(a) managerial capacity;
(b) executive capacity;
(c ) confidential capacity; or
(d) security capacity,
cannot seek recognition or serve an invitation to commence collective bargaining.
An employer or a trade union of employers upon whom a claim for recognition has been served shall, within twenty-one days after the service of the claim -
(a) accord recognition; or
(b) do not accord recognition; or
(c ) apply to the Director General for a membership check.
The final decision as to whether recognition should be accorded or not rests with the Minister.
No workman or employer shall go on strike, lock-out, picketing and termination of service pending recognition of a trade union.
Where a trade union has been accorded recognition in respect of any workman or class of workmen, no other trade union shall make any claim for recognition in respect of the same workman or class of workmen unless a period of three years.
A Trade union not accorded recognition shall not make any further claim for recognition until six months have elapsed.
Where a trade union of workmen has been accorded recognition by an employer or a trade union of employers -
(a) the trade union of workmen may invite the employer or trade union of employers to commence collective bargaining; or
(b) the employer or the trade union of employers may invite the trade union of workmen to commence collective bargaining for purpose of setting out the proposals for a collective agreement
However a trade union of workmen may not include in its proposals for a collective agreement a proposal concerning promotion by an employer of any workman, transfer of a workman within the organisation. filling of vacancies, dismissal, reinstatement or allocation of duties.
A collective aqgreement shall be in writing and signed by both parties. Any question that may arise as to the implementation or interpretation of the agreement and reference of any such question to the Industrial Court for a decision
A signed copy of the collective agreement shall be jointly deposited by the parties with the Industrial Court Registrar within one month from the date on which the agreement has been entered into and the Registrar shall thereupon bring it to the notice of the Industrial Court for its cognizance.
Where a trade dispute exists or is apprehended, that dispute, if not otherwise resolved, may be reported to the Director General by -
(a) an employer who is a party to the dispute or a trade union of employers representing him in the dispute; or
(b) a trade union of workmen which is a party to the dispute.
Where a trade dispute cannot be settled by negotiation between the parties, the Industrial Relations Department will step in. The entire concilliation process looks something as follows:
Step #1: Parties concerned will try to reach an agreement through negotiation. If they fail then
Step #2. The Industrial Relations Department will try to concilliate. If matter still cannot be settled, the department will report to the Director General.
Step #3: The Director General will make further effort to help the parties to reach an agreement. If that fails, the Director General will report the matter to the Minister of Human Resources.
Step #4. The Minister will also attempt to get the parties to concilliate. If he fails, he may refer the matter to the Industrial Court for arbitration.
Step #5. The Industrial Court will hear the case and make an order called 'Award'.
Step #6. Any party not satisfied with the award may appeal to the High Court and if necessary all the way to Federal Court.
An employer who is a party to the trade dispute may represent himself or be represented by his duly authorized employee, or, where he is a member of a trade union of employers be represented by an officer or employee of such trade union of employers (MAPA), or, by an official of an organisation of employers registered in Malaysia (e.g. MEF);
A workman who is a party to the trade dispute may represent himself or by his trade union or by an official of an organisation such (MTUC)
In any conciliation proceedings, representation by an advocate, adviser, consultant is not allowed.
Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing under Section 20 of the Industrial Relations Act to be reinstated in his former employment. He must make the claim within 60 days from the date of dismissal.
Upon receipt of the representations the Industrial Relations Department will take the necessary action in order to have matter settled quickly. If there is not settlement, the matter will be reported to the Director General who may in turn try to settle the representations. if the matter still cannot be settled, the matter to be reported to the Minister who may, if the thinks fit, refer the representations to the Industrial Court for an award.
Where an award has been made by the Industrial Court, the award shall operate as a bar to any action for damages by the workman in any court in respect of wrongful dismissal.
The Industrial Court is a tribunal whose main functions are to hear, decide and hand down awards relating to trade disputes referred to it directly by employers and trade union of workmen or by the Minister. Another function is to grant cognizance to collective agreement which has been deposited jointly by employers and trade union of workman.
An Industrial Court is headed by a President and a panel of persons representing employers and workmen respectively. Under the President, there are chairmen who sit in the Industrial Courts in various states of the country. The President or Chairmen are legally qualified persons with at least 7 years experience in the legal profession before their appointments.
In any proceedings before the Court a party may -
(a) where the party is a trade union, be represented by an officer or employee of the trade union;
(b) where the party is an employer, appear himself personally or be represented by his duly authorized employee, or by an officer or employee of a trade union of employers of which he is a member;
(c ) in dismissal cases, where the party is workman, appear himself personally; or where he is a member of a trade union of workmen, be represented by an officer or employee of the trade union;
(d) in dismissal cases, where the party is a trade union, or an employer, or a workman, be represented with the permission of the President or the Chairman, by an advocate, or, by any official of an organisation of employers or of workmen (e.g. MEF or MTUC).
The Industrial Court hands down order called an award on issue referred to it.
In making its award in respect of a trade dispute, the Court shall have regard to the public interest, the financial implications and the effect of the award on the economy of the country.
The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.
For dismissal cases under Section 20, the Court may order:
1. Reinstatement into his former employment.
2, Award of back wages (from dismissal date to the final date of hearing - subject to maximum period of 24 months).
3. The Court may also order compensation in lieu of reinstatement base on the formula on one month salary for every year of service.