CHAPTER 1: INDUSTRIAL RELATION TRIPARTITE INDUSTRIAL RELATIONS SYSTEMS: 3 PARTIES, ALL INTER-RELATED

WHAT IS INDUSTRIAL RELATIONS m/s 2 1. Employers

2. Employees & their trade unions
 Industrial rela@ons is the rela@onship between an employer and his employees, especially
3. The government
where the employees are members of a trade union
 Industrial rela@ons is also known as employee, labour or employment rela@ons

INTRODUCTION KEY PLAYERS IN MALAYSIAN INDUSTRIAL RELATIONS

 The purpose of the industrial rela@ons is to unite the group of employees and employers as  Na@onal Labour Advisory Council (NLAC)
one big, happy family  Ministry of Human Resources
 One of the important principles behind the industrial rela@ons is the collec@ve bargaining  Malaysian Trades Union Congress (MTUC)
between the employee’s union and the employer to achieve a collec@ve agreement  Malaysian Employers Federa@on (MEF)
 In Malaysia, the industrial rela@ons is governed by the Industrial Rela@on Act 1967, which  Interna@onal Labour Organisa@on (ILO)
serves the purpose to regulate the rela@ons between employers and the workers/
employees, as well as preven@ng trade disputes that can burst out of control
ROLE OF THE GOVERNMENT IN IR m/s 17
THE FOCUS OF INDUSTRIAL RELATIONS m/s 3
 To protect welfare of workers – their safety, health and rights
1. Rela'onship between employers, employees and trade union
 To promote good employer-employee rela@onships through a stable and peaceful IR system
o Once workers unionise, which means that they become members of a trade union,
 To assist the unemployed Bnd employment – equip the unemployed with basic industrial
they have a collec@ve rela@onship with their employer
skills and to improve the skill level of the workforce
o The union will represent the workers and speak on their behalf to the employer
 To conduct na'onal level human resource planning – assist to maximising the country’s
when necessary
manpower resources through manpower planning
o In this situa@on, to encourage industrial harmony, it is necessary for both par@es to
understand each other’s rights and obliga@ons under the laws
2. Framework provided by the employment laws
MINISTRY OF HUMAN RESOURCES m/s 17 -19
o The employment laws lay down provisions which aTect not only unionised workers
but all employees Departments which play a key role in IR:
o Some of the employment laws clarify the rights of trade unions and employers
 Department of Labour
whose workers are unionised and others set down minimum welfare provisions
The Department of Labour is headed by a Director-General who is assisted by a Deputy
which apply to all workers, whether unionised or not
Director-General. Directors of Labour supervises the state-level labour oYces and sub-
3. Disciplinary procedures and termina'on of the employment contract
oYces. The department enforces the Employment Act 1955, the Na@onal Wages
IMPORTANT OF INDUSTRIAL RELATION Consulta@ve Council Act 2011. The Children and Young Persons (Employment) Act 1966, the
Employment (Restric@on) Act 1968, the Employees’ Minimum Standards of Housing,
 Uninterrupted produc@on
Accommoda@ons and Ameni@es Act 1990 (amended in 2019) and the Minimum Re@rement
 Reduc@on in industrial disputes
Age Act 2012. Through the Labour Court, the department inquires into disputes between
 High morale
workers and employers over payment or non-payment of wages, allowances, retrenchment
 Mental revolu@on
and other benefts due to employees under their individual contracts of employment or as
 Reduced wastage
required by the employment laws.
WHO NEEDS TO STUDY INDUSTRIAL RELATIONS? m/s 5  Department of Industrial Rela'ons
Like the Labour Department, the Industrial Rela@ons Department is headed by a Director-
a. Workers General. Repor@ng to him are a Deputy Director-General, the Director of Labour for Sabah
b. Trade union leaders and the Director of Labour for Sarawak. The two Directors report to the Department of
c. Managers Industrial Rela@ons because their respec@ve states they are responsible for both func@ons of
d. Lawyers labour and industrial rela@ons magers. Peninsular Malaysia is divided into fve regions, each
e. OYcers and execu@ves in human resource and industrial rela@ons departments with a Director of Industrial Rela@ons and a number of Industrial Rela@ons oYcers. The
department administers the Industrial Rela@ons Act 1967 and is noted for its agempts to
help segle disputes between employers and employees through concilia@on.

 Department of Trade Union AGairs

This department, headed by a Director-General, is responsible for enforcing the Trade Unions
Act 1959. This gives it a central role in the growth of the trade union movement. It has the CHAPTER TWO THE HISTORY AND CURRENT STATE OF TRADE UNION MOVEMENT IN
authority to register newly formed unions, de-register unions found breaking the law, check MALAYSIA
a union’s annual accounts and generally to inves@gate anu specifc complaints made against
a par@cular union, for example, in rela@on to the use of union funds and the elec@on of Trade Union
union oYcials.
 A union is an organization that represents employees interests to management on
 Department of Occupa'onal Safety and Health issues such as wage negotiation, disciplinary rules and working conditions.
The Department of Occupa@onal Safety and Health (DOSH) is responsible for enforcing the  It is an organization which consists wholly or mainly of workers of one or more
Occupa@onal Safety and Health Act (OSHA) 1994 and the Factories and Machinery Act 1967. descriptions.
The Department also inspects workplaces and inves@gates major accidents.
Historical Background

 First emerged in 1920s with the development of estates and mines.

OTHER KEY AGENCIES m/s 20  1920s onwards PKM, deliberately set out to develop the labor movement and
encouraged unskilled worker to unionize.
 The Employees Social Security Organisa'on (SOCSO)  The aggressive activity of the unions led employers to exert pressure on the colonial
This statutory body, repor@ng to the Ministry of Human Resources, implements the government to introduce laws which would curb and restrict the unions.
Employees’ Social Security Act 1969, which provides benefts to workers and their  First law relating to trade union were implemented in 1940.
dependents in the event of work-related accidents. It administers an insurance scheme with  In 1946, two steps in response to increased union activities:
compulsory membership for all workers. It has also been made responsible for providing o Trade Union Adviser Department was set up with the appointment of a Registrar
payment to workers who have been retrenched and oTering related re-training benefts. of Trade Union.
o Trade Union enactment was passed:
 The Employees Provident Fund (EPF)
 All trade union had to be registered.
Like SOCSO, the Employees Provident Fund is an organisa@on to which all employees and  Federation of trade unions could only be formed by unions in the same
employers must make monthly contribu@ons. This money is then made available to industry.
employees when they reach 55 years of age. The purpose of the Employees Provident Fund  Union officials had to have been employed for a minimum of 3 years in
Act 1991 is to ensure that workers are not des@tute once they re@re from work. the industry which they represented.
 The Industrial Court  Intended to limit PKM involvement within the trade unions, restrict their size and power,
and to control the union movement.
It is a specialised tribunal established under the Industrial Rela@ons Act 1967 to arbitrate  Only 1950s, the union movement was revived.
disputes between employers and employees. While it is an independent body governed by
the rules of the judiciary, it plays a crucial role in the Malaysian industrial rela@ons system.
Elements of ‘Trade Union-ness’

1. There is an organization- not just group of individuals.

2. The organizations exists to represents its members to employers, the press, the
government and the public.
3. Its primary interests are in the terms and conditions of employment of its members.
4. The organization is not controlled by the employers.
5. The organization is prepared to bargain collectively on behalf of its members with the
employers.

Reasons for joining a trade union m/s 123

Employees join trade unions:

 To improve their economic situation

Workers join unions to improve their terms and conditions of service such as their pay
and benefits. Alone, the individual worker has limited bargaining power compared with
the employer. In modern society, people need paying jobs in order to survive. There are
times when they have to take whatever they can get, albeit unwillingly. If employee is not
 satisfied with the terms offered by the employer, he is powerless in the bargaining o No employer shall refuse to employ a worker on the grounds he is a trade union
process. It is only when workers join together and form trade unions that they acquire member of officer.
strength. Workers who associate themselves with the legitimate activities of a trade o No employer shall discriminate against a worker (for example in terms of
union are given protection under the law. This gives them the power to effectively promotion) on the grounds he is a trade union member or officer.
bargain with the employer for better terms and conditions. o No worker shall be threatened with dismissal or dismissal if he proposes to join a
trade union or if he participates in union activities.
 To ensure their rights at work are protected
Workers join trade unions so that they can increase the amount in their pay packets.  Who Can Join A Union?
However, they also expect unions to protect them against discrimination by their o A person who is above the age of 16 is eligible to apply to join which is relevant
employer. Workers hope that their unions can cut across racial barriers, ensure fair to his trade, occupation or industry.
treatment for all, and minimise and eliminate unfair practices and favoritism. Workers o Under the age of 18 are restricted in their union activities – not entitled to vote
expect the union to protect them from exploitation and to protect them from unfair on:
treatment at work.  Strikes and lock-outs and all related matters
 The imposition of levy
 For social reasons  Dissolution of the trade union or of the federation with which it is
connected
Trade Union Objectives  Amendment of the rules of the trade union
 To promote the industrials, social and intellectual interests of its member.
 To obtain and maintain for its members just and proper rates of remuneration, security of  Under the age of 21 are not eligible to be elected as officers of the union unless:
employment and reasonable hours and conditions of work. o Bona fide workers
 To promote the material, social and educational welfare of its members. o Over the age of 18
 To promote legislation affecting the interests of the members in particulars of trade
unionists in general.
 Public sector – can only join unions which represent workers in the same occupation,
department, ministry, body or authority.
Implication of Definition
 Police, Prison Service, Armed Forces and those in confidential or security work- not
allowed to join unions at all.
The legal definition of “Trade Union” in the Trade Unions:
 Professional and ,managerial group in the public sector- not allowed to join unions
unless they are exempted by the Chief Secretary to the government.
1. A trade union need not be called a union.
2. Membership of a union is limited to workers working in Peninsular Malaysia, or Sabah or
Sarawak.
Employers’ Attitudes to Unions
3. Unions of a general nature are not permitted.
4. Employers and employees both have the right to form and join unions but must be
a. Conjict or open hos@lity
separated from each other.
5. Must conform to all legislative requirements of a trade union. In Malaysia today, there are some employers who are prepared to use a number of tac@cs, some

Membership of a Trade Union of which may be illegal, to prevent their workers from joining unions. They consider unions to be
a “third party” intervening in the worker-employer rela@onship. These employers may believe so
Right To Form and Join Union:
strongly in their stand against unionisa@on that they will openly inform the workers that they
 IRA section 5
would rather close down the business than allow union interference in running their business
o Workers in Malaysia have the right to form and join trade unions (freedom of
association).
 The workers also have the right not to join a trade.
b. Controlled hos@lity
 Industrial Relations Act (Section 5) states that: The employer recognises that employees have the right to form and join unions. However,
o No employer shall prevent a worker from joining a union by putting a condition in
his contract of employment. discreet agempts are made to discourage workers from joining and being ac@ve in a union. Such

ac@on, if proven, would amount to interfering with the legi@mate rights of workers and is an CHAPTER 3 THE EMPLOYMENT RELATIONSHIP
oTence under the Industrial Rela@ons Act
The Employment Contract Page24

c. Accommoda@on  Contract of Service

This amtudes is one of realism. The employer is prepared to compromise with the union, o Is an agreement between an employer and an employee
o Any agreement, whether oral or in writing and whether express or implied,
tolerate it and be as reasonable as possible. This is a fairly typical amtude of most large whereby one person agrees to employ another as an employee and that other
agrees to serve his employer as an employee and includes an apprenticeship
companies today
contract

 Contract for service and Contractor for labor

d. Coopera@on o An independent contractor, such as a self-employed person or vendor, is
The management works closely with the union to promote the welfare of the organisa@on. Joint engaged for a fee to carry out an assignment or project
o contractor for labour means a person who contracts with a principal, contractor
eTort is seen as essen@al for the survival of the enterprise or sub-contractor to supply the labour required for the execution of the whole or
any part of any work which a contractor or sub-contractor has contracted to carry
out for a principal or contractor, as the case may be;

Contract for labor Sec 33 EA

Creating a Non-union Environment  Obligation of Wages under shared service organization (SSO)
o Section 33 Liability of principals and contractors for wages
There are some positive steps to reduce or eliminate the workers from joining unions:  The principal employer has obligation to pay wages toward the employee
when the employer unfulfilled their obligation for more than the wages
 Pay higher wages due to him for any three (3) consecutive months
 Give better benefits  i.e: UiTM is a principal employer toward cleaner contractor, therefore
 Involve employees in all levels of decision making and effectively implement an open- UiTM have an obligation to pay the wages at least for 3 months if their
door policy immediate employer fail to comply
 Offer training, development and a measure of security of tenure
 Develop a climate of trust and loyalty in the organization. The Employment Relationship

 The right of employers and employees and their respective unions is guaranteed by the
IRA 1967.
 IRA 1967 Section 4:
o The right to form and assist in the formation of a union
o The right to be a member of a trade union
o The right to participate in any lawful activities organized by a union

 The IRA 1967 also provided the responsibilities of employers and employees
o General Responsibilities
 Both the employers and employees must strictly adhere to the stipulated
laws and procedures and to carry out their duties as spelled out in these
laws and procedures

o Specific Responsibilities
 IRA Section 44 (1) provided specific prohibitions
 Prohibitions to employers
 Prohibitions to employees
Prohibitions to Employers CHAPTER 4 REGISTRATION FOR TRADE UNION

 IRA 1967 Section 5: Registration for Trade Union

o No employer may do any of the following:
 Impose any condition in contract of employment seeking to restrain the 1. Every trade union is required to apply for registration from the DGTU within 1 month
right of a person to join a trade union or to continue his membership from the date of its establishment.
 Refuse to employ any person on the ground that he is or is not a member  This period may be extended at the discretion of the DGTU but it must not
or an officer of a trade union exceed 6 months (TUA 1959, Section 8).
 Discriminate against any person in regards to employment, promotion,
any condition of employment or working conditions on the grounds that he 2. The application for registration must be signed by at least 7 members, which is also the
is or is not a member or an officer of a trade union minimum number needed to form a union.

 Dismiss or threaten to dismiss a workman injure, or threaten to injure him in his 3. Application must be accompanied by the required fees and a printed copy of the rules or
employment or alter or threaten to alter his position to his prejudice for any of the constitution of the union.
following reasons:
o That he is or proposes to become a member or an officer of a trade union 4. The 7 members must signed the prescribe forms that require details on:
o That he seeks to persuade any other person to become a member or an officer  Name the trade union and address of its head quarters.
of a trade union  Name, addresses and occupations of those members making the application.
o That he participates in the promotion, formation or activities of a trade union  Names, ages, addresses and occupations of union’s officers.
 A printed copy of the rules or constitution of the trade union.
 Induce a person to refrain from becoming or ceasing to be a member or an officer of a  Other information ad required by the DGTU:
trade union by offering, conferring or procuring any advantage for any person o Copy of the minutes of the inaugural meeting.

 IRA 1967 Section 7: 5. Failure to apply for registration in due time or if the registration is refused, withdrawn or
o A worker or trade union of workmen or its agent is prohibited from carrying out cancelled:
the following activities: i. The trade union is considered to be an unlawful association.
 Persuading at the employer’s place of business, during working hours, ii. Members are forbidden to participate, promote, organize or finance any strike or
another worker to join or to refrain from joining a trade union except with lock out.
the consent of the employer iii. The trade union has to be dissolved and all of is funds disposed in accordance
 Intimidating any person to refrain from becoming or to continue to be or with the rules (TUA 1959, Section 19).
to cease to be a member or officer of a trade union
 Inducing any person to refrain from becoming or to cease to be a  The DGTU will REFUSE registration in the following circumstances:
member or officer of a trade union by conferring or offering to confer on i. If any of the union’s objectives are unlawful
any person any advantage ii. If any part of the union’s constitution conflicts with the TUA.
iii. If the name of the union is undesirable or identical to another already
existing, or if the name is deceiving.
o If he is satisfied that there is in existence a union representing workmen
in that particular trade, occupation or industry.
iv. If the union is likely to be used for unlawful purposes.

Power Of DGTU Towards Registered Union

 DGTU is also empowered to withdraw and cancel or deregister a union’s registration

on the following grounds:
1) On the union’s own request.
2) The certificate of registration was obtained through fraud.
3) The objects or rule of the trade union is contrary to the law.
4) If the constitution of the union or of its executive is contrary to the law.
5) If the union was used, is being used or will be used for purposes contrary to
the law or to the rules and regulations of the union itself.

6) If the union has broken the provision under TUA or any rules and regulations
as provided under TUA or any rules and regulations of union or formulate any  Unions in Malaysia may be categorized as follows:
rules and regulations that is contrary to that provision and continuously being i. Public sector unions.
enforced. ii. Private sector unions.
7) If the union funds is used illegally or for purposes which is contrary to the o National unions.
law or to the rules and regulations of the union. o In-house unions.
8) If the union is no more in existence. iii. Employers unions.
9) If there is more than one union registered in the particular trade, DGTU can
cancel the certificate of registration of union with lesser members (TUA 1959, Public Sector Unions
Section 15).
 Consists of the civil service, statutory bodies and local authorities.
Union Funds  Can form and become members of a union either in the same ministry department or
occupation.
 Unions funds can only be used for paying of:  Discussion regarding wages and other compensations is done at the national level
 Expenses related to salaries for employees of the union. through Congress of the Unions of Employees in the Public and Civil Services
 Expenses related to the upkeep of an office. (CUEPACS).
(ex: Buy computer, stationery)  Not involved in CB.
 Expenses related to the settlement of a trade dispute.  Examples: National Union of the Teaching Profession (NUTP), Malayan Technical
 Compensation to members for losses arising out of trade disputes.( ex: Services Union
strike allowance)
 Allowance to members and their families on account of death, old age, Private Sector Employees’ Unions
sickness, accident or unemployment
 Expenses related to the publishing of a newsletter  Either National or In-house union.
 Expenses related to the organization of social, sports, educational and  Consists of workers that fall within the same or similar occupation, trade or industry.
charitable activities for members.  Have the right to bargain on matters pertaining to wages, allowances, compensations
and others.
 Unions are required to submit annual, audited accounts to DGTU for checking – failure  Have the right to take industrial actions such as picket, strikes and other actions as
would lead to de-registered (TUA 1959, Section 15). provided by the law.

Union Executives  National Unions:

o Attempt cover all workers in the same industry, trade or occupation.
 Led and managed by executives elected by the members at biennial or triennial o Sophisticated structure with regional branches and committees.
conferences. o Geographically limited.
 Confined to Malaysian citizen who had been employed for at least 1 year in the related o Ex: National Union Of Journalist (NUJ),
trade.
National Union of Banking Employees (NUBE)
 May not be chosen from:
 Those who are office bearers or employees of a political party,
 In- House Unions:
 Have been convicted of any criminal offences, or
o Formed in an organization for the benefit of workers who work in that particular
 Have been adjudged bankrupt.
organization.
 Members are all employed by the same employer.
Union Employees
o Workers from other organization are not allowed to become members.
 Most of bigger trade unions employ full-time staff to run the daily business of the union. Ex: Malaysian Airlines Employees Union, UMW Employees Union,
 Confined to Malaysian citizen reside in either Peninsular Malaysia, Sabah or Sarawak. Alam flora Employees Union, Proton Employees Union
 May not be chosen from:
 Those who are office bearers or employees of a political party, o Disadvantages of in-house:
 Have been convicted of any criminal offences, or  Weak as membership is limited.
 Those who are officer or employees in other trade unions. In-house unions are generally weak because membership is limited and
confined to workers in one particular company
 Exploitation by employers.
Types Of Unions
 The leadership of such unions must be chosen from the small number of o To negotiate and deal with trade unions of employees.
members which may give rise to the possibility of the employer trying to o To represent members in any trade disputes.
exploit such leaders
 Financial strength.
The union’s financial strength will not be enable it to carry out its normal
trade union activities
 Victimization among union leaders.
Fear of victimization among union leaders, particularly in relation to
promotions, termination of employment, transfers and assignment of
duties which are management prerogatives
 Capability of promoting social benefits.
In-house unions with small membership will be unable to provide
scholarships and other social benefits for their members
Structure of Unions

 Most of the national trade union have works committee in each company where they
have members.
 Committee of union elected by the members responsible for liaising with the
management on behalf of the members and gather information on member’s problems
and grievances to be passed up the union hierarchy.
 Geographical region will form a branch and will elect a branch committee to run the
branch if the union is large enough.
 At national level, executive council (the officials of the union) elected by the members
at a national delegates conference.
o Decide on policy matters and ensure the efficient running of union’s business.
 The size of the executive council will depend on the structure and the constitution of the
union.
o If it has branches, representative of these branches will sit on Executive Council.
o i.e: NUBE & Transport Workers Union (Refer text book)

 *Refer Figure 5.3 Structure of national unions

Affiliation to Other Bodies

 Trade unions in Malaysia are permitted to affiliate to other bodies, both within and
outside the country.
 However, affiliation to foreign bodies requires permission by DGTU.
 Many unions join MTUC to get support and advice.
 There are also unions who affiliate with oversea organizations.
o *Refer textbook for the example

Employers Unions

 Consists of a united group of employers formed to achieve various objectives of which

one of the objectives is to establish a mutual policy in bargaining with the worker’s union.
 *Refer examples in textbook
 Ex: Malayan Agricultural Producers’ Association (MAPA), Association Of
Insurance Employers (AIE).
 Strengthens bargaining power:
o Promote and protect the interests of members.

CHAPTER 5 RECOGNITION OF TRADE UNION Recogni@on of Trade Union

Recogni@on of Trade Union

 Recogni@on by the individual employer is important where the union is accepted as the
righoul representa@ve of his workers and has the right to speak on their behalf.
 Recogni@on is the star@ng point for collec@ve bargaining.
 No recogni@on means the union cannot commence collec@ve bargaining as well as to
enhance harmonious industrial rela@ons.
 A trade union can be represent either a white collar workers or a blue collar worker.
 It cannot be represen@ng both at one @me (IRA Sec@on 9).
 A wrigen applica@on must be made in prescribed form as required under IRA Sec@on
9(2) to the employer claiming recogni@on.
 The employer must reply within 21 days aper receiving the claims.
 The employer can either decide:
o To accord recogni@on.
o To refuse recogni@on with reasons given.
 (Union has 14 days to report to DGIR for further ac@on and if not, the
recogni@on applica@on has been withdrawn)
o To request DGTU to verify whether the union is the correct union for his industry
and whether the workers are member of the union.

 If employers fail to respond within 21 days, trade union can submit a wrigen report to
DGIR. Recogni@on of Trade Union
 Minister of Human Resources has the power to decide whether or not the union should
Recogni@on of Trade Union be recognized.
o Based upon recommenda@ons of DGIR and DGTU
 Find out the percentages of the workers concerned belong to the union.
 If more than 50% of the eligible workers in the organiza@on belong to the
union, the Minister will order recogni@on.

 DTU uses 2 methods:

o Membership check
 Company to furnish a name list of eligible employees.
 Union to provide a list of paid-up members in the company.
 Checked one against the other.

o Secret ballot
 DTU visit the place of work, assemble the workers together and distribute
ballot papers.
  Prohibi@ons during recogni@on:
o Workmen are prohibited from declaring pickets and strikes pending the
recogni@on applica@on.
o Pickets and strikes are forbidden not only during the proceedings for recogni@on
but also aper a decision was made by the minister rela@ng to recogni@on.
o Employers also are forbidden from declaring lock-outs and termina@ng the
services of the workmen during specifed period except termina@on under
disciplinary reasons (IRA Sec@on 10(1)(2)).

 Implica@ons of recogni@on:
o Once recogni@on is accorded to a trade union, no other trade union represen@ng
the same workers or class of workers can apply for recogni@on within a 3 years
period from the day recogni@on was accorded.
o However, the limita@on is waived if the union accorded with recogni@on cease to
exist within the s@pulated period.
o If the applica@on for recogni@on is rejected, the par@cular union can only reapply
for recogni@on aper 6 months from the date of rejec@on.

2 Type of Recogni@on

1. General Recogni@on:
o Where the union represents majority of the workmen, the trade union is en@tled
to make representa@on, in addi@on to the above general ques@on of terms and
condi@ons of service on behalf of all workmen, whether or not they are members
of the trade union

2. Limited Recogni@on
o Where the union represent a minority of the workmen, it en@tled to make
representa@on on individuals grievances and to nego@ate on behalf of its
members only.

De-Recogni@on?
 Union which has been granted recogni@on by an employer cannot have the that
recogni@on taken away.
 There is no0 legal provision for de-recogni@on as there is for de-registra@on.
 If a worker wants to join another union they can request recogni@on for this union aper
three years elapsed from the gran@ng of recogni@on to the frst union.
o (inter-union bagles, between na@onal union and in-house union.)
 DGTU has the power under TUA Sec. 15 to cancel the registra@on of the union which
does not have majority support or to issue an order requiring the union to remove from
its membership list who are not anymore belongs to the uinion.

CHAPTER 6 COLLECTIVE BARGAINING 1) The union can represent individual members who have grievance/complaint.
2) The union can nego@ate for beger terms and condi@ons on behalf of all workers in the
Deciding terms & conditions of service workplace.
 Wages and other terms & conditions of service can be decided upon:
o Unilaterally, by the employer Managerial Preroga@ves
o Bilaterally or jointly by the employer and the representatives of employees  However, there are issues the employer refuses to bargain which include:
o Bilaterally, but with controls established by the state o The promo'on by an employer of any workmen from a lower grade or category
to a higher grade or category.
 When workers belong to a trade union, they gain the right to decide upon terms & o The transfer by an employer of a workmen within the organiza@on.
conditions of service jointly with the employer through the process of collective o The employment by an employer of any person that he may appoint in the event
bargaining. of a vacancy.
 The outcome of collective bargaining is a collective agreement. o The termina'on by an employer of the services of a workmen by reason of
redundancy.
Collec@ve Bargaining
o The dismissal and reinstatement of a workmen by an employer.
 IRA defnes Collec@ve Bargaining (CB) as nego@a@ng with a view to the conclusion of a
o The assignment or alloca'on by an employer of du@es or specifc tasks to a
Collec@ve Agreement (CA).
workman.
 The rights of the workmen to bargain collec@vely with the employer on terms of
employment and condi@ons of work as well as to collec@vely withhold labor to back up
Bargaining Levels
the process of CB.
 Collective bargaining may be conducted:
o At industry level whereby employer’s union and national employees’ union
Pre-Condi@ons
negotiate
 For eTec@ve bargaining: o At company level whereby employer negotiates with national employees’ union
1. Workers must have the right to form collec@ve associa@ons: o At company level whereby employer negotiates with in-house employees’ union
 Workers must have the right to form the join trade unions.
 The right to form and join is indicated in the IRA 1967 (Sec@on 5).
Collec@ve Bargaining Procedure
 Trade union ac@vity is legal within the limita@on set by the law.
 CB could not take place without this right.

2. Unions must have bargaining strength:

 Recognized by the employer.
 Has adequate fnancial strength.
 Members are united.

Recogni@on of Trade Union

 Recogni@on by the individual employer is important where the union is accepted as the
righVul representa've of his workers and has the right to speak on their behalf.
 Recogni@on is the star@ng point for collec@ve bargaining.
 No recogni@on means the union cannot commence collec@ve bargaining as well as to
enhance harmonious industrial rela@ons.

1. Step 1
Advantages of Recogni@on
 Trade union submits in wri@ng a proposed collec@ve agreement to an employer
and invites the lager to begin nego@a@ons
2. Step 2
The employer must reply to the invita@on within 14 days
3. Step 3
If the employer agrees to begin nego@a@ons, the frst bargaining session must
start within 30 days of the agreement or employer may refuse to nego@ate, in
which case a trade dispute is deemed to exist and the union may inform the
Director General of Industrial Rela@ons and request concilia@on
4. Step 4
If it is agrees to begin nego@a@ons, the agreement will be put in wri@ng and
signed by both par@es, aper which it must be deposited with the Industrial Court
within one month of it being signed. The Industrial Court taking cognizance
where the func@on is to check through the agreement to ensure that it complies
with the law
5. Step 5
Once the collec@ve agreement has been given cognizance, it becomes a binding
document enforceable by the Industrial Court

Con@nue Collec@ve Bargaining Procedure

Bargaining Team
 Membership of bargaining team will vary depending on the situa@on.
o Will be responsible for all prepara@on prior to nego@a@ons and during
nego@a@ons.
 What are the characteris@cs of eTec@ve nego@ator?

Prepara@on for CB
 Prior to commencement of negotiations, both parties will:
o decide who shall represent them
o collect information about the other party’s strengths and weaknesses
o collect economic data
o get a mandate from their principals
o decide on strategies and tactics
Collec@ve Bargaining is Con@nuous Procedure

Collec@on of Informa@on 192

i. Know the opposi'on
o Financial strength.
o Total membership.
o Power structure and personality of union leaders.

CHAPTER 7 COLLECTIVE AGREEMENT

Collec've Agreement
o Any internal problems.
 An agreement between trade union of employees and the employer/employer union
ii. Economic condi'on  According to IRA (1967):
o The union demands will depend on the fnancial capacity and proftability of the o “collec@ve Agreement” means an agreement in wri@ng
company. o Concluded between a trade union of workmen on one hand and a trade union of
o Need to analyze recently signed agreements in comparable companies and employers/employer on the one hand during Collec@ve Bargaining process
industries. o Rela@ng to the terms and condi@on of employment and work of workmen or
o Collect informa@on on the Consumer Price Index (CPI). o Concerning rela@ons between such par@es

Objec@ves, Strategies and Tac@cs

 Objec@ves, strategies and tac@cs of Nego@a@ons/Unions. Take cognisance by Industrial Court
 Objec@ves, strategies and tac@cs of Employers.
 For the IC recognize a CA as a binding and valid document, it must fulfl certain condi@ons
(take cognisance):
a. It must name the par@es to the agreement
b. It must specify dura@on of the agreement, which cannot be less than 3 years
c. It must include a procedure for modifca@on and termina@on of the agreement
d. It must specify the procedure to be used to segle any dispute over the
interpreta@on and implementa@on of the agreement
e. It must not include items of managerial preroga@ves

 The may require the signatories(Employees trade union and employer) to amend the
agreement if it does not comply with the requirements of law
 Once accepted, it becomes an award and binding on both par@es
 The Industrial Court may require the signatories (Employees trade union and employer) to
amend the agreement if it does not comply with the requirements of the law
 Once the Collec@ve Agreement have been accepted by the Industrial Court, it becomes an
award and binding on both par@es

Items in Collec@ve Agreement 202

 Items to be considered:
o A clause which states that any current agreement will remain in force un@l a new
agreement is signed
o Signed supplementary memoranda with a covering leger sta@ng that they are meant
to be read together with the CA
o Simple and unambiguous wording
o Language used must be understandable – which oYcial version to be used

 Items to be included:
o Recogni@on
 Name of employer accept the CA which usually appear in the beginning of
CA
  Its purpose is to iden@fy the union that is recognised as the bargaining
representa@ve and to describe the scope of the agreement
o Union security – include check-oT clause CHAPTER 8&9 TRADE DISPUTES AND INDUSTRIAL ACTION
o Compensa@on and benefts
 Employers and union are encouraging to link wages with produc@vity Grievance
 Grievance is an individual employee’s complaint.
o Exis@ng benefts  Any factor involving wages, working hours or condi@ons of employment that is used as a
 Include the clause in the agreement which states: “All other exis@ng benefts complaint against the employer.
and prac@ces not herein covered in this agreement shall con@nue to be  The best way to handle grievance is to create a conducive work environment that will
inforce” not promote dissa@sfac@on among employees.
o Procedures  Grievance will lead to dispute only when union is willing to represent the worker.
 Internal adver@sing for job pos@ng
 Disciplinary and dismissal Grievance Procedure
 Processing grievance (complaint) (Ex: Na@onal Union of Petroleum and Chemical Industry Workers)
 Consulta@on on workforce issues
 Claims of sexsual harassment 1. Step 1
o If the employee fails to obtain sa@sfac@on from immediate supervisor/ oYcer, he
may approach his manager, and if he so desires, a union branch oYcial
o If the employee s@ll fails to obtain sa@sfactory resolu@on within 5 working days,
he may refer his grievance in wri@ng, either directly or through union, to the
Personnel Manager.
2. Step 2
o If the mager is s@ll not segled within a further 7 working days, the union’s
branch shall make representa@on in wri@ng to the General Manager or his
appointed deputy. The GM or his deputy will then arrange a mee@ng within 10
working days aper received the leger.
3. Step 3
o If the mager s@ll not resolved aper this mee@ng or any further mee@ng which
both par@es may agree to hold, the Union may make a formal representa@on to
the company in wri@ng through General Secretary within 10 working days of the
date of fnal mee@ng at this level.
o Upon receipt of the Union’s leger, the company will oTer to make arrangement
for a mee@ng between the company and the union which will be agended by
senior oYcials of the Company and the union and the mee@ng should be held
within 10 working days aper received the leger.
4. Step 4
o If mager s@ll remains unresolved aper this mee@ng or any further mee@ng which
both par@es agree should be held, both par@es agree to refer the dispute for
seglement under the provisions of the IRA.

Trade Disputes
 According to IRA 1967, trade disputes is defnes as:

“Any dispute between an employer and his worker which is connected with the employment or
non-employment or the terms of employment or the condi9on of work of any such
worker”

 Picke@ng are common, but rarely give impact to the economy – as it take place usually
 For a trade dispute to exist, the workers must be members of a trade union. outside working hours & does not directly aTect the output of the workers.
 Trade disputes may concern:  Picke@ng is not permiged – once a trade dispute has been referred to the Industrial
o A grievance of an individual worker, or Court for arbitra@on.
o A group of workers who are not sa@sfed with their terms and condi@ons of
service
 For a trade dispute to exist, the employee or employer concerned must be represented  Condi@on on holding a picket:
by their union. o A picket must not obstruct the entrance or exit to the workplace
 Dispute regarding to employee’s reinstatement, the employee do not have to be o A picket must be peaceful
represented by a trade union. o Not in@midate anyone
o Only workers directly involved in the dispute can par@cipate
 Trade disputes are also known as industrial disputes. Could be caused by:
1) An individual who has grievance and is represented by his union and who has  No police permit is required for a picket neither they can be dispersed by the police –
exhausted the grievance procedure without gemng a sa@sfactory results. picket is a legal ac@vity
2) A diTerence of opinion between a union and an employer as to the appropriate  A workman found guilty of non- compliance is liable to:
terms and condi@ons of service for the workers. o Fine of not exceeding RM1000.00
3) A diTerence of opinion as to the interpreta@on of a CA or IC award. o Imprisonment of not exceeding a year
4) The non-implementa@on of an agreement or award. o Or both (IRA 1967, Sec. 40 (3))

 When a trade dispute exists, a trade union may take industrial ac@on to force an Strikes
employer to give in to its demands.  Sec@on 2 of IRA defned strikes as the cessa@on of work by a body of workmen ac@ng in
 Industrial ac@on by a union of employees may be in the form of: combina@on, or a concerned refusal or a refusal under a common understanding of a
o Boycog number of workmen to con@nue work or to accept employment, and includes any act or
o Sabotage omission by a body of workmen ac@ng in combina@on or under a common
o Work-to-rule understanding, which is intended to or does result in any limita@on, restric@on,
o Taking sick leave or emergency leaves at the same @me reduc@on or cessa@on of or dilatoriness in the performance or execu@on of the whole or
o A picket, and/or any part of the du@es connected with their employment
o Strike  In brief, strike is any stopping of work by a group of workers including any agempt to
limit or slow down produc@on on purpose.
 However, the only form of industrial ac@on recognized by the law is:  Members of a registered trade union have the right to strike in the event of a trade
o Strike dispute.
o Picket  For a strike to be legal, it must comply with the requirements laid down in the Industrial
o Lockout (for employer) Rela@ons Act and the Trade Unions Act.
 Strikes not only need the workers to stop working, it can also take place when a
Picket reduc@on of output occur such as:
 Picket can be conducted by one or more workmen at or near the place where the o Slow down
workmen work and where a trade dispute involving such workmen exists. (IRA 1967, o Work slow
Sec. 40) o Work-to-rule
 Members of a registered trade union have the right to picket at or near their workplace  Only members of a registered trade union have the right to strike
when a trade dispute occurs.  A trade dispute must exist in order for workers to have the right to strike
 Picke@ng is commonly the frst agempt at industrial ac@on taken by workers.  Sympathy strike, poli@cal or general strike & wildcat strike – illegal
 Open held at lunch @me and before/ aper working hours. o Sympathy strike – a group of workers who are not involved in a trade dispute go
 Used to communicate issues to the public and to embarrass the employer. on strike to show support
 o Poli'cal or general strike – strike aimed at the government  Failure to follow the required procedures is a serious oTence for which individuals as
o Wildcat strike – strike called without taking any ballot or follow strike procedure well as any trade union involved could be prosecuted.

Strikes Procedures
 Prior to strike ac@on, the workers need to followed these condi@ons:
1) The employees must be members of a registered trade union.
2) The employees must have a trade dispute with their employer.
3) The employees who have a trade dispute must take a secret ballot before they go
on strike. The strike is only permissible if two-thirds (2/3) of the union members
concerned vote for the strike ac@on.
4) The result of the secret ballot must be sent to the director General of trade
Unions (DGTU) within 14 days of taking ballot.

o The employees must wait for at least 7 days aper sending the result to Strikes in Essen@al Services
the DGTU before commencing the strike (cooling oT period).
o The secret ballot is only valid for 90 days.
5) If the dispute is referred to the IC for arbitra@on (aper the breakdown of
concilia@on talks), the strike ac@on must be cancelled.

 The ‘cooling oT’ period is intended to allow:

o DGTU @me to check the validity of the ballot
o Union members to rethink about their decision
o The employer for second thoughts
o The Minister of Human Resources to interview and refer the dispute to the IC.
Strike is prohibited in any of the following circumstances:
 Role of DGTU in strike:  If no secret ballot from the total numbers of members was done. The result has to show
o TUA Sec'on 40 (6): a 2/3 consent to the strike.
• DGTU can instruct the trade union not to carry on with the proposed strike/  If it is conducted within the 7 days of cooling-oT period aper submimng the results to
lockout if he sa@sfed that the proposed strike/ lockout if launched would the DGTU.
contravene the trade union ordinance or any other wrigen law.  If it does not follow the requirements set in the TUA.
o TUA Sec'on 40 (8):  If it is conducted during and 7 days aper the proceeding of a BOI appointed by the
• DGTU may inspect the secret ballot and retain it for certain period as he Minister.
deem necessary.  If the dispute has been referred to the Industrial Court.
o TUA Sec'on 40 (9):  If the trade dispute is concerning magers of Managerial Preroga@ves.
• DGTU can declare the secret ballot invalid if he found that the trade union  If the magers of dispute are covered in the CA.
has contravened any related provisions of TUA.  If YDP Agong has refused permission for a trade dispute in the public sector to be
referred to the IC for arbitra@on.
 In prac@ce, nearly all disputes not segled at concilia@on are immediately referred to the
Industrial Court. If the strike is due:
 Thus, while it is possible in theory for employees to go on strike legally, it is very rare for  To poli@cal purposes.
this to happen because of the procedures laid down in the law.  To sympathy with other employees.
 Wildcat strike or lightning strike

 THE STRIKE IS UNLAWFUL  Solu@on arrived through mutual decision by both par@es without
involvement by 3rd party.
Lockout  For example, a collec@ve agreement must include a grievance procedure,
 Sec@on 2 of the Industrial Rela@ons Act defnes a lockout as the closing of a place of where a method the par@es can use to segle any dispute arising out of
employment, the suspension of work, or the refusal by an employer to con@nue to the implementa@on of the agreement
employ any number of workers employed by him, in furtherance of a trade dispute,  No concilia@on can be imposed un@l the par@es have failed in their
done with a view to compel those workers to accept terms or condi@ons of work or agempt in direct nego@a@on.
aTec@ng employment
 Lockout is similar to strike except that it is an industrial ac@on taken by the employer ii. Concilia@on
against the employees.  Concilia@on is the process of arriving at a seglement of a trade dispute
 Employer closes the place of employment or suspend the employees’ work or refuse to with the help of a 3rd, neutral party
con@nue to employ the employees employed.  In trade disputes, concilia@on is carried out by oYcers of the Department
 Lockout can only take place in furtherance of a trade dispute with the inten@on to make of IR.
the employees accept the terms or condi@ons of employment.  Concilia@on can be voluntarily requested by either of the dispute par@es
 Lockout is the employer’s weapon to force employees to accept terms and condi@ons of or Director-General of Industrial Rela@ons which known as compulsory
employment. concilia@on.
 Lockout can be declared either by an individual employer or by a trade union of  The conciliator will meet the par@es either separately or jointly and help
employers. the par@es arrive at a compromise which is acceptable to both sides.
 The procedures and restric@ons that need to be followed by the employer are actually  Conciliator has no authority to insist the par@es to accept any
similar to those found in strikes. recommenda@on and only can advise.

Penal@es for Illegal Strikes iii. Media@on

 Workers involved may be dismissed  Media@on is a rela@vely rare method of segling a trade disputes and it is
Employers have the right to dismiss workers who par@cipate in an illegal strike, and they not men@oned in the employment law but occasionally used.
commonly make use of this right  Media@on is similar to concilia@on but mediator is not usually from the
 Workers may be removed from union membership roll by order of DGTU government, but considered unbiased, impar@al, respected and trusted
Members of a union who par@cipate in any illegal strike ac@on can be struck oT as by both par@es.
members of the union and they are not eligible to rejoin the union or any other union  A poli@cian or other local leader may intervene in a dispute at the request
without the express permission of the Director-General of Trade Unions of the par@es and he or she may be able to bring about a seglement
 Workers involved may be penalized under Internal Security Act (ISA)  For the par@es to engage a professional mediator who has knowledge of
Illegal strikes risked being penalized under the ISA which allowed imprisonment for an industrial rela@ons and has suYcient skill to be able to bring the par@es
indefnite period without beneft of trial if a person was believed to be a security risk to meet face-to-face and explore crea@ve solu@ons to their dispute
 Union leaders may be Bned and/or imprisoned  Both par@es need to pay for the services of a mediator whereas
If a trade union is found to be involved in illegal strike ac@vity, the execu@ves can be concilia@on is provided free by the Department of Industrial Rela@ons.
fned, imprisoned, or both
 Union may be dissolved iv. Arbitra@on
 When the dispu@ng employer and union cannot fnd a solu@on by
Seglement of Trade Disputes themselves with help of Department of Industrial Rela@ons, arbitra@on
 There are 4 methods for segling disputes: may be the only way to segle the dispute.
i. Direct Nego@a@on  In arbitra@on, an impar@al third party is given the authority to segle the
 The ideal method for segling disputes where two par@es involved disputes by examining the informa@on given by both sides and making
(employer and union) are willing to come together for discussion un@l a judgement which is Industrial Court where it is only has the power to
sa@sfactory compromise is reached. arbitrate labour disputes.
 CHAPTER 10 INDUSTRIAL COURT

INTRODUCTION

 The Industrial Court Ordinance of 1948 provided that a tribunal could hear disputes at the
request of the par@es involved.
 In 1965 the Industrial Arbitra@on Tribunal was set up to deal with disputes in essen'al
services.
 The present IC was established by the IRA 1967 as a successor to the Industrial Arbitra'on
Tribunal and the Arbitra@on Court.
 IC is highly specialized and deals only with trade disputes.
 Does not have powers to hear any other types of cases.
 The IC’s powers – clearly laid out in the IRA.

PURPOSE & OBJECTIVE OF IC

 To provide a peaceful & unbiased means of sebling disputes between employers &
employees.
 To carry the func@on of arbitra'on.
 Not only play major role in resolving concicts, but also eTec@vely prevents concict from
escala'ng.
 Once a dispute has been referred to IC for arbitra@on, industrial ac'on becomes illegal (IRA
Sec@on 44).
 Major role – segling employment-related disputes.

STRUCTURE OF IC

 Head
o Headed by a President (appointed by the Agong)
o Must have at least 7 years of experience as a lawyer before his appointment (IRA)
o Or he must be a member of judicial service
 Cases in which a TU is involved are heard by:
o The President or one of the chairman
o 2 member panel – represen@ng employers & employees respec@vely
 Panel’s members
o Appointed by the court President aper consulta@on with relevant organiza@ons
(MTUC & MEF)
o This bodies submit lists of persons considered suitable to sit on the panels
o The President empowered to choose from the lists
o In the case of complaint of unfair dismissal, the President or Chairman can sit alone
without a panel

COURT PROCEEDING

 IC has the power to call witnesses & documents when necessary.

 The usual manner:

i. Before hearing – the par@es to a dispute are required to submit a wrigen summary o On occasion, par@es involved in CA unable to agree as to coverage or scope of the
of their argument (pleadings). agreement. As example employer wish to exclude temporary and casual employees.
ii. During hearing 7. Bonus.
1. Each party is given the opportunity to orally present its version of the events o Bonuses can be either contractual or non-contractual. It based on Flexi-wage system
leading to the dispute. or on annual basis.
2. Introduce witnesses & documents to prove its case. 8. Salary increases.
3. Each party is permiged to cross-examine witnesses from the other side. 9. Managerial preroga'ves.
iii. Aper hearing – the Court adjourns to make decision, which will be wrigen up (the 10. Reduc'on of exis'ng beneBts.
decision is known as an award of the Court). 11. Interpreta'on of CA or awards.
 Occasionally, hearing will held ex parte: 12. Complaints of non-compliance.
o If one of the par@es does not turn up in court & the court is sa@sfed that the party
concerned was well aware of the hearing date, the case will be heard even though
that party is not present.

AWARDS OF IC

 Awards – decisions of the Court.

 The awards are binding on the par@es involved.
 When making an award- the Court does not have to agree with the demands of either party
but is empowered to make its own decisions.
 Awards are not only binding but are also fnal – cannot be challenged or appealed.
 According to Sec'on 56 IRA 1967, any party who does not comply with terms of an award is
guilty of an oTence, and if convicted can be fned or jailed.
 However, at the discre@on of the Court, ques@on of law can be referred to the High Court.

JURISDICTION OF THE COURT

1. Claims for reinstatement.

o An employee who has been dismissed can lodge a claim for reinstatement with the
DGIR within 60 days of his dismissal (Sec 20 IRA 1967)
2. Court’s power in claims of dismissal without just cause or excuse.
3. The court and claims rela'ng to retrenchment.
o The court’s role is to ensure that any retrenchment exercise is carried out as fairly as
possible.
o Retrenchment is a management preroga@ve and not bargain able issue but however
it can cause a trade dispute between a union and an employer, or it can lead to a
complaint by an employee under Sec 20, IRA 1967.
4. Code of conduct for industrial harmony.
o In brief the code requires frst that retrenchment as the last resort and recent years,
many organiza@ons have introduced Voluntary Separa@on Schemes (VSS).
5. Trade disputes.
o Court arbitrates on trade disputes where:
 An individual worker has a grievance and is represented by his union; or
 A union, represen@ng the workers in a par@cular company, has a dispute
with an employer over terms and condi@on of service.
6. Scope of a CA.
CHAPTER 11 THE LAWS AND PRACTICE RELATING TO TERMINATION OF EMPLOYMENT Disciplinary Ac@on
 Employers have the right to take disciplinary ac@on against employees whereby lead to
Principle of Natural Jus@ce dismissal of employee or imposi@on of some other punishment.
 The principles of natural jus@ce concern procedural fairness and ensure a fair decision  Employers should take disciplinary ac@on in either two (2) situa'on:
imposed on persons or bodies ac@ng in a judicial capacity. i. Workers disobey rules set by employer/ behavior is unacceptable i.e. commit
 In the event of a hearing taking place or a decision being reached which breaches the misconduct.
principles of natural jus'ce, the person charged may seek a review of the hearing ii. Worker’s job performance fails to meet reasonable standards.
and/or decision in the courts.  Disciplinary ac'on for unsa'sfactory performance
i. No DI is necessary. Employee must be warned, and given @me to improve.
 There are common law rules are referred to in rela@on to natural jus@ce or procedural Employer should provide assistance so that employee can improve.
fairness:
i. Rule of hearing Both sides General Guidelines on taking Disciplinary Ac@on
a. Employees has right to know of what he is accused 1. It should be given in private
 Must be presented with a wrigen charge sheet which lay out the No worker likes to be embarrassed in front of his colleagues. Therefore, any disciplinary
nature of the misconduct which the employee has allegedly ac@on, especially an oral warning, should be given in private. Of course, recogni@on for
commiged, the date, 'me, and place when the misconduct good work and praise are given in public
occurred. 2. It should be expected
 Ex: Gross misconduct such as fraud or fgh@ng at workplace. The employees must know the rules of the organiza@on and the penal@es for breaking
b. The employee should not be condemned unheard the rules. Every workers should be given a copy of the rules and be oTered an oral
 Need to give chance to him/her to tell their version explana@on of them to ensure he understands. The employee should be asked to sign a
 If the accused worker is a union member, he has right to be statement saying that he has read and understood those rules and that he agrees to
presented by union. abide by them. This statement should be flled in the employee’s personal fle. By so
c. Employees must be given 'me to reply to accusa'ons doing, the employee cannot, at a later date, complain that he was not told the rules of
 Reasonable amount of 'me should be given 48 hours to 7 days the company.
 Give @me to think or to prepare what he want to talk about 3. Ac'on should be consistent
his/her version of story. Consistency means that the same act of misconduct commiged by two diTerent workers
 In the case of fraud, more @me will give to prepare all the should lead to the same penalty. Thus, there should be no ques@on of supervisors’
documents and witness. favourites being permiged to break the rules but others being punished. Moreover,
diTerent supervisors must give the same penal@es to their subordinates when rules are
ii. Rule of against bias broken. It is likely to destroy morale when one supervisors usually ignores acts of
a. This second rule states that the requirement that the deciding authority misconduct while another is very strict on taking ac@on. To ensure consistent,
must be unbiased when according the hearing or making the decision. disciplinary ac@on within the organiza@on, supervisors should periodically undergo
b. An Inquiry oYcer should be appointed to preside over the hearing and to training together to give them a common frame of references
act as chairman of the panel of inquiry and assisted by 2 other 4. It should be immediate
employees. Disciplinary ac@on should be taken immediately or as soon as possible aper the
c. The 3 panel should be employees of higher rank than the accused misconduct is discovered. Hasty ac@on, however, is not advisable such as the
employee and do not know the accused employee personally and any management must take adequate @me to fnd out the facts of the case and should never
info about the case. rely on hearsay. Proof of misconduct is necessary which mere allega@ons are insuYcient
d. Inves@gators and decision-makers must act without bias in all procedures 5. It should be progressive
connected with the making of a decision. Progressive discipline seeks primarily to correct the employee’s behavior rather than
e. A decision-maker must be impar@al and must make a decision based on a punish him. Therefore, it requires that increasingly severe penal@es be imposed on
balanced and considered assessment of the informa@on and evidence workers who repeat an act of misconduct. It is necessary for organiza@ons to have a
before him or her without favoring one party over another. clear policy on the @me period aper which an employee’s record will be considered
clear. It is surely unfair that if an act of misconduct is repeated some fve or more years

aper the frst oTence, and the oTence is of a minor nature, that a severe penalty be
imposed
Progressive Disciplinary Procedures
Disciplinary Ac@on For Misconduct
 IC defned misconduct as follows:
“Improper behaviour, inten@onal wrong doing or deliberate viola@on of a rule or
standard of behaviour…”
 Misconduct may occur at the work place during working hours.
 Employees behaviour that is not directly related to his work may also considered as
misconduct..i.e; (tarnishes the image of employer/ no longer able to trust or have
conBdence in him or her).

Example of Misconduct

Procedures Prior To Dismiss Due To Major Misconduct

 If employees commits in minor misconduct, suitable punishment will be warning or

suspension without pay for one or two days.
 For major misconduct, appropriate punishment may be an immediate dismissal.

Taking Ac@on against Acts of Minor Misconduct

1. Oral Warning
i. Ask him whether he has any explana@on for his behaviour,
ii. Remind him that the behaviour is not acceptable, and
iii. Warn him not to repeat the misconduct, or any other type of misconduct.
Inves@ga@ng Allega@on of Misconduct
2. Wrigen Warnings
i. If an employee repeats an act of misconduct for which he has been given an oral  What is the PURPOSE of an inves'ga'on?
warning, a wrigen warning must be issued. 1) To determine whether there is suYcient evidence that misconduct has been
ii. A wrigen warning can be in the form of a standard leger to the employee. commiged, i.e. whether there is a prima facie case
iii. The warning leger should be signed by the employee’s immediate superior, with 2) To collect evidence that may be presented at the Industrial Court
a copy to the HR oYcer so that a copy can be placed in the employee’s personal 3) To determine the modus operandi (M.O.) so as to prevent further similar
fle. incidents
  WHO should inves'gate?
o One or more neutral persons with knowledge of inves@ga@on techniques. HR/IR,
Security, Audit, etc.
o The inves@gators must be trustworthy.

 Inves'gator or team of inves'gators must gather all available evidence so that a case
may be brought against the worker concerned.
 The inves@gator will look for answers to ques@ons such as the following:
 What rules, express or implied, were broken?
 When did the alleged misconduct occur?
 Where did the alleged misconduct occur?
 Who witnessed the misconduct? What did they see or hear? Suspension
 Do any other par'es have relevant informa'on about the misconduct?  Many organiza@on may decide to suspend from work the employees who had allegedly
 Other than witness, are there any other types of evidence available to prove the commiged misconduct (max 2 weeks with ½ pay).
guilt of the accused workers? Are there any relevant documents or object?  Suspension may be necessary in any the following circumstances:
 How was the misconduct carried out? o When the worker’s presence might threaten the work situa@on
o When there is a perceived need for a cooling oT period, i.e. when physical
 Inves'ga'on Report violence has taken place
o To recommend whether enough evidence has been collected to suggest that the o When it is necessary to remove the employee from the opportunity to con@nue
organiza'on has a sulciently strong case to take ac@on against the employee his misconduct, i.e. when criminal breach of trust (CBT) or embezzlement (thep)
o It also helpful to iden'fy any weakness in the management system which of company funds is suspected
allowed the employee to commit the misconduct. o When it is suspected that the employee may have the opportunity to tamper
o If the inves@gator decides a prima facie case (enough evidence to proceed with documentary evidence or threaten witnesses
disciplinary ac@on) the employer can organize a domes@c inquiry to hear the  Employee within scope of EA 1955
evidence against the employee. o Employer has right to suspend the employee prior into his misconduct
 Employee is not within scope EA 1955
o Employer has no right to suspend an employee without pay or on half-pay unless
the employment contract expressly includes a clause on this mager.

 Characteris'cs of well-conducted inves'ga'on

Inves'ga'ng Allega'on of Sexual Harassment

 Procedures for dealing with sexual harassment are basically the same as for any other  A useful Domes@c inquiry must properly organized according to principle of natural
type of misconduct. jus'ce.
 However, certain modifca@on may be necessary from normal disciplinary procedures  A fairly conducted DI will fulfll the following requirements:
due to their nature of case. o Ensures that all evidence against the employee is examined carefully &
 Complaint of sexual harassment should never be ignored. thoroughly by a group of independent persons.
 Employer is advisable to appoint a special commibee of inves'gators to deal with any o There is less possibility of an innocent employee being dismissed – employee
complaint of sexual harassment that had been trained in counselling and interviewing can’t claimed unheard.
techniques which consist of both males and females. o Employer can be conBdent that he has treated his employees justly and fairly.

Outlines of in-house mechanism to combat sexual harassment Hold Domes@c Inquiry

 Employers are encouraged to establish an in-house mechanism to prevent, handle and A. DI follows the format of a criminal court trial but is simpliBed.
eradicate sexual harassment in the workplace. The mechanism should include at least o Panel of Inquiry chairman is responsible for smooth conduc@ng of the DI.
the following elements: Chairman must ensure employee is treated fairly and justly.
i. a policy statement prohibi@ng sexual harassment in the organiza@on; o Employer must prove the guilt of the employee to the sa@sfac@on of the Panel of
ii. a clear defni@on of sexual harassment; Inquiry.
iii. a complaint / grievance procedure; disciplinary rules and penal@es against the o Employer opens the DI by introducing witnesses and evidence. Examina@on and
harasser and against those who make false accusa@on; cross-examina@on of witnesses takes place.
iv. protec@ve and remedial measures for the vic@m; and o Employee oTers evidence in his defense, if any. Examina@on and cross-
v. promo@onal and educa@onal programmes. examina@on of witnesses takes place.
o Aper fnal closing submissions, Panel of Inquiry make a decision, put it in wri@ng
with jus@fca@ons and submit to the employer.
Code of Prac'ce on Preven'ng and Eradica'ng Sexual Harassment in the Workplace o Stages in conduc'ng a domes'c inquiry – refer to page 262
 Malaysia has no par'cular law prohibi@ng sexual harassment at the workplace but
Stages in conduc@ng a domes@c inquiry/domes@c inquiry process
MOHR has distributed a Code of Prac'ce on Preven'ng and Eradica'ng Sexual
1. Stage 1
Harassment in the Workplace
Members of the panel of inquiry introduce themselves and iden@fy those present. A
 The purpose of the Code of Prac@ce is to provide prac'cal guidance to employers,
short briefng is given to the par@es concerned by the panel on the procedures and rules
employees, trade unions and others relevant par@es on the protec@on of the dignity of
to be applied during the inquiry
employees.
2. Stage 2
 The aim is to ensure that sexual harassment does not occur and, if it does occur, to
The panel members read out the charge(s) to the accused employee and ask him
ensure that adequate procedures are available to deal with the problem and prevent its
whether he pleads guilty or not to the charge(s)
recurrence.
3. Stage 3
 DeBni'on of sexual harassment– refer to page 265
The prosecu@ng oYcer calls his frst witness. Informa@on is elicited through a ques@on
and answer format. When the prosecu@ng oYcer has no more ques@ons to ask of the
witness, the accused employee is permiged to cross-examine him or her, also through
the asking of ques@ons
4. Stage 4
The prosecu@ng oYcer calls his next witness, if any. The process is the same as for the
frst witness. The prosecu@ng oYcer con@nues to call his witnesses, one at a @me, un@l
Conduct Fair DI
he has no more witnesses or evidence to oTer
5. Stage 5
 The accused employee calls his frst witness, if any. As above, informa@on is given in a 7) Proba@oners may assume their service are been confrmed by the employer once
ques@on and answer format. The prosecu@ng oYcer is permiged to cross-examine any they received certain benefts and privileges during their proba@onary period
witnesses brought by the accused employee. The accused con@nues to call further that only been given to the employee once they are confrmed.
witnesses, one at a @me un@l he has no more witnesses or evidence to oTer
6. Stage 6
Both par@es are invited by the panel of inquiry to sum up their evidence. Aper these Sec@on 20, IRA, 1967
submissions, the domes@c inquiry comes to an end
7. Stage 7  Under Sec'on 20, when an employee working in private sector has been dismissed, he
Members of the panel of inquiry discuss their fndings and prepare a report to be has the right to challenge his employer’s ac@on.
submiged to the employer. They will decide whether they fnd the accused employee  Similar requirement with EA, complaint must be fled within 60 days of the dismissal at
guilty or not and the jus@fca@on for their fnding the nearest oYce of IR Dept.
 Once an employee fles a complaint by flling out the required form, concilia'on
Dismissal for Unsa'sfactory Performance mee'ng will be held by IR Dept.
 The concilia@on mee@ng will be presented by Conciliator, representa@ves of employer
 No DI necessary and the employee who has been dismissed.
 Employee must be warned, and given time to improve. Employer should provide  Seglement:
assistance so that employee can improve. o Employer reinstate employee or
 Procedure prior to dismissing an employee for poor performance – refer page 267 o Employer nego'ates a compensa'on package acceptable to employee. (pay
termina@on beneft, wages in lieu of no@ce of termina@on & wages in lieu of any
unused annual leave)
The Right of Proba'oners
 Causes of lodge complaint under Sec. 20 are can be in varies reasons:
 Probationers are employees and, therefore like all other employees they must treated
 Misconduct / poor performance
fairly.
 Retrenched
 Employee who are on probationary period and turns out to be unsuitable for the job
during his trial period, his services can easily be terminated.  Resigned from his job ( employee must prove they are been forced to do so)
 Notice period prior to termination that must be given by either party to the other is brief,  Purpose for concilia@on is to explore possibility of segling the dispute.
sometimes 24 hours is all that is required.  When the disputes not segled, DGIR will inform Minister Human Resource which had
 IC has made a number of rulings which are helpful to guide employers how to treat authority under the IRA 1967 to decide whether or not to refer the dispute to the IC for
probationers: arbitra@on.
1) They should not be dismissed during his proba@onary period, except for
misconduct or redundancy. Claims of Wrongful Dismissal at the High Court
2) They should be given suitable training, coaching and guidance
3) They should be monitored and appraised by immediate superior. Wrigen  Public Sector employees are not within the scope of Employment Act and neither have
evidence of appraisal should been conducted. any right under Sec 20 IRA 1967.
4) If their performance is not sa@sfactory, they should be given one or more  If they are dismissed, they may fle claim at the High Court on the grounds the has
warnings preferably in wri'ng. wrongfully dismissed.
5) Proba@oners may be terminated at the end of proba@onary period if the do not
improve and reach a sa@sfactory performance standard. If no prior warning
given, employer need to extent the period by issue the leber explain why they Procedures to Claim Unfair
cannot conBrmed in their appointment. Dismissal
6) Employee will be considered s@ll a proba@oner if they do not received a leger of
confrma@on at the end of a proba@onary period.

Remedies of unfair termina@on

 Reinstatement
o IC has authority to order the employer to reinstate the employee involved if
prac@cal to do so.
o If the rela@onship between employer and employee has become very strained,
or if the employee has found himself a job elsewhere, or if the posi'on has no
longer exists, then the Court may feel reinstatement is not the best remedy, in
which case, compensa'on in lieu of reinstatement will be awarded.