HRM659 All Chapter slides presentation UiTM
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About This Presentation
Law chapter for employment act 1955 in Malaysia
Slide Content
HRM 659- INDUSTRIAL RELATIONS
Chapter 1Chapter 1
Introduction to Malaysian Industrial Relations Introduction to Malaysian Industrial Relations
SystemSystem
Prepared by : Prepared by :
SUHAILA MOHAMEDSUHAILA MOHAMED
UiTM Puncak AlamUiTM Puncak Alam
Mar_July 2022 Mar_July 2022
Chapter 1Chapter 1
Introduction to Malaysian Industrial Relations Introduction to Malaysian Industrial Relations
SystemSystem
Prepared by : Prepared by :
SUHAILA MOHAMEDSUHAILA MOHAMED
UiTM Puncak AlamUiTM Puncak Alam
Mar_July 2022 Mar_July 2022
Chapter Outline
Overview of Malaysian Industrial Relations Overview of Malaysian Industrial Relations
Systems.Systems.
National Labor PolicyNational Labor Policy
Laws enforced/ administered under the Laws enforced/ administered under the
Ministry of Human Resources.Ministry of Human Resources.
MTUC/ MEF/ CUEPACSMTUC/ MEF/ CUEPACS
Overview of Malaysian Industrial Relations Overview of Malaysian Industrial Relations
Systems.Systems.
National Labor PolicyNational Labor Policy
Laws enforced/ administered under the Laws enforced/ administered under the
Ministry of Human Resources.Ministry of Human Resources.
MTUC/ MEF/ CUEPACSMTUC/ MEF/ CUEPACS
Definition of TERMS
Employee relations (ER) is the term that defines the relationship
between employers and employees.
ER focuses both on individual and collective relationships* in the
workplace with an increasing emphasis on the relationship between
managers and their team members.
Academy to Innovate HR (AIHR)
* This may differ in Malaysian perspective
Employee relations (ER) is the term that defines the relationship
between employers and employees.
ER focuses both on individual and collective relationships* in the
workplace with an increasing emphasis on the relationship between
managers and their team members.
Academy to Innovate HR (AIHR)
* This may differ in Malaysian perspective
definition of TERMS
The employment relationship is the legal link
between employers and employees. It exists
when a person performs work or services under
certain conditions in return for remuneration.
International Labour Organization (ILO)
The employment relationship is the legal link
between employers and employees. It exists
when a person performs work or services under
certain conditions in return for remuneration.
International Labour Organization (ILO)
What is Industrial Relations (IR)?
Oxford Dictionary:Oxford Dictionary:
The relations between management and workers in industry.The relations between management and workers in industry.
Collins Dictionary:Collins Dictionary:
The relationship between employers and employees The relationship between employers and employees
in industry, and the political decisions and laws that affect it.in industry, and the political decisions and laws that affect it.
In this class, IR is defined as In this class, IR is defined as the study of the regulation of the the study of the regulation of the
relations between relations between employers and unionizedemployers and unionized employees. employees.
Oxford Dictionary:Oxford Dictionary:
The relations between management and workers in industry.The relations between management and workers in industry.
Collins Dictionary:Collins Dictionary:
The relationship between employers and employees The relationship between employers and employees
in industry, and the political decisions and laws that affect it.in industry, and the political decisions and laws that affect it.
In this class, IR is defined as In this class, IR is defined as the study of the regulation of the the study of the regulation of the
relations between relations between employers and unionizedemployers and unionized employees. employees.
Industrial Relations and
Employment RELATIONS
Employment RELATIONS
Shifting from P-economy vs K-economy
Competitive vs viable
Types of industries and job creation
vs
food security / sovereignty
A country perspective of IR
Competitive vs viable
Types of industries and job creation
vs
food security / sovereignty
A country perspective of IR
An organizational perspective of IR:
HR spectrums and issues
Organizational & Career
Development
Organizational Design
Talent Management
Performance & Rewards
HR spectrums and issues
Organizational & Career
Development
Organizational Design
Talent Management
Performance & Rewards
Management of HR in general Management of unionised employees
Principles governing the
management of employees
apply to all organizations
regardless of place, nature
of business, and size of
organization
Regulation of the relations between employers,
employees and trade unions varies from country to
country and sector of employment
HRM is universal in scopeIR is local in scope
Principles governing the
management of employees
apply to all organizations
regardless of place, nature
of business, and size of
organization
Regulation of the relations between employers,
employees and trade unions varies from country to
country and sector of employment
HRM is universal in scopeIR is local in scope
Industrial relations stresses the importance of three Industrial relations stresses the importance of three
major areas:major areas:
1.The relationship between employers and trade The relationship between employers and trade
unionsunions
2.The framework provided by the employment lawsThe framework provided by the employment laws
3.Disciplinary procedures and termination of the Disciplinary procedures and termination of the
employment contractemployment contract
major areas:major areas:
1.The relationship between employers and trade The relationship between employers and trade
unionsunions
2.The framework provided by the employment lawsThe framework provided by the employment laws
3.Disciplinary procedures and termination of the Disciplinary procedures and termination of the
employment contractemployment contract
WHO NEEDS TO STUDY IR ?
There are at least five groups of people who need to There are at least five groups of people who need to
understand the theory and practice of industrial understand the theory and practice of industrial
relations and employment law. These are :relations and employment law. These are :
1.WorkersWorkers
2.Trade unions leadersTrade unions leaders
3.ManagersManagers
4.Lawyers and Lawyers and
5.Officers and executive in human resources and Officers and executive in human resources and
industrial relations department industrial relations department
There are at least five groups of people who need to There are at least five groups of people who need to
understand the theory and practice of industrial understand the theory and practice of industrial
relations and employment law. These are :relations and employment law. These are :
1.WorkersWorkers
2.Trade unions leadersTrade unions leaders
3.ManagersManagers
4.Lawyers and Lawyers and
5.Officers and executive in human resources and Officers and executive in human resources and
industrial relations department industrial relations department
Why we study IR?
Nature of relationshipIndividual Collective
Preserving industrial
harmony
Proactive and take positive steps in
order to create a harmony non-
unionized environment. For example:
(x)___________
Proactive and take positive steps in
order to avoid trade dispute. For
example: (y)_________
Outcome of Industrial
Disharmony
High turnover Industrial action i.e.
________&_________
Nature of relationshipIndividual Collective
Preserving industrial
harmony
Proactive and take positive steps in
order to create a harmony non-
unionized environment. For example:
(x)___________
Proactive and take positive steps in
order to avoid trade dispute. For
example: (y)_________
Outcome of Industrial
Disharmony
High turnover Industrial action i.e.
________&_________
4
th
IR VS Industry 4.0
th
IR VS Industry 4.0
INDUSTRIAL RELATIONS SYSTEM ARE
TRIPARTITE
1. The Employer
ü Management
ü Employers’ associations’ representatives
2. The Employees
ü Individual employees
ü Trade Union representatives
3. The Government
TRIPARTITE
1. The Employer
ü Management
ü Employers’ associations’ representatives
2. The Employees
ü Individual employees
ü Trade Union representatives
3. The Government
Role of Government in
Industrial Relations
1)as the legislator through Parliament.as the legislator through Parliament.
2)as the administrator through the MOHRas the administrator through the MOHR
>>> National Labour Policy>>> National Labour Policy
3) as the participant – the largest employer3) as the participant – the largest employer
Industrial Relations
1)as the legislator through Parliament.as the legislator through Parliament.
2)as the administrator through the MOHRas the administrator through the MOHR
>>> National Labour Policy>>> National Labour Policy
3) as the participant – the largest employer3) as the participant – the largest employer
National Labour Advisory
Council (NLAC)
Ministry of Human Resources (MOHR)Ministry of Human Resources (MOHR)
Malaysian Trade Union Congress (MTUC)Malaysian Trade Union Congress (MTUC)
Congress of Unions in the Public and Civil Congress of Unions in the Public and Civil
Services (CUEPACS)Services (CUEPACS)
Malaysian Employers Federation (MEF) Malaysian Employers Federation (MEF)
Council (NLAC)
Ministry of Human Resources (MOHR)Ministry of Human Resources (MOHR)
Malaysian Trade Union Congress (MTUC)Malaysian Trade Union Congress (MTUC)
Congress of Unions in the Public and Civil Congress of Unions in the Public and Civil
Services (CUEPACS)Services (CUEPACS)
Malaysian Employers Federation (MEF) Malaysian Employers Federation (MEF)
The National Employment
Council (NEC)
The Minister of Finance announced the The Minister of Finance announced the
formation of the council during the formation of the council during the
Budget 2021 tabling in November 2020.Budget 2021 tabling in November 2020.
Under the Prime Minister Office (PMO)Under the Prime Minister Office (PMO)
Tackling unemployment due to Covid-19 Tackling unemployment due to Covid-19
by creating 500 000 job opportunities. by creating 500 000 job opportunities.
Council (NEC)
The Minister of Finance announced the The Minister of Finance announced the
formation of the council during the formation of the council during the
Budget 2021 tabling in November 2020.Budget 2021 tabling in November 2020.
Under the Prime Minister Office (PMO)Under the Prime Minister Office (PMO)
Tackling unemployment due to Covid-19 Tackling unemployment due to Covid-19
by creating 500 000 job opportunities. by creating 500 000 job opportunities.
We are parts of the global
community….
The influence of international organizations towards The influence of international organizations towards
our IR system our IR system
§The Association of Southeast Asian Nations, or
ASEAN
§The International Labor Organization (ILO), an
agency of the United Nation
§International Unions
community….
The influence of international organizations towards The influence of international organizations towards
our IR system our IR system
§The Association of Southeast Asian Nations, or
ASEAN
§The International Labor Organization (ILO), an
agency of the United Nation
§International Unions
Perspectives in Industrial Relations
1.Managers/Supervisors may see IR as one or Managers/Supervisors may see IR as one or
more of the following:more of the following:
a)Creating and maintaining employee motivation;
b)Establishing workable and credible channels of
communication with employees;
c)Negotiating with trade union representatives;
d)Sharing power with employee representatives in an organized
way;
e)Achieving higher levels of efficiency and service by
cooperation with employees and their representatives.
1.Managers/Supervisors may see IR as one or Managers/Supervisors may see IR as one or
more of the following:more of the following:
a)Creating and maintaining employee motivation;
b)Establishing workable and credible channels of
communication with employees;
c)Negotiating with trade union representatives;
d)Sharing power with employee representatives in an organized
way;
e)Achieving higher levels of efficiency and service by
cooperation with employees and their representatives.
Perspectives in Industrial RelationsPerspectives in Industrial Relations
2. Employees may see IR as one or more of the following:
a) Management’s efforts to win them round to their way of
thinking;
b) A genuine attempt by management to adopt a generous
approach to employees;
c) A ‘them-and-us’ situation involving management-union
meetings and frequent arguments;
d) An opportunity to participate in shop floor decision
making and possibly even at board level.
2. Employees may see IR as one or more of the following:
a) Management’s efforts to win them round to their way of
thinking;
b) A genuine attempt by management to adopt a generous
approach to employees;
c) A ‘them-and-us’ situation involving management-union
meetings and frequent arguments;
d) An opportunity to participate in shop floor decision
making and possibly even at board level.
Perspectives in Industrial RelationsPerspectives in Industrial Relations
3. 3. Ministers/Conciliator/arbitrators and court judges may see IR as one or more of the Ministers/Conciliator/arbitrators and court judges may see IR as one or more of the
following:following:
a)Attempting to achieve mutually harmonious
relationships between employers and employees;
b)Lay down rules of conduct for management-
employee relationships;
c)Regulating the power struggle between owners and
managers on one side and the employees and
organized labor on the other sides;
d)Establishing peace-making arrangement between
the two sides referred to above, and the protection
of the interests of the rest of the community.
3. 3. Ministers/Conciliator/arbitrators and court judges may see IR as one or more of the Ministers/Conciliator/arbitrators and court judges may see IR as one or more of the
following:following:
a)Attempting to achieve mutually harmonious
relationships between employers and employees;
b)Lay down rules of conduct for management-
employee relationships;
c)Regulating the power struggle between owners and
managers on one side and the employees and
organized labor on the other sides;
d)Establishing peace-making arrangement between
the two sides referred to above, and the protection
of the interests of the rest of the community.
MOHR Portfolio
MOHR is responsible for skills MOHR is responsible for skills
development, labour, occupational development, labour, occupational
safety and health, trade unions, safety and health, trade unions,
industrial relations, industrial court, industrial relations, industrial court,
labour market information and labour market information and
analysis, social security.analysis, social security.
MOHR is responsible for skills MOHR is responsible for skills
development, labour, occupational development, labour, occupational
safety and health, trade unions, safety and health, trade unions,
industrial relations, industrial court, industrial relations, industrial court,
labour market information and labour market information and
analysis, social security.analysis, social security.
Datuk Seri M. Saravanan
Minister of Human Resources
Minister of Human Resources
Departments under
MOHR
1.Department of Department of
Labour Peninsular Labour Peninsular
MalaysiaMalaysia
2.Department of Department of
Labour Sarawak Labour Sarawak
3.Department of Department of
Labour SabahLabour Sabah
4.Manpower Manpower
Department Department
5.Department of Department of
Industrial RelationsIndustrial Relations
Source: http://www.mohr.gov.my
MOHR
1.Department of Department of
Labour Peninsular Labour Peninsular
MalaysiaMalaysia
2.Department of Department of
Labour Sarawak Labour Sarawak
3.Department of Department of
Labour SabahLabour Sabah
4.Manpower Manpower
Department Department
5.Department of Department of
Industrial RelationsIndustrial Relations
Source: http://www.mohr.gov.my
The Department of Labour
Enforces the:Enforces the:
·Employment Act, 1955; Sabah Labour Ordinance; Sarawak
Labour Ordinance
▫ > Employment (Part-time Employees) Regulations 2010
·National Wages Consultative Council Act, 2011
▫ > Minimum Wage Order 2016 (2018?)
·Workmen’s Compensation Act, 1952
·Children and Young Persons (Employment) Act, 1966
·Employment (Restriction) Act, 1968
·Workers Minimum Standards of Housing and Amenities Act,
1990
·Minimum Retirement Age Act, 2012
This department can also convene the labor courtThis department can also convene the labor court
Enforces the:Enforces the:
·Employment Act, 1955; Sabah Labour Ordinance; Sarawak
Labour Ordinance
▫ > Employment (Part-time Employees) Regulations 2010
·National Wages Consultative Council Act, 2011
▫ > Minimum Wage Order 2016 (2018?)
·Workmen’s Compensation Act, 1952
·Children and Young Persons (Employment) Act, 1966
·Employment (Restriction) Act, 1968
·Workers Minimum Standards of Housing and Amenities Act,
1990
·Minimum Retirement Age Act, 2012
This department can also convene the labor courtThis department can also convene the labor court
Other Departments under the
MOHR
Department of Industrial RelationsDepartment of Industrial Relations
Enforces:Enforces:
The Industrial Relations Act, 1967 and helps in settling disputes The Industrial Relations Act, 1967 and helps in settling disputes
between employers and employees through conciliationbetween employers and employees through conciliation
Department of Trade UnionsDepartment of Trade Unions
Enforces:Enforces:
The Trade Unions act, 1959. It has the authority to register and The Trade Unions act, 1959. It has the authority to register and
de-register trade unions, check a union’s annual accounts and de-register trade unions, check a union’s annual accounts and
generally to investigate complaints made against a trade generally to investigate complaints made against a trade
union.union.
Department of Occupational Safety and HealthDepartment of Occupational Safety and Health
Enforces:Enforces:
The OSHA, 1994 and the Factories and Machinery Acts, 1967The OSHA, 1994 and the Factories and Machinery Acts, 1967
MOHR
Department of Industrial RelationsDepartment of Industrial Relations
Enforces:Enforces:
The Industrial Relations Act, 1967 and helps in settling disputes The Industrial Relations Act, 1967 and helps in settling disputes
between employers and employees through conciliationbetween employers and employees through conciliation
Department of Trade UnionsDepartment of Trade Unions
Enforces:Enforces:
The Trade Unions act, 1959. It has the authority to register and The Trade Unions act, 1959. It has the authority to register and
de-register trade unions, check a union’s annual accounts and de-register trade unions, check a union’s annual accounts and
generally to investigate complaints made against a trade generally to investigate complaints made against a trade
union.union.
Department of Occupational Safety and HealthDepartment of Occupational Safety and Health
Enforces:Enforces:
The OSHA, 1994 and the Factories and Machinery Acts, 1967The OSHA, 1994 and the Factories and Machinery Acts, 1967
Agencies under MOHR
▪Human Resources Development FundHuman Resources Development Fund
▪Social Security Organisation (SOCSO)Social Security Organisation (SOCSO)
▪National Institute of Occupational Safety National Institute of Occupational Safety
and Health (NIOSH)and Health (NIOSH)
▪Skills Development Fund Corporation Skills Development Fund Corporation
Source: Source: http://www.mohr.gov.myhttp://www.mohr.gov.my
▪Human Resources Development FundHuman Resources Development Fund
▪Social Security Organisation (SOCSO)Social Security Organisation (SOCSO)
▪National Institute of Occupational Safety National Institute of Occupational Safety
and Health (NIOSH)and Health (NIOSH)
▪Skills Development Fund Corporation Skills Development Fund Corporation
Source: Source: http://www.mohr.gov.myhttp://www.mohr.gov.my
TASK 1:
Identify which departments and agencies under the MOHR related to our class syllabus.
TASK 2:
From Chapter 10 of the Twelfth Malaysia Plan, identify key areas of the plan that related to our class discussion.
TASK 3:
From Chapter 10 of the Twelfth Malaysia Plan, identify one possible labour policy that most likely anticipated by the
industry players but is not available under the plan.
Identify which departments and agencies under the MOHR related to our class syllabus.
TASK 2:
From Chapter 10 of the Twelfth Malaysia Plan, identify key areas of the plan that related to our class discussion.
TASK 3:
From Chapter 10 of the Twelfth Malaysia Plan, identify one possible labour policy that most likely anticipated by the
industry players but is not available under the plan.
HRM 659- INDUSTRIAL RELATIONS
Chapter 2
The history and current state of trade
unionism in Malaysia
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
Mar_July 2022
Chapter 2
The history and current state of trade
unionism in Malaysia
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
Mar_July 2022
CHAPTER OUTLINE
Part 1
1)1)Historical background of trade union (at its Historical background of trade union (at its
current state)current state)
2)2)Legal definition of a trade union (and its Legal definition of a trade union (and its
implications)implications)
Part 2Part 2
1)1)Trade Union Act 1959Trade Union Act 1959
2)2)Industrial Relations Act 1967Industrial Relations Act 1967
Part 1
1)1)Historical background of trade union (at its Historical background of trade union (at its
current state)current state)
2)2)Legal definition of a trade union (and its Legal definition of a trade union (and its
implications)implications)
Part 2Part 2
1)1)Trade Union Act 1959Trade Union Act 1959
2)2)Industrial Relations Act 1967Industrial Relations Act 1967
THE HISTORY OF TRADE UNION IN
MALAYSIA
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MALAYSIA
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NATURE OF TRADE UNIONS
•Trade Union or Labour Union?
•General definition
•A formal association of workers that promotes the A formal association of workers that promotes the
interests of its members through interests of its members through collective actioncollective action..
Question:Question:
1.1.What is the opposite of ‘collective action’?What is the opposite of ‘collective action’?
2.2.Can an individual employee negotiate for better Can an individual employee negotiate for better
economic status?economic status?
•Trade Union or Labour Union?
•General definition
•A formal association of workers that promotes the A formal association of workers that promotes the
interests of its members through interests of its members through collective actioncollective action..
Question:Question:
1.1.What is the opposite of ‘collective action’?What is the opposite of ‘collective action’?
2.2.Can an individual employee negotiate for better Can an individual employee negotiate for better
economic status?economic status?
THE CONCEPT OF ‘COLLECTIVE
ACTION’
Union negotiate with employer on behalf of employee.Union negotiate with employer on behalf of employee.
The process of negotiation is called collective bargaining The process of negotiation is called collective bargaining
(CB).(CB).
The output of CB is called collective agreement (CA).The output of CB is called collective agreement (CA).
CA on economic issues provide employee with ‘contractual’ CA on economic issues provide employee with ‘contractual’
rights.rights.
ACTION’
Union negotiate with employer on behalf of employee.Union negotiate with employer on behalf of employee.
The process of negotiation is called collective bargaining The process of negotiation is called collective bargaining
(CB).(CB).
The output of CB is called collective agreement (CA).The output of CB is called collective agreement (CA).
CA on economic issues provide employee with ‘contractual’ CA on economic issues provide employee with ‘contractual’
rights.rights.
LEGAL
DEFINITION OF
TRADE UNION
UNDER THE
TRADE UNION
ACT 1959
DEFINITION OF
TRADE UNION
UNDER THE
TRADE UNION
ACT 1959
IMPLICATIONS OF THE LEGAL DEFINITION OF TU
1. The name of the TU can be union or association.
2. Any establishment to achieve one or more of the objectives stated in the TUA is a trade union, thus, must follow the legal requirements of TU.
3. Limitation of members of TU.
1. The name of the TU can be union or association.
2. Any establishment to achieve one or more of the objectives stated in the TUA is a trade union, thus, must follow the legal requirements of TU.
3. Limitation of members of TU.
LIMITATION OF MEMBERS OF TU
1. Membership is limited either all employee or all employer
2. Membership is limited geographically i.e. Peninsular Malaysia, Sabah, and Sarawak.
For example,
Kesatuan Pekerja-pekerja Securicor (Malaysia) Sdn Bhd
Kesatuan Pekerja-pekerja Securicor (M) Sdn Bhd, Sarawak
National Union of Commercial Workers, West Malaysia
Sabah Commercial Workers Union
3. Members of a trade union must be homogeneous, i.e., work in a particular establishment, trade, occupation or industry and therefore possess common interest.
4. General TU (members not from the same trade, occupation or industry) is not permitted but amendment on this is in the pipeline.
1. Membership is limited either all employee or all employer
2. Membership is limited geographically i.e. Peninsular Malaysia, Sabah, and Sarawak.
For example,
Kesatuan Pekerja-pekerja Securicor (Malaysia) Sdn Bhd
Kesatuan Pekerja-pekerja Securicor (M) Sdn Bhd, Sarawak
National Union of Commercial Workers, West Malaysia
Sabah Commercial Workers Union
3. Members of a trade union must be homogeneous, i.e., work in a particular establishment, trade, occupation or industry and therefore possess common interest.
4. General TU (members not from the same trade, occupation or industry) is not permitted but amendment on this is in the pipeline.
EXAMPLE OF HOMOGENEITY IN
TU MEMBERS
Example A:
The Director-General of TU has decided that the electrical industry and the electronic industry are not the same and, therefore, one union (Electrical Industry Workers Union) cannot represent workers in both areas (Maimunah, 2020).
Example B:
There are four unions representing TNB employees.
1. TNB Executives Association (PETNB)
2. Amalgamated Union of TNB Employees (KPPPTNB)
3. TNB Junior Officers Union (TNBJOU)
4. TNB Safety Unit Association (Perunika),
Total union members : 34,900 (in 2015)
Source: https://www.nst.com.my/news/2015/09/unions-urge-tnb-cut-ytl-ties
TU MEMBERS
Example A:
The Director-General of TU has decided that the electrical industry and the electronic industry are not the same and, therefore, one union (Electrical Industry Workers Union) cannot represent workers in both areas (Maimunah, 2020).
Example B:
There are four unions representing TNB employees.
1. TNB Executives Association (PETNB)
2. Amalgamated Union of TNB Employees (KPPPTNB)
3. TNB Junior Officers Union (TNBJOU)
4. TNB Safety Unit Association (Perunika),
Total union members : 34,900 (in 2015)
Source: https://www.nst.com.my/news/2015/09/unions-urge-tnb-cut-ytl-ties
NATURE OF MALAYSIAN TRADE
UNIONS
§Promoting good industrial relations between employer and employee
§Improve working conditions, economic status (wages, benefits, job security), social status, and productivity.
§Members are limited in particular geographical area, employer, industry, and occupation.
§Seek multi-year collective agreements (CA) on economic issues as “contracts” via collective bargaining (CB).
UNIONS
§Promoting good industrial relations between employer and employee
§Improve working conditions, economic status (wages, benefits, job security), social status, and productivity.
§Members are limited in particular geographical area, employer, industry, and occupation.
§Seek multi-year collective agreements (CA) on economic issues as “contracts” via collective bargaining (CB).
WHY DO EMPLOYEES JOIN UNIONS?
• Increased wages and benefitsIncreased wages and benefits
• Job securityJob security
• Protection against unfair treatmentProtection against unfair treatment
• Co-operation with fellow workersCo-operation with fellow workers
• Peer pressurePeer pressure
Source: Maimunah Aminuddin. (2020). Source: Maimunah Aminuddin. (2020). Malaysian industrial relations and employment Malaysian industrial relations and employment
lawlaw. Kuala Lumpur: McGraw-Hill Book Co.. Kuala Lumpur: McGraw-Hill Book Co.
• Increased wages and benefitsIncreased wages and benefits
• Job securityJob security
• Protection against unfair treatmentProtection against unfair treatment
• Co-operation with fellow workersCo-operation with fellow workers
• Peer pressurePeer pressure
Source: Maimunah Aminuddin. (2020). Source: Maimunah Aminuddin. (2020). Malaysian industrial relations and employment Malaysian industrial relations and employment
lawlaw. Kuala Lumpur: McGraw-Hill Book Co.. Kuala Lumpur: McGraw-Hill Book Co.
ARE THE UNION EFFECTIVE?
•What is effective?
•How can union be effective?
By acquiring power through collective
strength of its members to act as a
countervailing force to the employer.
•Are the union’s strength growing?
•What is effective?
•How can union be effective?
By acquiring power through collective
strength of its members to act as a
countervailing force to the employer.
•Are the union’s strength growing?
TOTAL UNIONS AND MEMBERSHIP IN
MALAYSIA,
1995 – 2018
Year Number of Unions Total membership
1995 504 706,253
2001 578 784,881
2009 680 806,860
2011 697 800,171
2013 706 914,677
2014 735 930,512
2015 729 913,169
2016 734 927,802
2017 742 929,232
2018 751 930,734
Sources: https://jheks.mohr.gov.my/images/Penerbitan/eBookStatistik/mobile/index.html#p=9 Sources: https://jheks.mohr.gov.my/images/Penerbitan/eBookStatistik/mobile/index.html#p=9
MALAYSIA,
1995 – 2018
Year Number of Unions Total membership
1995 504 706,253
2001 578 784,881
2009 680 806,860
2011 697 800,171
2013 706 914,677
2014 735 930,512
2015 729 913,169
2016 734 927,802
2017 742 929,232
2018 751 930,734
Sources: https://jheks.mohr.gov.my/images/Penerbitan/eBookStatistik/mobile/index.html#p=9 Sources: https://jheks.mohr.gov.my/images/Penerbitan/eBookStatistik/mobile/index.html#p=9
LARGEST TRADE UNION IN MALAYSIA,
2018
Source: Maimunah Aminuddin. (2020). Malaysian industrial relations and employment law. Kuala Source: Maimunah Aminuddin. (2020). Malaysian industrial relations and employment law. Kuala
Lumpur: McGraw-Hill Book Co.Lumpur: McGraw-Hill Book Co.
NAME OF UNION MEMBERSHIP
National Union of the Teaching Profession 186,835
Malay Teachers Union, West Malaysia 41,063
National Union of Plantation Workers 29,743
Malayan Nurses Union 22,735
Sarawak Teachers Union 17,910
National Union of Bank Employees 14,092
2018
Source: Maimunah Aminuddin. (2020). Malaysian industrial relations and employment law. Kuala Source: Maimunah Aminuddin. (2020). Malaysian industrial relations and employment law. Kuala
Lumpur: McGraw-Hill Book Co.Lumpur: McGraw-Hill Book Co.
NAME OF UNION MEMBERSHIP
National Union of the Teaching Profession 186,835
Malay Teachers Union, West Malaysia 41,063
National Union of Plantation Workers 29,743
Malayan Nurses Union 22,735
Sarawak Teachers Union 17,910
National Union of Bank Employees 14,092
SIZE OF UNION IN MALAYSIA
Issue 1: prevailing small size of unions
•In the year 1992, 55 percent of unions had less than
500 members (Peetz & Todd, 2001), and the
percentage rose to 62 percent in 2003 (Maimunah,
2006).
•The prevailing small size of unions in Malaysia is
because the majority of the unions are in-house. As at
2018, 81.6% union are in-house unions.
• Issue 1a:Issue 1a: leadership (tame vs wild) leadership (tame vs wild)
Issue 2: declining union density (i.e. percentage of
workers joining union).
Issue 1: prevailing small size of unions
•In the year 1992, 55 percent of unions had less than
500 members (Peetz & Todd, 2001), and the
percentage rose to 62 percent in 2003 (Maimunah,
2006).
•The prevailing small size of unions in Malaysia is
because the majority of the unions are in-house. As at
2018, 81.6% union are in-house unions.
• Issue 1a:Issue 1a: leadership (tame vs wild) leadership (tame vs wild)
Issue 2: declining union density (i.e. percentage of
workers joining union).
IN-HOUSE VS NATIONAL TU IN
MALAYSIA
Source: https://jheks.mohr.gov.my/images/Penerbitan/eBookStatistik/mobile/index.html#p=14 Source: https://jheks.mohr.gov.my/images/Penerbitan/eBookStatistik/mobile/index.html#p=14
MALAYSIA
Source: https://jheks.mohr.gov.my/images/Penerbitan/eBookStatistik/mobile/index.html#p=14 Source: https://jheks.mohr.gov.my/images/Penerbitan/eBookStatistik/mobile/index.html#p=14
UNION DENSITY
REASONS FOR UNION DENSITY
DECLINE
Flexible / independent
Employment
Deregulation due
to Globalization
Foreign
Competition
More Available
Labour
Rise of Service
Employment
Decline of government Decline of government
employmentemployment
DECLINE
Flexible / independent
Employment
Deregulation due
to Globalization
Foreign
Competition
More Available
Labour
Rise of Service
Employment
Decline of government Decline of government
employmentemployment
AMONG CRITICISMS ON TU IN
MALAYSIA
Weak and internally fragmented (Hadiz, 2002; Rajah,
2001) This means unions are ineffective to protect
workers in responding to the effects of economic crisis.
What are the consequences?
1.Job transfer, job lost, reduced salary and entitlements,
longer working hour, and contingent form of employment
(Hutchison & Brown, 2001; Rajah, 2001).
2.Low union infuence index
3.Low share of wages of national income
MALAYSIA
Weak and internally fragmented (Hadiz, 2002; Rajah,
2001) This means unions are ineffective to protect
workers in responding to the effects of economic crisis.
What are the consequences?
1.Job transfer, job lost, reduced salary and entitlements,
longer working hour, and contingent form of employment
(Hutchison & Brown, 2001; Rajah, 2001).
2.Low union infuence index
3.Low share of wages of national income
UNION INFLUENCE INDEX
In one study, Kuruvilla et al. (2002) measured union
influence by multiplying collective bargaining coverage
and bargaining structure.
Their finding is the Malaysian union influence index was
0.03 (the lowest in the region)
The highest union influence index was the Japanese’s
union of 0.48.
Due to the Japanese unions are allowed to bargain at
the national, sectoral, and company level, while the
Malaysian counterparts at the company level only
(Kuruvilla et al., 2002).
In one study, Kuruvilla et al. (2002) measured union
influence by multiplying collective bargaining coverage
and bargaining structure.
Their finding is the Malaysian union influence index was
0.03 (the lowest in the region)
The highest union influence index was the Japanese’s
union of 0.48.
Due to the Japanese unions are allowed to bargain at
the national, sectoral, and company level, while the
Malaysian counterparts at the company level only
(Kuruvilla et al., 2002).
SHARE OF WAGES OF NATIONAL INCOME
Malaysia’s share of wages
of national income
197033.8%
2012 32.9%
201935.9%
Source: http://apirnet.ilo.org/news/malaysia-
needs-strong-trade-and-workers2019-unions-
2013-ganeshwaran-kana
Malaysia’s share of wages
of national income
197033.8%
2012 32.9%
201935.9%
Source: http://apirnet.ilo.org/news/malaysia-
needs-strong-trade-and-workers2019-unions-
2013-ganeshwaran-kana
HOW TO IMPROVE UNION
EFFECTIVENESS?
EFFECTIVENESS?
PART 2:
TRADE UNION ACT 1959 AND INDUSTRIAL RELATIONS
ACT 1967
Who is
employee?
Who is
employer?
How does
the law
differ
according to
Shawn Sher
(BFM
Podcast)
TRADE UNION ACT 1959 AND INDUSTRIAL RELATIONS
ACT 1967
Who is
employee?
Who is
employer?
How does
the law
differ
according to
Shawn Sher
(BFM
Podcast)
HRM 659
Chapter 3 :
The Employment Relationship
By: Suhaila Mohamed
Faculty of Business and Management, UiTM.
Mar_July 2022
Chapter 3 :
The Employment Relationship
By: Suhaila Mohamed
Faculty of Business and Management, UiTM.
Mar_July 2022
Chapter Outline:
The Employment
Relationship
The Employment
Relationship
The employment contract
•Let’s recall from the HRM581 class about employment contract.Let’s recall from the HRM581 class about employment contract.
1.Types of contract
•Types of terms in an employment contract
2.Types of employees
3.Types of employers
4.Void and breach terms of employment contract
vHowever, we will extend our discussion to include other provisions
related to Trade Unions Act 1959 and Industrial Relations Act 1967.
vIssues in employment relationship
•Let’s recall from the HRM581 class about employment contract.Let’s recall from the HRM581 class about employment contract.
1.Types of contract
•Types of terms in an employment contract
2.Types of employees
3.Types of employers
4.Void and breach terms of employment contract
vHowever, we will extend our discussion to include other provisions
related to Trade Unions Act 1959 and Industrial Relations Act 1967.
vIssues in employment relationship
Industrial Relations and
Employment Relations / Relationship
Amante, 2003
Employment Relations / Relationship
Amante, 2003
Definition
60
60
61
Can you spot the differences?
Employer
Employee / Workman
Employer
Independent
contractor
Can you spot the differences?
Employer
Employee / Workman
Employer
Independent
contractor
62
CONTRACT FOR LABOUR
Principal Employer Contractor / Employer
Employee
CONTRACT FOR LABOUR
Principal Employer Contractor / Employer
Employee
6
3
3
Terms of employment
contract that
related to Trade Union
contract that
related to Trade Union
Who is
employee?
x Y (workman)
Z (employee)
Y (workman)
Who is employer?
How does the law
differ
according to
Shawn Sher
(BFM
Podcast)
and
Maimunah
(2020)
Governs employer-
employee relations.
It regulates minimum
terms and
conditions
of
employment
.
Governs trade unions and union
federations. It defines TU,
regulates their
composition and
membership, their
rights, powers,
duties, and
responsibilities.
Governs employer-union relations. It
establishes the principles
of: trade unionism,
union recognition,
collective bargaining,
and dispute resolution.
Section 20 of this act is for any workman,
regardless they belong
to TU or not to challenge
termination.
employee?
x Y (workman)
Z (employee)
Y (workman)
Who is employer?
How does the law
differ
according to
Shawn Sher
(BFM
Podcast)
and
Maimunah
(2020)
Governs employer-
employee relations.
It regulates minimum
terms and
conditions
of
employment
.
Governs trade unions and union
federations. It defines TU,
regulates their
composition and
membership, their
rights, powers,
duties, and
responsibilities.
Governs employer-union relations. It
establishes the principles
of: trade unionism,
union recognition,
collective bargaining,
and dispute resolution.
Section 20 of this act is for any workman,
regardless they belong
to TU or not to challenge
termination.
6
6
6
6
7
7
Test of Employment Status Test of Employment Status
TRADITIONAL
OR CONTROL
TEST
ORGANIZATION
OR
INTEGRATION
TEST
MIXED OR MULTIPLE
TEST
Control of an
employee by
another, on
what, how and
when the
employee must
do the job.
Whether the
person is part
and parcel of the
organization.
This test is applied into
two stages. First whether
there is control.
Second, whether the
provisions of the contract
are consistent with it
being a contract of
service.
TRADITIONAL
OR CONTROL
TEST
ORGANIZATION
OR
INTEGRATION
TEST
MIXED OR MULTIPLE
TEST
Control of an
employee by
another, on
what, how and
when the
employee must
do the job.
Whether the
person is part
and parcel of the
organization.
This test is applied into
two stages. First whether
there is control.
Second, whether the
provisions of the contract
are consistent with it
being a contract of
service.
Unde r EA 1955 , Unde r EA 1955 ,
““emp loyer ” i s any per son who h as ent er ed in to a emp loyer ” i s any per son who h as ent er ed in to a c ont r ac t o f ser v ic ec ont r ac t o f ser v ic e t o emplo y an y ot her per son as an t o emplo y an y ot her per son as an emp lo yeeemp lo yee and in c lude s t he a gent , manag er or f ac t or of suc h fi r st ment io ned p er so n, and t he wor d “empl oy”, w it h it s gr amma ti c al va ri at i ons a nd co gnat e expr essi ons, sha ll be c onst r ued ac c or di ngl y. and in c lude s t he a gent , manag er or f ac t or of suc h fi r st ment io ned p er so n, and t he wor d “empl oy”, w it h it s gr amma ti c al va ri at i ons a nd co gnat e expr essi ons, sha ll be c onst r ued ac c or di ngl y.
Unde r
Unde r
IR A 1 967
IR A 1 967
, and T UA 195 9
, and T UA 195 9
““emp loyer ” i s any per son or bo dy o f per sons, w het her c o r por at e or in c or por at e, w ho emp loys a emp loyer ” i s any per son or bo dy o f per sons, w het her c o r por at e or in c or por at e, w ho emp loys a wor k manwor k man u nder a u nder a c ont r ac t of emplo ymen tc ont r ac t of emplo ymen t, and , and i nc lud es t he gover nment and any stat u to ry au th or it yi nc lud es t he gover nment and any stat u to ry au th or it y, , unl ess ot her w ise expr essl y st at ed i n t hi s a c t.unl ess ot her w ise expr essl y st at ed i n t hi s a c t.
Who is an employer?
6
9
““emp loyer ” i s any per son who h as ent er ed in to a emp loyer ” i s any per son who h as ent er ed in to a c ont r ac t o f ser v ic ec ont r ac t o f ser v ic e t o emplo y an y ot her per son as an t o emplo y an y ot her per son as an emp lo yeeemp lo yee and in c lude s t he a gent , manag er or f ac t or of suc h fi r st ment io ned p er so n, and t he wor d “empl oy”, w it h it s gr amma ti c al va ri at i ons a nd co gnat e expr essi ons, sha ll be c onst r ued ac c or di ngl y. and in c lude s t he a gent , manag er or f ac t or of suc h fi r st ment io ned p er so n, and t he wor d “empl oy”, w it h it s gr amma ti c al va ri at i ons a nd co gnat e expr essi ons, sha ll be c onst r ued ac c or di ngl y.
Unde r
Unde r
IR A 1 967
IR A 1 967
, and T UA 195 9
, and T UA 195 9
““emp loyer ” i s any per son or bo dy o f per sons, w het her c o r por at e or in c or por at e, w ho emp loys a emp loyer ” i s any per son or bo dy o f per sons, w het her c o r por at e or in c or por at e, w ho emp loys a wor k manwor k man u nder a u nder a c ont r ac t of emplo ymen tc ont r ac t of emplo ymen t, and , and i nc lud es t he gover nment and any stat u to ry au th or it yi nc lud es t he gover nment and any stat u to ry au th or it y, , unl ess ot her w ise expr essl y st at ed i n t hi s a c t.unl ess ot her w ise expr essl y st at ed i n t hi s a c t.
Who is an employer?
6
9
Teh Hock Hai vs Mayto Trading (M) Sdn Bhd
Award 1014/2014
•Claimant start work as plantation supervisor with Mayto on Claimant start work as plantation supervisor with Mayto on
2/7/2005.2/7/2005.
•Due restructuring, Mayto reduced the size of oil palm farm. Due restructuring, Mayto reduced the size of oil palm farm.
Claimant agreed voluntarily to continue to work with Mayto with Claimant agreed voluntarily to continue to work with Mayto with
the same wages RM3500 per month without deduction of EPF and the same wages RM3500 per month without deduction of EPF and
SOCSO contributions as an independent subcontractor in exchange SOCSO contributions as an independent subcontractor in exchange
for his termination benefits of RM10,000.for his termination benefits of RM10,000.
•Subsequently Mayto terminated claimant due to poor Subsequently Mayto terminated claimant due to poor
performance.performance.
•Claimant felt the termination was without just cause and excuse Claimant felt the termination was without just cause and excuse
because he was terminated by Mayto orally on 4/3/2008.because he was terminated by Mayto orally on 4/3/2008.
Issue before the court: Issue before the court: Whether Claimant is an employeeWhether Claimant is an employee
Court Decision: Court Decision: Claimant is not an employee but a subcontractor as Claimant is not an employee but a subcontractor as
he agreed by accepting the cheque of payment.he agreed by accepting the cheque of payment.
7
0
Award 1014/2014
•Claimant start work as plantation supervisor with Mayto on Claimant start work as plantation supervisor with Mayto on
2/7/2005.2/7/2005.
•Due restructuring, Mayto reduced the size of oil palm farm. Due restructuring, Mayto reduced the size of oil palm farm.
Claimant agreed voluntarily to continue to work with Mayto with Claimant agreed voluntarily to continue to work with Mayto with
the same wages RM3500 per month without deduction of EPF and the same wages RM3500 per month without deduction of EPF and
SOCSO contributions as an independent subcontractor in exchange SOCSO contributions as an independent subcontractor in exchange
for his termination benefits of RM10,000.for his termination benefits of RM10,000.
•Subsequently Mayto terminated claimant due to poor Subsequently Mayto terminated claimant due to poor
performance.performance.
•Claimant felt the termination was without just cause and excuse Claimant felt the termination was without just cause and excuse
because he was terminated by Mayto orally on 4/3/2008.because he was terminated by Mayto orally on 4/3/2008.
Issue before the court: Issue before the court: Whether Claimant is an employeeWhether Claimant is an employee
Court Decision: Court Decision: Claimant is not an employee but a subcontractor as Claimant is not an employee but a subcontractor as
he agreed by accepting the cheque of payment.he agreed by accepting the cheque of payment.
7
0
All Malayan Mining Industry Staff Union vs
Anglo- Oriental (AO) (Awards 56 of 1974)
•130 workers of the Larut Tin Fields Bhd (LTFB) were retrenched following the 130 workers of the Larut Tin Fields Bhd (LTFB) were retrenched following the
closing down of the company in 1972.closing down of the company in 1972.
•The union claimed that 4 of the employees/union member are the employees of The union claimed that 4 of the employees/union member are the employees of
AOAO
•AO claimed the 4 employees were never employed by AO but by the LTFB.AO claimed the 4 employees were never employed by AO but by the LTFB.
•AO (Private company):AO (Private company):
-Contract as general manager to provide special service to LTFB as a clientContract as general manager to provide special service to LTFB as a client
-Engaged senior staff to work on site of mine owned by LTFBEngaged senior staff to work on site of mine owned by LTFB
-Owns no mining property but assist in the running a mine for LTFBOwns no mining property but assist in the running a mine for LTFB
•LTFB (Public company):LTFB (Public company):
-Pay monthly salary, EPF, insurance and other remunerations to claimantPay monthly salary, EPF, insurance and other remunerations to claimant
-Responsible for day to day activities at siteResponsible for day to day activities at site
-Under supervision of mine managerUnder supervision of mine manager
-Part and parcel of the organization of miningPart and parcel of the organization of mining
Issue before the court: Issue before the court: Whether Claimant is an employee of AOWhether Claimant is an employee of AO
Decision by Court: Decision by Court: There is no relationship of master and servant between AO and There is no relationship of master and servant between AO and
the 4 claimants. AO is not the employer of the 4 claimants but LTFB.the 4 claimants. AO is not the employer of the 4 claimants but LTFB.
7
1
Anglo- Oriental (AO) (Awards 56 of 1974)
•130 workers of the Larut Tin Fields Bhd (LTFB) were retrenched following the 130 workers of the Larut Tin Fields Bhd (LTFB) were retrenched following the
closing down of the company in 1972.closing down of the company in 1972.
•The union claimed that 4 of the employees/union member are the employees of The union claimed that 4 of the employees/union member are the employees of
AOAO
•AO claimed the 4 employees were never employed by AO but by the LTFB.AO claimed the 4 employees were never employed by AO but by the LTFB.
•AO (Private company):AO (Private company):
-Contract as general manager to provide special service to LTFB as a clientContract as general manager to provide special service to LTFB as a client
-Engaged senior staff to work on site of mine owned by LTFBEngaged senior staff to work on site of mine owned by LTFB
-Owns no mining property but assist in the running a mine for LTFBOwns no mining property but assist in the running a mine for LTFB
•LTFB (Public company):LTFB (Public company):
-Pay monthly salary, EPF, insurance and other remunerations to claimantPay monthly salary, EPF, insurance and other remunerations to claimant
-Responsible for day to day activities at siteResponsible for day to day activities at site
-Under supervision of mine managerUnder supervision of mine manager
-Part and parcel of the organization of miningPart and parcel of the organization of mining
Issue before the court: Issue before the court: Whether Claimant is an employee of AOWhether Claimant is an employee of AO
Decision by Court: Decision by Court: There is no relationship of master and servant between AO and There is no relationship of master and servant between AO and
the 4 claimants. AO is not the employer of the 4 claimants but LTFB.the 4 claimants. AO is not the employer of the 4 claimants but LTFB.
7
1
Issues in employment relationship
1.1.Prevalence of knowledge workers, Prevalence of knowledge workers,
2.2.Growth in shared service and outsourcing (SSO) Growth in shared service and outsourcing (SSO)
industry industry
3.3.Growth in independent employment (cloud work and gig Growth in independent employment (cloud work and gig
work)work)
•Social security
•KIV amendment 2022: New Section 101c of the Employment Act, 1955:
“Presumption as to who is an employee and employer”
4.4.Foreign labours Foreign labours
1.1.Prevalence of knowledge workers, Prevalence of knowledge workers,
2.2.Growth in shared service and outsourcing (SSO) Growth in shared service and outsourcing (SSO)
industry industry
3.3.Growth in independent employment (cloud work and gig Growth in independent employment (cloud work and gig
work)work)
•Social security
•KIV amendment 2022: New Section 101c of the Employment Act, 1955:
“Presumption as to who is an employee and employer”
4.4.Foreign labours Foreign labours
RECOGNITION OF TRADE UNION
HRM 659 INDUSTRIAL RELATIONS
CHAPTER FIVE :
Union Recognition
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
MAR_JULY 2022
HRM 659 INDUSTRIAL RELATIONS
CHAPTER FIVE :
Union Recognition
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
MAR_JULY 2022
CHAPTER OUTLINE
5.0Union Recognition
5.1The meaning of recognition and its importance
5.2Scope of Representation
5.3Conditions for Recognition
5.4Recognition Process
5.5Effect of Recognition
5.0Union Recognition
5.1The meaning of recognition and its importance
5.2Scope of Representation
5.3Conditions for Recognition
5.4Recognition Process
5.5Effect of Recognition
Union Registration and Recognition Process
1.Application for registration must be signed by at least 7 members (Form B of TUA 1959).
2.Send the form to …………………………..
3.If approved, proceed with claim for recognition (Form A of IRA 1967 at page 179 of the
textbook).
4.Send the form to ………………… and a carbon copy to ……………………..…………
5.If recognized, proceed to collective bargaining.
6.If not-recognized?
1.Application for registration must be signed by at least 7 members (Form B of TUA 1959).
2.Send the form to …………………………..
3.If approved, proceed with claim for recognition (Form A of IRA 1967 at page 179 of the
textbook).
4.Send the form to ………………… and a carbon copy to ……………………..…………
5.If recognized, proceed to collective bargaining.
6.If not-recognized?
Claim for Recognition
A claim submitted by a trade union to an employer and processed by the
Department of Industrial Relations Malaysia to determine whether the trade union
is eligible or not to represent the respective workers and have the majority to
present workers in collective bargaining.
A claim submitted by a trade union to an employer and processed by the
Department of Industrial Relations Malaysia to determine whether the trade union
is eligible or not to represent the respective workers and have the majority to
present workers in collective bargaining.
Claim for Recognition
ØRecognition by employer is important where the union is accepted as the rightful representative of his workers and has
the right to speak on their behalf.
ØRecognition is the starting point for collective bargaining.
ØWithout recognition the union cannot commence collective bargaining.
ØRecognition by employer is important where the union is accepted as the rightful representative of his workers and has
the right to speak on their behalf.
ØRecognition is the starting point for collective bargaining.
ØWithout recognition the union cannot commence collective bargaining.
Scope of Representation
A trade union can represent either
a blue collar worker
OR
a white collar workers
(Sec. 9(1) of IRA: Managerial, executive, confidential, or security capacity).
A trade union can represent either
a blue collar worker
OR
a white collar workers
(Sec. 9(1) of IRA: Managerial, executive, confidential, or security capacity).
SCOPE OF REPRESENTATION
■There is no legal definition of “managerial”, “executive”, “confidential” or “security”.
■The definition is based on its own merits by looking into the organizational structure and hierarchy of the
establishment and the job function of the workman involved.
■The criteria applied are the actual duties and responsibilities of the position rather than designations.
■Any dispute arising before or after recognition has been accorded, on the definition of “managerial”, “executive”,
“confidential” or “security” may be referred to the DGIR who, will advise make an appropriate decision.
■There is no legal definition of “managerial”, “executive”, “confidential” or “security”.
■The definition is based on its own merits by looking into the organizational structure and hierarchy of the
establishment and the job function of the workman involved.
■The criteria applied are the actual duties and responsibilities of the position rather than designations.
■Any dispute arising before or after recognition has been accorded, on the definition of “managerial”, “executive”,
“confidential” or “security” may be referred to the DGIR who, will advise make an appropriate decision.
Types of employees
■ A white-collar worker
- is a person who performs
professional, managerial, or
administrative work.
- works in office, cubicle,
or other administrative
setting.
■A blue-collar worker
- is a worker, whose job
requires manual labor
■ A pink-collar worker
- is a worker, whose labor is
related to customer interaction,
entertainment, sales, or other
service-oriented work.
■ A white-collar worker
- is a person who performs
professional, managerial, or
administrative work.
- works in office, cubicle,
or other administrative
setting.
■A blue-collar worker
- is a worker, whose job
requires manual labor
■ A pink-collar worker
- is a worker, whose labor is
related to customer interaction,
entertainment, sales, or other
service-oriented work.
Conditions for Recognition
1.Competence of the TU to represent the employee of the workplace (establishment) or in the trade or in the
occupation or industry
2.Members of the TU – the membership is within the scope of TU constitution
3.Percentage of TU members – the membership has majority (50% + 1 employee) among the workers being
represented
1.Competence of the TU to represent the employee of the workplace (establishment) or in the trade or in the
occupation or industry
2.Members of the TU – the membership is within the scope of TU constitution
3.Percentage of TU members – the membership has majority (50% + 1 employee) among the workers being
represented
Recognition Process
§A written application must be made in prescribed form as required under IRA
Section 9(2) to the employer claiming recognition.
§The employer must reply within 21 days after receiving the claims.
§The employer can either decide:
oTo accord recognition voluntarily
oTo refuse recognition with reasons given
oTo request DGIR 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 written
report to DGIR.
§A written application must be made in prescribed form as required under IRA
Section 9(2) to the employer claiming recognition.
§The employer must reply within 21 days after receiving the claims.
§The employer can either decide:
oTo accord recognition voluntarily
oTo refuse recognition with reasons given
oTo request DGIR 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 written
report to DGIR.
RECOGNITION PROCESS
Union serves claim on employee (Form A) Employer agrees to recognize? (reply within 21 days)
Accord recognition voluntarily
Employer fails to respond to claim Employer notifies union of grounds for not according recognition
Union reports matter to DGIR within 14 days of receipt of notification or after the 21-day period
DGIR takes steps or make inquiries to ascertain the issue of competence, and the membership position of the union by way of secret ballot
No recognition: Union may try again
six months later
Recognition to be accorded with effect
from date specified
Yes
No
Or
YesNo
sec.9(2)
sec.9(3)(a)
sec.9(4)
sec.9(4A)
sec.12
sec.9(5)
Union serves claim on employee (Form A) Employer agrees to recognize? (reply within 21 days)
Accord recognition voluntarily
Employer fails to respond to claim Employer notifies union of grounds for not according recognition
Union reports matter to DGIR within 14 days of receipt of notification or after the 21-day period
DGIR takes steps or make inquiries to ascertain the issue of competence, and the membership position of the union by way of secret ballot
No recognition: Union may try again
six months later
Recognition to be accorded with effect
from date specified
Yes
No
Or
YesNo
sec.9(2)
sec.9(3)(a)
sec.9(4)
sec.9(4A)
sec.12
sec.9(5)
Power of DGIR under Sec.9(4A) of IRA
1.Checking the competence of the TU
§Company to furnish a name list of eligible employees.
§Union to provide a list of paying members in the company.
§Checked one against the other.
OR
§Refer to DGTU*
2.Conducting secret ballot
§DGIR will visit the place of work, assemble the workers together and
distribute ballot papers.
1.Checking the competence of the TU
§Company to furnish a name list of eligible employees.
§Union to provide a list of paying members in the company.
§Checked one against the other.
OR
§Refer to DGTU*
2.Conducting secret ballot
§DGIR will visit the place of work, assemble the workers together and
distribute ballot papers.
Prohibitions during claim of recognition (Sec 10 of IRA)
•Workmen are prohibited from declaring pickets and strikes pending
the recognition application.
•Pickets and strikes are forbidden not only during the proceedings for
recognition but also after a decision was made by the DGIR relating
to recognition.
•Employers also are forbidden from declaring lock-outs (including
suspension of employment) and terminating the services of the
workmen during specified period except termination under
disciplinary reasons.
•Workmen are prohibited from declaring pickets and strikes pending
the recognition application.
•Pickets and strikes are forbidden not only during the proceedings for
recognition but also after a decision was made by the DGIR relating
to recognition.
•Employers also are forbidden from declaring lock-outs (including
suspension of employment) and terminating the services of the
workmen during specified period except termination under
disciplinary reasons.
Effect of Recognition
•Once recognition is accorded to a trade union, no other trade union
representing the same workers or class of workers can apply for
recognition within a 3 year* period from the day recognition was
accorded.
•However, the limitation is waived if the union accorded with
recognition cease to exist within the stipulated period.
•If the application for recognition is rejected (by DGIR), the particular
union can only reapply for recognition after 6 months from the date of
rejection.
•Once recognition is accorded to a trade union, no other trade union
representing the same workers or class of workers can apply for
recognition within a 3 year* period from the day recognition was
accorded.
•However, the limitation is waived if the union accorded with
recognition cease to exist within the stipulated period.
•If the application for recognition is rejected (by DGIR), the particular
union can only reapply for recognition after 6 months from the date of
rejection.
De-registration vs De-Recognition?
§TU can lost registration if they carry out unlawful activities or fail to comply with the requirements of the law.
§However, a recognition from employer can’t be taken away.
§Even if the membership has no longer contains at least 50%+1 of the relevant worker, it retains its recognition from the employer.
§If the employee join another TU, they can request recognition for the new TU, after 3 years* has elapsed from the granting of
recognition to the first TU.
§TU can lost registration if they carry out unlawful activities or fail to comply with the requirements of the law.
§However, a recognition from employer can’t be taken away.
§Even if the membership has no longer contains at least 50%+1 of the relevant worker, it retains its recognition from the employer.
§If the employee join another TU, they can request recognition for the new TU, after 3 years* has elapsed from the granting of
recognition to the first TU.
Types of Recognition of Trade
Union
•Limited – the union is entitled to make representation on
individual grievances and to negotiate on behalf of its members
only
•General – the trade union is entitled to make representation, in
addition to the above, general questions of terms and
conditions of service on behalf of all workmen, whether or not
they are members of the trade union
Union
•Limited – the union is entitled to make representation on
individual grievances and to negotiate on behalf of its members
only
•General – the trade union is entitled to make representation, in
addition to the above, general questions of terms and
conditions of service on behalf of all workmen, whether or not
they are members of the trade union
Types of Recognition
qCriteria used to grant limited or general recognition
•The union represents majority of the workmen: General
recognition
•The union represents a minority the workmen: Limited
recognition
qCriteria used to grant limited or general recognition
•The union represents majority of the workmen: General
recognition
•The union represents a minority the workmen: Limited
recognition
CHAPTER SIX :
COLLECTIVE BARGAINING
HRM 659
INDUSTRIAL RELATIONS
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
MAR_JULY 2022
COLLECTIVE BARGAINING
HRM 659
INDUSTRIAL RELATIONS
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
MAR_JULY 2022
Chapter outline
6.0Collective Bargaining Procedures
6.1Concepts of collective Bargaining
6.2Scope of representation
6.3Pre Conditions for Collective Bargaining
6.4Collective Bargaining Process
6.0Collective Bargaining Procedures
6.1Concepts of collective Bargaining
6.2Scope of representation
6.3Pre Conditions for Collective Bargaining
6.4Collective Bargaining Process
Deciding on Terms and Conditions of Employment
Wages and other terms of employment can be decided by:
qUnilaterally, by the employer
qBilaterally or jointly by the employer and the representatives of employees
qLegislations
Wages and other terms of employment can be decided by:
qUnilaterally, by the employer
qBilaterally or jointly by the employer and the representatives of employees
qLegislations
Inclusion in the Employer’s Decision Making
qIf employees are unionized, they gain the right to be included in the employer’s decision on the
terms and conditions of employment through the process of collective bargaining.
qThe outcome of collective bargaining is a collective agreement.
qIf employees are unionized, they gain the right to be included in the employer’s decision on the
terms and conditions of employment through the process of collective bargaining.
qThe outcome of collective bargaining is a collective agreement.
Collective Bargaining
§IRA 1967 defines Collective Bargaining (CB) as negotiating with a view to the conclusion of a
Collective Agreement (CA).
§The rights of the workmen to bargain collectively with the employer on terms of
employment and conditions of work as well as to collectively withhold labor to back up the
process of CB.
§IRA 1967 defines Collective Bargaining (CB) as negotiating with a view to the conclusion of a
Collective Agreement (CA).
§The rights of the workmen to bargain collectively with the employer on terms of
employment and conditions of work as well as to collectively withhold labor to back up the
process of CB.
Pre-Conditions
For effective bargaining:
1.Workers must have the right to form collective associations (Chap 4):
•Workers must have the right to form the join trade
unions.
•Trade union activity is legal within the limitation set by
the law.
•CB could not take place without this right.
For effective bargaining:
1.Workers must have the right to form collective associations (Chap 4):
•Workers must have the right to form the join trade
unions.
•Trade union activity is legal within the limitation set by
the law.
•CB could not take place without this right.
Pre-Conditions (Cont.)
2.Unions must have bargaining strength:
•Recognized by the employer (Chap 5)
•Has adequate financial strength.
•Members are united.
3.Bargaining in good faith.
2.Unions must have bargaining strength:
•Recognized by the employer (Chap 5)
•Has adequate financial strength.
•Members are united.
3.Bargaining in good faith.
Managerial Prerogatives
(Sec 13(3) of IRA)
vHowever, there are non-bargainable matters (managerial prerogatives) in collective bargaining:
a.The promotion by an employer of any workmen from
a lower grade or category to a higher grade or
category.
b.The transfer by an employer of a workmen within
the organization.
c.The employment by an employer of any person that
he may appoint in the event of a vacancy.
(Sec 13(3) of IRA)
vHowever, there are non-bargainable matters (managerial prerogatives) in collective bargaining:
a.The promotion by an employer of any workmen from
a lower grade or category to a higher grade or
category.
b.The transfer by an employer of a workmen within
the organization.
c.The employment by an employer of any person that
he may appoint in the event of a vacancy.
Managerial Prerogatives (Cont.)
d.The termination by an employer of the services of a
workmen by reason of redundancy.
e.The dismissal and reinstatement of a workmen by
an employer.
f.The assignment or allocation by an employer of
duties or specific tasks to a workman.
d.The termination by an employer of the services of a
workmen by reason of redundancy.
e.The dismissal and reinstatement of a workmen by
an employer.
f.The assignment or allocation by an employer of
duties or specific tasks to a workman.
Bargaining Levels
Collective bargaining may be conducted:
oAt industry level whereby employer’s union and national employees’ union negotiate
oAt company level whereby employer negotiates with national employees’ union
oAt company level whereby employer negotiates with in-house employees’ union
Collective bargaining may be conducted:
oAt industry level whereby employer’s union and national employees’ union negotiate
oAt company level whereby employer negotiates with national employees’ union
oAt company level whereby employer negotiates with in-house employees’ union
C
o
l
l
e
c
t
i
v
e
B
a
r
g
a
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n
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g
P
r
o
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e
d
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Union presents written demands*
[S. 13 IRA] and employer shall reply within 14 days [S. 13(4) of IRA]
Agreement is reached, put in writing and signed.
Conciliation meeting held to resolve trade dispute.
Deadlock: Breakdown in negotiations.
Parties refuse to continue negotiations.
If no resolution, dispute is referred to Industrial
Court for arbitration.
If employer agrees, the first bargaining session
shall commence within 30 days of acceptance [S. 13(5)
of IRA] : union explains its demands and management
presents counter offer.
Bargaining continue: Non-controversial items
where agreement is reached are cleared first.
Bargaining over controversial items
(Economic items)
* The demands must not include managerial
prerogative [S. 13 (3) IRA]
Otherwise: Union may notify DGIR [S. 13(6) of IRA]
for conciliation [S. 18 of IRA].
If employer still refuse to start bargaining, this
situation is a trade dispute [S. 13(7) of IRA].
o
l
l
e
c
t
i
v
e
B
a
r
g
a
i
n
i
n
g
P
r
o
c
e
d
u
r
e
s
Union presents written demands*
[S. 13 IRA] and employer shall reply within 14 days [S. 13(4) of IRA]
Agreement is reached, put in writing and signed.
Conciliation meeting held to resolve trade dispute.
Deadlock: Breakdown in negotiations.
Parties refuse to continue negotiations.
If no resolution, dispute is referred to Industrial
Court for arbitration.
If employer agrees, the first bargaining session
shall commence within 30 days of acceptance [S. 13(5)
of IRA] : union explains its demands and management
presents counter offer.
Bargaining continue: Non-controversial items
where agreement is reached are cleared first.
Bargaining over controversial items
(Economic items)
* The demands must not include managerial
prerogative [S. 13 (3) IRA]
Otherwise: Union may notify DGIR [S. 13(6) of IRA]
for conciliation [S. 18 of IRA].
If employer still refuse to start bargaining, this
situation is a trade dispute [S. 13(7) of IRA].
Definition of Terms
Conciliation is a process in which the Department of Industrial
Relations in the Ministry of Human Resources acts as a neutral
mediator to help the parties to a dispute find a settlement.
Deadlock is a breakdown in the process of collective bargaining
where the two parties are unable to reach an agreeable compromise
over the terms to be included in a collective agreement.
Arbitration is a process of settling worker-management disputes by
having an impartial third party (the Industrial Court) make a decision
which is binding on both parties.
Conciliation is a process in which the Department of Industrial
Relations in the Ministry of Human Resources acts as a neutral
mediator to help the parties to a dispute find a settlement.
Deadlock is a breakdown in the process of collective bargaining
where the two parties are unable to reach an agreeable compromise
over the terms to be included in a collective agreement.
Arbitration is a process of settling worker-management disputes by
having an impartial third party (the Industrial Court) make a decision
which is binding on both parties.
Collective Bargaining Cycle
Preparation
Negotiations
Implementation of the Collective Agreement
Disputes
Preparation
Negotiations
Collective Agreement
Settlement
Collective Agreement
Preparation
Negotiations
Implementation of the Collective Agreement
Disputes
Preparation
Negotiations
Collective Agreement
Settlement
Collective Agreement
Bargaining Team
qMembership of bargaining team will vary depending on the situation.
§Will be responsible for all preparation prior to negotiations
and during negotiations.
qWhat are the characteristics of effective negotiator?
qMembership of bargaining team will vary depending on the situation.
§Will be responsible for all preparation prior to negotiations
and during negotiations.
qWhat are the characteristics of effective negotiator?
Preparation for CB
Prior to commencement of negotiations, both
parties will:
ØDecide who shall represent them
ØCollect information about the other party’s strengths and weaknesses
ØCollect economic data
ØGet a mandate from their principals
ØDecide on strategies and tactics
Prior to commencement of negotiations, both
parties will:
ØDecide who shall represent them
ØCollect information about the other party’s strengths and weaknesses
ØCollect economic data
ØGet a mandate from their principals
ØDecide on strategies and tactics
Collection Of Information
1.Know the opposition
§Financial strength.
§Total membership.
§Power structure and personality of union leaders.
§Any internal problems.
2.Economic condition
§The union demands will depend on the financial
capacity and profitability of the company.
1.Know the opposition
§Financial strength.
§Total membership.
§Power structure and personality of union leaders.
§Any internal problems.
2.Economic condition
§The union demands will depend on the financial
capacity and profitability of the company.
In class exercise
In your group, identify 3 points as suggested by Rabiu
and Kamal (2006) that hampering Malaysian
employees from their rights to bargain collectively.
E-mail your group answer to [email protected]
during the class time
In your group, identify 3 points as suggested by Rabiu
and Kamal (2006) that hampering Malaysian
employees from their rights to bargain collectively.
E-mail your group answer to [email protected]
during the class time
HRM 659 INDUSTRIAL RELATIONS
CHAPTER SEVEN :CHAPTER SEVEN :
COLLECTIVE AGREEMENT
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
MAR_JULY 2022
CHAPTER SEVEN :CHAPTER SEVEN :
COLLECTIVE AGREEMENT
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
MAR_JULY 2022
Chapter outline
Col lec t i ve A gr ee men t and Con tr ac t of empl oymentCol lec t i ve A gr ee men t and Con tr ac t of empl oyment
1.What is collective agreement (CA)?
2.Sco pe of CA
3.Contents of CA
4.Cognizance of CA
5.Interpretation of CA
6.No n-co mpliance of CA
7.Ef fect of an award handed down by the Indus trial Co urt
Col lec t i ve A gr ee men t and Con tr ac t of empl oymentCol lec t i ve A gr ee men t and Con tr ac t of empl oyment
1.What is collective agreement (CA)?
2.Sco pe of CA
3.Contents of CA
4.Cognizance of CA
5.Interpretation of CA
6.No n-co mpliance of CA
7.Ef fect of an award handed down by the Indus trial Co urt
What is Collective Agreement
(CA)?
A n a g re e m e n t b e tw e e n tra d e u n io n a n d th e e m p lo y e r.
A n a g re e m e n t b e tw e e n tra d e u n io n a n d th e e m p lo y e r.
A cco rd in g to IR A (1 9 6 7 )
A cco rd in g to IR A (1 9 6 7 )
“C o lle ctiv e A g re e m e n t” m e a n s:
“C o lle ctiv e A g re e m e n t” m e a n s:
a n a g re e m e n t in
a n a g re e m e n t in
w ritin g
w ritin g
co n clu d e d b e tw e e n a n
co n clu d e d b e tw e e n a n
e m p lo y e r
e m p lo y e r
o r a tra d e u n io n o f e m p lo y e rs o n th e o n e h a n d a
o r a tra d e u n io n o f e m p lo y e rs o n th e o n e h a n d a
tra d e u n io n o f w o rk m e n
tra d e u n io n o f w o rk m e n
o n th e o th e r re la tin g to th e
o n th e o th e r re la tin g to th e
te rm s a n d co n d itio n s
te rm s a n d co n d itio n s
o f e m p lo y m e n t a n d w o rk o f w o rk m e n o r co n ce rn in g
o f e m p lo y m e n t a n d w o rk o f w o rk m e n o r co n ce rn in g
re la tio n s b e tw e e n su ch p a rtie s.
re la tio n s b e tw e e n su ch p a rtie s.
(CA)?
A n a g re e m e n t b e tw e e n tra d e u n io n a n d th e e m p lo y e r.
A n a g re e m e n t b e tw e e n tra d e u n io n a n d th e e m p lo y e r.
A cco rd in g to IR A (1 9 6 7 )
A cco rd in g to IR A (1 9 6 7 )
“C o lle ctiv e A g re e m e n t” m e a n s:
“C o lle ctiv e A g re e m e n t” m e a n s:
a n a g re e m e n t in
a n a g re e m e n t in
w ritin g
w ritin g
co n clu d e d b e tw e e n a n
co n clu d e d b e tw e e n a n
e m p lo y e r
e m p lo y e r
o r a tra d e u n io n o f e m p lo y e rs o n th e o n e h a n d a
o r a tra d e u n io n o f e m p lo y e rs o n th e o n e h a n d a
tra d e u n io n o f w o rk m e n
tra d e u n io n o f w o rk m e n
o n th e o th e r re la tin g to th e
o n th e o th e r re la tin g to th e
te rm s a n d co n d itio n s
te rm s a n d co n d itio n s
o f e m p lo y m e n t a n d w o rk o f w o rk m e n o r co n ce rn in g
o f e m p lo y m e n t a n d w o rk o f w o rk m e n o r co n ce rn in g
re la tio n s b e tw e e n su ch p a rtie s.
re la tio n s b e tw e e n su ch p a rtie s.
Conditions for a valid CA
[Sec 14 of IRA]
1.In writing and signed by the parties to the agreement
2.It must name the parties to the agreement
3.It must specify duration of the agreement to be in force, which may not
be less than 3 years
[Sec 14 of IRA]
1.In writing and signed by the parties to the agreement
2.It must name the parties to the agreement
3.It must specify duration of the agreement to be in force, which may not
be less than 3 years
Conditions for a valid CA
[Sec 14 of IRA] (cont.)
4.It must include a procedure for modification and termination of the
agreement
5.It must include a procedure to be used to settle any dispute over
interpretation of the agreement
6.The terms and conditions of employment in the agreement must not
conflict with or less favourable than those in any relevant legislation.
[Sec 14 of IRA] (cont.)
4.It must include a procedure for modification and termination of the
agreement
5.It must include a procedure to be used to settle any dispute over
interpretation of the agreement
6.The terms and conditions of employment in the agreement must not
conflict with or less favourable than those in any relevant legislation.
Contents of Collective
Agreement
ØSimple, and unambiguous wording.
ØUnderstandable language(s).
ØOfficial version to be used for interpretation.
ØThe features are usually named as ‘article’ and ‘clause’.
Agreement
ØSimple, and unambiguous wording.
ØUnderstandable language(s).
ØOfficial version to be used for interpretation.
ØThe features are usually named as ‘article’ and ‘clause’.
Common Features of CA
1.Duration of the agreement.
•Is there any legal requirement on the duration?
•If you are an employer, do you prefer the duration to be short or long?
•What happened after the duration expires?
2.Name of parties of the agreement.
1.Duration of the agreement.
•Is there any legal requirement on the duration?
•If you are an employer, do you prefer the duration to be short or long?
•What happened after the duration expires?
2.Name of parties of the agreement.
Common Features of CA
3.Scope of the agreement.
•All workers in the organization who are eligible to join the TU which negotiates the agreement whether
or not they are members of the TU.
•The parties may agree to exclude certain groups of employees (e.g. fixed term employees, sales
personnel, probationers) or list out specific job titles to be excluded in the CA.
•127 foreign workers who were employed as machine operators and general workers are under the scope
of CA signed between National Union of Petroleum and Chemical Industry Workers and Chong Wah
Plastics Sdn Bhd. [Award No. 140 of 2001].
3.Scope of the agreement.
•All workers in the organization who are eligible to join the TU which negotiates the agreement whether
or not they are members of the TU.
•The parties may agree to exclude certain groups of employees (e.g. fixed term employees, sales
personnel, probationers) or list out specific job titles to be excluded in the CA.
•127 foreign workers who were employed as machine operators and general workers are under the scope
of CA signed between National Union of Petroleum and Chemical Industry Workers and Chong Wah
Plastics Sdn Bhd. [Award No. 140 of 2001].
Common Features of CA
4.Employer’s recognition of the union and its rights and privileges.
•For example: Leave on union activities (Sec. 6 IRA), check-off system (Sec. 24
EA).
5.Union’s recognition of the employer’s right to manage the organization.
4.Employer’s recognition of the union and its rights and privileges.
•For example: Leave on union activities (Sec. 6 IRA), check-off system (Sec. 24
EA).
5.Union’s recognition of the employer’s right to manage the organization.
Common Features of CA
6.Procedures which both parties agree.
•Especially on general matters related to managerial prerogatives for example:
a.Internal advertising for job posting
b.Disciplinary and dismissal
c.Processing grievance
d.Consultation on workforce issue
e.Claims of sexual harassment
6.Procedures which both parties agree.
•Especially on general matters related to managerial prerogatives for example:
a.Internal advertising for job posting
b.Disciplinary and dismissal
c.Processing grievance
d.Consultation on workforce issue
e.Claims of sexual harassment
Common Features of CA
7.Terms and conditions of employment
•Nearly all CAs have clauses on working hours, rates of payment, leaves, public holidays,
retrenchment and retirement benefits, advance of wages, salary scale, uniforms, safety
equipment, bonus, allowances (shift, acting, meal), funeral expenses, medical benefits, and
prolonged illness.
§Existing benefits
oInclude the clause in the agreement which states: “All other existing benefits and practices
not herein covered in this agreement shall continue to be inforce.”
7.Terms and conditions of employment
•Nearly all CAs have clauses on working hours, rates of payment, leaves, public holidays,
retrenchment and retirement benefits, advance of wages, salary scale, uniforms, safety
equipment, bonus, allowances (shift, acting, meal), funeral expenses, medical benefits, and
prolonged illness.
§Existing benefits
oInclude the clause in the agreement which states: “All other existing benefits and practices
not herein covered in this agreement shall continue to be inforce.”
Process of Cognizance by
the Industrial Court [Sec. 16 and
17 of IRA]
Al l C As m us t b e j oi nt l y depo s i t ed w i t h i n on e m o nt h f r om t he d at e o f t he agr e em e nt by t he p ar t i e s t o t he I ndus t r i al Cour t f or
Al l C As m us t b e j oi nt l y depo s i t ed w i t h i n on e m o nt h f r om t he d at e o f t he agr e em e nt by t he p ar t i e s t o t he I ndus t r i al Cour t f or
c ogni z anc e pr oc es s .
c ogni z anc e pr oc es s .
The I C m a y r eq ui r e t he s i gna t or i es t o a m end t he agr e em en t i f i t doe s not c om pl y w i t h t he I RA 19 67 or any ot he r l eg i s l at i ons .
The I C m a y r eq ui r e t he s i gna t or i es t o a m end t he agr e em en t i f i t doe s not c om pl y w i t h t he I RA 19 67 or any ot he r l eg i s l at i ons .
•Th e IC sh al l am en d th e a gre em ent i f the par ti es ref use to am end as req ui r ed by the cou rt, a fte r g i vi n g th em op por tun i ty to b e h ear d.
O nc e gr an t ed c ogni z anc e , i t bec om es an aw a r d an d bi ndi ng on bo t h pa r t i es , i nc l udi ng f u t ur e e m pl o yees w ho ar e el i gi bl e t o j oi n t he t r ade uni on.
O nc e gr an t ed c ogni z anc e , i t bec om es an aw a r d an d bi ndi ng on bo t h pa r t i es , i nc l udi ng f u t ur e e m pl o yees w ho ar e el i gi bl e t o j oi n t he t r ade uni on.
the Industrial Court [Sec. 16 and
17 of IRA]
Al l C As m us t b e j oi nt l y depo s i t ed w i t h i n on e m o nt h f r om t he d at e o f t he agr e em e nt by t he p ar t i e s t o t he I ndus t r i al Cour t f or
Al l C As m us t b e j oi nt l y depo s i t ed w i t h i n on e m o nt h f r om t he d at e o f t he agr e em e nt by t he p ar t i e s t o t he I ndus t r i al Cour t f or
c ogni z anc e pr oc es s .
c ogni z anc e pr oc es s .
The I C m a y r eq ui r e t he s i gna t or i es t o a m end t he agr e em en t i f i t doe s not c om pl y w i t h t he I RA 19 67 or any ot he r l eg i s l at i ons .
The I C m a y r eq ui r e t he s i gna t or i es t o a m end t he agr e em en t i f i t doe s not c om pl y w i t h t he I RA 19 67 or any ot he r l eg i s l at i ons .
•Th e IC sh al l am en d th e a gre em ent i f the par ti es ref use to am end as req ui r ed by the cou rt, a fte r g i vi n g th em op por tun i ty to b e h ear d.
O nc e gr an t ed c ogni z anc e , i t bec om es an aw a r d an d bi ndi ng on bo t h pa r t i es , i nc l udi ng f u t ur e e m pl o yees w ho ar e el i gi bl e t o j oi n t he t r ade uni on.
O nc e gr an t ed c ogni z anc e , i t bec om es an aw a r d an d bi ndi ng on bo t h pa r t i es , i nc l udi ng f u t ur e e m pl o yees w ho ar e el i gi bl e t o j oi n t he t r ade uni on.
Interpretation of CA [S. 33 of IRA]
ØDispute over the interpretation of any clause in a CA may be referred to the IC
for clarification by either the parties to the agreement or the Minister of Human
Resources.
ØThe IC may vary the terms to clarify the meaning and removing ambiguity.
ØFor example: Bonus based on the company’s or the holding company’s profit
[Award No 746 of 2011].
ØDispute over the interpretation of any clause in a CA may be referred to the IC
for clarification by either the parties to the agreement or the Minister of Human
Resources.
ØThe IC may vary the terms to clarify the meaning and removing ambiguity.
ØFor example: Bonus based on the company’s or the holding company’s profit
[Award No 746 of 2011].
Non-Compliance with a CA [S. 56 of
IRA]
ØParties to the CA may file a complaint of non-compliance at the Industrial Court.
ØThe IC will hear the parties, make its interpretation, and decide whether compliance
should be ordered.
ØFailure to comply with the IC order can be punished with:
ØMaximum RM50,000 fine [effective 1 Jan 2021], or
ØMaximum one year jail, or both
ØPlus RM500 fine per day if non-compliance continues.
IRA]
ØParties to the CA may file a complaint of non-compliance at the Industrial Court.
ØThe IC will hear the parties, make its interpretation, and decide whether compliance
should be ordered.
ØFailure to comply with the IC order can be punished with:
ØMaximum RM50,000 fine [effective 1 Jan 2021], or
ØMaximum one year jail, or both
ØPlus RM500 fine per day if non-compliance continues.
CHAPTER EIGHT :
TRADE DISPUTES
CHAPTER NINE :
INDUSTRIAL ACTIONS
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
MAR_JULY 2022
TRADE DISPUTES
CHAPTER NINE :
INDUSTRIAL ACTIONS
Prepared by :
SUHAILA MOHAMED
UiTM Puncak Alam
MAR_JULY 2022
Chapter outline
Trade disputes
8.1 Concepts and types of trade disputes
8.2 Settlement of trade disputes
Industrial Actions
9.1 Concepts and causes of Industrial Actions.
9.2 Recognition of the rights to involve in Industrial Actions
9.3 Picketing
9.4 Strike (including work Slow and work to rule)
9.5 Lock Outs
Trade disputes
8.1 Concepts and types of trade disputes
8.2 Settlement of trade disputes
Industrial Actions
9.1 Concepts and causes of Industrial Actions.
9.2 Recognition of the rights to involve in Industrial Actions
9.3 Picketing
9.4 Strike (including work Slow and work to rule)
9.5 Lock Outs
What is trade dispute?
▪Also known as industrial dispute.
▪The IRA defines trade dispute 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 condition of work of any such worker”.
▪Also known as industrial dispute.
▪The IRA defines trade dispute 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 condition of work of any such worker”.
What is trade dispute?
▪Question: What is the difference between complaint,
grievance, and trade dispute?
▪For a trade dispute to exist, the workers must be represented
by a TU, unless:
1.the issue is related to rights to join or not to join TU.
2.the issue is related to claim of unfair termination of
employment.
▪Question: What is the difference between complaint,
grievance, and trade dispute?
▪For a trade dispute to exist, the workers must be represented
by a TU, unless:
1.the issue is related to rights to join or not to join TU.
2.the issue is related to claim of unfair termination of
employment.
Example of Grievance Procedure
in a Unionized Company
–Step 1: Within 10 working days of a grievance arising, the
employee concerned shall raise the grievance with his immediate
supervisor. He may be accompanied by union representative.
–Step 2: If the matter is still not settle within a further 7 working
days, following representations made under Step 1, the union
make formal representation to the employer in writing. The
employer shall without delay offer arrangements for a meeting
between the manager and union. Such a meeting shall be held
within 7 days of receipt of the union’s letter.
in a Unionized Company
–Step 1: Within 10 working days of a grievance arising, the
employee concerned shall raise the grievance with his immediate
supervisor. He may be accompanied by union representative.
–Step 2: If the matter is still not settle within a further 7 working
days, following representations made under Step 1, the union
make formal representation to the employer in writing. The
employer shall without delay offer arrangements for a meeting
between the manager and union. Such a meeting shall be held
within 7 days of receipt of the union’s letter.
Example of Grievance Procedure
in a Unionized Company (Cont’d)
–Step 3: If the matter remains unsettled the grievance shall then be
discussed between the Manager and / or his representative and /
or union official within 10 days.
–Step 4: If the matter still remains unsettled after the meeting or any
further meetings between the employer and union, the matter shall
then be referred for settlement to the Ministry of Human Resources
under the provisions of the Industrial Relations Act, 1967.
in a Unionized Company (Cont’d)
–Step 3: If the matter remains unsettled the grievance shall then be
discussed between the Manager and / or his representative and /
or union official within 10 days.
–Step 4: If the matter still remains unsettled after the meeting or any
further meetings between the employer and union, the matter shall
then be referred for settlement to the Ministry of Human Resources
under the provisions of the Industrial Relations Act, 1967.
Example of Grievance Procedure
in a Non-Unionized Company
You are asked to approach your Head of Department if you
have any cause for complaint. Most difficulties should be
settled at this stage but if no satisfactory settlement is
reached within 3 working days you may involve the HR
Department. If the grievance is still not settled it may then be
referred to successive management levels, and ultimately to
the Managing Director, whose decision will be final.
in a Non-Unionized Company
You are asked to approach your Head of Department if you
have any cause for complaint. Most difficulties should be
settled at this stage but if no satisfactory settlement is
reached within 3 working days you may involve the HR
Department. If the grievance is still not settled it may then be
referred to successive management levels, and ultimately to
the Managing Director, whose decision will be final.
CAUSES OF TRADE DISPUTES
1.Grievance of an individual and represented by a TU.
2.Difference of opinion between TU and employer on the terms and
conditions of service.
3.Difference of opinion as to the interpretation of collective agreement or
Industrial Court award.
4.Non-implementation of collective agreement or Industrial Court award.
5.If employer still refuse to start collective bargaining, after conciliation by
DGIR.
1.Grievance of an individual and represented by a TU.
2.Difference of opinion between TU and employer on the terms and
conditions of service.
3.Difference of opinion as to the interpretation of collective agreement or
Industrial Court award.
4.Non-implementation of collective agreement or Industrial Court award.
5.If employer still refuse to start collective bargaining, after conciliation by
DGIR.
Settlement of Trade Dispute
1.Direct negotiation – voluntary negotiation without interference of third party.
2.Conciliation – voluntary involvement of an officer of the Industrial Relations
Department to help both parties to arrive at compromise acceptable to both parties
via recommendations and advice.
3.Mediation – third party that not from government. Unbiased, respected, and trusted
by both parties. For example politician or local leader.
4.Arbitration – authority to settle dispute by examining information and make
judgment (Industrial Court).
5.Board of Inquiry and committee of investigation.
1.Direct negotiation – voluntary negotiation without interference of third party.
2.Conciliation – voluntary involvement of an officer of the Industrial Relations
Department to help both parties to arrive at compromise acceptable to both parties
via recommendations and advice.
3.Mediation – third party that not from government. Unbiased, respected, and trusted
by both parties. For example politician or local leader.
4.Arbitration – authority to settle dispute by examining information and make
judgment (Industrial Court).
5.Board of Inquiry and committee of investigation.
Industrial Actions
When peaceful methods fail to settle dispute, union may attempt to
force a settlement by more aggressive methods i.e. taking industrial
action.
–Legal industrial actions by employees: picket and strike.
–In rear occasions, other form of ‘creative’ industrial actions may be taken
by union. For example wearing ‘sarong’ to work.
–Industrial action by employer: lock-out
When peaceful methods fail to settle dispute, union may attempt to
force a settlement by more aggressive methods i.e. taking industrial
action.
–Legal industrial actions by employees: picket and strike.
–In rear occasions, other form of ‘creative’ industrial actions may be taken
by union. For example wearing ‘sarong’ to work.
–Industrial action by employer: lock-out
What is Picket?
Picket is a gathering of workers outside their workplace with placards and
banners expressing workers’ grievance and demands for people to see, thus
gathering public sympathy and support.
Purpose of picket:
1.To communicate issue to the public
2.To embarrass the employer
3.Pressure tactic to get employer to fulfill union’s demand.
Picket is a gathering of workers outside their workplace with placards and
banners expressing workers’ grievance and demands for people to see, thus
gathering public sympathy and support.
Purpose of picket:
1.To communicate issue to the public
2.To embarrass the employer
3.Pressure tactic to get employer to fulfill union’s demand.
PICKET (Sec. 40 of IRA)
Members of a registered trade union have the right to
picket at or near their workplace when a trade
dispute occurs.
Picketing is not permitted once a trade dispute has
been referred to the Industrial Court for arbitration
Members of a registered trade union have the right to
picket at or near their workplace when a trade
dispute occurs.
Picketing is not permitted once a trade dispute has
been referred to the Industrial Court for arbitration
PICKET (Sec. 40 of IRA) (Cont.)
Picket must be:
1.Not obstruct the entrance or exit to the workplace
2.Peaceful
3.Not intimidate anyone
4.Only workers directly involved in the dispute can participate
⮚No police permit is required for a picket neither they can be
dispersed by the police.
Picket must be:
1.Not obstruct the entrance or exit to the workplace
2.Peaceful
3.Not intimidate anyone
4.Only workers directly involved in the dispute can participate
⮚No police permit is required for a picket neither they can be
dispersed by the police.
What is Strike?
Strike
–Strike is any stopping of work by group of workers including any
attempt to limit or slow down production on purpose.
–Various forms of strike, e.g., go-slow, work-to-rule, and ban on
overtime work.
–Members of a registered trade union have the right to strike in the
event of a trade dispute (Sec. 45 of IRA).
–For a strike to be legal, it must comply with the requirements laid
down in the Industrial Relations Act (IRA) and the Trade Unions Act
(TUA).
–Strike is any stopping of work by group of workers including any
attempt to limit or slow down production on purpose.
–Various forms of strike, e.g., go-slow, work-to-rule, and ban on
overtime work.
–Members of a registered trade union have the right to strike in the
event of a trade dispute (Sec. 45 of IRA).
–For a strike to be legal, it must comply with the requirements laid
down in the Industrial Relations Act (IRA) and the Trade Unions Act
(TUA).
Illegal Strike
1.Sympathy strike: workers not involve in dispute
decide to go on strike.
2.Political or general strike: strike aimed to the
government.
3.Lightening / Wildcat strike: strike without any ballot.
1.Sympathy strike: workers not involve in dispute
decide to go on strike.
2.Political or general strike: strike aimed to the
government.
3.Lightening / Wildcat strike: strike without any ballot.
STRIKES PROCEDURES
(Sec. 40 of TUA)
1.Secret ballot (only valid for 90 days)
•Stating the issues leading to proposed strike
•Participated by minimum 60% of those eligible to vote
•Majority must agree to strike
2.Send the result of ballot to the DGTU within 14 days.
3.Undergo a 7-day cooling off period before commencing the
strike.
(Sec. 40 of TUA)
1.Secret ballot (only valid for 90 days)
•Stating the issues leading to proposed strike
•Participated by minimum 60% of those eligible to vote
•Majority must agree to strike
2.Send the result of ballot to the DGTU within 14 days.
3.Undergo a 7-day cooling off period before commencing the
strike.
STRIKES PROCEDURES
(Sec. 43 of IRA)
1.Workers in essential services must give 21 days notice
of strike to the employer.
2.The employer must immediately inform DGIR
(Sec. 43 of IRA)
1.Workers in essential services must give 21 days notice
of strike to the employer.
2.The employer must immediately inform DGIR
STRIKES ARE NOT
PERMITTED WHEN…
1.Over a collective agreement which accepted by the IC.
2.Over the management prerogatives
3.During the proceedings of a Board of Inquiry
4.Over a recognition dispute which resolved by DGIR.
5.Once the dispute has been referred to the IC.
6.When the Yang di-Pertuan Agong has refused permission for
a trade dispute in the public sector.
PERMITTED WHEN…
1.Over a collective agreement which accepted by the IC.
2.Over the management prerogatives
3.During the proceedings of a Board of Inquiry
4.Over a recognition dispute which resolved by DGIR.
5.Once the dispute has been referred to the IC.
6.When the Yang di-Pertuan Agong has refused permission for
a trade dispute in the public sector.
PENALTIES FOR ILLEGAL
STRIKES
❑Workers involved may be dismissed.
❑Workers may be removed from union membership
❑The TU may be dissolved.
❑Workers may be fined for maximum RM5,000 and further
RM50 per day if illegal strike continues.
STRIKES
❑Workers involved may be dismissed.
❑Workers may be removed from union membership
❑The TU may be dissolved.
❑Workers may be fined for maximum RM5,000 and further
RM50 per day if illegal strike continues.
What is lock-out?
Lock Out
–Lock-out is employer refuse to allow the workers to work
until the dispute between them is settled.
–Normally declared in response to an illegal strike by workers.
–Another alternatively to fight strike is by keeping company’s
operation by placing managerial, non-union employees, or
hiring replacement workers.
–During the 1979 strike in MAS, the management brought in
trainees from Dusun Tua (training centre for youth) to take
over cabin staff job.
–Lock-out is employer refuse to allow the workers to work
until the dispute between them is settled.
–Normally declared in response to an illegal strike by workers.
–Another alternatively to fight strike is by keeping company’s
operation by placing managerial, non-union employees, or
hiring replacement workers.
–During the 1979 strike in MAS, the management brought in
trainees from Dusun Tua (training centre for youth) to take
over cabin staff job.
Preserving Industrial Harmony
–Code of conduct of for industrial harmony.
–In a unionized environment, an employer has to be proactive and take positive steps
in order to avoid trade dispute. For example, involving union in company making
decision, train supervisors to work with union representatives, and provide physical
facilities for union.
–In a non-unionized environment, an employer has to be proactive and take positive
steps in order to create a harmony non-unionized environment. For example, open-
door policy, invest in training and development, and create a climate of trust and
loyalty.
–Code of conduct of for industrial harmony.
–In a unionized environment, an employer has to be proactive and take positive steps
in order to avoid trade dispute. For example, involving union in company making
decision, train supervisors to work with union representatives, and provide physical
facilities for union.
–In a non-unionized environment, an employer has to be proactive and take positive
steps in order to create a harmony non-unionized environment. For example, open-
door policy, invest in training and development, and create a climate of trust and
loyalty.
Chapter 11:
The law and practice relating to
termination of employment
HRM659
The law and practice relating to
termination of employment
HRM659
Chapter outline
The law and practice relating to termination of employment
1.Disciplinary action for misconduct
•Investigating misconduct
•Domestic inquiry and principles of natural justice
2.Disciplinary action for poor performance including probationers
3.Employer's obligations prior to retrenchment due to redundancy
4.Employee's right to challenge termination under statutory laws and common
law
The law and practice relating to termination of employment
1.Disciplinary action for misconduct
•Investigating misconduct
•Domestic inquiry and principles of natural justice
2.Disciplinary action for poor performance including probationers
3.Employer's obligations prior to retrenchment due to redundancy
4.Employee's right to challenge termination under statutory laws and common
law
put your thinking cap on
1.What makes an employer has NO absolute rights to
terminate employee?
2.At the court of law, who has the burden of proof?
1.What makes an employer has NO absolute rights to
terminate employee?
2.At the court of law, who has the burden of proof?
Burden of Proof
1.Reason for termination
There are many reasons for termination but we will discuss:
a.Misconduct (what’s the legal provision? + case law)
b.Retrenchment due to redundancy (what’s the legal provision? +
case law)
c.Poor performance (what’s the legal provision? Only case law)
2.Acceptable procedure
a.Procedures related to disciplinary actions that may lead to
termination.
b.Procedures prior to retrenchment due to redundancy.
1.Reason for termination
There are many reasons for termination but we will discuss:
a.Misconduct (what’s the legal provision? + case law)
b.Retrenchment due to redundancy (what’s the legal provision? +
case law)
c.Poor performance (what’s the legal provision? Only case law)
2.Acceptable procedure
a.Procedures related to disciplinary actions that may lead to
termination.
b.Procedures prior to retrenchment due to redundancy.
What is Misconduct ?
•[Section14 of EA] behavior inconsistent with the express or
implied terms of employment contract.
•It covers an infinite range of activities, not necessarily confined
to the place of work, which conflict with the legitimate interests
of the employer.
•What is an acceptable proof for misconduct?
•Beyond reasonable doubt vs balance of probabilities
•[Section14 of EA] behavior inconsistent with the express or
implied terms of employment contract.
•It covers an infinite range of activities, not necessarily confined
to the place of work, which conflict with the legitimate interests
of the employer.
•What is an acceptable proof for misconduct?
•Beyond reasonable doubt vs balance of probabilities
Purpose of an investigation
1.To determine whether there is sufficient evidence that
misconduct has been committed, i.e. whether there is a prima
facie case
2.To collect evidence that may be presented at the Industrial Court
Question: What is the difference between ‘beyond reasonable doubt’ and
‘balance of probabilities’?
3.To determine the modus operandi (M.O.) so as to prevent
further similar incidents
1.To determine whether there is sufficient evidence that
misconduct has been committed, i.e. whether there is a prima
facie case
2.To collect evidence that may be presented at the Industrial Court
Question: What is the difference between ‘beyond reasonable doubt’ and
‘balance of probabilities’?
3.To determine the modus operandi (M.O.) so as to prevent
further similar incidents
No evidence, no case.
Not enough evidence, still no case.
Weak evidence, no case.
No evidence, no case!
Not enough evidence, still no case.
Weak evidence, no case.
No evidence, no case!
WHO should investigate?
qOne or more neutral persons with knowledge of investigation techniques. HR/IR, Security, Audit, etc.
qThe investigators must be trustworthy.
qGenerally, the investigators should be higher in rank or the same rank as the accused employee and any
parties being interviewed.
qA very senior manager should be investigated by an external investigator.
q As far as possible, the investigator should not be appointed prosecutor if a domestic inquiry is conducted into
the allegations
qAny person involved in conducting an investigation must not be appointed as a member of the Panel of
Inquiry.
qOne or more neutral persons with knowledge of investigation techniques. HR/IR, Security, Audit, etc.
qThe investigators must be trustworthy.
qGenerally, the investigators should be higher in rank or the same rank as the accused employee and any
parties being interviewed.
qA very senior manager should be investigated by an external investigator.
q As far as possible, the investigator should not be appointed prosecutor if a domestic inquiry is conducted into
the allegations
qAny person involved in conducting an investigation must not be appointed as a member of the Panel of
Inquiry.
INVESTIGATION ISSUES
§Can an employee/witness be detained for the purpose of
interviewing him/her?
§Does the employer have the right to search accused
employee’s locker/desk drawers/computer files?
§Does the employer have the right to search the employee’s
personal belongings (handbag, briefcase, car, etc)?
§Does the employer have to right to search the employee’s
home?
§Can an employee/witness be detained for the purpose of
interviewing him/her?
§Does the employer have the right to search accused
employee’s locker/desk drawers/computer files?
§Does the employer have the right to search the employee’s
personal belongings (handbag, briefcase, car, etc)?
§Does the employer have to right to search the employee’s
home?
INVESTIGATION ISSUES, cont.
§Who is interviewed in what order during an investigation?
§What should be done with illegal substances/weapons/other illegal
items discovered during an investigation?
§Does an employee under investigation need to be suspended?
§What is employer’s right to suspend employee under investigation?
§Can evidence be collected through covert surveillance?
§Who is interviewed in what order during an investigation?
§What should be done with illegal substances/weapons/other illegal
items discovered during an investigation?
§Does an employee under investigation need to be suspended?
§What is employer’s right to suspend employee under investigation?
§Can evidence be collected through covert surveillance?
covert vs overt surveillance
Covert surveillance is not appropriate and may not
comply with the Personal Data Protection Act 2010
Covert surveillance is not appropriate and may not
comply with the Personal Data Protection Act 2010
Suspension of employee under investigation
1.Make a decision whether or not to suspend. Do not allow
suspension to be automatic.
2.Do not allow suspension to be for a lengthy period without
good reason
3.Suspend for a specified period, which can be extended if
necessary (Do not suspend “until further notice”)
1.Make a decision whether or not to suspend. Do not allow
suspension to be automatic.
2.Do not allow suspension to be for a lengthy period without
good reason
3.Suspend for a specified period, which can be extended if
necessary (Do not suspend “until further notice”)
Employer’s right to suspend
an employee under investigation
[Section 14(2) of EA]
Employer may suspend employee
Maximum 2 weeks with ½ pay
Question:
1.Can an employer suspend more than 2 weeks?
2.What if employee found not guilty?
an employee under investigation
[Section 14(2) of EA]
Employer may suspend employee
Maximum 2 weeks with ½ pay
Question:
1.Can an employer suspend more than 2 weeks?
2.What if employee found not guilty?
EVIDENCE
Evidence that misconduct has occurred is
the outcome of an investigation
No evidence, no case!
Evidence that misconduct has occurred is
the outcome of an investigation
No evidence, no case!
AN INVESTIGATOR COLLECTS
EVIDENCE
üDocuments
üPhysical evidence/Objects/Exhibits
üWitnesses/Complainant/Accused employee
Maintain a clear chain of control of documents and objects
EVIDENCE
üDocuments
üPhysical evidence/Objects/Exhibits
üWitnesses/Complainant/Accused employee
Maintain a clear chain of control of documents and objects
CONFESSION UNDER DURESS
AWARD NO : 1522 OF 2011
“On or about 22.2.2002 the claimant was confined to a locked room in the
company's office and was threatened and coerced by several employees
from the xxx Group Fraud Department to admit to fraudulent transactions in
the company and to write a confession post-dated as 23.2.2002.
Some of the threats made to the claimant included being led downstairs and
shown 3 policemen who, the claimant was told, were waiting to arrest
her. She was also told of the interrogation tactics employed by the
police which included beatings, stripping, molestation and rape.
AWARD NO : 1522 OF 2011
“On or about 22.2.2002 the claimant was confined to a locked room in the
company's office and was threatened and coerced by several employees
from the xxx Group Fraud Department to admit to fraudulent transactions in
the company and to write a confession post-dated as 23.2.2002.
Some of the threats made to the claimant included being led downstairs and
shown 3 policemen who, the claimant was told, were waiting to arrest
her. She was also told of the interrogation tactics employed by the
police which included beatings, stripping, molestation and rape.
Confession under Duress, cont.
The claimant was also told that she would be handcuffed so that she
would be publicly humiliated. The claimant was confined in the
locked room for hours with the said employees and was denied
contact with her husband and/or her lawyers even though she had
requested to see them.
Finally, after much duress and mental and physical stress on the
claimant, the claimant signed a written confession…”
The claimant was also told that she would be handcuffed so that she
would be publicly humiliated. The claimant was confined in the
locked room for hours with the said employees and was denied
contact with her husband and/or her lawyers even though she had
requested to see them.
Finally, after much duress and mental and physical stress on the
claimant, the claimant signed a written confession…”
Confession under Duress, cont.
“It is the finding of the court in the circumstances that the admission
letter was not given voluntarily but was extorted from the claimant
by the use of threats as aforesaid and that its contents were supplied
and dictated to her by COW2 and COW3. A prerequisite for the
admissibility of an admission is that it has been made voluntarily.
The court therefore rejects CO1 as having no probative value
whatsoever.”
“It is the finding of the court in the circumstances that the admission
letter was not given voluntarily but was extorted from the claimant
by the use of threats as aforesaid and that its contents were supplied
and dictated to her by COW2 and COW3. A prerequisite for the
admissibility of an admission is that it has been made voluntarily.
The court therefore rejects CO1 as having no probative value
whatsoever.”
EVALUATING THE CREDIBILITY OF
EVIDENCE
Investigators must decide whether witnesses are credible or not
Is the witness/accused/complainant telling the truth, the whole
truth and nothing but the truth?
Differentiate between facts and inferences/opinions
EVIDENCE
Investigators must decide whether witnesses are credible or not
Is the witness/accused/complainant telling the truth, the whole
truth and nothing but the truth?
Differentiate between facts and inferences/opinions
EVALUATING THE CREDIBILITY OF
EVIDENCE
Demeanour (non-verbal behaviour/body language)
ØFacial expressions
ØTone of voice
ØEye contact (lack of)
ØRestlessness
EVIDENCE
Demeanour (non-verbal behaviour/body language)
ØFacial expressions
ØTone of voice
ØEye contact (lack of)
ØRestlessness
EVALUATING THE CREDIBILITY OF
EVIDENCE, cont’d.
Opportunity to observe relevant events or acts
§Where was the witness?
Inconsistency
§Witness first says one thing, then another
§Evidence given by witness not consistent with other evidence
Bias
§What is relationship between the witness and any person they give
evidence against?
Expertise
§Essential for expert witnesses, although not so important for eye
witnesses
EVIDENCE, cont’d.
Opportunity to observe relevant events or acts
§Where was the witness?
Inconsistency
§Witness first says one thing, then another
§Evidence given by witness not consistent with other evidence
Bias
§What is relationship between the witness and any person they give
evidence against?
Expertise
§Essential for expert witnesses, although not so important for eye
witnesses
OUTCOME OF AN INVESTIGATION
Investigation Report
§The investigator’s report must describe the findings of the
investigation
§All evidence discovered must be listed and appended, where
practical
§The investigator must recommend whether or not a prima facie
case exists
Investigation Report
§The investigator’s report must describe the findings of the
investigation
§All evidence discovered must be listed and appended, where
practical
§The investigator must recommend whether or not a prima facie
case exists
Acceptable procedure
•Statutory law
(Section 14 of Employment Act)
•Case law
1.Domestic inquiry
2.Principle of natural justice
•Statutory law
(Section 14 of Employment Act)
•Case law
1.Domestic inquiry
2.Principle of natural justice
Principle of natural justice
1.The rule of fairness
1.The employee has the right to know of what he is
accused
2.The employee should not be condemned unheard
3.The employee must be given time to reply to
accusations
2.The rule against bias
1.The rule of fairness
1.The employee has the right to know of what he is
accused
2.The employee should not be condemned unheard
3.The employee must be given time to reply to
accusations
2.The rule against bias
Procedure Prior to Termination due to misconduct
Domestic Inquiry (DI)
Definition:
Internal trial to decide whether the employee
guilty or not guilty of misconduct.
Purpose:
To uphold the principle of natural justice.
Definition:
Internal trial to decide whether the employee
guilty or not guilty of misconduct.
Purpose:
To uphold the principle of natural justice.
Preparation prior to DI
1.Draft Charges (formal charge of allegation).
2.Give notice of DI
3.Appoint panel of inquiry (how many and
who?)
4.Appoint secretary
5.Appoint prosecutor
1.Draft Charges (formal charge of allegation).
2.Give notice of DI
3.Appoint panel of inquiry (how many and
who?)
4.Appoint secretary
5.Appoint prosecutor
On the day of DI
1.What must employer do if the
accused employee did not turn-up?
2.Does an employee has the rights to
be represented?
1.What must employer do if the
accused employee did not turn-up?
2.Does an employee has the rights to
be represented?
After DI
•Panel of DI will write findings to decide employee guilty or not
guilty and recommend for penalties, if found guilty.
•If found guilty, employer will decide on penalties (Section 14 of
EA)
1.Warning
2.Suspension
3.Demotion
4.Dismissal
•Panel of DI will write findings to decide employee guilty or not
guilty and recommend for penalties, if found guilty.
•If found guilty, employer will decide on penalties (Section 14 of
EA)
1.Warning
2.Suspension
3.Demotion
4.Dismissal
Sexual Harassment is a
misconduct
In 1999, the Ministry of Human Resources
launched “Code of Practice on the Prevention
and Eradication of Sexual Harassment in the
Workplace”.
The purpose of the Code of Practice is to provide
practical guidance to employers, employees, trade unions
and others relevant parties on the protection of the dignity
of employees.
The aim is to ensure that sexual harassment does not
occur and, if it does occur, to ensure that adequate
procedures are available to deal with the problem and
prevent its recurrence.
misconduct
In 1999, the Ministry of Human Resources
launched “Code of Practice on the Prevention
and Eradication of Sexual Harassment in the
Workplace”.
The purpose of the Code of Practice is to provide
practical guidance to employers, employees, trade unions
and others relevant parties on the protection of the dignity
of employees.
The aim is to ensure that sexual harassment does not
occur and, if it does occur, to ensure that adequate
procedures are available to deal with the problem and
prevent its recurrence.
OUTLINES OF IN-HOUSE MECHANISM TO
COMBAT SEXUAL HARASSMENT
Employers are encouraged to establish an in-house mechanism
to prevent, handle and eradicate sexual harassment in the
workplace. The mechanism should include at least the following
elements:
(i)a policy statement prohibiting sexual harassment in the organization;
(ii) a clear definition of sexual harassment;
(iii) a complaint / grievance procedure;
(iv)disciplinary rules and penalties against the harasser and against those who
make false accusation;
(v) protective and remedial measures for the victim; and
(vi) promotional and educational programmes.
COMBAT SEXUAL HARASSMENT
Employers are encouraged to establish an in-house mechanism
to prevent, handle and eradicate sexual harassment in the
workplace. The mechanism should include at least the following
elements:
(i)a policy statement prohibiting sexual harassment in the organization;
(ii) a clear definition of sexual harassment;
(iii) a complaint / grievance procedure;
(iv)disciplinary rules and penalties against the harasser and against those who
make false accusation;
(v) protective and remedial measures for the victim; and
(vi) promotional and educational programmes.
Sexual Harassment under EA 1955
•S. 81B (1)
Employer shall inquire into the complaint of sexual harassment
•S. 81B (2)
If employer refuses to inquire into the complaint of sexual
harassment, he must write a letter to inform the complainant of
the reasons for the refusal, not later than 30 days after receiving
such complaint.
•S. 81B (1)
Employer shall inquire into the complaint of sexual harassment
•S. 81B (2)
If employer refuses to inquire into the complaint of sexual
harassment, he must write a letter to inform the complainant of
the reasons for the refusal, not later than 30 days after receiving
such complaint.
Redundancy
Definition: excess or surplus of workers.
What causes redundancy?
1.Changes in technology
2.Mergers and acquisition
3.Financial problem
4.Re-organizing / re-engineering
Question:
Does redundancy leads to retrenchment?
Definition: excess or surplus of workers.
What causes redundancy?
1.Changes in technology
2.Mergers and acquisition
3.Financial problem
4.Re-organizing / re-engineering
Question:
Does redundancy leads to retrenchment?
Alternative to
retrenchment
1.Attrition
2.Retrain and redeploy
3.Volunteer separation scheme (VSS)
4.Reduce costs
5.Reduce wages and working hours
retrenchment
1.Attrition
2.Retrain and redeploy
3.Volunteer separation scheme (VSS)
4.Reduce costs
5.Reduce wages and working hours
Retrenchment Procedure
1.Try to avoid if possible
2.Choose who to retrench (The Industrial Court follow the principle of LIFO
and FOF (S. 60N EA 1955)
3.Inform the workers and give notice to retrench
4.Inform Labor Department one month before any retrenchment
5.Pay termination benefit (if employee are entitled by law)
6.Good practice: outplacement service
1.Try to avoid if possible
2.Choose who to retrench (The Industrial Court follow the principle of LIFO
and FOF (S. 60N EA 1955)
3.Inform the workers and give notice to retrench
4.Inform Labor Department one month before any retrenchment
5.Pay termination benefit (if employee are entitled by law)
6.Good practice: outplacement service
Poor Performance
What is poor performance?
Procedure to terminate employment on the ground of poor
performance:
1.Give warning (s)
2.Time to improve
3.Provide assistance
4.Terminate with notice
What is poor performance?
Procedure to terminate employment on the ground of poor
performance:
1.Give warning (s)
2.Time to improve
3.Provide assistance
4.Terminate with notice
Employees’ Right
to Challenge
a Termination
to Challenge
a Termination
Let’s recall from our employment law class
S. 69(3) of Employment Act, 1955 in practice
1.Termination benefit under The Employment Act
For 1 – 2 years of service, 10 days’ wages for every year of service
For 2 – 5 years of service, 15 days’ wages for every year of service
For > 5 years of service, 20 days’ wages for every year of service
2. Wages in lieu of notice
3. Wages in lieu of Annual leave not taken (is any)
Remedies via the Labour Department
For 1 – 2 years of service, 10 days’ wages for every year of service
For 2 – 5 years of service, 15 days’ wages for every year of service
For > 5 years of service, 20 days’ wages for every year of service
2. Wages in lieu of notice
3. Wages in lieu of Annual leave not taken (is any)
Remedies via the Labour Department
S. 20 of Industrial Relations Act,1967 in practice
Remedies via
Industrial Relations Department
Reinstatement AND backwages
OR IN LIEU OF
REINSTATEMENT
Compensation
(Backwages AND one month wages for
every year of service)
Industrial Relations Department
Reinstatement AND backwages
OR IN LIEU OF
REINSTATEMENT
Compensation
(Backwages AND one month wages for
every year of service)
How much backwages?
•Amendment on Industrial Relations Act as at 28.12.2007
•Second Schedule (FACTORS FOR CONSIDERATION IN
MAKING AN AWARD)
•Amendment on Industrial Relations Act as at 28.12.2007
•Second Schedule (FACTORS FOR CONSIDERATION IN
MAKING AN AWARD)
Second Schedule of Industrial Relations
Act
1.Backwages shall not exceed twenty-four months’ backwages from the date of dismissal;
2.In the case of a probationer, any backwages given shall not exceed twelve months’
backwages from the date of dismissal;
4.Where there is post-dismissal earnings, a percentage of such earnings, to be decided by
the Court, shall be deducted from the backwages given;
5.Any relief given shall not include any compensation for loss of future earnings; and
6.Any relief given shall take into account contributory misconduct of the workman.
Act
1.Backwages shall not exceed twenty-four months’ backwages from the date of dismissal;
2.In the case of a probationer, any backwages given shall not exceed twelve months’
backwages from the date of dismissal;
4.Where there is post-dismissal earnings, a percentage of such earnings, to be decided by
the Court, shall be deducted from the backwages given;
5.Any relief given shall not include any compensation for loss of future earnings; and
6.Any relief given shall take into account contributory misconduct of the workman.
The practice of challenging unfair termination
under common law
under common law
Remedies via High Court
•Private sector employee
Wages in lieu of notice (common law)
•Public sector employee
Reinstatement and backwages
(common law)
•Private sector employee
Wages in lieu of notice (common law)
•Public sector employee
Reinstatement and backwages
(common law)
Questions
1.Can an employee utilizes all rights they have to claim unfair dismissal?
2.Is there any difference between dismissal, retrenchment, and termination?
3.Can a public sector employee challenge dismissal under the Industrial
Court?
4.Which channel should an employee choose to claim unfair dismissal?
1.Can an employee utilizes all rights they have to claim unfair dismissal?
2.Is there any difference between dismissal, retrenchment, and termination?
3.Can a public sector employee challenge dismissal under the Industrial
Court?
4.Which channel should an employee choose to claim unfair dismissal?
Exercise
Ali used to work as a Bus Driver at ZZ Bus Express Sdn Bhd for 6 years. During his
employment he earned RM3000 per month including overtime. Last month he was
dismissed by his employer due to his negligence.
Calculate the possible remedies Ali may get if he challenge the dismissal under various
Malaysian Employment Laws. Then, advise Ali, on his options to challenge the
dismissal.
Ali used to work as a Bus Driver at ZZ Bus Express Sdn Bhd for 6 years. During his
employment he earned RM3000 per month including overtime. Last month he was
dismissed by his employer due to his negligence.
Calculate the possible remedies Ali may get if he challenge the dismissal under various
Malaysian Employment Laws. Then, advise Ali, on his options to challenge the
dismissal.
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