Trade Dispute

As per Section 2(1) of IRA, a trade dispute concerns a dispute between an employer and his
workmen, which is connected with the employment, non-employment, terms of employment,
or conditions of work of any such workmen. In other words, a dispute arises when there is a
disagreement between an employer and employees regarding the terms of employment. There
are two limbs to the said definition. Firstly, the dispute must be between the employer and his
workmen. The law doesn’t extend the definition to any other workmen. It must be the
employer’s workmen. This was affirmed in the case of Re Application of Lower Perak
Motor Service Co Ltd. In this case, the court expressed that the trade unions of employees
have no locus standi unless they represent the workmen who are actual parties to a trade
dispute. A trade dispute concerns only the employer and his employees. In the present case,
the trade union which was made up of the majority of the company’s workmen represented
the workers who were asked to leave because of unsatisfactory work and conduct. The court
held that the trade union is indeed the right party for the trade dispute since it acted for its
members.
The second limb to the definition of trade dispute is the subject matter to the dispute.
Essentially, it must be connected to the employment, non-employment or terms and
conditions of the employment. There must be a nexus between the subject matter and trade
dispute. This was established in the case of British Broadcasting Corporation (BBC) v
Hearn. In this case, the court was of the view that for a trade dispute to exists, there must be
something which was discussed in the course of argument. A trade dispute must depend on
the content of what is being discussed. In the present case, the union members working for
BBC threatened to refuse to transmit its television signal to a satellite to South Africa during
the Cup Final due to apartheid. The court said that since the refusal was not over terms and
conditions of work, a trade dispute does not exist.
If both of these limbs are fulfilled, a trade dispute is said to exist. As such, Section 18(1) of
IRA permits the dispute to be reported by the employer or a trade union of workmen to the
DGIR. In looking into the dispute reported, the DGIR must take necessary steps to promote
an expeditious settlement. After taking such steps, if the DGIR feels that there has been
failure to reconcile, Section 18(5) of IRA allows him to notify the Minister. As per Section
19A of IRA, the Minister can take necessary steps to reconcile both parties. Firstly, the
Minister under Section 35 of IRA can appoint a Committee to investigate the causes and
circumstances of the trade dispute. Once that is done, Section 37 of IRA provides that the
Board must report to the Minister. If such effort of the Minister to settle the dispute is futile,
Section 26(1) of IRA stipulates that the Minister can refer the dispute to the Industrial Court
on a written joint request from both parties.
Industrial Actions
Industrial actions usually occurs when a dispute between the employer and his workers
cannot be resolved through negotiation. It refers to the steps taken by the parties in the
settlement of disputes. An industrial action must be taken in furtherance of a trade dispute.
This phrase concerns how close the action is to the dispute in question. The actions taken
must be in relation an existing dispute. This was further explained in Express Newspaper
Ltd v Macshane & Anor. In this case, the court elucidated that the expression ‘furtherance
of a trade dispute’ refers to the subjective mind of a person doing the act. The phrase means
that the person acts with the purpose of helping parties to the dispute to achieve their
objectives in honest and reasonable belief that it will do so.
Strike (for furtherance only)
If the strike commenced is not in furtherance of a trade dispute, Section 45(1)(b) of IRA
provides that a strike must be in furtherance of a trade dispute. If not, such action will be
deemed illegal under Section 46(1) of IRA and the workman is guilty of an offence and shall
on conviction, be liable to fine not exceeding RM 5,000 and a further fine of RM 50 for every
day such offence was continued.
If the lock out commenced is not in furtherance of a trade dispute, Section 45(1)(b) of IRA
provides that a strike must be in furtherance of a trade dispute. If not, such action will be
deemed illegal under Section 46(2) of IRA and the workman is guilty of an offence and shall
on conviction, be liable to fine not exceeding RM 5,000 and a further fine of RM 50 for every
day such offence was continued.
Picket (for furtherance only)
If the actions taken are not in furtherance of a trade dispute, Section 40(1) of IRA provides
that the picketing must be made in furtherance of a trade dispute. Failure to do is deemed to
be an offence under Section 40(3) of IRA and the workmen is held liable for a fine not more
than RM 5000.
Strike
The provision governing strike is Section 45 of IRA. Essentially, Section 2(1) of IRA
defines strike as cessation of work by a body of workmen acting in combination of refusal
under a common understanding to continue to work or to accept employment, and includes
any act or omission by a body of workmen which is intended to or does result in any
limitation, restriction, reduction or cessation of or dilatoriness in the performance or
execution of the whole or any part of the duties connected with their employment. In other
words, strike is a mass refusal of employees to work which takes place in response to
employee grievances.
One of the major requirements to commence strike is stipulated under Section 45(1)(b)(i) of
IRA which emphasizes that a strike will be deemed to be illegal if it is not done in
furtherance of a trade dispute between the workmen on strike and their employer.
When speaking of trade dispute, as per Section 2(1) of IRA, a trade dispute concerns a
dispute between an employer and his workmen, which is connected with the employment,
non-employment, terms of employment, or conditions of work of any such workmen. In other
words, a dispute arises when there is a disagreement between an employer and employees
regarding the terms of employment. There are two limbs to the said definition. Firstly, the
dispute must be between the employer and his workmen. The law doesn’t extend the
definition to any other workmen. It must be the employer’s workmen. This was affirmed in
the case of Re Application of Lower Perak Motor Service Co Ltd. In this case, the court
expressed that the trade unions of employees have no locus standi unless they represent the
workmen who are actual parties to a trade dispute. A trade dispute concerns only the
employer and his employees. In the present case, the trade union which was made up of the
majority of the company’s workmen represented the workers who were asked to leave
because of unsatisfactory work and conduct. The court held that the trade union is indeed the
right party for the trade dispute since it acted for its members.
The second limb to the definition of trade dispute is the subject matter to the dispute.
Essentially, it must be connected to the employment, non-employment or terms and
conditions of the employment. There must be a nexus between the subject matter and trade
dispute. This was established in the case of British Broadcasting Corporation (BBC) v
Hearn. In this case, the court was of the view that for a trade dispute to exists, there must be
something which was discussed in the course of argument. A trade dispute must depend on
the content of what is being discussed. In the present case, the union members working for
BBC threatened to refuse to transmit its television signal to a satellite to South Africa during
the Cup Final due to apartheid. The court said that since the refusal was not over terms and
conditions of work, a trade dispute does not exist.
Section 45(1)(b)(i) of IRA also specifies that a strike must be in furtherance of a trade
dispute. The phrase ‘in furtherance’ concerns how close the action is to the dispute in
question. The actions taken must be in relation to an existing dispute. It considers how far the
actions motivated by a desire to support a trade dispute. This was further explained in
Express Newspaper Ltd v Macshane & Anor. In this case, the court elucidated that the
expression ‘furtherance of a trade dispute’ refers to the subjective mind of a person doing the
act. The phrase means that the person acts with the purpose of helping the parties to the
dispute to achieve their objectives in honest and reasonable belief that it will do so.
Besides that, Section 45(1)(a) of IRA also specifies that a strike will be deemed illegal if it is
declared, commenced, or continued in contravention of Section 43, Section 44 or any other
written law.
i) Section 43 – Restrictions on strikes
Section 43 of IRA provides that no workman in any essential service can go on strike
(a) without giving to the employer a notice within 42 days before striking
(b) within 21 days before giving a notice to the employer, or
(c) before the expiry of the strike date specified in the notice to be given to the employer
Para x to the First Schedule of IRA provides that essential services consists of
1. Banking services
2. Electricity services
3. Fire services
4. (5) Postal services
5. (8) Public health services
6. (10) Telecommunication services
7. (13) Services provided by the Governmental Department of Chemistry// Marine//
Immigration// Customs and Excise
Adding to that, Section 43(4) of IRA states that once the employer receives the notice of
strike, he must immediately report the particulars of the notice to the DGIR.
ii) Section 44 – Prohibition of strikes
Section 44 of IRA prohibits the workmen from going strike
(a) during the pendency of the proceeding of a Board of Inquiry appointed by the
Minister and 7 days after the conclusion of such proceedings
(b) after a trade dispute involving the workman and employer has been referred to the
Industrial Court which has been notified to both parties
(c) after the YDPA has withheld consent to refer the trade dispute concerning any
Government service or the service of any statutory authority to the Industrial Court
[Section 26(2)]
(d) in respect of matters covered by a collective agreement that has been taken
cognizance of by the Industrial Court or by an award [Section 16]
(e) in respect of matters concerning the prohibition in including certain matters in the
proposals for collective agreement [Section 13(3)]

iii) any other written law

Since the situation given concerns a trade union, the Trade Union Act 1959 is applicable
here.
Section 40(1)(c) of TUA makes it clear that a trade union must take a secret ballot to
make a decision on matters relating to strikes.
This was also stated in Section 25A(1) of TUA which provides that a trade union can
only call for strike if a consent by secret ballot of at least 2/3 of its members are
obtained.
 Similarly, Section 40(2) of TUA states that the secret ballot taken on matters relating
to a strike must contain a resolution setting out the issues clearly describing the nature
of acts done. Also, a secret ballot which does not fulfil these requirements shall be
invalid and of no effect, and no strike shall be carried out on the basis of such secret
ballot.
Adding to that, Section 40(4) of TUA requires every member of a trade union to be
given an equal right and a reasonable opportunity to record his vote secretly
Once the secret ballot has taken place, in virtue of Section 40(5) of IRA, the results
must be submitted to the DGTU within 14 days after the secret ballot has taken place.

If Section 45(1)(a) and Section 45(1)(b) of IRA are not fulfilled, the strike will be deemed
illegal. In such events, if the workman doesn’t come to work, it will be considered as a breach
of contract of employment. This has been furnished in the case of Non-Metallic Mineral
Products Manufacturing Employees Union v South East Asia Fire Bricks Sdn Bhd. In
this case, the court held that when a workman goes on strike with the aim to enforce their
demands which is legal, it cannot be deemed to have terminated their contract of service. The
contract is only suspended but not breached. The employer has no legal right to terminate the
employment contract and dismiss the employees. In the present case, the court held that the
act of the company in issuing a notice stating that the stoppage of work results in breach of
contract was deemed illegal since the strike was valid. By referring to the case, since the
strike in question is illegal, there is a clear breach of employment contract which can result in
termination. Adding to that, Section 46(1) of IRA deems the workman guilty of an offence
and shall on conviction, be liable to fine not exceeding RM 5,000 and a further fine of RM 50
for every day such offence was continued.
If Section 45(1)(a) and Section 45(1)(b) of IRA are fulfilled, the strike will be deemed legal.
In such events, the contract is only suspended during the strike. This has been furnished in the
case of Non-Metallic Mineral Products Manufacturing Employees Union v South East
Asia Fire Bricks Sdn Bhd. In this case, the court held that when a workman goes on strike
with the aim to enforce their demands which is legal, it cannot be deemed to have terminated
their contract of service. The contract is only suspended but not breached. The employer has
no legal right to terminate the employment contract and dismiss the employees. In the present
case, the court held that the act of the company in issuing a notice stating that the stoppage of
work results in breach of contract was deemed illegal since the strike was valid. By referring
to the case, since the strike in question is legal, there is a no breach of employment contract
which cannot result in termination.
Additional Penalties
-As per Section 47 of IRA, any person who instigates or incites others to take part in an
illegal strike shall be guilty of an offence and shall, on conviction, be liable to imprisonment
not exceeding 5 years and fine not more than RM 5000.
-As per Section 48 of IRA, any person who knowingly spends money in direct furtherance or
support of an illegal strike shall be guilty of an offence and shall, on conviction be liable to
imprisonment not exceeding 6 months or a fine not more than RM 5,000 or both.
-However, Section 44A of IRA grants the Minister the power to stop a strike if it lasts
beyond a certain time which endangers the life, personal safety or health of the population.
Lock out
According to Section 2(1) of IRA, lock out is defined as either the closing of a place of
employment, the suspension of work, or the refusal by an employer to continue to employ
any number of workmen employed by him. It is done in furtherance of a trade dispute to
compel the workmen to accept the terms or conditions affecting the employment. In other
words, it is a work stoppage withholding the employment by an employer during a labour
dispute.
One of the major requirements to commence lockout is stipulated under Section 45(1)(b)(ii)
of IRA which emphasizes that a lock-out will be deemed to be illegal if it is not done in
furtherance of a trade dispute between the employer who declared the lock-out and his
workmen.
When speaking of trade dispute, as per Section 2(1) of IRA, a trade dispute concerns a
dispute between an employer and his workmen, which is connected with the employment,
non-employment, terms of employment, or conditions of work of any such workmen. In other
words, a dispute arises when there is a disagreement between an employer and employees
regarding the terms of employment. There are two limbs to the said definition. Firstly, the
dispute must be between the employer and his workmen. The law doesn’t extend the
definition to any other workmen. It must be the employer’s workmen. This was affirmed in
the case of Re Application of Lower Perak Motor Service Co Ltd. In this case, the court
expressed that the trade unions of employees have no locus standi unless they represent the
workmen who are actual parties to a trade dispute. A trade dispute concerns only the
employer and his employees. In the present case, the trade union which was made up of the
majority of the company’s workmen represented the workers who were asked to leave
because of unsatisfactory work and conduct. The court held that the trade union is indeed the
right party for the trade dispute since it acted for its members.
The second limb to the definition of trade dispute is the subject matter to the dispute.
Essentially, it must be connected to the employment, non-employment or terms and
conditions of the employment. There must be a nexus between the subject matter and trade
dispute. This was established in the case of British Broadcasting Corporation (BBC) v
Hearn. In this case, the court was of the view that for a trade dispute to exists, there must be
something which was discussed in the course of argument. A trade dispute must depend on
the content of what is being discussed. In the present case, the union members working for
BBC threatened to refuse to transmit its television signal to a satellite to South Africa during
the Cup Final due to apartheid. The court said that since the refusal was not over terms and
conditions of work, a trade dispute does not exist.
Section 45(1)(b)(i) of IRA also specifies that a lock-out must be in furtherance of a trade
dispute. The phrase ‘in furtherance’ concerns how close the action is to the dispute in
question. The actions taken must be in relation an existing dispute. This was further explained
in Express Newspaper Ltd v Macshane & Anor. In this case, the court elucidated that the
expression ‘furtherance of a trade dispute’ refers to the subjective mind of a person doing the
act. The phrase means that the person acts with the purpose of helping parties to the dispute
to achieve their objectives in honest and reasonable belief that it will do so.
Besides that, Section 45(1)(a) of IRA also specifies that a lock-out will be deemed illegal if
it is declared, commenced, or continued in contravention of Section 43, Section 44 or any
other written law.
i) Section 43 – Restrictions on lock-outs
Section 43 of IRA provides that no employer carrying on any essential service can lock-out
any of his workmen
(a) without giving the workmen a notice within 42 days before locking out
(b) within 21 days of giving a notice to the workmen, or
(c) before the expiry of the lock-out date specified in the notice to be given to the
workmen
Para x to the First Schedule of IRA provides that essential services consists of
1. Banking services
2. Electricity services
3. Fire services
4. Postal services
5. Public health services
6. Telecommunication services
7. Services provided by the Governmental Department of Chemistry// Marine//
Immigration// Customs and Excise
Adding to that, Section 43(4) of IRA states that once the employer gives the lock-out notice
to the workmen, he must immediately report the particulars of the notice to the DGIR.
ii) Section 44 – Prohibition of lock-outs
Section 44 of IRA prohibits the employer from declaring a lock-out
(a) during the pendency of the proceeding of a Board of Inquiry appointed by the
Minister and 7 days after the conclusion of such proceedings
(b) after a trade dispute involving the workman and employer has been referred to the
Industrial Court which has been notified to both parties
(c) after the YDPA has withheld consent to refer the trade dispute concerning any
Government service or the service of any statutory authority to the Industrial Court
[Section 26(2)]
(d) in respect of matters covered by a collective agreement that has been taken
cognizance of by the Industrial Court or by an award [Section 16]
(e) in respect of matters concerning the prohibition in including certain matters in the
proposals for collective agreement [Section 13(3)]

iii) any other written law

Since the situation given concerns a trade union, the Trade Union Act 1959 is applicable
here.
 Section 40(1)(c) of TUA makes it clear that a trade union must take a secret ballot to
make a decision on matters relating to lock-outs.
This was also stated in Section 25A(1)(a) of TUA which provides that a trade union
of employer can declare a lock-out if a consent by secret ballot of at least 2/3 of its
members are obtained.
Similarly, Section 40(2) of TUA states that the secret ballot taken on matters relating
to a lock-out must contain a resolution setting out the issues clearly describing the
nature of acts done in the course of lock-out. Also, a secret ballot which does not fulfil
these requirements shall be invalid and of no effect, and no \lock-out shall be carried
out on the basis of such secret ballot.
Adding to that, Section 40(4) of TUA requires every member of a trade union to be
given an equal right and a reasonable opportunity to record his vote secretly
Once the secret ballot has taken place, in virtue of Section 40(5) of IRA, the results
must be submitted to the DGTU within 14 days after the secret ballot has taken place.
If Section 45(1)(a) and Section 45(1)(b) of IRA are not fulfilled, the lock-out will be deemed
illegal. In such events, Section 45(2) of IRA stipulates that a lock out deemed illegal shall, in
consequence, make the strike legal. If the lock-out is illegal, there is a breach of employment
contract on the part of the employer. As such, he must pay wages to the workmen. Adding to
that, Section 46(2) of IRA deems the employer guilty of an offence and shall on conviction,
be liable to fine not exceeding RM 5,000 and a further fine of RM 50 for every day such
offence was continued.
If Section 45(1)(a) and Section 45(1)(b) of IRA are fulfilled, the lock-out will be deemed
legal. In such events, Section 45(2) of IRA stipulates that a lock out deemed legal shall, in
consequence, make the strike illegal. Since the lock-out is legal, there is no breach of
employment contract on the part of the employer. As such, he is not compelled to pay wages
to the workmen.
Additional Penalties
-As per Section 47 of IRA, any person who instigates or incites others to take part in an
illegal lock-out shall be guilty of an offence and shall, on conviction, be liable to
imprisonment not exceeding 5 years and fine not more than RM 5000.
-As per Section 48 of IRA, any person who knowingly spends money in direct furtherance or
support of an illegal lock-out shall be guilty of an offence and shall, on conviction be liable to
imprisonment not exceeding 6 months or a fine not more than RM 5,000 or both.
-However, Section 44A of IRA grants the Minister the power to stop a lock-out if it lasts
beyond a certain time which endangers the life, personal safety or health of the population.
Picket
Picketing refers to a form of protest where the workers stand in front or near a workplace to
call attention to their grievances. According to Section 40(1) of IRA, picketing is lawful if it
concerns one or more persons acting on behalf of a trade union in furtherance of a trade
dispute to attend at or near any place where the workman works and where a trade dispute
involving such workman exists for the purpose of obtaining or communicating information or
persuading or inducing any workman to work or abstain from working peacefully.
There are three elements to look into under Section 40(1) of IRA. Firstly, picketing concerns
one or more persons. It doesn’t have to be a group of people. Even one person is more than
enough to commence picket.
Secondly, it must be done in furtherance of a trade dispute. When speaking of trade dispute,
as per Section 2(1) of IRA, a trade dispute concerns a dispute between an employer and his
workmen, which is connected with the employment, non-employment, terms of employment,
or conditions of work of any such workmen. In other words, a dispute arises when there is a
disagreement between an employer and employees regarding the terms of employment. There
are two limbs to the said definition. Firstly, the dispute must be between the employer and his
workmen. The law doesn’t extend the definition to any other workmen. It must be the
employer’s workmen. This was affirmed in the case of Re Application of Lower Perak
Motor Service Co Ltd. In this case, the court expressed that the trade unions of employees
have no locus standi unless they represent the workmen who are actual parties to a trade
dispute. A trade dispute concerns only the employer and his employees. In the present case,
the trade union which was made up of the majority of the company’s workmen represented
the workers who were asked to leave because of unsatisfactory work and conduct. The court
held that the trade union is indeed the right party for the trade dispute since it acted for its
members.
The second limb to the definition of trade dispute is the subject matter to the dispute.
Essentially, it must be connected to the employment, non-employment or terms and
conditions of the employment. There must be a nexus between the subject matter and trade
dispute. This was established in the case of British Broadcasting Corporation (BBC) v
Hearn. In this case, the court was of the view that for a trade dispute to exists, there must be
something which was discussed in the course of argument. A trade dispute must depend on
the content of what is being discussed. In the present case, the union members working for
BBC threatened to refuse to transmit its television signal to a satellite to South Africa during
the Cup Final due to apartheid. The court said that since the refusal was not over terms and
conditions of work, a trade dispute does not exist.
Section 40(1) of IRA also specifies that a picket must be in furtherance of a trade dispute.
The phrase ‘in furtherance’ concerns how close the action is to the dispute in question. The
actions taken must be in relation an existing dispute. This was further explained in Express
Newspaper Ltd v Macshane & Anor. In this case, the court elucidated that the expression
‘furtherance of a trade dispute’ refers to the subjective mind of a person doing the act. The
phrase means that the person acts with the purpose of helping parties to the dispute to achieve
their objectives in honest and reasonable belief that it will do so.
The third element is that a picket must be done peacefully, not to intimidate any person or
obstruct the entrance or exit of the workplace. Also, when picketing, it must not lead to a
breach of peace.
Section 40(2A) of IRA provides the prohibition on picket. Essentially, a workman cannot go
on picket
(a) during the pendency of the proceeding of a Board of Inquiry appointed by the
Minister and 7 days after the conclusion of such proceedings
(b) after a trade dispute involving the workman and employer has been referred to the
Industrial Court which has been notified to both parties
(c) after the YDPA has withheld consent to refer the trade dispute concerning any
Government service or the service of any statutory authority to the Industrial Court
[Section 26(2)]
Section 40(3) of IRA stipulates that any person contravening either subsection (1) or (2A) is
guilty of an offence and shall, on conviction, be liable to fine not more than RM 5000.
Once the matter has been brought to the Industrial Court, the court will then look into
the case and grants an award. An award here has a similar meaning to judgement. Section 2
of IRA defines an award as award made by the Industrial Court in matters of trade dispute or
other matters referred to it. The power to make an award relating to issues of trade dispute,
termination or dismissal is expressly provided under Section 30(1) of IRA. Adding to that,
Section 30(1A) of IRA states that the award shall carry 8% interest per annum.
When making an award, the Industrial Court must take note of certain matters. Firstly,
it is mandatory for the Court to abide by Section 30(5) of IRA. This said Section allows the
Industrial Court to act according to equity, good conscienece and substantial merits of the
case without looking at the technicalities and legal form. In other words, the decision of the
court must be based on equity and fairness. It should not docus too much on the technicalities
of the law or rules. For instance, in the case of Kesatuan Pekerja-Pekerja Perkayuan v
Syarikat Jengka Sdn Bhd, the court expressed that ordinary rules of construction do not
apply when interpreting a collective agreement. The court strictly emphasized on the
departure of strict and legalistic approach in such matters. As such, a pragmatic approach
must be called for when construing the intention of the parties to the collective agreement as
it is not a commercial document entered between businessmen aided by legal advice. In this
case, the court came to such a conclusion by applying Section 30(5) of IRA. To simplify, the
Industrial Court will disregard the natural principles of law when making an award.
Once Section 30(5) of IRA is fulfilled, the court then can take into consideration
additional factors in assisting them to make an award. When deciding matters of trade
dispute, Section 30(4) of IRA stipulates that the Industrial Court must consider 4 factors
before making an award. Such factors are public interest, financial implications and effect of
the award on the economy of the country and industry, and also the effect to industries that
are similar. The verdict given by the Industrial Court sets a precedence which makes it
mandatory for other industries to follow suit. Any error in making such award can affect the
whole public.