Labour Law Lecture 19/5

 Definition
 Registration
 Who can join?
 Rights power and responsibility
 Recognition
 Collective bargain
 Collective Agreement
 Disputes pertaining to collective agreement
Trade Union (Trade Union Act 1959)
Art 10(1)(c) – the citizen has right to form an association
This right is further subject to other written law
(i) Sec 8 of EA
(ii) Sec 4 of IRA
Even got right, it is not absolute coz Art 10 – subject to certain conditions/other laws which
had been enacted in relation to the right
Cases:
Malaysian Bar & Anor v Government of Malaysia [1986] 2 MLJ 225
Dewan Undangan Negeri Kelantan v Nordin Bin Salleh [1992] 1MLJ 697 – court said Art 10
is not mandatory cannot compel anyone to join association
Sec 2 (1) TUA – defines trade union
A workman can only join a TU within a particular trade/industry/occupation in the place
where you are living i.e., work in Selangor, tu in Selangor it covers temporary or permanent.
DG will decide whether the trade union is within the T/I/O: Sec 2(2) of TUA
Ex: National Union of Bank Employees, Peninsular Malaysia open to those who are working
in the financial services. Financial services are not limited to banking, can be others. Some
org have facilities to provide financial services but they are not bank. So, they can join this
association because they belong to such trade. Ex: CIMB, RHB, PUBLIC BANK – can join
this trade union. So, whether the trade belong, DG will decide.
Case: AG v Chemical Workers Union [1971] 1 MLJ 38 - whether the employee who work
under the company for producing pesticide can join the Chemical Workers Union. The DG
must see if what they do was similar in the business. The court look at the nature, and the
chemical clause. Court said yes, in producing pesticide, the company used chemical so this
particular company can join the chemical workers union because they are similar. (whether
there is nexus and business clause)
Objective
 To protect the interest of its members.
  To regulate the relationship between employees and their employers.
 To promote good and harmonious industrial relations between workmen and
employers.
 To conduct collective bargaining with the employees with a view to conducting a
Collective Agreement, trade dispute and industrial actions.
Cannot be link to any political party because history during communist era, the communist
filtrated the TU to put forward their propaganda, so because of this the law is strict.
Types of Trade Union
1. Public Sector
- CUEPACS – federation of trade union [umbrella body that cover all the other TU
– sec 72 TUA registered]
- Association for judiciary services
- Association for diplomatic services
2. Private Sector
- National trade union – NUBE (comes from all over Peninsular Malaysia, not from
one company)
- In house trade union –when Mas adopted looking east policies (Japan). Tun
Mahathir looked at Japan as in Japan got no NTU. Culture: Japanese after study,
they will have time to apply for job. They are very loyal as they have an
understanding that they will remain in the company until retire. So, the employee
in that company is also the member of the TU. No one else can join (outsider) –
limited
MULS – only limited to law students
SRC – like National trade union represent all of mmu
3. Employer Trade Union
- Association of Bank Malaysia – this will represent all the bank in Peninsular
Malaysia (so if we discuss with them, no need to go to NUBE – Maybank – Public
Bank)
Once we have established, it must be registered
- Must apply within a month
- An hoc committee – at least 7 members
- Application who is eligible for this trade union, industry, the requirement for the
place, address, phone number
Sec 7, 8, 9 and 10 of TU
Pending request from the DG TU, the trade union is not allowed to solicit any money from
anyone – s.11
When the DG TU receive the application, DG TU have
- Register trade union, s.12(1) – will get certificate, s.13 – cancellation, s.15
 - S. 12(2) – DG TU may refuse the application if there already a registered tu and it
is not in the best interest to have another tu [In house trade union will always
prevail]
- S. 12(3)(a) – (e) – refuse application by DG TU
Once registered, who can join?
Public sector – open to any offices with the exception from YDPA excluding arm officers
(pengawai tadbir or diplomat)
Private sector
- must be employed in the same trade or establishment as the Trade Union
- IPT students (university students) who is an employee & is above 18
- 16 and above can join but they are not allowed to hold in position
Office of the TU – s.28
- Must be a citizen
- Cannot be an officer if you are member of an executive, or any tu which was
cancelled, bankruptcy, CBT or extortion
As to employee – s.29 they can appoint ppl to oversea the trade union
Rights, liabilities of registered TU
s. 49 – investment of fund (there are restriction)
s. 23 & 24 – liability of contract (sue/ be sued)
s. 22 – liability in tort
Have the liability in term of specific property unless it is done in furtherance of a trade
dispute (The act cannot further threaten or breach the rights)
s. 21 – immunity from civil suits - done in furtherance of a trade dispute (in validating their
action like going on strike or so on)
Law student’s association is the BAR COUNCIL
Recognition
IRA 1967
Trade Union must obtain recognition from the employer that the trade union is given the right
by the members to represent them on any issues
Beetham v Trinidad Cement Ltd (1960) 1 All ER 274 – got 2 types, limited and general
Malaysia, we practice general recognition – s.17 IRA (the collective agreement entered
between employer and employee is binding regardless of whether u are a member and future
employee
Example: Kesatuan Sekerja Pekerja Pekerja Bas Persiaran, Semenanjung Malaysia – if no
association for the tour bas, then trade union must obtain recognition from each of the
company if the employer does not have the association. This is when number of workers
(member of trade union) be relevant
S. 9(1) of IRA - scope of recognition
- managerial
- executive
- confidential
- security
National Union of Bank Employees (NUBE) this is a trade union for general workers who
work within the Banking and financial sectors, they are non-executive. Based on section 9(1),
NUBE cannot apply for recognition to represent the executives within that scope if the
majority members are not from those group. If trade union wants to represent executive,
majority member of the trade union must come from that scope.
Association of Bank Officers (ABOM) is the trade union for the executives within the
banking sector.
Procedure
S. 9(2) – TU submit application in writing to the employer
S. 9 (3)
(i) employer can accord the recognition – another trade union can submit after 1 year lapsed,
A submit application, after a year B can submit theirs
(ii) Employer can refuse recognition and inform the trade union
- Or reapply after 6 months are lapsed s.12(b)
- Trade union notify DGIR s.9(4)
The DGIR will take steps s. 9(4A) whether this trade union can be given recognition or not
The grounds for accord recognition
(i) Competency (eligibility) - Whether the trade union is within similar industry with
the employer [AG v Chemical Workers Union] [Tanjong Jaga Sdn Bhd v Minister
of Labour [1987] 1 MLJ 124 –National Union Hotel, Bar & Restaurant workers,
Semenanjung Malaysia, the issue was whether the employees in the hotel that
work in the night club can be a member that can join the national union… the
court said yes, those who work in night club can join the union – court is looking
at the membership clause of the trade union is similar in the industry with the
employee business]
(ii) Percentage (Majority) – how many of the employer's workers are members of the
said trade union.
General Recognition – 50.01%, if this percentage is there then the employee must
accord recognition this can done using secret ballots to protect employee
confidentiality so that employer cannot sue
Then DGIR can accord or refuse. If refuse he reapply, if it is accorded then another trade
union can apply after 1 year.
Collective Bargaining
Not accorded recognition – cannot start collective bargaining, so MUST get recognition
s. 10 IRA – employers cannot dismiss the employee during that time
s. 2 of IRA – define collective bargaining
Procedures
- Trade union or employer can submit the application in writing to start a collective
bargaining – s.13(2)
- If the invitation, comes from the trade union, the proposal accompanied that
invitation cannot include s.13(3)(a) – (f) – known as the managerial prerogative;
but may include matters in s.13 (2A) (a) – (c)
- Nevertheless, trade union have no prohibition to raise general matters specified in
s. 13(3)(a) – (f)
- So, if TU invited, the employer would decide whether to accept or refuse
- If employer accept, then collective bargaining will commence s.13(5), and this
will be followed by collective agreement, s. 14
- If employer accept, but no collective bargaining commencement, then must notify
DHIR – s. 13(6)
- DGIR starts the reconciliation process, and if they failed, s.13(7) – trade dispute
deems to existed – both parties can opt for industrial action, means trade union
can go for strike or picket, while employees can go for lockout, s.45