TRADE DISPUTE & INDUSTRIAL ACTION
NUR SUHAILI MUHD PUJI AZLINA OSMAN NURUL IZZATI ABDUL AZIZ SITI FARHANA MOHD RAMLY NUR SYAZA HASHIM SYAHIN SALLEH AIRIN ZULEIKHA BINTI AZIZ (2008234972) (2008293082) (2008291998) (2008293054) (2008293128) (2008234714) (2008298166)
DEFINITION Any disagreement between an employer and his workers related to the employment or non-employment or the terms of employment or the condition of work of any such workers that leads to industrial action under Industrial Relation Act 1967 .
CAUSES OF TRADE DISPUTES
Inadequate action taken by the employer due to the complaint done by individual employee. Differential judgment between both sides of employer and employees related to workplace¶s condition and services. Varies opinion from both parties related to the interpretation of a Collective Agreement and Industrial Court Awards. The existence of the non-implement of an agreement of awards .
MECHANISM IN RESOLVING DISPUTES
NEGOTIATION CONCILIATION ARBITRATION WORKPLACE DEPARTMENT INDUSTRIAL COURT
To fulfill the desire of both parties at the lowest possible level. To maintain good relation between employer and employees.
A rational and legitimate complaint that is held by a person at the workplace to the attention of his immediate supervisor or officer that is then not being settle in a proper way or the unsatisfactory results that obtained from the action taken due to the complaint that has been made.
Writing a report presented the grievance through the hierarchy of management up to HR Manager. Writing to middle management such as the General Manager or Deputy. Writing to the top management -company. Company will offer a meeting. Turn to arbitrator that then will refer to the dispute for settlement under provisions of IR Act 1967 .
Avoid taking such action that can leads to industrial dispute. The employer should take immediate action when there are complaints from his workers. The employer need to make sure that all of his plant union leaders have undergo training related to relations between workers. Make sure that the settlement of dispute was done as soon as possible successfully- generate industrial growth.
- industrial action taken by the workers - the industrial relations act (section 40) allow workers to attend, or near, their workplace when they have trade dispute in the purpose of peacefully giving information to the public and other workers. - Persuade other workers not to work if a strike have been declared. - must not intimidate anyone and also not obstruct the entrance or exit to the organization. - Peaceful. - only those workers directly involved in the dispute can participate in the picket. - an officer or employee of the union can be present to ensure picketing is carried out according to the law. - Do not require police permit. - Communicate issues to the public and to embarrass the employer. - Done by prominent display of banner and placards with derogatory comments about the employer and the management.
The example of placards held is ³management cheats´ and ³don¶t snatch away workers¶ right´. This is done by requesting passer-by to show their support by pressing their vehicle horns and by willingness to give information to the mass media. To publice the dispute between the workers and the union. Picketing is the first attempt at industrial action taken by workers before striking. Picketing as a pressure tactic in a union¶s attempt to get an employer to give in the worker¶s demands. Example of picketing : on 26 April 1988, repoted by The Star that 2000 workers of Syarikat Telekom Malaysia picketed in front of their headquaters during the lunch break and after office hours to support their demand for payment a bonus. Pickets are certainly more common and the economic impact of a picket is generally very limited because it takes place usually outside working hours and does not directly affect the output of the workers concerned.
Industrial action taken by the employer against employees. The employer refuses to allow the workers to work untill the dispute between them is settled. Lock-out is declared in response to an illegal strike by the workers. The industrial relations act (sec. 2) defined a lock-out as: ³the closing of a place of employment. The suspension of work, or the refusal by an employer to continue to employ any number of workers employed by him, in furtherance of a trade dispute, done with a view to compel those workers to accept terms or conditions of work or affecting employment´. The procedures of a strike are the same with strike. The employer take an action to fight a strike by keeping the firm operating, either by placing managerial or non-union employees in the striker¶s job, or by hiring replacement workers.
Effective way of ending a strike because when workers realise that their action is not having any negative economic to the employer,they may decide to go back for work. For example, During 1979, strike in Malaysian Airline System (MAS), the management brought in trainees from Dusun Tua, a training centre for youths, to take over from a cabin staff. The trainees were given special, intensive training and were put to work to replace the striking staff. The ultimate weapon of the employer against the union is the total closure of a factory or plant, leading to loss of employment for all workers involved. This is response to aggressive union activity is not uncommon, especially among multi-national employers who choose to place their factories in an environment most conducive to making profit.
A group of workers refuse to work until their employer accepts their demands or Any stopping of work by group of workers including any attempt to limit or slow down production ob purpose
1) 2) 3)
Only legal if they comply with the regulations in the Industrial Relations Act and Trade Union Act. Only extended to member of registered trade union. Only workers have a trade dispute with their employer can take strike action. Sympathy strike: where a group of workers who are not involved in a trade dispute decide to go on strike to show support and solidarity with another group of workers who are legitimately on strike.
5) 6) 7)
A secret ballot must be held by those eligible stating issues leading to strike Result must be send to DGTU by the union secretary within 14 days. Strike only take place 2/3 agree. Wait for 7 days after the submission of the ballot result to start the strike. Only valid for 90 day, new ballot is required if no strike taken during this period.
STRIKES IN THE ESSENTIAL SERVICES
1) 2) 3) 4) 5) 6) 7) 8) 9)
Banking and services Electricity services Fire services Port, harbour and airport services Postal and telecommunication services Prison service Public health service Water service Transport services and etc
STRIKE IS NOT PERMITTED IF:
Carried out by non-member Over a collective agreement which has been deposited with and accepted by the Industrial Court Over management prerogatives During the immediately after the proceedings of Board of Inquiry appointed by the Minister Dispute has been referred to the Industrial Court Over a recognition dispute which is being resolved by the Minister When the YDP Agong has refused permission for a trade dispute in the public sector to be referred to the Industrial Court for arbitration
Legitimate strategy where the two parties involved which are employer and the union discuss together until a satisfactory compromise is reached. The solutions can be solved by mutual decision between the two parties without the involvement of an outsider. Mature and harmonious way of settling any dispute. Under the Industrial Relations Act 1967, the legitimate rights of employers and workmen or employees and their trade unions are protected. This Act also provides the procedure relating to submissions of claims for recognition, scope, representation of trade union and collective bargaining.
Under this Act, matters relating to promotion, recruitment, dismissal, transfer, retrenchment, reinstatement and allocation of duties and prohibition of strikes and lockouts over any of these matters are not allowed to be included in the proposal for collective bargaining. Director-General of Industrial Relations cannot impose compulsory conciliation until the parties have failed in their attempts at direct negotiation.
Process which reach problem solution by involving with third party Carried out by officers of Department of Industrial Relations who will meet the parties either separately or jointly. Conciliation may be requested by either of the disputing parties, or the Director-General of Industrial Relations. Lowering tensions, improving communication, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement. The officers have no authority to insist that the parties accept any particular recommendation.
In general, outcomes sought through conciliation fall into three categories: 1.An explanation as to what happened and why. This may also include an apology or an acknowledgement of harm suffered. 2.Change in systems, policies or protocols. 3.A claim for refund of fees, compensation, or remedial treatment.
Encourage settlement of the complaint and assist the employer and the employees to reach agreement Helping to clarify the issues, gathering information, and arranging confidential discussions between the parties. Not the conciliator¶s role to make a decision about the outcome or impose a settlement.
Maimunah Aminuddin - Similar to conciliation in that a neutral third party is called in by the employer and the trade union that is in the midst of a dispute to help them find a settlement. Christopher Honeyman and Nita Yawanarajah - Mediation is a process in which a third-party neutral assists in resolving a dispute between two or more other parties.
The third party is known as the mediator.
Identify important issues
Role of Mediator Explore solutions Negotiate a settlement
Maimunah Aminuddin - Arbitration is defined as an impartial third party is given the authority to settle the dispute by examining the information given by both parties and making a judgement.
Enforcement from court
Binding ARBITRATION Case RESOLVED
Advisory Council is a group of people created to give advices on a projects, programs or organizations. It is pleased to represent the organization with strategic considerations enhancing provincial benefits from the project and recognized the need for organization in order to provide fair returns to projects and full and fair benefits for the employees.
IMPORTANT OF ADVISORY COUNCIL
Increase the attractiveness of future project developments in the organization. Develop internationally competitive and outstanding services and skills. Create long-term profitable ventures and long term benefits for the organization.
OF ADVISORY COUNCIL
Recognize about the project and give advised in order to provide a significant opportunity to enhance the overall economic well being of the province and its residents. Recognize that jurisdictional factors particularly in project whether, it have an impact on its leverage with industry to demand specific commitments. Recognizes and mention that the greater the potential profitability associated with a project, the greater is the potential for the project to provide higher levels of industrial and employment benefits as well as economic benefits. Recognize the activities necessary to achieve organization goals while still providing fair returns to the organization projects.
Advisory Council for Sciences and Technology Its role is to give advice on sciences and technologies policy issues. It was established in 1993 and relaunched in 2003. The council has two chairs which is the Chief Scientific Advisor and the Government Office for Sciences. Advisory Council for Aeronautic Research Its role to give advice and improve competitive situation in the field of aeronautics. It was launched at Paris Airshow in June 2001, and comprises about 40 members.
Established by Industrial Relation Act 1967 Highly specialized and deal only with trade dispute Purpose: provide a peaceful and unbiased means of settling disputes between employers and employees, which is to carry out the function of arbitration.
STRUCTURE OF THE COURT
PRESIDENT Appointed by YDP Agong At least 7 years of experience as a lawyer
PANEL - A representative of Malaysian employers - List of names submitted by Malaysians Trades Union Congress (MTUC)
PANEL - A representative of employees - List of names submitted by Malaysian Employers Federation (MEF).
PANEL - Independent - Depend by an amendment to IRA whether it necessary or not
POWER OF THE COURT
Summon dispute parties Call witnesses and document when necessary Ask questions of the witnesses or officer presenting the cases Allow cross-examine Hear & determine disputes in the absence of any party summoned to the proceedings Make an award
AWARDS OF THE COURT
court¶s decision Awards of the Court are not only compulsory, it also final, cannot be challenged or appealed According to Section 33 of the Industrial Relation Act, award of the Industrial Court: ³shall be final and conclusive, and no such decision shall be challenged, appealed against, reviewed, quashed or called in question in any other court or before any other authority, judicial or otherwise, whatsoever´. According to equity, consider public interest, financial & economy implications on national & industry.
CASES REFFERED TO INDUSTRIAL COURT
Complaints of NonCompliance Request for Interpretation Request for Variation of Collective Agreement or Award
Claims for Reinstatement
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
Aminuddin, M. (2007). Malaysian Industrial Relations & Employment Law. McGrawHill Education (Asia). p. 183-234. Disputes. (2001). Retrieved February 10, 2011, from http://www.lawyerment.com.my/library/doc/empl/dspt/ Ivancevich, J.M. & Hoon, L.S. (2002). Human Resource Management in Asia. McGrawHill Education (Asia). p. 357. Resolve Trade Disputes. (2011). Retrieved February 10, 2011, from http://jpp.mohr.gov.my/index.php?option=com_content&task=view&id=37&Itemid=53 Rollison, D. & Dundon, T. (2007). Understanding Employment Relations. McGraw-Hill Education. p. 143. Xavier, G. (2001). Law & Practice of Arbitration in Malaysia. Sweet & Maxwell Asia. p. 3-5. Ayadurai, D. (2004). Industrial Relations in Malaysia Law & Practice. Malayan Law Journal. p. 180. Honeyman, C & Yawanarajah, N. (2003). Mediation. Retrieved February 19, 2011, from http://www.beyondintractability.org/essay/mediation/ Eiselen, S. (2008). Principal for enhancing provincial benefits, Premier's Advisory Council on the Economy and Technology. p. 182-187. Mathis, R.L. et al (2010). Human Resource Management Asian Edition. Cengage Learning. p. 528-529. Dispute (n.d). Retrieved in February 22, 2011, from http://www.lawyerment.com.my/library/doc/empl/dspt/ Conciliation (n.d). Retrieved in February 23, 2011, from http://www.health.vic.gov.au/hsc/resources/conciliation.htm