TRADE DISPUTE & INDUSTRIAL

ACTION

Trade DisputePicketingStrike & Lock-outSettlement of Trade Dispute

Trade Dispute2

Trade dispute is any dispute between an employer and his employees which is connected with the employment or non-employment or the terms of employment of the condition of work of any such worker. (IRA)

Trade disputes are also known as industrial dispute. An individual’s complaint is called a grievance. Only

if the union is willing to represent the worker can a grievance leads to a dispute.

An aggrieved worker will bring his complain to his/her immediate supervisor. A time limit will be provided at all stages of the procedure to ensure no manager sits on the complaint.

If not settled, it will be passed up to a higher level until it is finally either settled or the union takes over as a dispute.

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Dispute caused by:a) individual who has a grievancesb) difference of opinion & interpretationc) deadlock in Collective Bargainingd) non-implementation of an agreement or

award

A dispute must have employee or employer concerned represented by a union.

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Two exceptions:a) An individual has a complaint concerning

alleged interference by an employer in the worker’s right to join a union or not join a union – the union can complain to DG of IR, who if unable to settle problem, can refer to Industrial Court.

b) Individuals who have a complain of unfair dismissal can request reinstatement by making a report to Dept. of IR. Minister can refer complaint to Industrial Court. Disputes need not be represented by union.

Grievances5

Grievance is a reasonable & legitimate complaint by the employee

Procedure: Obtain satisfaction from immediate supervisors /

officer then with a union branch official within 5 working days. If not, directly / through union writing a grievances to Personnel Manager

If not settled within 7 working days, the union’s branch can write to the general manager / deputy. Meeting will be held within 10 working days

If not settled after meeting, union can write to the General Secretary within 10 working days of the final meeting. Meeting will be held within 10 working days which attended by senior officials of the Company

If unresolved, both parties agree to refer the dispute for settlement under provision of the IRA

Industrial Harmony6

Employers always have to be proactive & take positive steps to avoid industrial disputes.

Can do this by providing training for union leaders & members; work together with union representatives, & provide union with physical facilities.

Union leaders can be asked to sit in various committees to show that their input is valued.

Supervisors need to be trained to understand the rights of management & union respectively. They need to be equipped with skills to handle grievances, talk to union site leaders, & ensure workers feel they are valued.

Industrial Action by Employees

Pickets and strikes are common. Used as last resort by unions. Can call in sick or take emergency leave thus causing employer to be short–staffed. Other creative ways: visiting bathrooms frequently thus reduces output. Boycott – members refuse to use or buy a company’s product. Encourage other workers, supporters, & public to do the same. Sabotage.

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Picketing

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Picketing is allow workers to attend at or near their workplace when they have a trade dispute for the purpose of peacefully giving information to the public and other workers and to persuade other worker not to work if a strike has already been declared and must not intimidate anyone, must not obstruct the entrance / exit to the organization and must be peaceful. (IRA, Section 40)

Picket is lawful as long as :a) it does not intimidate anybodyb) does not obstruct the exit and entrance of the

workplace or trafficc) it is being conducted peacefully

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Picketing must not frighten anyone, must not obstruct entrance or exit to organization, & must be peaceful.

Only workers directly involved in dispute can participate in picketing – but officers can be there to ensure picketing is carried out according to the law.

Picketers do not require police permit for their activities. They also cannot be dispersed by the police.

It is a legal activity. Used to communicate issues to public & to embarrass employer. Can use prominent display of banners & placards with comments about employers. Can request passers by to show support by pressing their car horns & give information to media.

In most cases, the mere threat of picketing in the mass media is enough pressure to force the employer to respond positively to union demands.

Strike10

Occurs when a group of workers refuses to work until their employer accepts their demands.

The cessation of work by a body of workmen acting in combination or a concerned refusal or a refusal under a common understanding of a number of workmen to continue work or to accept employment and includes any act or omission by a body of workmen acting in combination or under a common understanding, 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. (Section 2)

Can also be go–slow, work–to–rule, & a ban on overtime. All are not encouraged by Industrial Court.

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Strike is defined as the withdrawal of work by a

group of employees. Strike is any stopping of work by a group of

workers including any attempts to limit / slow down production on purpose.

Types of Illegal Strike:a) wildcat strike c) political / general strikeb) sympathy strike d) sit in strike

When strike is illegal:a) objective is other than furtherance of a trade disputeb) union is not registeredc) carried out for political purposes

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Legal requirement of a Strike:a) Workers to go on strike must belong to a registered

trade unionb) Strike must be for the purpose of a trade disputec) Union must carry out a secret ballot (2/3) and must be

sent to Director General of Trade Union (DGTU) within 14 days of the ballot

d) Worker are not allowed to strike under the following conditions: Consent by secret ballot of 2/3 Before the expiry of the 7 days of cooling period Secret ballot for the proposed strike has become invalid

upon the expiry of 90 days after the date of the ballot

During & after 7 days after the proceeding of a Board of Inquiry which is appointed by the Minister

After a dispute has been referred to Industrial Court by the Minister for arbitration

Over matters pertaining to Managerial Prerogatives Any matters covered under a valid Collective Agreement In the public sector, Agong has withheld consent to the

references of a dispute to the Industrial Court

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e) Workers under category of Essential Service cannot go on strike:

I. Without giving notice of strike within 42 days before striking

II. Within 21 days of giving such noticeIII. Before the expiry of the date of strike specified in

such notice

Essential services comprises the following services: Banking, Electricity, Fire, Port, Postal, Prison,

Production of Fuel & Lubricants, Public Health, Radio Communication, Telephone & Telegraph, Water

Public Sector in Chemistry, Civil Aviation, Custom & Excise, Immigration, Marine, Meteorology & Printing

Services connected with the functioning of the Armed forces & Police

Business & Industries connected with the defense & security of Malaysia

Any service in connection with the safety of the employees / establishment

Lock-Out14

Employer taking action against workers. Employer refuses to allow workers to work until the dispute between them is settled.

Can be declared in response to an illegal strike by workers.

Lock-out is the closing of a place of employment, the suspension of work or refusal by an employer to continue to employ any number of workers employed by him. (IRA, Section 2)

Purpose:a) force worker to accept the terms & conditionsb) tools to encounter industrial action taken by the employees

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Settlement of trade dispute

1. Direct Negotiation2. Conciliation3. Mediation4. Arbitration

Direct Negotiation

Ideal method of settling dispute. Both parties are involved. They meet face to face. Compromise can be reached.

There is mutual decision between them without involvement of outsider. Seen as a mature & harmonious way of settling dispute. Encouraged by Industrial Relations Act.

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Conciliation17

Process of arriving at a settlement of a trade dispute with help of a third, neutral party. It is carried out by officers of Dept. of Industrial Relations. Can be voluntarily requested by either of disputing parties or DGIR may intervene in a dispute in public interest – requiring parties to attend a conciliation meeting. This is called “compulsory conciliation”.

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Compulsory conciliation is common in public utilities & other important industries where public might be inconvenienced if a settlement is not found quickly.

The DG cannot intervene until he is sure the parties’ efforts to settle the problem themselves through negotiations have failed.

Conciliation is carried out by Industrial Relations Officer(s) who will meet the parties either separately or together. After a briefing on the problem, he will help them arrive at a compromise which is acceptable to both.

They only advise the employer & employees involved in dispute.

Mediation19

A relatively rare method of settling dispute. A neutral third party is called in by the parties to a dispute to help them find a settlement but the mediator is not usually from the government.

A politician or other local leader may intervene in a dispute & be able to bring a settlement.

It is difficult for the parties to find a suitable mediator acceptable to them both.

Arbitration

An impartial third party is given the authority to settle the dispute by examining the information given by both sides & making a judgment.

In Malaysia, it is the Industrial Court.

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Industrial Court21

Functions:a) Hears & decide dispute / cases on non-

compliance of awards & collective agreements

b) Inspect & take cognizance of collective agreement

Structure:a) 1 President & 4 chairman appointed by Agongb) 2 Panel (MEF, MTUC) appointed by Court

president

Court cannot proceed without President or Chairman

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Types of cases referred: request of both parties to a disputed after

dispute resolution have failed unfair dismissal of non-unionized workmen request to interpret the approved

Collective Agreement / awards by any party / minister

hear complaint over alleged contravention of trade union right / non-compliance of awards / collective agreement

require the parties involved to amend a collective agreement

Power of Industrial Court23

a) summon partiesb) call in witness & documentsc) hear & determine disputed) conduct its proceedings in privatee) call in the aid of expertf) to regulate the procedure & proceeding of the courtg) make an award

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Any awards given by the Court is binding on the following conditions & persons:a) All parties to the disputeb) Any successor, assignees / transferee of any

employers or its union and any successors to any trade union of workmen which is a party to the dispute

c) All existing & future employees who are employed in the organization related to the trade union

d) To all members of the trade union of employers to whom the dispute relates to & to which the dispute the trade union is a party and the successors, assignees / transferees of the members

e) Understood term of the contract between the employees & the employer bound by the award will be accordance with the award