COLLECTIVE BARGAINING - WHO WILL WIN?

COLLECTIVE BARGAINING


1. INTRODUCTION
Collective Bargaining is a process of negotiating an agreement between an employer or trade union of employer, and trade union of employee regarding the employee’s terms and conditions of service.
Sec 2 IRA 1967 defines collective bargaining as negotiating with a view to the conclusion of a collective agreement. Collective agreement is defined as an agreement in writing concluded between an employer or a trade union of employers on the one hand and a trade union of workmen on the other relating to the terms and conditions of employment and work of workmen or concerning relations between such parties;
To commence a collective bargaining, firstly the trade union of workmen must have recognition by an employer or a trade union of employer. Without this recognition the collective bargaining could not be started as there will be arised the question who should be the representative for workmen.
2. INVITATION
After a trade union of workmen has been accorded recognition by an employer or a trade union of employers then, the trade union of workmen may invite the employer or trade union of employers to commence collective bargaining; or the employer or the trade union of employers may invite the trade union of workmen to commence collective bargaining (Sec 13(1) IRA.
The invitation must be put in writing and enclosed with the proposals for a collective agreement.
A proposal for a collective agreement may provide for one or more of the following:
a.       provision for training to enhance skills and knowledge of the workmen;
b.      provision for an annual review of the wage system; and
c.       provision for a performance-based remuneration system.
However, trade union of workmen should not discuss any of the following matters:
a.       the promotion by an employer of any workman from a lower grade or category to a higher grade or category;
b.      the transfer by an employer of a workman within the organization of an employer’s profession, business, trade or work, provided that such transfer does not entail a change to the detriment of a workman in regard to his terms of employment;
c.       the employment by an employer of any person that he may appoint in the event of a vacancy arising in his establishment;
d.      the termination by an employer of the services of a workman by reason of redundancy or by reason of the reorganization of an employer’s profession, business, trade or work or the criteria for such termination;
e.       the dismissal and reinstatement of a workman by an employer;
f.       the assignment or allocation by an employer of duties or specific tasks to a workman that are consistent or compatible with the terms of his employment:
The above provision however not prohibit a trade union of workmen to raise in the course of any discussion with an employer or trade union of employers (whether or not the discussion is in the course of any collective bargaining) questions of a general character relating to the procedures of promotion of workmen notwithstanding that such questions do not form part of the proposals aforesaid.

3. THE PROCESS
Step 1: Invitation
Step 2: Acceptance of Invitation
The employer, trade union of employers or trade union of workmen to whom invitation has been made shall, within fourteen days from the receipt of the invitation, reply in writing to the party who has made the invitation notifying acceptance or otherwise of the invitation.
Step 3: Commencement of bargaining

Where an invitation to commence collective bargaining has been made and a reply notifying acceptance has been given the parties shall commence collective bargaining within thirty days
from the date of receipt of the reply notifying acceptance of the invitation.
Step 4: Failure to accept or to commence
Where an invitation to commence collective bargaining has been made and
·         the invitation has been refused or not been accepted within fourteen days, or
·         where no collective bargaining has commenced within thirty days from the date of receipt of the reply notifying acceptance of such invitation,
the party making the invitation may notify the Director General in writing.
Director General may take such steps as may be necessary or expedient with a view to bringing the parties to commence collective bargaining without undue delay
If after such steps, as aforesaid, have been taken, there is still refusal to commence collective bargaining, a trade dispute shall be deemed to exist upon the matters set out in the invitation.
Step 5: Representation to Minister
Where a trade union of workmen considers that an employer or a trade union of employers has refused to allow without just cause or excuse any question referred to be raised in the course of any discussion, the trade union of workmen may, within one month of such refusal, make representations in writing to the Minister.

The Minister may, before giving any direction thereon, give an opportunity to the employer or his trade union and the trade union of workmen to be heard; and the direction of the Minister shall be final and conclusive.

4. COLLECTIVE AGREEMENT
A collective agreement shall be in writing and signed by the parties to the agreement or by persons authorized in that behalf (Sec 14(1) IRA).
Terms of the agreement should include:
a.       name the parties thereto;
b.      specify the period it shall continue in force which shall
c.       not be less than three years from the date of commencement of the agreement;
d.      prescribe the procedure for its modification and termination; and
e.       unless there exists appropriate machinery established by virtue of an agreement between the parties for the settlement of disputes, prescribe the procedure for the adjustment of any question that may arise as to the implementation or interpretation of the agreement and reference of any such question to the Court for a decision.

Any term or condition of employment, contained in a collective agreement, which is less favourable than or in contravention of the provisions of any written law applicable to workmen covered by the said collective agreement, shall be void and of no effect to that extent and the provisions of such written law shall be substituted thereof.
A signed copy of the collective agreement shall be jointly deposited by the parties with the Registrar within one month from the date on which the agreement has been entered into and the Registrar shall thereupon bring it to the notice of the Court for its cognizance.

5. EFFECT OF COLLECTIVE AGREEMENT
A collective agreement which has been taken cognizance of by the Court shall be deemed to be an award and shall be binding on
(a) the parties to the agreement including in any case where a party is a trade union of employers, all members of the trade union to whom the agreement relates and their successors, assignees or transferees; and
(b) all workmen who are employed or subsequently employed in the undertaking or part of the undertaking to which the agreement relates.

Non compliance of collective agreement
Sec 56 – complaint may be lodged in writing to the Ind Court. Ind Court upon receipt of such complaint, may make order directing any party to comply with any terms or awards.Failing to do which – be liable to a fine not exceeding RM2000 or imprisonment not exceeding one year


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