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
COLLECTIVE BARGAINING - WHO WILL WIN?
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