FORMATION AND RECOGNITION OF TRADE UNION
TRADE UNION- FORMATION AND
RECOGNITION
1. INTRODUCTION
In
Malaysia, employee and employer are free to establish trade union based on :
i. Article
10(1) (c) Federal Constitution
ii.
No.98 ILO Convention
iii.
Sec 8 and 9 of Trade Union Act 1959
Malaysia
ratified ILO convention No.98 concerning the “Application of The Principles of
The Right
to Organize and Collective Bargaining Convention 1949”. The right to form trade union and to engage in their legitimate
activities are embodied in the Industrial Relation Act rather than in the Trade
Union Act.
Sec
4(1) of IRA declares:
No
person shall interfere with, restraint or coerce a workman or an employer in
the exercise of his right to form of and join a trade union and to participate
in its lawful activities – see also Sec 5 IRA. This right of unionism is
enjoyed by both the employer and the employee.
As
such the Trade Union Act (TUA) creates an offence to act against an employee
who is or proposes to become an officer or member of a trade union or of an
association that has applied to be registered as a trade union. The action can
be that of dismissal, injury or threatened injury in employment and alteration
/threatened alteration of position. Penalty can be up to imprisonment for a
term up to one year and fine not exceeding RM2000 or both.
However
there is no provision as regards to the right to join or not to join a trade
union
2. DEFINITION
Trade
union or union means any association or combination of workmen or employers,
being workmen whose place of work is in Peninsular Malaysia, Sabah or Sarawak,
as the case may be, or employers employing workmen in Peninsular Malaysia,
Sabah or Sarawak, as the case may be:
(a) within any
particular establishment, trade, occupation or industry or within any similar
trades, occupations or industries;
(b) whether
temporary or permanent; and
(c) having among
its objects one or more of the following objects:
a.
the
regulation of relations between workmen and employers for the purposes of
promoting good industrial relations between workmen and employers, improving
the working conditions of workmen or enhancing their economic and social
status, or increasing productivity;
b.
the
regulation of relations between workmen and workmen, or between employers and
employers;
c.
the
representation of either workmen or employers in trade disputes;
d.
the
conducting of, or dealing with, trade disputes and matters related thereto; or
e.
the
promotion or organization or financing of strikes or lock-outs in any trade or
industry or the provision of pay or other benefits for its members during a
strike or lock-out;
The
definition above has certain implications:
1. A
trade union need not be called a union. Many unions call themselves
associations. For example : University of Malaya Academic Staff Association.
2.
Membership of union is limited geographically. Workers in peninsular may join a
union all of whose members work in peninsular. Workers in Sabah may join a
union all of whose members work in Sabah and also applied for workers in
Sarawak may join union all of whose members work in Sarawak. Therefore, exist
three geographical regions. This leads to some duplication of unions.
3.
Unions of a general nature are not permitted. Members of a trade union must be
homogeneous, i.e, they must work in a particular establishment, trade,
occupation or industry and therefore posses common interests.
In
ELECTRICAL INDUSTRY WORKERS UNION v REGISTRAR OF TRADE UNION AND ANOR [1976] 1
MLJ 177, the workmen of Mosanto Electronics Sdn Bhd wanted to join the
Electrical Industry Workers Union. The registrar ruled that the workers
employed in the electronic industry cannot join the said union as their
business is not similar. On appeal, the Federal Court held that the registrar
was competent to decide whether there was similarity of business; the court
should not make declaratory judgment where alternative remedy is available.
4. Employers
and employees both have the right to form and join unions, but they must be
separate from each other and must satisfy the condition of homogeneous.
5.
Any organization or group of workers established to achieve one or more of the
objectives stated in the Act is considered having formed a trade union and must
therefore conform to all legislative requirements of a trade union.
3. TYPES
OF TRADE UNION
Private Sector Union
Private
sector unions are either national or in house. National unions attempt to cover
all workers in the same industry, trade or occupation. Examples: National Union Of Plantation Workers (NUPW), National
Union Of Commercial Workers, National Union Of Bank Employees (NUBE), Transport
Workers Union.
An in-house
union is one where members are employed by the same employer regardless of
occupations.
Disadvantages
of in-house unions:
In-house unions are generally weak due to limited
membership
High possibility of employer
exploitation on union leadership
Weak financially
Fear of victimization among union
leaders
Unable to provide extra benefits
such as scholarship to members
Public Sector Union
Public
sector consists of the civil service, the statutory bodies, and local
authorities. Example: National Union of Teaching Profession (NUTP), the Malayan
Nurses Union and the Malayan Technical Services Union.
The TUA
provides that workers in the public sector can only form and join unions whose
members are in the same ministry, department or occupation. The number of union
members in public sector is dropping due to government’s policy of
privatization.
One
significant difference between public vs. private sector unions - public sector
unions are not involved in collective bargaining
Employers Union
Employers
also have the right to form and join trade unions (normally known as
associations). Employers’ unions are a response to the large and powerful
national trade unions
The
objectives: to promote and protect the interests of their members, to negotiate
and deal with trade unions of employees, and to represent their members in any
trade disputes between an individual member and the employees’ unions
The most
active employers’ associations:
Malayan Agricultural Producers’ Association (MAPA) –
Plantation industry
Commercial Employers’ Association
of Peninsular Malaysia – Commercial industry
Malayan Commercial Banks’
Association (MCBA) – Banking industry
Association of Insurance
Employers (AIE) – Insurance industry
4. FIRST
STEP – ESTABLISHMENT
An
establishment meeting needs to be done. There is no limitation about attendance
but it supposes to have as many as members in.
Trade
union is established on the first date on which any workmen or employers agree
to become or to create an association or combination within any particular
establishment, trade, occupation or industry (Sec 9(1) TUA 1959)
Things
need to be done in establishment meeting as follow:-
i.
Appoint a temporary chairman and minute writer in the meeting.
ii.
A short discussion about the purpose of trade union.
iii.
Determine a membership scope
iv.
Determine a rate for entrance and monthly fee
v.
Determine a name and registered address of trade union
vi.
Discuss and approve trade union rules.
vii.
Appoint of committee consist of Chairman, Secretary, Treasury and four committee
members.
viii.
Other matter
ix.
Conclusion
Membership
Although workers have the right to
join union, there are numbers of qualification to union membership. However
‘close shop practice in Malaysia is illegal. Any worker over 16 year of age is
eligible to apply to join the union but is restricted in their union activities.
Not
entitle to vote on matters involving strikes, imposition of levy, dissolution
of union or amendment of union rules
Members
under 21 cannot be union official. Also a worker cannot join or be retained as
member of any trade union if he is not employed or engaged in any
establishment, trade, occupation or industry in respect of which the TU is
registered.
Certain
group of government servants are also not allowed to join union – police,
prison service, armed forces and those in confidential and security work
Officer
According
to section 26 and 28, Trade Union Acts 1959 there are conditions to become an
officer which is :-
a) A
Malaysian citizen;
b)
He has been engaged or employed for a period of at least one year in any establishment,
trade, occupation or industry with which the trade union or federation is
connected;
c)
Never been an executive in any trade union that has been cancelled or withdrawn
under section 15(1)(b)(iv) or (v) or any law repealed by this Act;
d)
Not an officer or employee in of a political party.
e)
Never being convicted by court of law of criminal breach of trust, extortion or
intimidation or any offence which in the opinion of the Director General
renders him unfit to be a trade union officer of a trade union ;or
f)
Not a bankrupt person.
5. SECOND
STEP- REGISTRATION
Then
the trade union shall apply to be registered within a period of one month
reckoned from the date on which it is so established (Sec 8(1) TUA 1959)
Application
for registration as a trade union shall be made to the Director General in the
prescribed form, and shall be signed by at least seven members of the union,
any of whom may be officers thereof. (Sec 10(1) TUA 1959)
Registration
of trade union procedures as follows:-
a)
Fill a registration form (Form B)
b)
Prepare documents as needed to Trade Union Affairs Department within a
period
of one month reckoned from the date on which it is so established.
i)
Application Letter – 2 copies
ii)
Minutes of trade union's meeting – 2 copies
iii)
List of employees attendance – 2 copies
iv)
List of employees support in establishment of trade union – 2 copies
v)
Printed trade union rules – 1 copy
vi) Application
for registration (Form B) – 4 copies
vii)
Praecipe Form together with revenue stamp of RM30.00 – 1 copy
The
application shall be accompanied by a printed copy of the rules of the trade
union signed by the members of the trade union making the application and a
statement of the following particulars, namely:
a.
the names,
occupations and addresses of the members making the application;
b.
the name of the
trade union and the address of its head office; and
c.
the titles,
names, ages, addresses and occupations of the officers of the trade union
The
Director General, then, may register the trade union. He may not register if he
satisfied that there is in existence a trade union representing the workmen in
that particular establishment, trade, occupation or industry and it is not in
the interest of the workmen concerned that there be another trade union in
respect thereof.
The
Director General shall refuse to register a trade union if—
(a) he is of the
opinion that the trade union is likely to be used for unlawful purposes or for
purposes contrary to or inconsistent with its objects and rules;
(b) any of the
objects of the trade union is unlawful;
(c) he is not
satisfied that the trade union has complied with the Act and of the
regulations;
(d) he is satisfied
that the objects, rules, and constitution of the trade union conflict with any
of the provisions of this Act or of any regulations; or
(e) the name under
which the trade union is to be registered is—
(i)
identical to that of any other existing trade union, or so nearly resembles the
name of such other trade union as, in the opinion of the Director General, is
likely to deceive the public or the members of either trade union; or
(ii)
in the opinion of the Director General, undesirable, unless the trade union
alters its name to one acceptable to the Director General.
The
Director General shall issue to the trade union a certificate of registration and
that certificate, shall be conclusive evidence for all purposes that the trade
union has been duly registered.
6. RECOGNITION
Recognition
is a formal acknowledgement by an employer that a particular trade union has
the right to represent his employees. Recognition is an important
concept in the Malaysian industrial relations system. The Industrial
Relations Act 1967 makes union recognition a necessary prerequisite to
collective bargaining. In other words, before an employee union can start to
negotiate with an employer on behalf of the workers in a company, the union
must get recognition from the employer.
Four
conditions need to be met by an employee union before it obtains recognition
from the employer:
the union must be a registered union, i.e. it must be registered as
an employee union under the law governing the registration of trade unions, the
Trade Union Act 1959
the union must be competent to represent the employees concerned.
The union must be confined to some establishment, trade, occupation or industry
as those employees
the union must be the appropriate union to represent the employees
concerned, i.e. it must be a union of employees with managerial, executive,
confidential or security capacities (MECS) if they are MECS employees, and
non-MECS union if those employees are non-MECS employees
the union must be sufficiently representative of the employees
concerned, i.e. it must represent at least 51% of those employees on the date
on which claims for recognition is made.
However,
even when all four conditions are met, there is no guarantee that the employer
will recognize the union. This is because the IRA does not accord to unions a
right to recognition nor impose on employers a duty to recognize. In
considering whether to recognize a trade union, an employer is normally guided
by certain well established principles.
Lord
Denning in BEETHAM V TRINIDAD(1960) 1 ALL ER 274 summed the principles
as follows:
If the members
of a union are in the minority in the factory, the union may well claim to
represent its own members in cases of individual grievances, but it cannot
claim to bargain on behalf of all the workmen in the factory. In such a case,
the employers may afford the union limited recognition, that is
recognition limited to individual grievances. But if the members of the union
are in majority, then the union may claim to make representation on behalf of
everyone – whether members or not, and may claim full bargaining rights on
general questions of wages and working conditions. In such a case, the employer
may afford the union general recognition
Procedure for Recognition
Under
Sec 9(2) IRA, trade union of employees may serve a claim for recognition in
respect of all workers or any class of workers. There must be response from the
employer - to be made within 21 days after the service of the claim.
The
response may be one of the three as follows:
Accord recognition
Refuse to accord recognition – must notify the TU in writing for
the grounds of refusal
Apply to the DG to ascertain whether the workers are members of the
TU, and give written notice to the TU of such application
Should
the employer refuse recognition or fail to reply to the request, the union may
file a complaint to the Director-General of Industrial Relations who may
require the parties to supply any information he deemed necessary to resolve
the matter.
If
the union fails to get recognition, it must wait a further six months before
making another request and any other attempt to get recognition. If despite the
Director-General's effort to resolve the disputes, he is required to notify the
Minister of Human Resources. The decision of the Minister is final and shall
not be questioned in any court of law.
FORMATION AND RECOGNITION OF TRADE UNION
Reviewed by Kamaruddin Mahmood
on
7:26:00 PTG
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