Let’s first start by defining what disputes are, a dispute is referred to as a trade dispute under the Industrial Act 1967. It is basically any form of disagreement between that of the employer and that of the workman or the employee which is connected with the employment or non-employment or the terms of the employment or the conditions of the work of such workman or employee that leads to the industrial action. For such cases it is the Industrial Relations Act 1967 that governs the relationship between that of the employers and workmen or the employees as well as their trade unions and it will generally deal with the trade disputes.

What does the Industrial Relations Act 1967 provides?

The Industrial Relations Act 1967 is applicable throughout the entire nation of Malaysia and this particular act provides for the regulation of the relations between that of the employers and the workmen or the employee and their trade union as well as the prevention and settlement of the trade disputes.

This particular Act emphasizes on the direct negotiations between that of the employers and the workmen or the employee and their trade unions so that they are able to settle their differences as well as to regulate their collective relationship. The Act also will be able to regulate the collective relationship and to settle any of the disputes that arise there from through their own effort as well as mutually agreed procedure with the minimum intervention from the government.

If there is the necessity for government intervention then such interventions should be confined mainly to provide them will a legal framework so that the parties can turn to if they wish to. Under this particular act the legitimate rights of the employers and the workmen as well as the employees and their trade unions are protected. The Industrial Relations Act 1967 provides for the procedure that relates to the submission of the claims for the recognition and the scope and the representation of the trade union and the collective bargaining.

Under the Act, the matters that relate to the recruitment, transfer, reinstatement, promotion, dismissal, retrenchment, and the allocation of the duties as well as the prohibition of the strikes and the lock outs will not be allowed to be included in the proposal for the collective bargaining. The Act will also provide speedy and just settlement of the trade disputes by either conciliation or arbitration if the direct negotiation between that of the employer, the workmen or the employees and their trade unions has failed.

If there are any trade disputes that occur then the Act will provide the Ministry of Human Resources to intervene and to refer at any stage of the trade disputes to the Industrial Court for arbitration. The employees or the workmen are not allowed to declare a strike or a lockout once a trade dispute has been referred to the Industrial Court and on any matter that is covered by a collective agreement or by an award of the Industrial Court.

In this particular case the collective agreement means an agreement in writing that is concluded between that of an employer or a trade union of the employers on one hand and a trade union of the workmen or the employees on the other, relating the terms and conditions between the two parties.

The Act makes it an offence for any of the person to give any sort of the financial aid in direct furtherance or that of the support to any illegal lockout or strike. If anyone has been found guilty of committing such acts then it is seize able in nature and no bail shall be granted.

Under Part IX, section 20 of the Industrial Act 1967, only peaceful and orderly picketing in furtherance of a trade dispute shall be permitted. Also the picketing should be carried out at or near the place where the workmen or the employee works and where the trade disputes exists. The picketing, however will be considered to be illegal if one or more persons to attend at or near the place of employment where the workmen works if the attendance of the people, by the nature of its manner or number, is a calculated move to intimidate any person in the place or to obstruct the approach thereto or egress there from or to lead to a breach of the peace.

The award in this context refers to an award that is made by the Industrial Court in respect to any of the trade disputes or any of the matter that is referred to it or any of the decisions or the order that is made by it under the Industrial Relations Act 1967. You should also take note that the award that has been granted by the tribunal is final and legally binding for all the parties that are involved in the dispute.

The collective agreement cannot contain better terms of employment than those that have been stipulated under the Employment Act 1955 unless it has been approved by the Ministry of Human Resources. Part IV, section 15 of the Industrial Relations Act 1967 provides for the protection of pioneer industries against any of the unreasonable demands from the trade union especially during the initial years of their establishment for a period about 5 years from the date of commencement of operation in Malaysia.

What are the types of cases that I can refer to the Industrial Relations?

The Industrial Relations Department is a place where you will be able to refer any of the trade union activities, trade disputes or unfair labor practices that includes retrenchment, promotion, and victimization in connection with the trade union activities, unlawful and constructive dismissal, and unilateral change in the terms and conditions of service.

The constructive dismissal that is being referred to in this situation is where you as an employee is dissatisfied by the way that you are being treated by the employer, for example, the unilateral change in the terms and conditions of the service and you have tender your letter of resignation and plead that you have been constructively dismissed. According to Part X, section 59 of the Industrial Act 1967, it is an offense to dismiss a workman or an employee during the period of employment or alter or even threaten to alter the position of the workmen or the employee to prejudice under certain circumstance.

If any of the employers has been found guilty of contravening to the section that was mentioned earlier, then they will be liable on conviction to the imprisonment for a term that does not exceed 1 year or a fine that does not exceed the amount of RM2, 000 or both. If there are any complaints of contravention of such cases then you may lodge in writing regarding the situation to the Director General of Industrial Relations Department.

How do I lodge a complaint with the Industrial Relations?

It is advisable that you try to resolve the dispute by direct negotiation before you make a formal complaint to the Industrial Relations Department. However if the conflict is unable to be resolved then either party whether it is the employee or the employer will then be able to report the matter to the nearest Industrial Relations Department in the area where the conciliation proceeding can be initiated at the convenience of both parties. At this stage you are not required to pay any fees. Usually in such cases conciliation is the best method that can be used in dealing with this matter as it has been proven to be quite effective and the process involves a number of meetings that is conducted either jointly or separately. If the matter cannot be resolved through conciliation, then the dispute will then be referred to the Minister of Human Resources who will then exercise their discretionary powers by referring the dispute to the Industrial Court or other wise. After the reference has been made to the Industrial Court, the court will then hear, decide and hand down the awards relating to the trade disputes that it is being referred to. The award can either be in lieu awards proper compensation or reinstatement of the employee to their former position.

What should I do if I have been unlawfully dismissed?

The first thing that you must do if you feel that you have been dismissed from your position without just cause or excuse by your employer is to write to the Director General Industrial Relations Department. You should also make sure that it is at the nearest branch of the former place of employment and it has to be a representation within 60 days of the dismissal.

You should also include relevant information in the letter and this includes; your name, identity card number, address and telephone number if any, occupation, date of dismissal, whether or not you are a member of a union or otherwise, inform them that the remedy that you are seeking in this particular matter is reinstatement, the name, address and the contact number of your former company, and date of appointment. It would also help your case if you can attach other supporting documents such as the termination letter and the letter of appointment.

Once you have submitted all the relevant information and Director General Industrial Relations will then try to resolve the case through conciliation and this is done through a meeting between you and the employer. At this point you will not be required to pay any fees. You and the employer will be made aware of the matters such as the principles and practices law by the conciliation officer, they will also explain to you regarding the judgment of the courts and this includes the civil courts as well as the Industrial Courts. This is done so that both the parties are aware of the liabilities and their rights.

If the case cannot be resolved through conciliation then the Director General Industrial Relations will refer this particular matter to the Minister of Human Resources. The Minister after reviewing the case will then refer the matter to the Industrial Court for adjudication as well as for an award that the Minister thinks fit. You should be aware that these types of cases must be referred to the Industrial Court by the Minister of Human Resources and unlawful dismissal cases cannot be brought directly to the Industrial Court.

Once the matters has been referred to by the Minister of Human Resources, the Industrial Court will then consider whether your termination of employment is unlawful of whether it was justified. If the Industrial Court rules in favor of you and finds that the termination was indeed unlawful, the Court will then make an “Award” to reinstate you to your former position or in lieu awards proper compensation.

Usually in the cases of dismissal the normal remedies is the reinstatement of your former employment as well as the award for back waged from the dismissal date to the final date of the hearing. However this is subject to a maximum period of 24 months. The Industrial Court may also order the compensation in lieu of the reinstatement that is based on the formula of a 1 month salary for every year of the service.

Is a lawyer required in a dispute case or do I represent myself?

While you are in the process of conciliation you are required to represent yourself as you are not allowed to be represented by an consultant, advocate or an adviser pursuant to section 19(B)(2) of the Industrial Relations Act 1967. However, if you are a member of a trade union then the trade union officer or an employee of the trade union will be able to represent you in this particular matter. Others that will be able to represent includes an official of an organization or that of an employee that is not being a trade union for example the MTUC.

However, you should take note that section 27(1) of the Industrial Relations Act 1967 states that in any of the proceedings before the Court, a party may be able to be represented with the permission of the President or the Chairmen, by an advocate or notwithstanding anything to the contrary contained in any of the written law that relates to the registration of trade unions, by any of the official of an organization (not being a trade union) of the employers or the workmen, as the case may be registered in Malaysia, where the party is a trade union or that of an employer or a workmen or employee, appear before the Court by themselves or to be represented by duly authorized, employee or an officer or the employee of the trade of the employers in which they are a member where the party is an employer, they can be represented by an officer or an employee of a trade union, where the party is a workmen or employer that appear before themselves personally or where they are a member of the trade union of workman or employee or they can be represented by an officer or the employee of the trade union where the party is that of a trade union.

When you have reached the point of the Industrial Court proceedings, it is advisable that you get a qualified lawyer to represent you in the court regarding this particular matter as it will be more helpful in your case.

Is it possible for me to make an appeal against the decision of the Industrial Court?

Once an award, order or a decision has been made in the Industrial Court, the decision is considered to be conclusive, final and cannot be challenged, reviewed, called into question, appealed against, quashed in any court in Malaysia. However, by way of the certiorari on the grounds on the error of law or excess of jurisdiction, the decision or the award that was made by the Industrial Court can be challenged in the High Court.