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Introduction Trade unions (TU) & union federations are

governed by the TU Act 1959 (TUA). Generally, the TUA functions to:

Define unions;Require their registrations;Regulates the composition & membership of

unions;Detail the rights, powers, duties &

responsibilities of unions; andProvide supervision of unions.

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Why join trade unions? Generally, TU works as a pressure group –

towards the employer & government. Reasons for joining TU:

For economic motiveFor protection of rightsFor social reasons

Other reasons:Job securityCo-operation with fellow workers

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Why? – cont. Economic motive –

to improve economic situation; e.g. to improve terms of service (pay & benefits).

individual worker has limited bargaining power compared to union.

Workers who associate themselves legally are given protection under the law.

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Cont. Protection of rights –

Other than to increase pay, workers hope that unions would cut cross racial barriers, ensure fair treatment for all & minimise/eliminate unfair practices & favouritism.

So, to protect them from exploitation & unfair treatment at work.

For social reasons – Workers may be influenced to join TU to show

solidarity & to be protected by other fellow workers.

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Objectives of Trade Union To promote the industrial, social &

intellectual interests of its members; To maintain & obtain just & proper rates of

remuneration, security of employment, etc.; To promote the material, social &

educational welfare of its members; To promote legislation affecting the interests

of the members.

Structure of Union Federations

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Rights for Trade unionism S 4(1) IRA:

No person shall interfere with, restrain or coerce a workman or an employer in the exercise of his rights to form & assist in the formation of & to join a TU & to participate in its lawful activities.

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Cont. S 5(1) & (2) IRA – employers cannot:

Impose a condition in the contract restraining the person from joining a union…;

refuse to employ a worker on the grounds he is a trade union member;

discriminate against worker for the reason that he is a trade union member;

threaten to dismiss, injure or alter his position if he joins/participates in union activities;

Induce any person not to become/ stop being a member/officer of a union.

Exceptions Despite the above restrictions, the employer

may [s 5(2)]:Refuse to employ, or not promoting, or

suspending, transferring, laying off or discharging a workman for proper cause;

Restrain an employee in a managerial, executive or a security position from becoming a member/officer of a union catering for employees not occupying managerial positions; or

Restrain an employee employed in a confidential capacity in matters relating to staff relations from becoming a member/officer of TU.

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Definition S 2 TUA: “trade union” –

(a) A union can be temporary or permanent association or combination of employers or employees – it cannot be a combination of both employers & employees;

(b) It must be confined to M’sia or Sabah or Swak – cannot embrace Msia as a whole;

(c) An employer union must be confined to a particular industry or trade, or to similar industries or trade – similar in the opinion of DG;

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Cont.(d) an employee union must be confined to a

particular establishment or industry or trade or occupation, or to similar industries or trades or occupations – similar in the opinion of DG;

(e) any association or combination of employers or of employees which fits the definition would be a union whether or not it has been registered as one.

(f) union also cannot be a combination of public & private sectors

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Objective The TU must have the following objects –

Regulations that promote good industrial relations between employer & employee or improving the working conditions, economic & social status;

Regulation of relations between employer-employer or between employee-employee;

The representation of employer or employee in trade disputes;

The dealing with trade disputes & matters related;The promoting, organising or financing of strikes

or lockouts…

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Registration S 8 TUA: apply for registration within 1

month of establishment. Failure to register or application is rejected

(s 19) –The union is deemed to be an unlawful

association & cease to enjoy rights, immunities or privileges of a registered union;

The union, officers, members or agents shall not take part in any trade dispute, or promote, organise or finance strike or lockout;

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Cont.The union shall be dissolved; andNo person shall take any part in its management

or organisation… Although registration is not a prerequisite for

a union to exist, it is a prerequisite for a union to function (s 59).

The registering authority – DG of TU when the TUA gives him powers in relation to the registration of the unions.

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Power of DG DG may –

register a union by issuing a ‘cert of registration’; or

Reject the application if ‘he is of the opinion that the union is likely to be used for unlawful purposes’; or

Revoke the registration if ‘he is satisfied that the union has been or likely to be used for unlawful purpose.

Ss 12, 13 & 15.

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Composition Under the definition, a union may be

composed of –Either employers or employees;In Msia or Sabah or Swak;In private or public sector; andWithin a particular industry/trade or within similar

industry/trade (employers); orWithin a particular establishment/industry/

trade/occupation or within similar industries/ trades/occupations (employee).

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Membership S 26, 27, 27A TUA : persons who are

prohibited from being members of union:(a) persons below 16 years of age;(b) student of educational institution; unless he is

an employee & over 18 years;Any person not employed in establishment/

industry/trade/occupation in which the union is registered;

Any public officer (whom are not exempted by the YDPA).

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Rights A registered TU has various rights,

immunities, privileges & powers –Immunity from civil suit for any act in contem-

plation or in furtherance of a trade dispute (s 21);Immunity from liability for any tortious act of a

union (s 22);Right to sue in its registered name & to be

represented in civil/criminal proceedings (s 25);Privilege of having objects which are not deemed

to be unlawful to render the union/member liable for criminal prosecution for conspiracy…(s 24).

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Powers S 2 (by implication of the definition) –

Regulate relations between employer-employee;Represent employer/employee in disputes;Conduct/deal with trade disputes & matters

related;Promote, organise or finance strikes or lockouts.

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Cont. S 49: powers to –

purchase/lease land, building…;Deposit its fund in bank;Invest its funds;

S 54A: power to receive & collect money S 29 & 30: power to employ & pay secretary,

treasurer & others for union purpose S 72: power to form a union federation Ss 32, 34, 36, 33, 76A.

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Office, Officers, Funds & Accounts

Have a registered office & union rules. Officer or employee of a union cannot be an

employee of another; nor an employee of a union be an officer of the union.

Funds should be used for the union purpose only.

Treasurer must keep a record of all receipts & payments.

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RECOGNITION Unions protect employees from exploitation

& promote their economic welfare through collective bargaining.

Collective bargaining with an employer is just possible when the union is recognised by the employer as the proper respresentative.

Hence, union recognition is a prerequisite to collective bargaining (CB); without recognition, union cannot bargain collectively.

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Cont. Recognition entitles a union –

to bargain collectively on behalf of employees;to conclude collective agreement with an

employer;to represent employees before the court in the

dispute over collective agreement. Ladang Segaria S/B v Napsie Ngalit

The recognition of a registered union confers upon the union the right to require an employer to enter into negotiations for a collective agreement.

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Conditions for Recognition A union should satisfy conditions –

Must be a registered union;Must be competent to represent (represent

blue-collar employees, confine to the same establishment/industry/trade/occupation);

Representative of the employees by simple majority (for CB purpose).

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Recognition Process A claim for recognition may be served on an

employer – at any time;In writing;In a prescribed form.

The employer may –Accede & accord recognition (resolved);Reject or ignore (the union may file a complaint

with the DG or request the DG to ascertain whether it has satisfied the conditions) – s 9 IRA.

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Case Korea Devt Corp v Construction Workers

UnionA union may organise the employees who are

eligible for membership in accordance with the rules of the union. When it believes that more than 50% of the employees have joined up, the union claims recognition from the employer. On receipt of the claim, the employer may either accord recognition or apply to the DG for IR for a membership check…Once recognition has been accorded, the recognition stands for so long as the union exists even though only one employee is left as a member of the union.

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Effect of Recognition Once a claim for recognition is made & while

it is pending –Employer cannot declare a lockout against the

employees or terminate any employee;Employees cannot picket or go on strike; andNo other union may make a claim for recognition

in respect of the same employees.

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Cont. S 11 & 12 IRA:

If the claim is successful, no other union may make a claim in respect of the same employees for a period of 3 years.

If the claim is not successful, the union cannot make another claim in respect of the same employees for a period of 6 months.

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