Employers, Employees and Government

TRADE UNIONS ACT 1959: Seeks to control activities of trade unions “so that they can develop in an orderly and peaceful manner.” The Act lays down stringent statutory and procedural provisions for the formation and operations of trade unions in this country.

Unionism is a controversial issue in a capitalist country like Malaysia. Three main reasons why workers join trade union. These are to: IMPROVE economic situation, ENSURE their rights are protected, SOCIAL reasons, and To avoid exploitation

Why workers join trade unions? Increased wages And benefits, Cooperation with fellow workers, Protection against unfair treatment, Peer Pressure, Job Security

TRADE UNION: Objectives

Promote industrial, social and intellectual interests

Obtain and maintain for members just & proper rates of remuneration, security of employment and reasonable hours & conditions of work: protection of interest of members

promote the material, social and educational welfare of members

promote legislation affecting interests of members in particular and trade unions in general

Represent members in IC, LC etc

Represent members in trade disputes with employers( disciplinary proceedings)

TRADE UNION ACT 1959: Legal definition of a trade union: SECTION 2

Any association or combination of workmen or employers….

a. Within any particular establishment, trade, occupation or industry or within similar trades, occupation or industries

b. Whether temporary or permanent and

c. Having among its objects one or more the following:

The regulation of relations between workmen and employers for the purposes of promoting good industrial relations between workmen and employers, improving the working conditions or enhancing their economic and social status or increasing productivity;

The regulations of relations between workmen and workmen or between employers and employers

Representation of workmen or employers in trade disputes

Conducting of and dealing with trade disputes and matters relating thereto.

Promotion, organisation or financing of strikes or lockouts in any trade or industry or the provision of pay or other benefits for its members during strikes or lockouts.

ELEMENTS OF A TRADE UNION:

Association : therefore a union need not be called a union e.g. University of Malaya Academic Staff Association.

Workers and Employers

Trade, occupation or industry

Temporary or permanent

Lawful objective

Therefore, trade unions must conform with S.2 and also all the legal provisions of the TUA.

Who is a “workman”?

Any person, including an apprentice, employed by an employer under a COE to work for hire or reward, and for the purpose of any proceedings in relation to a TU, includes any such person who has been dismissed, discharged or retrenched in connection with or in consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute: IRA S.2

TYPES OF TRADE UNIONS

Public Sector, Private Sector, Employers Union

S.5 of the IRA 1967: Right to form and join

Workers in M’sia have the right to form and join trade union:

No employer stall PREVENT a worker from joining a union by putting a condition in his COE.

No employer shall REFUSE to employ a worker on the grounds that he is a trade union member or officer.

No employer shall DISCRIMINATE against a worker (e.g promotion) on the grounds that he is a trade union member or officer and

No worker shall be THREATENED with dismissal or is dismissed if he proposes to join a trade union or if he participates in union activities.

Procedure of forming a trade union: TUA 1959

Any group of seven or more workers can form a trade union providing they work in the same trade, occupation or industry and the intended membership all work either in the private sector or all in the public sector.

Once a decision is made to form a union an application for registration must be made within a month.

All unions are required to register with the Director-General of Trade unions in order to operate legally.

The completed application form signed by at least seven members.

The application form must be accompanied by the required fees and printed copy of the rules or constitution of the union.

The application must include the name of the union and its address, the names, addresses and occupation of the members making the application and the names, ages, addresses and occupations of the union’s officers.

The Department of Trade Unions may also require other information such as a copy of the minutes of the inaugural meeting of the workers who wish to establish the union.

The most important criteria for a union to be registered is that its intended members must come from the same or similar trade, occupation or industry (Trade Union Act 1959,Section 2)

Must apply to the Director-General within 1 month of establishing a trade union: S.9

May ask for extension of 6 months.

Application must be signed by at least 7 members which is the minimum number needed to form a union: S.10

Application form must be accompanied by fees and a printed copy of union rules and its constitution.

Application must contain name of the union, names and addresses and occupations of the members making the application.

names and addresses and occupations of the union officials.

And such information that the DGTU may require.

REGISTRATION

Is not automatic. DGTU may refuse registration if:

Any of the union’s objectives are unlawful.

Any part of the constitution of the union conflicts with the TUA.

If the name of the union is undesirable or identical to another union already existing or if the name is deceiving or

If the union is likely to be used for unlawful purposes.

NOTE: Here, the DG has the discretion

REFUSAL TO REGISTER: S.12 of TUA

The Director-General of Trade Unions has very wide powers in respect of registration of trade unions. Section 12 of the Trade Unions Act allows the Director –General to refuse to register a particular trade union. Registration of a union by the Director –General of Trade Unions is by no means automatic. The Director–General will refuse registration in the following circumstances:

If any of the union’s objectives are unlawful.

If any part of the union’s objectives, rules and constitution conflicts with any of the provisions of the Trade Union Act or its regulations.

If the name of the union is undesirable or identical to another already existing, or if the name is deceiving

If the union is likely to be used for unlawful purposes.

If he is not satisfied that that the union has complied with the Trade Unions Act or its regulations.

He can refuse to register a union if he satisfied that there is in existence a union representing workers in the particular trade, occupation or industry and if he believes that it is not in the interests of the workmen concerned that there should be another union.

The DGTU had very wide powers in respect of registration of trade unions.

The DGTU shall refuse to register a TU even if it has complied with all requirements of S.2 if he is satisfied that there is already another TU representing the workers in that particular trade or industry and if he believes that it is not in the interest of the workmen concerned that there should be another union.

POWER TO DEREGISTER OR CANCEL REGISTRATION: SECTION 15

Under Section 15 of the Trade Unions Act, the Director-General Of Trae Unions has powers to de-register a union under certain circumstances, but it is not mandatory for him to do so. Specifically, he may withdraw or cancel the registration:

If the union has ceased to exist.

If he is satisfied that:

The registration was obtained by fraud or issued by mistake

Any of the objects or rules of the union are unlawful

The constitution of the union executive is unlawful

The union has been or is being or is likely to be used for any unlawful purpose or for any purpose contrary to its objectives or rules

The union has broken any of the provision of the Trade union Act or its regulations

A union has broken any of its rules

Allowed any rule contravening any provision of the Trade uUnion act to continue

The funds of the union are unlawfully used

If there are two or more unions registered which represent the same group of workers in a trade, occupation or industry or individual place of employment, the Director-General of Trade Unions has the power to deregister the union that covers a smaller number of the workers or to order that union to remove from its membership register the affected workers.

The DGTU also has the power to deregister or cancel the registration:

if it was obtained by fraud or mistake,

if it is used for unlawful purposes

if it contravenes the TUA,

when the composition of the executive is unlawful,

if the funds of the union have been unlawfully used or

if the union has ceased to exist.

Example of deregistration:

Dispute between Airlines Employees Union and MAS. Union was found to have encouraged members to take part in an illegal strike. Workers refused to work overtime, which is considered an illegal strike in the transport industry. Union’s involvement in illegal strike led to its deregistration.

REQUIREMENT UNDER THE TRADE UNION ACT FOR REGISTRATION OF TRADE UNIONS

Control over the Name

The name of the union should be acceptable to the DGTU. Though this provision was intended to avoid confusion arising from unions having identical or similar names., the Act empowers him to refuse registration if the union fails to comply with the requirement. When Electrical Industry Workers Union applied to the DGTU to change its name to Electrical and Electronic Workers Union it was refused though there were no other unions with same name.

Control over Size

Section 2 of the Trade Union Act limits the membership of a trade union to workers of the same or similar trades, occupation or industries. Asimiler provision also applies to federation of unions, each federation is to consist of only of trade unions whose members are employed in similer trades, occupation or industries. This was introduced to prevent the formation of general unions or federations which might be led by persons having nothing to do with the occupational activities or interests represented by the organisation and pursuing political or subversive aims.

Control over the Objectives of the Trade Unions

The objectives of the trade union must be in accordance with those prescribed by the Trade unions Act, Section 2 which stipulates that the objectives can be one or more of the following:

The regulation of relations between workmen and employers for the purpose 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.

The regulations of relations between workmen and workmen

The representation of or dealing with, trade disputes or matters relatedthereto

The conducting or organisation or financing of strikes in any trade or industry or the provision of pay or other benefits for its members during a strike

Control over who can be Union Officers and Officials

To become member of the executive of a trade union or any branch thereof or any federation of trade unions, a person must be:

Be a Malaysian citizen

Have been engaged for a minimum of one year in any establishment, trade or occupation or industry with which the union is concerned

Not have been a member of the executive of any trade union whose registration has been cancelled because its funds were expended in a manner or for a purpose contrary to the law or its rules

Not be an office bearer or employee of a politial party

Not have beeb convicted by any court of law of criminal breach of trust, extortion, intimidation or any offence in the opinion of the DGTU renders hin unfit to be an officer of a trade union.

Not be bankrupt

Control Over Union Funds

The Trade Union Act states that union funds can only be used for the stated purposes which include the paying of:

Expenses related to salaries for employees of the union

Expenses related to the upkeep of the office

Expenses related to the settlement of a trade dispute

Compensation to members for losses arising out of trade disputes (i.e. a strike).

Allowances to members and their families on account of death, old age sickness, accident or unemployment.

Expenses related to the publishing of a newsletter and

Expenses related to the organisation of social, sports, educational and charitable activities of the members.

The law prohibits unions from using their funds for any political purposes. Particularly providing funds for a political party.

To ensure that union funds are only used for the purposes allowed by the law and the union constitution, unions are required to submit annual, audited accounts to the Department of Trade unions for checking.

The accounts of the union must be audited annually and must be submitted to DGTU before the first day of October of each year

Failure to send in accounts will, after adequate warning has been given lead to the union being deregistered.

Control Over the Rules of the Union

The rules and constitution of the trade union must conform to the Trade unions Act 1959 and its regulation. Section 38 stipulates that the trade union must formulate rules for all matters intended in the first schedule of the act. These matters include the procedure governing the election of union executive, the procedure for changing the rules or constitution, the use and investment of union funds and issues to be decided by a secret ballot. The Minister is empowered to addto, or delete or amend the first schedule.

The Act stipulates unde Section 15(5) that the rules formulated by the union on these matters must be not be inconsistent with the provisions of the Act. The Trade Union Act contains specific provisions governing these matthers included in the first schedule

Control Over Industrial Action

In the context of Malaysian Industrial Law, the right to industrial act is recognised but is severely restricted.

While workmen are not denied their right to strike, this right is limited to achieve a balance between unrestricted freedom to strike and the need for industrial peace in the interest of economic development.

Responsibilities of a TU

Must comply with all the laws esp the provisions of the TUA.

Deter any members from carrying out illegal activities e.g strike

Administer funds of union on a proper manner and in accordance with the Union rules as well as the law

Trade union must serve notice for recognition on employers or trade union of employers

UNION FUNDS:

Entrance fees and monthly subscriptions.

Use of money confined to purposes set out in the TUA Section 50.

Union funds can only be used to pay:

Expenses related to salaries of union employees.

Expenses related to upkeep of office.

Expenses related to settlement of disputes

Allowances to members and their families on account of death, old age,

sickness, accident or unemployment. etc

Funds CANNOT BE USED for any political purposes

including providing funds to a political party.

Unions MUST submit annual audited accounts to the DTU.

Failure to do so will result in deregistration

of the union (after adequate warnings)

UNION EXECUTIVES:

Must be elected

at biennial or triennial conferences.

Therefore, hold term for 2-3 years.

Leadership is confined to Malaysian citizens

who must have been employed in the

Particular occupation trade or industry for ONE year at least.

X office-bearers or employees of political parties allowed.

X convictions of criminal offences.

X bankrupts

(disqualified)