Dispute Resolution (2)

8/7/2019 Dispute Resolution (2)

1/16

DISPUTERESOLUTIONS- NEGOTIATION

- FACT-FINDING (INVESTIGATION)

- CONCILIATION

- ARBITRATION1


2/16

INTRODUCTION

The resolution of disputes between employers,

employees & their TUs by peaceful means is the

key way of maintaining harmonious industrial

relations.

It is the preamble of the IRA which declares the

principal objectives, namely:

y The regulation of the relations between employers,

employees & their trade unions; and

y The prevention & settlement of any differences or

disputes arising from their relationship.

2


3/16

INTRODUCTION

While the first objective provides for CB and CA,

the second objective makes available a number of

ways to resolve trade disputes peacefully by

way of negotiation, fact-finding, conciliation &arbitration.

The Act also acknowledges industrial actions as

another way of resolving trade disputes.

3


4/16

DEFINITION OF TRADE DISPUTE

Section 2 IRA:

Any dispute between an employer and his

workmen / which is connected with the employment

/ or the non-employment / or the terms ofemployment / or conditions of work of any such

workmen.

*Two elements:(1) The dispute occurs between employer & a number

of employees; and

(2) It is about employment or non-employment. 4


5/16

5

CASE

Teluk Anson Enterprise Sdn Bhd (Arcadia

Estate) v Nat. Union of Plantation Workers:

Non-employment will arise when the employer dismisses anemployee, or declines to employ him, or contemplates turning

him out who is already in employment, or refuses to give workto an employee who is entitled to work, or suspends him; it

includes constructive dismissal.

Hagemeyer Industries S/B v Nat. Union ofCommercial Workersy The definition covers every dispute between an employer &

his workmen which is connected with the service of the

workmen or with the benefits & privileges incidental to that

service.


6/16

PARTIES TO THE DISPUTES

Party, with reference to a trade dispute can only

be:

y The employer involved in the dispute or the employer

union; and

y An employee union acting for all or any members

involved in the dispute (not the employees)

Cargo handling Corp v Cargo Handling Corp

Staff Union an employee union isindispensable in a trade dispute.

6


7/16

DISPUTE RESOLUTIONS

Settlement of TradeDispute

Negotiation Fact-finding Conciliation Arbitration

7


8/16

NEGOTIATION

A first step of settling disputes.

Between employers & trade union for the

employees.

Negotiation is based on the terms of the CA. Win-win situation.

Speedy, cheap & easy way.

The best way of settling dispute.

8


9/16

FACT FINDING / INVESTIGATION

Part VIII IRA

S.34 the Minister may appoint a Committee of

Investigation / Board of Inquiry and may refer to

the committee any matter appearing to him to beconnected to the dispute.

S.35

y (1) a Committee shall consist of one or more persons

(appointed by the Minister).

y (2) the committee shall investigate the causes and

circumstances of the dispute and report to the

Minister.

9


10/16

CONT

S 36

y a Board shall consist of a chairman and other

person/s as the Minister thinks fit.

y the Minister may make rules regulating the

procedure; he may also call witness, quorum and

request for document/s.

y representation in proceeding before a Board can be

made with the permission of the chairman.

y

a Board may require any person to furnishparticulars as the board may require and to attend

before the board and give evidence.

10


11/16

CONT

S.37

y A Board shall report to the Minister.

y any report shall be laid before the Dewan Rakyat

y

the Minister may publish any information orconclusion arrived at by the Board (but no disclosure

without the consent of the relevant organisation,

business or union).

y any Board member who discloses any information in

contravention of this section shall be guilty of anoffence.

11


12/16

CONCILIATION (PARTV)

The meeting of two disputed parties is arranged

by a conciliator.

Both parties should negotiate & make

arrangement as agreed between themselves(without interference of the conciliator).

Hence, the conciliator acts as a middle-man for

arranging the meeting of the disputed parties.

DGIR or the Minister (S.19A) may become theconciliator.

12


13/16

CONT.

S18

y (1) a trade dispute may be reported to the DG by an

employer /TU of employer or a TU of workmen.

y (2) the DG shall consider the dispute and take

necessary steps for promoting an expeditioussettlement. (For dismissal case, it shall be referred to

s 20).

y (3) if a trade dispute is not likely to be settled by

negotiation, the DG may, in the public interest, take

a necessary steps to promote a settlement whether ornot the trade dispute is reported to him.

S.18(5) DG shall notify the Minister if satisfies

there is no likelihood of the dispute being settled.13


14/16

PROCESS & REPRESENTATION

S19 (1) & (2) the parties shall furnish all the

necessary information relating to the matters in

dispute to the DG; the DG may also direct any

person connected with the dispute to attend.

S.19B In conciliation proceedings, representations

are as follows:

y Employer

Represent himself/ represented by authorised employee; or

If member of TU, represented by officer/employee of TU; orAny official of an organisation of employers.

y TU

Officer/employee of TU; or

Official of organisation of workmen.14


15/16

ARBITRATION

A means of settling dispute by engaging a third

party to make a decision.

This may take place whenever negotiation &

conciliation failed; any party then may make anapplication to the Minister to refer the matter for

arbitration.

Agency for arbitration Industrial Court.

At this stage, both disputed parties must accept

the decision made.

15


16/16

COMPOSITION & JURISDICTION

Composition of IC:

y a president;

y a number of chairmen; and

y

two panels representing employers & employees. Jurisdiction: Over all trade disputes.

S 26 Reference of trade disputes to the Court

may be made:

y On joint request in writing to the Minister;

y Of his (Minister) own motion;

y Upon receiving notification of the DG (the dispute

cannot be settled)16

Documents

Dispute Resolution (2)