PAD 365*TOPIC 2TRADE UNIONS UPON COMPLETING THIS TOPIC, STUDENT SHOULD BE ABLE TO: Explain the term trade union. Classify the types of trade union. Explain on the process of registration and its importance. Identify the implications of registration and de registration. Elaborate on the powers of DGTU re registration, de registration and other matters related to trade union.

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PAD 365*2.1 DEFINITIONMany definitions have been given to this term.Part III of the Trade Union Act (TUA) 1959 defines; a trade union as any association or combination of employers (being employers employing employees in West Malaysia, Sabah or Sarawak) or of employees (whose place of work is in West Malaysia, Sabah or Sarawak), as the case may be:whether temporary or permanent; andwithin any particular trade, occupation or industry or within any similar, and

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PAD 365*DEFINITION . Contdhaving one or more of the following objectives:the regulation of relations between employers and employers or between workmen and workmen; orthe representation of either employers or workmen in trade disputes; orthe conducting of or dealing with trade disputes and matters related thereto; orthe promotion or organization or financing of strikes or lockouts in any trade or industry, or the provision of pay or other benefits for its members during a strike or a lockout. (SEC. 2, TUA 1959)

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PAD 365*2.1.1 IMPLICATION OF DEFINITIONSeveral interpretations can be made as the following:a union can be a temporary or permanent association or combination of employers or of employees;a union must be an association or combination of employers or of employees, and cannot be an association or combination of both employers and employees;a union (whether of employers or of employees) must be confined to Malaya or Sabah or Sarawak, and cannot embrace Malaysia as a whole;an employer union must be confined to a particular industry or trade or to similar industries or trades (similar in the opinion of the Director General of Trade Unions);

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PAD 365*IMPLICATION OF DEFINITION contdan employee union must be confined to a particular establishment or industry or trade or occupation or to similar industries or trade or occupations (again similar in the opinion of the Director General); andany 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.Furthermore, the union must be confined to the private sector or to the public sector and, cannot embrace both sectors at once. Therefore:an employer union must be confined to either one of the two sectors; andan employee union must also be confined to one of the two sectors.(Ayadurai: 1998: pg 30-32)

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PAD 365*2.1.2 OTHER IMPLICATIONS OF THE DEFINITIONa trade can also be called by other name as associations;membership of unions is limited geographically;unions must be homogenous;both employers and employees have the right to establish and join union; andany organization or group of workmen established to achieve one or more objectives stated in the TUA is considered to have formed a trade union, and must therefore conform to all legislative requirements of a trade union. (Maimunah Aminuddin : 2006 : pp. 112 113)

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PAD 365*2.1.3 OBJECTIVES AND FUNCTIONSThe general objectives and functions of trade unions are the following:to promote the industrial, social and intellectual interests of their members;to obtain and maintain for its members just and proper rates of remuneration, security of employment and reasonable hours and conditions of work;to promote the material, social and educational welfare of the members; andto promote legislation affecting the interests of the members in particular or trade unionist in general.(Maimunah Aminuddin: 2006: p.110)

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PAD 365*2.1.4 REASONS FOR JOINING TRADE UNIONThere are three main reasons that explain why workers establish and join a trade union as the following:(i) Economic MotiveTo improve their terms and conditions of service, i.e., their pay and benefits.

(ii) Protection of RightsTo protect them from discrimination, exploitation and unfair treatment by their employer.To protect job security for workers.To ensure members receive the benefits they are entitled under the labour legislation.

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PAD 365*REASONS FOR JOINING TRADE UNION contd(iii) Social ReasonsTo show solidarity with their fellow workers and to be protected.To show their support for the colleagues activities.To take opportunities and exercise leadership quality in the hierarchy.(Maimunah Aminuddin: 2006: pg 105 -110 )

(iv) Political/ leadership Reasonstrade unions may be used by some members to gain support for political leadership (e.g. Labour Party)Trade unions can also be used as a tool to shape leadership quality among individuals.

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PAD 365*2.2TYPES OF UNIONSThere are basically three (3) categories of unions in Malaysia:(i) Public sector employees unionsConsists of the civil service, the statutory bodies and the local authorities.(ii) Private sector employees unions are either national or in-house unions. National union covers all workers in the same industry, trade or occupation. In-house union is one where members are all employed by the same employer.(iii) Private sector employers unions consists of employers that employ employees in the private sector. in response to the large and powerful national trade unions of employees.(Maimunah Aminuddin: 2003: pg 136-140)

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PAD 365*2.3REGISTRATION OF TRADE UNION This is a process where a trade union applies for registration and a certificate of registration will be issued by the authority.The definition is silent on this matter (issue of registration). But, registration is necessary for a union under the TUA 1959 (TUA does insist on the registration of every union).

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PAD 365*2.1.1 the necessity of registrationThe importance of / necessity of registration can be seen from the following:1.SECTION 8, TUAAny organization that fits the definition is required by the Act to apply for registration as a union within one month of its establishment. (Sec.8, TUA)If the DGTU thinks fit he can extend as to exceed a period of six month in the aggregate. (Sec. 8(2), TUA)

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PAD 365*the necessity of registration contd2. SECTION 12, TUAIt is related to the powers granted to the DGTU as the following:the powers to register a union by giving a certificate of registration.the powers to reject the application by a trade union (with valid reasons).the powers to withdraw or cancel the registration of trade union (with reasons).

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PAD 365*the necessity of registration contd3.SECTION 19, TUAIt is related to consequences of an unregistered or a de registered trade union as the following:Shall be unlawful association and shall cease to enjoy any rights, privileges and immunities.Shall not take part in any trade disputes or promote, organize or finance any strike or lockout or provide benefits for its members during a strike or lockout.Shall be dissolved and its funds disposed.Only those assigned for the purpose of dissolving the union and disposing the funds can take part in its management or organization.

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PAD 365*the necessity of registration contd4. SECTION 59, TUAIt is related to the prohibited acts done prior to registration.Prior to its registration a trade union is prohibited from any act in furtherance of any of its objectives specified in the definition of a trade union except any act done in a good faith in the course and for the purpose of establishing the trade union.

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PAD 365*the necessity of registration contd5. SECTION 67, TUAIt is related to the prohibition from seeking registration under other law.This section prohibits an organization falling within the definition of trade union from seeking registration as a society or company under any law (relating to the registration of societies or companies).But, the Act permits any such organization whose objective is to regulate relations between employers and employees or between employers and employers to seek registration as a society under related law.

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PAD 365*2.3.2APPLICATION FOR REGISTRATIONAn established trade union must fulfill several requirements to be registered as the following:It must be signed at least by 7 members of the union,It must be made in the prescribed form,It must be accompanied by the prescribed fee,It must be accompanied by a printed copy of the rules of the union signed by the members making the application, andIt must specify:The name of the union and the address of its head office;i. The titles, names, ages, addresses and occupations of the officers of the unionand such other information regarding such officers as the DGTU may in any particular case require to be furnished andii. The names, addresses and occupations of the members making the application.(Sec. 10, TUA)

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PAD 365*2.4THE POWERS OF THE DGTU 2/8/2006 The DGTU has enormous powers regarding registration, de registration of and any other matters related to trade union. They are the following:2.4.1REGISTRATIONTUA 1959 gives powers to the DGTU regarding registration of trade union as follows;To register a trade union in the prescribed manner. (Sec. 12(1), TUA)To issue a certificate of registration in the prescribed form. (Sec. 13, TUA)To call for further information for the purpose of satisfying himself. (Sec.14, TUA)To extend the period of registration from one month as to exceed a period of six month. (Sec. 8, TUA)

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PAD 365*2.4.2 DE REGISTRATIONTUA also gives powers to the DGTU regarding this matter as follows:(1)To reject any application by a trade union if:He is satisfied that there is a trade union (exists) in respect of the particular trade, occupation or industry and in the interest of the workmen in that particular trade, occupation or industry. (Sec. 12(2), TUA)(2)Shall refuse to register a trade union if:(a) In his opinion the trade union is likely to be used for unlawful purposes or for purposes contrary to or inconsistent with its objectives and rules; or(b) He is not satisfied that the trade union has complied with the provisions of this Act and of any regulations made thereunder; or

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PAD 365*Shall refuse to register contd(c) He is satisfied that the objectives, rules and constitution of the trade union conflict with any of the provisions of this Act or of any regulations made thereunder; or(d) The name under which the trade union is to be registered is: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 DGTU, is likely to deceive the public or the members of either trade union; orIn the opinion of the DGTU, undesirable unless the trade union alters its name to the one acceptable to the DGTU.(Sec.13, TUA)

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PAD 365*DE REGISTRATION contd3.To cancel or withdraw a certificate of registration of a trade union (to revoke the registration) under the following circumstances: -(a)At the request of a trade union; or(b)If he is satisfied that:the certificate was issued by fraud or mistakes;any one of the objectives or rules of the trade union is unlawful;the constitution of the trade union or its executive is unlawful;the trade union has been contravened any provision of this Act or of any regulations made thereunder;the funds of the trade union has been expended in unlawful manner or unlawful objectives or on an objective not authorized by the rules of the union; or the union has ceased to exist.(Sec. 15(1), TUA)

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PAD 365*DE REGISTRATION contd(c)In the case where two or more trade unions registered in respect of particular trade, occupation, industry or place of employment exist, the DGTU may:cancel the certificate of registration of the trade union or trade unions other than the trade union which has the largest number of workmen; orissue an order requiring the trade unions other than the trade union which has the largest number of workmen in the said as its members to remove from the membership register those members as are employed in thatand thereafter the trade union/ unions ordered shall not enroll as members in any except with the permission in writing of the DGTU(Sec. 15(2), TUA)

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PAD 365*DE REGISTRATION contd4.To order a suspension of a branch of a trade unionIf he is satisfied that the branch of a union has contravened the provision of this Act or the rules of the union concerned.* The suspension of an entire union or the entire class of union is in the hand of the Minister of Human Resources.(Sec.17, TUA)

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PAD 365*2.5 OTHER POWERS OF THE DGTUFurthermore TUA also provides the DGTU with powers which are related to trade unions as follows:Funds and accountsMembershipsExecutives or officers or employees of a union

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2.5.1 FUNDS AND ACCOUNTS

TUA 1959 empowers the DGTU as the following:To ensure that funds of trade union must be expended only for approved objectives.(Sec. 54, TUA)To direct the secretary of a trade union submits to him an audited general statements of the receipts, funds, effects and expenditure of the union in the 12 months (ending on the 31st March in each year); before 1st October of each year.(Sec.56, TUA)

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PAD 365*OTHER POWERS OF THE DGTU contdTo order a trade union to make account books or other records of a trade union be available for inspection or for audit by a fit and proper person approved by him.(Sec.57, TUA)To order any person to deliver to him any documents or accounts relating to the investment of funds.(Sec. 49(2A), TUA)To take action on those who contravene or violate the above provisions of this Act.(Sec.49 (2A), Sec. 56(4) & (5), Sec. 57(4), TUA)To direct any person appointed to audit the general statement of a trade union to attend before him.

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PAD 365*2.5.2 MEMBERSHIPSWorkers in Malaysia have the right to form and join trade unions. This is known as the freedom of association and the right is protected in the Industrial Relations Act (Sec.5).The Act states that: -i. no employer shall prevent a worker from joining a union by putting a condition in his contract of employment.ii. no employer shall refuse to employ a worker on the grounds he is a trade union member or officer.iii.no employer shall discriminate against a worker (i.e. in term of promotion) on the grounds he is a trade union member or officer; and

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PAD 365*MEMBERSHIPS contdiv.no worker shall be threatened with dismissal or dismissed if he proposes to join a trade union or if he participates in union activities.Workers also have the rights not to join a trade union. Workers may not be forced to join a union. (Sec 7, IRA).So, the concept of closed shop is not applied in Malaysia but in certain countries such as United States and United Kingdom. (Maimunah Aminuddin: 2006: pg 114 115)

Closed shop/ union shop means, some unions make agreement with employer that only union members shall be employed in particular organizations.

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PAD 365*MEMBERSHIPS contdThe Trade Unions Act, 1959 regulates the right of employees to membership in trade unions. In some cases the Act merely restricts this right, but in other cases it completely negates it. This regulations affects public sector employees more than private sector, and among public sector employees, it more affects government employees more than statutory and local authority employees.(Dunston Ayadurai: 1998: pg 34)

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PAD 365*MEMBERSHIPS contdClasses of persons prohibited from joining a trade unionAny non-citizen (excluding a permanent resident) and any person below the age of 16 years;Any student of an educational institution (school, polytechnic, college, university, etc.) established under any written law, unless he is also employed as an employee and is over the age of 18 years;Any person not engaged or employed in the establishment or industry or trade or occupation in respect of which the union is registered; andAny public officer ( a person in the permanent or temporary employment of any government (federal or state) in Malaysia). But, TUA adds that the Yang Di-Pertuan Agong may, by notification in the Government Gazette, exempt any public officer or any group of them (i.e. any government employee or any group of them) from this prohibition, except:(i) members of the armed forces, the police force, any prison service;(ii) public officers prohibited under any law from forming or joining a union;

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PAD 365*MEMBERSHIPS contd(iii) public officers employed in a confidential or security capacity; andpublic officers holding any post in the Managerial and ProfessionalGroup, unless they have been permitted to be members of a union by the Chief Secretary to the Federal General Government. An employee of a statutory authority can be a member only of a union whose membership is confined exclusively to employees of that particular statutory authority; even then, an employee of a statutory authority:(i) who is employed in a confidential or security capacity cannot be a member of a union; or(ii) who holds any post in the Managerial and Professional Group cannot be a member of a union, unless he has been permitted to be a member of one by the Chief Secretary to the Federal Government.

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PAD 365*MEMBERSHIPS contdAn employee of a financially autonomous local authority can be a member only of a union whose membership is confined exclusively to employees of one or more financially autonomous local authorities; even then, an employee of a financially autonomous local authority:(i) who is employed in a confidential or security capacity cannot be a member of a union; or(ii) who holds any post in the Managerial and Professional Group cannot be a member of a union, unless he has been permitted to be a member of one by the Chief Secretary to the Federal Government.(Dunston Ayadurai: 1998: pg 34 35)

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PAD 365*2.5.3 OFFICERS OF THE UNIONAfter the rules of the union have been accepted by the members, officers may be elected in accordance with the rules. This must be done through secret ballots. The rules of the union must ensure that every member has an equal right and a reasonable opportunity to record his vote freely, and that the secrecy of the ballot is properly secured.

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PAD 365*OFFICERS OF THE UNION contdAccording to Section 28 TUA, the following persons are disqualified for election to be the executive of the union or federation of trade unions:(a) He is not a citizen of the federation;(b) He has not 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) A person who has been a member of the executive of any trade union the registration of which has been cancelled or withdrawn under certain circumstances.

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PAD 365*OFFICERS OF THE UNION contd(d) An office-bearer or employee of a political party; office-bearer refers to a person holding the position of president, vice-president, secretary, assistant secretary, treasurer or any position analogous to any of those mentioned. The disqualification also applies to any person who holds any office or position in the political party whereby he exercise management or control of the affairs of the political party.(e) He has been convicted by any court of law of criminal breach of trust, extortion, or intimidation, or of any offence which in the opinion of the Director General renders him unfit to be an officer of a trade union; or(f) He is a bankrupt.(g) Age below 21 years old.

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PAD 365*Discussion Questions:

Explain the procedures to apply for the registration of a trade union.Explain any four (4) problems in a registration process.Discuss any five (5) factors that can lead to small size of trade union in Malaysia.Discuss the arguments for and against the small size of unions.Identify and explain seven (7) conditions that qualify an individual to be an officer of a trade union.Elaborate on the causes and effects of a de-registered trade union.

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