Trade Dispute

Section 45(1) A strike or a lock-out shall be deemed to be illegal if – (b) it has any other
object than the furtherance of a trade dispute -
i. between the workmen on strike and their employer; or
ii. between the employer who declared the lock-out and his workmen.
s. 2 IRA – define trade dispute as any dispute between an employer and his workmen which
is connected with the employment or non-employment or the terms of employment or the
conditions of work of any such workmen.
- must involve employer & workmen
Re Application of Lower Perak Motor Service Co Ltd, the court stated that the trade union is
the right party since the trade union is representing the employer’s employee. Therefore,
dispute between his employer and the trade union representing his workmen would fall
within the correct parties.
Thus, the law does not extend the definition to sympathise strike.
The subject matter for a trade dispute – anything that is connected with employment, non-
employment (retrenchment, dismissal/ termination) and terms and conditions of the
employment, the practice/custom of that company
BBC v Hearn [1977] 1 WLR 803 – the difference in political ideology
BBC wanted to broadcast a football match in South Africa, but because at that time in South
Africa, apartheid is still practiced there. So, BBCs worker wanted to go on strike because
they don't support apartheid. They refused to prepare for the broadcast. The issue was
whether there was a trade dispute between the parties. The court held that although the parties
through this trade dispute way in accordance with the act, this is still not a valid trade dispute
as the subject matter at hand is due to differing political views. There was no relation
whatsoever to the employment, non-employment or terms and condition of the employment.
In fact, it is reasonable that BBC would want their workers to broadcast the match to South
Africa as to fulfill their employment contract. Therefore, by not doing that the trade union has
disturbed the contract and violated the terms of it.
Industrial action - The steps taken by the employees against the employer or employer against
his employees in the settlement of disputes.
Trade Union got 2 method – picket or strike
Employer – Lock Out
However, before a trade dispute can take place, most of the time, there will be a
reconciliation period. S. 18 of IRA
s. 18(1) Where a trade dispute exists or is apprehended, that dispute, if not otherwise
resolved, may be reported to the Director General by -
(a) an employer who is a party to the dispute or a trade union of employers representing him
in the dispute; or (b) a trade union of workmen which is a party to the dispute.
The DGIR would then try to reconcile the two parties pertaining to the issue.
s. 19A of IRA Notwithstanding the provisions of this Part, the Minister may, at any time, if
he considers it necessary or expedient, take such steps as may be necessary to conciliate in
any trade dispute.
The Minister can settle these by doing certain things
1. appoint board of investigation or a committee under s. 35 or 36
s. 35(2) of IRA states that a Committee shall as soon as possible after its appointment,
investigate the causes and circumstances of any trade dispute or matter referred to it and
report thereon to the Minister.
If the matter is not sorted out, the Minister can refer the matter to the Industrial Court under s.
26 of IRA.
What is in furtherance of trade dispute
Industrial action that is taken must be done in furtherance of a trade dispute
If it is not done in furtherance of a trade dispute, s. 40(2)
s. 46 upon conviction, fine RM 5000.
If the industrial action is done not in furtherance of a trade dispute, it will consider an illegal
act therefore an offence.
Whether there is a trade dispute then must show that it is done in furtherance of the
trade dispute.
Express Newspaper Ltd v Macshane & Anor [1980] 1 All ER 65 – court used a subjective
test, refers to the subjective state of mind of the person doing the act and means that he so
acts with the purpose of helping parties to the dispute to achieve their objectives in the honest
and reasonable belief that it will achieve the settlement of the trade dispute, then it was done
in furtherance of the trade dispute.
s. 45(1)(b) & s. 40 must appreciate in furtherance of trade dispute
Strike
s. 2 of IRA states that “Strike” means the cessation of work by a body of workmen acting in
combination, or a concerted refusal or a refusal under a common understanding of a number
of workmen to continue to work or to accept employment, and includes any act or omission
by a body of workmen acting in combination or under a common understanding, which is
intended to or does result in any limitation, restriction, reduction or cessation of or
dilatoriness in the performance or execution of the whole or any part of the duties connected
with their employment.
Strike can only be done by a body of workman, cannot go alone on strike that is just not
going to work.
 - It does not mean to stop the production at all, can include limitation, restriction or
reduction of the work whether is whole or part. Means by going on strike, the
production is slowing down
Procedure must be fulfilled
Substantive procedures
s. 45(1)(b) states that a strike or a lock-out shall be deemed to be illegal if it has any other
object than the furtherance of a trade dispute –
(i) between the workmen on strike and their employer; or
(ii) between the employer who declared the lock-out and his workmen
Procedure
s. 45(1)(a) states that a strike or a lock-out shall be deemed to be illegal if it is declared or
commenced or continued in contravention of section 43 or 44 or of any provision of any other
written law. [Trade Union Act]
s. 43 Restrictions on strikes and lockouts in essential services (list is in 1 st schedule); if the
employee within this list wants to go on strike, they have to fulfill s. 43 – notice 42 days
before going on strike, 21 days after give notice cannot go on strike or cannot go on strike
before the expiry of the date of strike specified in any such notice aforesaid. The purpose of
this notice is to allow reconciliation or references to the industrial court because by these
essential services going on strike, they might disrupt the economic
Section 46 (1) of IRA Any workman who commences, continues or otherwise acts in
furtherance of a strike which is illegal under this Act shall be guilty of an offence and shall,
on conviction, be liable to a fine not exceeding fifty thousand ringgits, and a further fine of
fifty ringgit for every day during which such offence may continue.
Section 46 (2) of IRA Any employer who commences, continues or otherwise acts in
furtherance of a lock-out which is illegal under this Act shall be guilty of an offence and
shall, on conviction, be liable to a fine not exceeding fifty thousand ringgits, and a further
fine of fifty ringgit for every day during which such offence may continue.
Section 47 of IRA any person who instigates or incites others to take part in, or otherwise acts
in furtherance of, a strike or lock-out which is illegal under this Act…. shall be guilty of an
offence and shall, on conviction, be liable to imprisonment or a term not exceeding five year
or to a fine not exceeding five thousand ringgits, or to both.
s. 44 Prohibition of strikes and lockouts.
(a) during the pendency of the proceedings of a Board of Inquiry appointed by the Minister
under Part VIII involving such workman and employer and seven days after the conclusion of
such proceedings. If the Minister decided to appoint a board, the moment the board is
appointed no strike, and once the board had completed must wait after 7 days ny can go on
strike.
(b) after a trade dispute or matter involving such workman and such employer has been
referred to the Court and the parties concerned have been notified of such reference; cannot
go on strike at all once reference is made to the industrial court
(c) after the Yang di-Pertuan Agong or State Authority, in the case of a trade dispute relating
to any Government service or the service of any statutory authority, has withheld consent to
the reference of the dispute to the Court under subsection 26(2), and the parties concerned
have been notified thereof; rarely used coz it is used for public sector
(d) in respect of any of the matters covered by a collective agreement taken cognizance of by
the Court in accordance with section 16 or by an award, if the matters fall within the ambit of
collective agreement because s. 14(2)(d) provides an agreement between the parties for the
settlement of disputes.
(e) in respect of any of the matters covered under subsection 13(3). Trade unions cannot go
on strike if employees are terminated because that fall within management prerogative.
Other written law
Section 40(1)(c) TUA – a trade union shall take a secret ballot to make a decision for all
matters relating to strike or lock outs
s. 25A of TUA – for a strike to carry on it must have 2/3 majority must come from members
who are eligible to go on strike.
Section 40(2) of TUA, resolution setting out the issues leading to the proposed strike.
Section 40(5) of TUA states that the results of a secret ballot taken to decide on any of the
matters specified in subsection (1) shall be submitted by the secretary of the trade union to
the Director General in triplicate, substantially in the form prescribed by regulations, within
fourteen days after the taking of the secret ballot.
This majority and secret ballot must also include with a resolution as of why the trade union
is going on strike and all these must be deposited to the DG of the trade union. If you fail to
fulfill this, the status of the strike will be invalid. All must be fulfilled, failure to anyone
would render the strike to be invalid. If it is invalid, it would be an offence under s. 46.
Impact of the status of the strike
The strike is illegal if either of the substantive or procedure is not fulfilled. If the strike is
illegal, then it will be a breach of contract of employment as the employee did not go to work
so the boss may terminate or dismiss the employees and on top of that it will be an offence.
If the strike is legal, then the contract of employment is suspended. No breach, the contract
cannot be terminated.
S E Asia Fire Bricks v Non-Metallic Mineral Products Manufacturing Employees' Union
[1981] AC 363 – the effect of an illegal and legal strike.
Lock out
s. 2 of IRA refers to the closing of a place of employment; or the suspension of work; or the
refusal by an employer to continue to employ any number of workmen employed by him
employer close down the premise not allowing the employee to come to work.
Procedure is the same as strike
The status
If it is legal, there is no breach for the fact that the employer stops or prohibited the employee
from coming to the work and no need to pay wages
If it is illegal, there will be a breach of contract, and the employer need to pay wages and it
will be an offence under s.46
s. 45(2) states that a lock-out declared in consequence of an illegal strike or strike declared in
consequence of an illegal lock-out shall not be deemed to be illegal.
Most of the time, strike will happen first and in respond lock out will happen, so to determine
whether the lock out is illegal, whether the strike the is legal.
If strike is legal, lock out is illegal
If strike is illegal, lock out is legal
Most of the time lock out is opt is when the workman went on strike. Because during a strike,
the company premise will still open, operation cost still incurred, just no workmen. If this
happens, employer retaliate with lock out.
Section 44A – The minister may order a strike or lock-out to stop in the event if the strike or
lock-out lasts beyond a certain time or extends beyond a certain scope, thus endangering the
life, personal safety, or health of the whole or part of the population.
Picket
s. 40(1) of IRA, without prejudice to section 39, it shall be unlawful for one or more persons
acting on his or their behalf or on behalf of a trade union or of an employer in furtherance of
a trade dispute to attend at or near any place
Provided that it shall not be unlawful for one or more workmen to attend at or near the place
where the workman works and where a trade dispute involving such workman exists only for
the purpose of peacefully – (i) obtaining or communicating information; or (ii) persuading or
inducing any workman to work or abstain from working, and subject to such attendance
being not in such numbers or otherwise in such manner as to be calculated –
(a) to intimidate any person.
(b) to obstruct the approach thereto or egress therefrom; or
(c) to lead to a breach of the peace.
Picket one or more people can carry out this industrial action. Picket near or at place of work
or outside. Must be done peacefully. Picket is done not to intimidate or obstruct anyone or
lead a breach. Picket must be done outside office hours. Picket must be done in furtherance of
a rade dispute.
s. 40(2A) No workman shall go on picket—
(a) during the pendency of the proceedings of a Board of Inquiry appointed by the Minister
under Part VIII involving such workman and employer and within seven days after the
conclusion of such proceedings; (cannot go if there is a board to resolve this dispute)
(b) after a trade dispute or matter involving such workman and such employer has been
referred to the Court and the parties concerned have been notified of such reference; and
(c) after the Yang di-Pertuan Agong or State Authority, in the case of a trade dispute relating
to any Government service or the service of any statutory authority, has withheld consent to
the reference of the dispute to the Court under subsection 26(2), and the parties concerned
have been notified thereof.
Failure to fulfill, it will be an offence under s. 40(3) IRA any person who acts in
contravention of subsection (1) or (2A) shall be liable for a fine not exceeding five thousand
ringgits.
Industrial Court
Section 2 defines “Court” means the Industrial Court appointed under Part VII and includes,
unless the contrary intention appears, any Court under section 22 constituted for the purpose
of dealing with any trade dispute or matter referred to it, and any division thereof
22(1) of IRA states that for the purpose of dealing with any trade dispute referred to it, the
Court, except where otherwise provided by this Act, shall be constituted of the President and
two members selected by the President, one from each of the panels specified in subsection
21(1). So, when the court is going to decide on trade dispute matters, then the composition
will be more than just 1 person.
s. 21(1) the composition can be between a President and deputy president who shall be
appointed by the Yang di-Pertuan Agong; and a panel of persons representing employers and
a panel of persons representing workmen all of whom shall be appointed by the Minister.
Termination or dismissal – deputy president or president
Trade dispute – combination of both
The appointment is at the discretion of the Minister
Qualification of the president
s. 23A of IRA, a person is qualified for appointment as President under paragraph 21(1)(a)
and as Chairman under subsection 23(2) if, for the seven years preceding his appointment, he
has been –
(a) an advocate and solicitor within the meaning of the Legal Profession Act 1976 [Act 166];
(b) an advocate within the meaning of the Advocates Ordinance of Sabah [Sabah Cap. 2];
(c) an advocate within the meaning of the Advocates Ordinance of Sarawak [Sarawak Cap.
10]; or
(d) a member of the judicial and legal service of the Federation or of the legal service of a
State, or sometimes one and sometimes another
The requirement presiding his appointment referred to him practicing as a lawyer so because
of that his appointment was invalid. The decision he had made prior to this is valid.
Appointment of judges, badaria zaharia – however, the court majority had stated that
appointment was valid due to previous precedents.
Section 23(2) of IRA Notwithstanding subsection (1), a qualified person as defined in the
Legal Profession Act 1976 or any laws replacing it, with at least 15 years of experience in
labour and industrial relations in the ministry charged with the responsibility for human
resources be considered for appointment as a Chairman under section 23(2)
Aside from sub-(1) a person who has fifteen years of experience, in labour and industrial
relations in the ministry charged, they are still allowed to be appointed.
How to go to the Industrial Court
Trade dispute cannot go straight to the industrial court, it will only go through if there is a
reference by the minister, s. 26
Dispute on collective agreement – s. 33 (trade union or parties)/56 (trade union or ministers)
Dismissal – via reference by the DGIR – s. 20(3)
3 ways matters to be brought to industrial court
Decision of industrial court are known as award
s. 2 of IRA – it is an award, industrial court is not a court per say, it is a quasi-tribunal
s. 30(1) – power to make award
30. (1) The Court shall have power in relation to a trade dispute referred to it or in relation to
a reference to it under subsection 20(3), to make an award (including an interim award)
relating to all or any of the issues.
The principle in making an award in the provision
- S. 30(5) The Court shall act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal form (it means the
decision of the industrial court should not focus too much on the technicalities of the
rules)
Kesatuan Pekerja-pekerja Pengangkutan Semenanjung Malaysia v Syarikat Jengka Sdn Bhd –
the interpretation of collective agreement, you should not follow the ordinary rules of
construction like how we would use in interpreting a commercial contract, so that means the
court said that look at the substantial merit of the case, by doing so can arrive at a fair
decision.
Marlin Rajiman v MAA Services Sdn Bhd [1994] 2 MLJ 404 – estoppel principle is not
applicable to stop the court from looking at the merit of the case
- Dismissal s. 20(3) – case is referred to court by DGIR, in making its award the court
is not restricted to specific relief claim by the parties but can include any order awards
s. 30(6A) and 2nd schedule
 - S. 30(5A) is a section that allows industrial court to refer the code of industrial
harmony regardless of the parties refers to the document or not. This code is sign by
both parties and approved by Minister and however, it is not mandatory for the court
to refer.
- The court whenever deciding on trade dispute must consider the factors in s. 30(4)
a. Public interest (trade dispute pertaining to wages; if the court decided that
wages for these particular workers under public transport should increase and
decided to increase, the impact of such award will cause the other industry will
have to follow too and this will increase the operational cost and will result in
the people paying more for the ticket)
b. Financial implication
c. Economic of the country
The effect of the award s. 32 similar to the session court decision
The decision of industrial court can be appealed to High Court under s. 33C which allows the
person who is dissatisfied with the award to appeal against the award to the High court within
14 days from the date of the receipt of the award. The High court will treat is as an appeal
from the session court.