Representations on Dismissals Section 20 IR ACT 1967

Procedure and Reporting Requirement Should Be Clear And Simple

1. Conciliation

· Meeting should commence within 30 days of reporting.

· Not more than 2 postponements should be permitted. Last minute request for postponement should not be allowed. Conciliation officer should proceed with his work as long as one party is present.

· Second meeting to follow up should be within one month of the first meeting. There should not be more than 2 meetings.

· Current practice of requiring parties to submit written submission should be dispensed with; only submission, should be made by the conciliating officer based on facts presented.

· At the end of each day conciliation officer should complete the Report Form on all the concluded cases and submit to the DGIR within 7 days.

· To facilitate this and improve the quality of conciliation, no officer should be required to conciliate more than 2 cases each day : Preferably just 2 cases before lunch break which would leave the entire afternoon for completion of report.

· For example Selangor/WP IRD receive about 250 cases a month including trade disputes.
15 officers x 2 cases perday x 20 days = 600 cases

· Without undue pressure the 15 officers can dispose of all cases received every month within the next 60 days.

2. Pending Cases

Out of 6000 cases pending, we believe Selangor/WP still have approximately 2500 cases :

· 40 cases reported in 1998
· 20 cases reported in 1999
· 40 cases reported in 2000
· 390 cases reported in 2001
· 590 cases reported in 2002
· 1430 cases reported in 2003
· 670 cases reported to 31/3/2004
· Selangor/WP IRD has 15 officers, 8 officers can be assigned to deal with the 2500 old cases – (as of 31/12/03). We believe many of the cases have gone through conciliation proceedings and require only preparation of report:

8 officers x 3 cases a day = 24 cases
X 20 days = 480 cases/month
X 6 months = 2780 cases

· Remaining 7 officers can be assigned to deal with the current cases :

7 officers x 2 cases = 14 p/day x 20 days = 280 cases per month

· In order to ensure that all current cases are resolved on time, one additional officer for a temporary period of 6 months would be sufficient.

3. IRD Putrajaya

It appears that about 3500 files need to be processed at the IRD Putrajaya office.

Currently there are 10 contract officers at IRD Putrajaya. Since they are merely required to prepare a summarized version of the reports, each other should be able to process 4 files each day:

10 officer x 4 files = 40 per day
X 20 = 800 files per months
X 5 months = 4000 files

· There is no need to work long hours – just honest work will be enough to clear the backlog.

· Officers who are weak and are not committed should be assigned to other departments under the HR Ministry.

3. Leadership

Lack of effective leadership at various levels is another reason for the backlog. We urge Datuk KSU to closely monitor the situation on the ground.

Heads of the regional IRD’s should be held responsible and answerable for any shortfall.

Reference of Disputes For Conciliation Section 18 IR Act 1967

Disputes relating to Collective Agreements

§ We propose that 2 experienced officers are assigned to conciliate on collective agreements. This will enable the officer to specialize himself/or herself and gain the trust and confidence of parties involved.

§ Number of conciliation meetings should be limited to a maximum of 3 and not more than 2 meetings each day. Officer should be strict in dealing with request for postponements.

§ If no settlement is possible officer should strive to get consensus to make a joint reference. Joint reference letters should be forwarded to the DGIR within 7 days of signing.

§ Since the DGIR is not equipped to have further conciliation, he should refer the report to YB Menteri within 7 days.

§ YB Menteri should refer the dispute to the Industrial Court within 7 days.

Recognition Claims
Section 9 – Industrial Relations Act 1967

· In order to expedite settlement of union recognition claims under section 9 of the Industrial Relations Act MTUC propose that the YB Menteri Sumber Manusia exercise the powers conferred by section 62 of the Industrial Relations Act 1967 and make specific regulations to enable the Director General of Industrial Relations to carry out membership verification and provide for automatic recognition. We attach herewith a copy of the amendment accepted by the NLAC in 1996. Invoking section 62 will help to speed up the process.

· Meanwhile we propose that the Ministry convene a series of dialogue sessions with employers; Especially with employers currently involved in recognition disputes.

· YB Menteri should be personally involved in these dialogue sessions to persuade employers on the importance of maintaining labour/management cooperation and industrial harmony.

· We have evidence to prove that the current problems relation to union recognition are mainly created by a number of retired HR Ministry officers who have established consultant services. These consultants advise employers to challenge the decisions of the DGTU, DGIR and YB Menteri.

· Current officers at the IRD and Department of Trade Unions must ensure confidentiality of parties involved in recognition disputes.

Proposed Regulations
When recognition deemed to be accorded or claim therefore
deemed resolved.

A. (1) The Director General shall, upon being informed of the result of the request made under section 9A (2) (c), communicate the result to the employer or the trade union of employers and the trade union of workmen.

(2) Where the result of the request made under section 9A (2) (c) shows that the majority of the workmen or class or workmen concerned were members of the trade union of workmen making the claim as at the date of claim, or the majority of the workmen or class of workmen wish to be represented by the trade union, the employer or the trade union of employers concerned shall be deemed to have accorded recognition to the trade union of workmen as from the date of claim.

(3) Where the result of the request made under section 9A (2) (c) shows that the majority of the workmen or class or workmen concerned were not members of the trade union of workmen making the claim as at the date of claim, or the majority of the workmen or class of workmen do not wish to be represented by the trade union, it shall be deemed that the matter has been resolved under section 9A (1) with the trade union of workmen not being accorded recognition.

Director General to require attendance at Conference

B (1) Where the trade union of workmen, the employer or the trade union of employers fails to furnish the information as may be required by the Director General under section 9A (2) (a), the Director General may, if he deems it necessary or expedient, direct either the trade union of workmen, the employer or the trade union of employers, or both to attend a conference and to furnish the information at the place and time as may be specified in the direction.

(2) Where the trade union of workmen, the employer or the trade union of employers-

(a) fails to furnish the information as may be required under section 9A (2) (a);

(b) fails to attend the conference under subsection (1); or

(c) attends the conference under subsection (1) but fails to furnish the required information,

it shall be deemed that –

(aa) the trade union of workmen has abandoned the claim and the matter has been resolved under section 9A(1);

(bb) the employer or the trade union of employers has no objection to the claim.

(3) Where an employer or a trade union of employers is deemed to have no objection to a claim for recognition under subsection (2) (bb), the Director General shall notify the Minister who shall give his decision thereon; where the Minister decides that recognition is to be accorded, such recognition shall be deemed to be accorded by the employer or the trade union of employers as from the date of claim.

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Mac 2002
Industrial Relations

 Cases Of Non Compliance Of Industrial Court Awards Increasing

 Reports of non compliance of Industrial Court Awards has significantly increased. An analysis of the cases heard during the first five months of 1999 (January to May 1999) showed that employers failed to respond to Industrial Courts notice to appear in at least 14 cases. Thus forcing the court to proceed with the hearing exparte and make an award. In the said 14 cases court awarded compensation amounting to RM652, 000 to dismissed workmen.

 It took about 12 to 24 months for a dispute to reach the Industrial Court and took another 12 to 24 months for the court to hear and hand down its award.

 Pending this frustratingly slow process companies change their name, close down, cease operation. In such event the court cannot even serve the award. In a number of cases reported, some employers are still carrying on business under different name at the same premises and location but refuse to accept court's notices.

 Ablelink Sdn. Bhd located in Klang terminated 60 workers in January 1998 without paying any retrenchment benefit. Workers reported their problem to the Industrial Relations Department (IRD) and representatives of Ablelink attended the first meeting at the IRD but failed to appear at subsequent meeting which obstructed  IRD's conciliation efforts. Before the matter could  reach the Industrial Court, Ablelink Sdn. Bhd. was no longer in existence and their business activities are now carried out by Ablebuilders Sdn. Bhd.

 MTUC urged the Human Resources Ministry to take a serious view of such cases and take appropriate action, together with the Registrar of Companies, to prevent such abuse. These unscrupulous employers are making a mockery of our industrial relations system.

 During the period May to August 1999  the number of Chairman at the Industrial Court came down from 9 to 7. Several cases scheduled for hearing in May, June, July were put off to year 2000. MTUC pointed out that with the tremendous increase in the number of industrial disputes, unless urgent steps are taken to fill the vacant posts, a huge backlog will be created. Again, poor workers who depend on the Industrial disputes settlement machinery, were subjected to severe hardship.

 Employers' refusal to comply, will make court awards meaningless.

 Torturous Work Schedule For IRD Officers

 In a submission to the Human Resources Minister, in October 1999, MTUC said the workload of the eight Selangor and Kuala Lumpur Industrial Relations Department's officers had quadrupled.

Up to 30^th September 1999 a total of 1924 cases involving dismissals, retrenchments, deadlock on wages and working conditions were reported. Officers were compelled to handle as many as four cases a day. One officer was conciliating in three cases at the same time shuttling from one meeting room to another. It was obvious they were going through a torturous work schedule.

In July 1999 Human Resources Minister made a statement that arrangements were being made to bring IR officers from other states with less cases to help clear the work load at the Selangor office but his promise did not materialise.

Complaints from unions and workers were mounting daily over the long delay by the IRD to call for conciliation meetings. Such delays obstructed IRD officers' effort to persuade disputing parties to settle issues amicably.

MTUC urged the Human Resources Minister to take urgent and decisive measures to improve working environment or else the disputes settlement machinery will collapse and workers will be  forced to resort to other measures like picketing and strikes.

Labour Officers Told To Stop Conciliation Work

MTUC called upon the Director General of Labour to direct all Labour officers in the country to stop conciliation work to resolve complaints by workmen. It  was not the function of the Labour Officers to conciliate and it can be deemed as illegal.

MTUC said it was also unethical and procedurally wrong for a Labour officer to act as a conciliator and later preside over the same matter to give judgement. Often parties involved in disputes, especially workmen, expressed dissatisfaction that by acting as a conciliator the Presiding Labour Officers mind is prejudiced and his decision unfavourable to workmen. MTUC pointed out that employers can challenge such judgement purely on the basis that Labour officer had exceeded his authority and as such his act was ultra virus. There is no provision in the Employment Act requiring Labour Department to conciliate in disputes.

This procedure was put in place to find a find a speedy solution. But a study of the cases showed that this practice indeed slowed down decision making. MTUC urged the Director General of Labour to carry out an urgent study and review this practice.

Bosses Discriminate Locals

MTUC highlighted increasing number of complaints of discriminatory practices against local workers. Economic recovery in 1999 raised demand for overtime work in the manufacturing sector but locals were not benefiting.

Unions reported that employers offered overtime work to foreign workers and not to the locals. When confronted, employers said that this was part of cost cutting measure to remain competitive.

Under our legislation employers must pay at 1.5 times the rate per hour for normal days and 2 times the rate per hour for rest days and public holidays. By assigning foreigners to work overtime companies pay a flat rate and save the cost.  Although the law applies to foreigners as well they did not dare report to the Labour Department.

MTUC urged bosses to heed the advise of Government not to discriminate against locals. Indeed locals should be given first preference and opportunity to earn more.

MTUC requested Labour Department to send their officers for more frequent inspections and companies found to discriminate against locals should be black marked and their permits for recruitment of foreigners should be withdrawn.

MTUC urged the Director General of Labour to scrutinise the termination reports to the Labour Department to ascertain whether employers are strictly complying with Government's directive not to retrench locals in favour of foreign workers. Affliates' reports  indicated otherwise.

Government was asked to take steps to enforce their directives and announcements to arrest abusive practices.

MTUC Picket To Highlight Increasing Anti Union Activities by Employers

Announcing the picket, MTUC conceded that Human Resource Minister Datuk Dr Fong Chan Onn had indeed taken positive steps on MTUC complaints. He did assure us that the number of Chairman at the Industrial Court will be increased significantly. MTUC pointed out, that the backlog was so severe that, even with added strength, it will take 2 to 3 years to clear the cases.

Minister's failure to comment on the unduly long delay in settling unions' claim for recognition on employers, demonstrated his lack of understanding of the problems faced by workers in those workplaces.

Affiliates reported increasing anti union activities by employers and the situation was worsening. Under Section 9 of the Industrial Relations Act Union recognition claims should be settled within 21 days but in practice it was taking as long as 12 months to 18 months. Employers openly defy the Labour Laws and often refuse to cooperate with the Industrial Relations Department.

The Human Resource Ministry was asked to accept responsibility for perpetuating this sad state of affairs: MTUC said this because 5 years ago suitable amendments were  drafted and endorsed by employers, workers and Government but up to now the draft seem to be accumulating dust somewhere in the ministry. The amendments intended to empower the Director General of Industrial Relations and the Human Resource Minister to act against recalcitrant employers.

MTUC's picket was therefor intended to highlight workers' grievances against anti union employers and urge the Human Resource Ministry to get them to respect the 30 year old CODE OF CONDUCT FOR INDUSTRIAL HARMONY. On October 11, 2000 800 union leaders from Malaysian Trades Union Congress (MTUC) affiliates picketed outside the Human Resources Ministry for 20 minutes before police dispersed the crowd.

Representatives from 52 unions led by MTUC officials commenced the picket at 2pm. Banners carrying messages "Why Deny Workers Rights", "We Want Justice" and "Enforce Labour Laws" stretched some 300m in front of the ministry at Pusat Bandar Damansara, Kuala Lumpur.

At 2.30pm, Industrial Relations director-general Datuk Ismail Abdul Rahim informed MTUC that the minister Dr Fong Chan Onn had just returned from a cabinet meeting and was unable to meet the MTUC officials.

MTUC then handed over the memorandum to the ministry's secretary-general Datuk Syed Mohamad Syed Abdul Kadir, who said the ministry would study the memorandum and try to resolve the problems quickly.

The memorandum raised three main issues pertaining to the backlog of dismissal cases, union recognition claims and collective agreement disputes.

At least 52 unions expressed their dissatisfaction and provided details of their dispute. There were 85 cases of dismissals pending since 1998, 57 pending since 1999 and another 32 since early 2000.

Study of Industrial Relations Act

A special 5 day workshop organised by MTUC in collaboration with JILAF at MTUC Training Centre carried out indepth study of the Industrial Relations Act 1967.

The participants, all industrial relations practitioners, examined the numerous issues confronting workers and trade unions. Chairman of the Industrial Court, Senior Lawyers specialising in labour cases, academics and MTUC leaders participated in the dialogue.

The workshop listed 10 priority issues and recommended steps to be taken on the matter:

1.            Dismissal

Suitable amendments must be made to make domestic inquiry mandatory and develop a uniform procedure. Incorporate the domestic inquiry procedure into the Code of Conduct for Industrial Harmony and enforce its application.

 2.         Setting up of Appelate Courts

There was lengthy deliberation on this topic which has occupied MTUC's attention for more than 25 years. Under current system workers and unions have to wait for as long as five to ten years to get a final verdict.

Employers, especially those vehemently opposed to trade unions, abused the process to deliberately delay justice and cause frustration amongst union members.

 MTUC was asked to obtain and review the Bill on Industrial Court of Appeal. A speedy solution could be made by setting up Industrial Division within the High Court structure.

 3.           Speedy disposal of cases

 Long delay by the Minister to refer dismissal cases to Industrial Court came under severe criticism and called for repeal of the power of the Minister under IRA. The DGIR should refer all cases direct to the Industrial   Court. Another sore point was the delay in reference of trade disputes and proposed mandatory period of 60 days to refer cases to the Industrial Court.

 4.         On awards, the workshop proposed that I.C. should hand verbal awards immediately followed by a written award, similar to practice adopted by labour courts and should include interest on compensation and back  wages. Quantum of compensation should be determined based on employ ability, age, future prospects, skill, industry, dependants and state of health. Option to be given to the claimant to claim reinstatement or com- pensation in lieu.

 5.            Proposed Formula for compulsory compensation

             Last Drawn Salary + 25% (medical)

            Years Remaining (future earnings) - 15%

            7% value (depreciation of value of money)

 6.         The workshop also discussed the current procedure adopted by the Court,  felt that many are too legalistic and technical which is contrary to S.30 of IRA.

 7.         There was strong view that presence of lawyers should be restricted. MTUC was asked to examine the Singapore model, where parties represent themselves without lawyers.

 8.         There was great deal of discussion on problems faced by unions on recognition issues   and MTUC was called upon to seek suitable amendments to require employers to grant automatic recognition.

 9.            Definition of workmen

 Workshop found the need to impose a limit of RM10,000 salary permonth on individuals claiming remedy under Section 20 - to reduce the heavy load on the Industrial Court.

 10.         Retrenchment - Connected to merger/acquisition

 MTUC urged to conduct a symposium

Mergers and acquisitions have become a trend and its impact on employment must be studied. Participants cited the dispute between NUBE and BCB over their plan to implement outsourcing. Flexiwage will continue to be suspect.

Cases of non-compliance of industrial court awards is making a mockery of the whole process. MTUC was asked to carry out a detailed study .

Mac 2002