2. INTRODUCTION
* DIFFERENCES OCCUR BETWEEN
EMPLOYERS AND EMPLOYEE OR THEIR
TRADE UNIONS
* INDUSTRIAL ACTION
- Employee picketting @ strike
- Employer ‘lock-out’
2
3. CLASSIFICATION OF TRADE DISPUTES
•Organising disputes
•Recognition disputes
•Refusal to bargain disputes
•Bad faith bargaining disputes
•Negotiation disputes
•Interpretation disputes
•Breach of contract disputes
•Individual disputes
3
4. TRADE DISPUTE AND INDUSTRIAL ACTION
DEFINITIONS
(I) Trade Dispute
(II) Strike
(III) Picketing
(IV) Lock-out
4
5. (I)Trade Dispute
“Any dispute between an employer and his workmen
which is connected with the employment or the non-
employment or the terms of employment or the
conditions of work of any such workmen”.
(Industrial Relation Act, 1967, Section (2))
Trade dispute is;
(1) between an employer and number of his
employees and;
(2) over the employment or the non-employment or
the terms of employment or the conditions of
work any such employees.
5
6. (II) Strike
The cessation of work by a body workmen acting in
combination or a concerted 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,
cessation of or dilatoriness in the performance or
execution of the whole or any part of the duties connected
with their employment.
(Industrial Relation Act, 1967, Section (2))
6
7. “as a concerted work stoppage by a group of workers
lasting at least one full day.
(Annual Report of the Department of Industrial Relations
of the Ministry of labour)
The strike is the ultimate and most favored form of
collective action, in that by stopping work and leaving
the workplace, the employees clearly demonstrate both
the importance of the issue in dispute and their
solidarity.
“temporary withdrawal of labour and stoppage of work”
7
8. Types and Causes of Strikes
(i) Strikes related to collective bargaining
-1.refusal to enter collective bargaining
-2.deadlock in collective bargaining
(ii) Strikes not related to collective bargaining
-1.terms and conditions of contractual terms in collective
agreement and other service contracts.
-2.retrenchment and lay-off
-3.promotion, allocation of duties, transfer, and other
management prerogatives.
-4.demotion, suspension, warning letter, and other
discipline actions.
-5.non-implementation of labor standards and statutory
provisions related to other non-monetary benefits.
-6.infringements of workers’ right/unfair labor practices
-others
8
9. Strike Patterns
3 main indicators- to access strike activity:
Number of stoppages.
2.Number of workers involved -includes those
actually on strike and those prevented from working
at least for one work-day during the work stoppage.
Number of working days lost. -based on the number
of vacancies-during each day of the dispute.
9
10. Number of Strikes, Workers involved and working-Days Lost 1991-2000
Year Number of No. of workers No. of working-
strikes involved days lost
1991 23 4,207 6,110
1992 17 6,110 16,164
1993 18 2,399 7,162
1994 15 2,289 5,675
1995 13 1,748 4,884
1996 9 995 2,553
1997 5 812 2,396
1998 12 1,778 2,685
1999 11 3,452 10,555
2000 11 2,969 6,068
Source:Department of Industrial Relations, Ministry of Human Resources,
Malaysia.
10
11. Strike By Sector 1995-2000
Sector No. of No. of
cases workers involved
Agriculture, Forestry, Livestock, And Fishery 18 2,473
Mining ad quarrying 1 37
Manufacturing 31 7,630
Electricity, gas and Water - -
Construction 4 1,061
Wholesale & Retail Trade, Restaurant and Hotel
Finance, Insurance, Real Estate & Business 1 29
Community, Social & Personal Services - -
Transport, Storage and Communication 6 524
Total 61 11 754
Source:Department of Industrial Relations, Ministry of Human Resources,
Malaysia.
12. Two Possible Reasons
(i) Location of workers in society.
(ii)Characteristics of the job and worker.
12
13. (III) Picketing
“a gathering of workers outside the workplace or place
of dispute with placards and banners expressing
workers’ grievances and demands for people to see,
thus generating public sympathy and support”.
(Aminuddin,1990)
-lawful weapons of workers.
(i) simple-picket in the workers’ own time,
(ii) no disruption of the business of the employer,
(iii) no offence committed in the course of the
picket.
13
14. -Objectives
(i) To persuade other employees to join or otherwise
support the strike.
(ii) To withhold supplies or alternative labor from the
employer.
(iii) To ensure that the strikers do not return to work
before the dispute is settled.
-Picketing usually
(I) very peaceful
(ii) does not pose any threat to the employer, or the
place of employment.
(iii) does not cause any serious inconvenience to the
general public
14
15. ( IV) Lock-out
(a) The closing of a place of employment;
(b) The suspension of work; or
(c) The refusal by an employer to continue to employ
any number of workmen employed by him.
in consequence of a dispute which is "done with a
view to compelling persons employed by the
employer . . . to accept terms or conditions of or
affecting employment“
(Industrial Relation Act, 1967, Section (2))
“The exclusion from work by employers of
employees engaged in labour controversies”
(M.N.Dcruz, 2001)
15
16. STRIKES INTERNATIONAL SCENARIO
Strikes occur early in the development of a
country’s industrial economy and during periods of
improving business activity
Strikes are universal in their intent
Methods of conflict resolution tend to universally
rely on some form of mediation, conciliation,
arbitration, and/or adjudication
Most countries use one or more of these
approaches as either a means of preventing or
resolving industrial action.
16
17. Countries vary in their definitions of strikes and
methods of compiling data and international
comparisons also concern the structure of
employment.
Strikes are measured in three dimensions: the
number of separate disputes, the number of
workers going on strike, and the total number of
working days ‘lost’. The overall ‘shape’ of strikes
can be measured by calculating from the three
raw indices the frequency of strikes (number per
1000 employees) and their average size and
duration. The product of these gives the overall
‘volume’ or number of days lost per 1000 workers.
17
18. The level of unemployment was, at least until mid
1970s, directly and not inversely related to strike
levels in some countries, notably Belgium, The
Netherlands and Sweden.
Germany, Sweden and Belgium, unions do not rely
on the business cycle for their bargaining power but
instead engage in industry- or national level
negotiations that contain strikes during booms. It
thus appears that not only the level of strikes but
also the trend over time varies according to national
structures.
Short-term economic conditions, longer-term
changes in the composition of the labor force have
been seen as causes of changing strike levels.
18
19. IR Act 1967 (S40): Picketing
(1) Allows controlled picketing, whereby the
picketing must be in furtherance of a trade dispute
and solely for the purpose of:
* Obtaining or communicating information,
* Persuading or inducing any workman to
work or abstain from working.
Intimidation, obstruction of approach thereto or
egress therefrom (to obstruct the entrance or exit
to the organization), and acts leading to breach of
peace is punishable by law.
19
20. Picketing
Legal limitations imposed on picketing (Wu
Min Aun, 1982) includes:
* words used
* locality (picketing is allowed at or near the place, and
not ‘in’ the place)
* purpose
* form (can not intimidate any person)
* manner (can not obstruct the entrance or exit to the
organization)
20
21. IR Act 1967 (S40): Picketing
(2) Any officer or employees of the TU involved may
be present at the picketing, but solely for the purpose
of maintaining good order and discipline and ensuring
that the picketing workmen comply with the law
relating to picketing.
(3) Any person who contravenes the legal restraints
imposed on picketing is liable, on conviction, to
imprisonment for a term not exceeding 1 year, or to a
fine not exceeding RM1,000, or both.
21
22. The rights to strike in Malaysia
IR laws do not clearly lay out the procedures to be
followed to ensure the legality of a strike.
However, various requirements and restrictions
are found in the TU Act and IR Act.
22
23. TU Act 1959 (S25): Strikes and
Lock-outs
No trade union workmen shall call for a
strike:
* Without first obtaining the consent by secret
ballot of at least 2/3 of its total members.
* Before the expiry of 7 days after submitting to
the DGIR.
* In respect of matter covered by direction or
decision of the Minister given or made in appeal
to him under the Act.
23
24. IR Act 1967 (S43): Restrictions on strike
and lock-outs in essential services
Prohibits any workman in any essential service
to go on a strike:
* Without giving to the employer notice of
strike, within 42 days before striking,
* Within 21 days of giving such notice,
* Before the expiry of the date of strike
specified in the notice
Employers in essential service are also governed by the
same conditions in regards to a lock-out.
24
25. IR Act 1967 - Schedule (pg 47)
Essential Services
(Section 2)
* Banking services
* Electricity services
* Fire services
* Postal services
* Prison services
* Public health services
* Telegraph, telephone and telecommunication
services
* etc.
25
26. IR Act 1967 (S44): Prohibition of
Strikes and Lock-outs
Prohibits strikes and lock-outs under these
conditions:
* During the pendency of the proceedings of a
Board of Inquiry appointed by the Minister.
* After a trade dispute has been referred to the
Court.
* In respect of any of the matters covered by a
collective agreement.
* In respect of any of the matters covered under
S13 (3) e. g. promotion, transfer, employment,
termination, dismissal, and assignment.
26
27. IR Act 1967 (S45): Illegal Strikes
and Lock-outs
A strike or a lock-out shall be deemed to be
illegal if:
* The motives behind the strike or lock-out are
other than the furtherance of a trade dispute.
However,
* A lock-out declared on consequence of an
illegal strike or a strike declared in
consequences of an illegal lock-out, is not
illegal.
27
28. IR Act 1967 (S46): Penalty for
Illegal strikes and lock-outs
Imposes a penalty in the form of
imprisonment for a term not exceeding 1
year or to a fine not exceeding RM1,000
or to both, to any workmen or employer
who commences, continues or otherwise
acts in furtherance of an illegal strike or
lock-out.
28
29. In the context of present
Malaysian industrial law, there
leaves no room for a justifiable
strike.
29
31. Methods available for settling disputes .
Direct negotiation
Fact-finding Machinery
final-offer Arbitration
Conciliation
Mediation
Arbitration
31
32. Direct negotiation
Direct negotiation is certainly one of the ideal methods
Negotiation can also defined as the process of discussing a matter with
a view to reaching agreement.
A negotiated settlement is seen as a mature and harmonious
Initially, negotiation can be envisaged as the two parties stating their
relevant positions and, as the process takes place, moving towards a
more central position where agreement is possible. A simple illustration
of this is frequently seen in wage negotiations
32
33. The process of negotiating contains the
following
steps:
1) Preparation
2) Argument
3) Movement
4) Close
5) Agreement
33
34. The primacy of voluntary and direct negotiation is reflected in a
number of ways:
a) There is a general belief among all the parties, including the
government that conciliation or arbitration should not be used
until
the normal, jointly agreed negotiating and disputes procedures in
the organization or industry have been implemented.
b) Have the third party intervention is invoked there is a clear
preference among management and unions for conciliation rather
than arbitration and there is no automatic resort to arbitration or
conciliation fails.
34
35. c) While in the majority of cases where arbitration does take place it
is invoked by a joint request from the two parties. Thus, arbitration
may be used not to provide the final settlement but rather to
provide a fresh basis for further negotiation.
35
36. Fact-finding Machinery
The Industrial Relations Act allows the Minister of Human Resources to
appoint a committee of investigation or a board of inquiry where a trade
dispute exists.
Its function is to look into the causes of the dispute and make
recommendations either to the Minister (in the case of a committee) or to the
House of Representatives in Parliament (in the case of a board).
Fact-finding has been characterized as “a semi-judicial process in which
major reliance is placed on the facts of a dispute and the fact-finder and
fact-finding board attempts to exercise few mediation principles or tactics.”
(Simkin, 1971).
36
37. Final-Offer Arbitration
Final-Offer Arbitration is a binding mechanism in which the
arbitrator must choose one or the other of the final offers from
the two parties in a contract negotiations dispute.
Both parties need to be ready to compromise their original
positions so that, if arbitration is necessary, both final offers
look reasonable to the neutral.
37
38. Conciliation
Conciliation can be defined as:
A strategy wherein the ‘third party’ supports the direct bi-partite
negotiating process by assisting the parties to identify the cause and
extent of their difference, to establish alternative solutions and their
various implications and to develop and agree a mutually acceptable
settlement.
The conciliator also acts as a medium for the continuation of the
dialogue.
38
39. Goodmnan and Krislov (1974) point out that the conciliator “ has no
authority to compel…nor to impose a settlement.
Stagner and Rosen describe the conciliator as a “kind of technical
consultant to both sides, helping them find a solution. He has only such
tools as his prestige as an official mediator, his persuasiveness, his sense
of humour and his ability to see the acts as they appear to each of the
parties.
Under the revised rules for conciliation of the Kuala Lumpur regional
Centre for Arbitration, the conciliator may make proposals for a
settlement of the dispute only at the request or with the consent of all
parties.
39
40. Conciliation is the process of arriving at a settlement of a trade dispute
with the help of a third, neutral party.
Conciliation can be voluntarily requested by either of the disputing
parties or the Director-general of Industrial relations may intervene in a
dispute “in the public interest”, requiring the parties to attend a
conciliation meeting.
Conciliation is the first stage in the Industrial Relation Act for
expeditions settlement of trade disputes between the management and
the workmen, with the intervention of a third party, namely the Director
general of Industrial Relations at the Ministry of Human Resources.
40
41. Mediation
Mediation is a process available to the disputing parties involved
in contract negotiations by which an outside party is called to
help them reach a settlement.
The mediator is a person who is considered unbiased and impartial
and is sufficiently respected and trusted by both parties (Maimunah
Aminuddin, 1999).
The mediator’s function is to provide a positive environment for
dispute resolution by inviting an extensive experts with professional
experience in the field of labor relations.
41
42. Arbitration
Arbitration can be defined as :
A strategy wherein direct negotiation between management and union
is replaced with a process of adjudication which involves the third party
in making a decision (award) between the two-conflicting positions.
When the disputing employer and union cannot find a solution by
themselves or with the help of the Department of Industrial Relations,
In arbitration, an impartial third party is given the authority to settle the
dispute by examining the information given by both ideas and making a
judgment.
42
43. Dispute Resolution Arbitration Case Flow
Claim Received and Reviewed
Claim Served on Respondent
Answer Received and Analyzed
Arbitration List Selection
Prehearing
Discovery
Hearings Held
Arbitration Deliberate
Award Written and Served
43
44. Procedure for dispute settlement in Malaysia
Labour Legislation
Employer Trade Union
Stage 1 Negotiation
Dispute
Stage 2 Conciliation
Collective Minister acts as
Agreement Conciliator
Stage 3 Industrial Court
Source: Sharma, B. Industrial Relation in ASEAN, 1996.
44
45. Relative advantages of alternative methods of Dispute Resolution.
Cost : Private methods of dispute resolution tend to be less costly than
reliance upon outside intervention.
Time : the length of time it takes to resolve a dispute can affect the
desirability of an alternative method of resolution.
Expertise of the decision maker : If outsiders are involved in resolving
a labor dispute, those systems which assure an outsider will have some
expertise in labor relations are generally preferable.
45
46. Integrity of the bargaining process : Assuming that negotiations are
the preferable method for establishing and enforcing job rights, reliance
upon any other system as an adjunct to negotiations should reinforce the
bargaining process.
Privacy : negotiations, arbitration and mediation are generally private
processes in which the dynamics of the parties are not subject to public
scrutiny.
Predictability of the result : a system of dispute resolution which
allows the parties to anticipate the likely outcome should facilitate
voluntary resolution.
Finality : the major problem with negotiations is that it is a system of
dispute resolution which lacks of finality.
46
47. STATISTICS ON INDUSTRIAL
DISPUTES
The various statistics on industrial disputes can be
obtained from the Industrial Relations Department
or from the internet. The International Labor
Organization (ILO) publishes a comprehensive labor
statistics including industrial disputes. Various
industrial practices could be determined by
comparing statistics from the different countries.
The data source of ILO is called LABORSTA, the
Labor Statistics Database, ILO Bureau of Statistics
and can be assessed through http://laborsta.ilo.org.
47
48. As the data is gathered form various countries, LABORSTA provided
definition on the terminologies used in the statistics to ensure uniformity.
The definitions are as follows:
The Resolution concerning statistics of strikes, lockouts and other action
due to labour disputes, adopted by the Fifteenth International Conference
of Labour Statisticians (Geneva, 1993), gives the following definitions for
statistical purposes:
A strike is a temporary work stoppage effected by one or more groups of
workers with a view to enforcing or resisting demands or expressing
grievances, or supporting other workers in their demands or grievances.
A lockout is a total or partial temporary closure of one or more places of
employment, or the hindering of the normal work activities of employees,
by one or more employers with a view to enforcing or resisting demands
or expressing grievances, or supporting other employers in their demands
or grievances.
48
49. Workers involved in a strike: Workers directly involved in a
strike are those who participated directly by stopping work. Workers
indirectly involved in a strike are those employees of the
establishments involved, or self-employed workers in the group
involved, who did not participate directly by stopping work but who
were prevented from working because of the strike.
Workers involved in a lockout: Workers directly involved in a
lockout are those employees of the establishments involved who were
directly concerned by the labour dispute and who were prevented from
working by the lockout. Workers indirectly involved in a lockout are
those employees of the establishments involved who were not directly
concerned by the labour dispute but who were prevented from
working by the lockout.
A labour dispute is a state of disagreement over a particular
issue or group of issues over which there is conflict between workers
and employers, or about which grievance is expressed by workers or
employers, or about which workers or employers support other
workers or employers in their demands or grievances.
49
50. Figure 1.0 provides some comparison on the industrial disputes data for some
selected advanced and developing countries. The specific data used are
explained below:
Strikes and lockouts, by economic activities
If a strike or lockout covers several economic activities, the information
about it is usually given under each of the activities involved. As a result,
the total number of strikes and lockouts shown for the total (all economic
activities together) may be less that the sum for the component activities.
Workers involved, by economic activity
The number of workers involved in strikes and lockouts usually includes
those involved indirectly as well as those involved directly.
50
51. Days not worked, by economic activity
The number of days not worked as a result of strikes and lockouts is usually
measured in terms of the sum of the actual working days during which work
would normally have been carried out by each worker involved had there been
no stoppage.
51
52. Figure 1.0 (A) Statistics on Industrial Dispute for Selected Advanced Countries/
1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
AUSTRALIA Stikes & lockout 1036 728 610 560 643 543 447 519 731 698
Workers involved 1181600 871500 489600 265100 344300 577700 315400 348400 461100 325400
Days not worked 1610600 941200 635800 501600 547600 928500 534200 526300 650500 469100
UNITED STATES Stikes & lockout 40 35 35 45 31 37 29 34 17 39
Workers involved 392000 363800 181900 322000 191500 272700 338600 386800 72600 393700
Days not worked 4583600 3988600 3981200 5021500 5771200 4888600 4497100 5115700 1995800 20419400
UNITED KINGDOM Stikes & lockout 369 253 211 205 235 244 216 166 205 212
Workers involved 176000 148000 385000 107000 174000 364300 130000 92700 140900 183200
Days not worked 761000 528000 649000 278000 415000 1303300 234700 282400 241800 498800
JAPAN Stikes & lockout 310 263 252 230 209 193 178 145 154
Workers involved 52762 109296 64007 49009 37542 23196 47185 26291 25673
Dats not worked 96445 231424 116003 85377 76971 42809 110171 101508 87069
FRANCE Stikes & lockout 12 15 10 14 33 6 12 6 7
Workers involved 183000 123100 18400 25500 619688 4858 9310 1257 1253
Days not worked 497300 359200 510900 500500 784000 444100 392600 345800 705120
SWEDEN Stikes & lockout 23 20 33 13 36 9 14 13 10 2
Workers involved 2508 17987 29318 21996 125489 9137 11856 570 9481 163
Days not worked 21724 28141 189828 52398 627291 61348 23579 1677 78735 272
FINLAND Stikes & lockout 284 168 126 171 112 94 91 98 65 96
Workers involved 166772 103505 23193 70535 127039 43113 28402 35380 14993 84092
Days not worked 458338 76094 17316 525703 869422 20078 103713 133203 18954 253838
52
54. Conclusion
Unde rs ta nding of Tra de Dis pute s is importa nt.
IR a ct de fine s Tra de Dis pute s :
“any dispute between an employer and his workmen which
is connected with the employm or the non-em
ent ploym or
ent
the term of em
s ploym or the conditions of work of any
ent
such workm en”.
A Tra de Dis pute s is a dis pute :
(1) between an employer and any number of his employees,
and
(2) over the employment or the non-employment or the terms
of employment or the conditions of work of any such
employees.
54
55. Conclusion (cont..)
Ha ge me ye r Indus trie s S dn Bhd a nd Na tiona l Union
of Comme rcia l Worke rs (Awa rd 75 of 1983), IR court
de cla re d:
“the tra d e d is p ute s d e finitio n, c o ve rs e ve ry d is p ute be twe e n
a n e m p lo y e r, a nd his wo rkm e n whic h is c o nne c te d with the
s e rvic e o f the wo rkm e n, o r with the be ne fits a nd p rivile g e s
inc id e nta l to tha t s e rvic e . ”
a nd in Te luk Ans on Agricultura l Ente rpris e S dn.Bhd
(Arca dia Es ta te ) a nd Na tiona l Union of P la nta tion
Worke rs (Awa rd 139 of 1984), the court s ta te d:
“ No n-e m p lo y m e nt - is the ne g a tive o f e m p lo y m e nt, a nd will
c o m e into be ing in va rio us fo rm . . . it inc lud e s c o ns truc tive
d is m is s a l. ”
55
56. Conclusion (cont..)
Dis pute re s olution:
IR a ct ma ke s a va ila ble numbe r of wa ys to
re s olve Tra de Dis pute s :
(1) Fa ct Finding To prevent as well as to
(2) Concilia tion settle the trade disputes
(3) Arbitra tion
(4) Indus tria l Action To settle the trade disputes
56
57. Conclusion (cont..)
IR a ct a s s ume s tha t this options /wa ys ca n be
us e d to re s olve tra de dis pute s only a fte r ..
“ the p a rtie s c o nc e rne d ha ve FALED to re s o lve
I
the d is p ute the m s e lve s thro ug h N O TI TI N
EG A O
- the firs t c ho ic e to re s o lv e the tra d e d is p ute s ”
57
58. Conclusion (cont..)
DIS P UTE RES OLUTION
(1) Fa ct Finding
- p ro vid e d fo r in Pa rt VIIo f I A t.
I R c
- it d o e s no t its e lf re s o lve a tra d e d is p ute but he lp to
re s o lve the d is p ute .
- two a g e nc y fa c t find ing :
(a ) Co m m itte e o f inve s tig a tio n
(b) Bo a rd o f I uiry
nq
(2) Concilia tion
- provide d for in P a rt V of IR Act.
- one a ge ncy - De pa rtme nt of IR
58
59. Conclusion (cont..)
DIS P UTE RES OLUTION
(3) Arbitra tion
- p ro vid e d fo r in Pa rt VI o f I A t.
I R c
- o ne a g e nc y - I us tria l Co urt.
nd
- I us tria l Co urt ha s juris d ic a tio n o ve r tra d e
nd
d is p ute s .
(4) Indus tria l Action
- p ro vid e d fo r in Pa rt I o f I A t.
X R c
- I A t a c kno wle d g e s o nly the strike, the lockout a nd
R c
picketing a s le g itim a te te c hniq ue s to s e ttle tra d e
d is p ute s .
- Strike s a nd Lo c k-o ut a ls o re g ula te d by Tra d e Unio n
A t.
c 59
60. Conclusion (cont..)
Tra de Dis pute s ca nnot be s top or e limina te
pe rma ne ntly. We ca nnot gura nte e of ze ro
dis pute s .
But it ca n be control or re duce d/minimize the
dis pute s .
It’s be tte r to pre ve nt ra the r tha n cure .
Ma na ging Tra de Dis pute s is importa nt:
(a ) ma inta ining indus tria l ha rmony.
(b) prote ct worke rs & e mploye rs
(c) s ocia l re la tions
(d) incre a s e productivity
60
61. Conclusion (cont..)
In Ma la ys ia ,
No. of s trike s /lock-out
No of ca s e s of tra de dis pute s
S ome of wa ys to pre ve nt/control tra de
dis pute s :
(a ) Mutua l unde rs ta nding.
(b) Te a mwork
(c) Ea ch group s hould pla y the ir role
(d) Re s pe ct a nd ca re
(e ) Complying Code of Conduct Indus tia l
Ha rmony.
61
