dispute resolution (2)
TRANSCRIPT
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DISPUTERESOLUTIONS- NEGOTIATION
- FACT-FINDING (INVESTIGATION)
- CONCILIATION
- ARBITRATION1
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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.
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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.
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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
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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.
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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.
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DISPUTE RESOLUTIONS
Settlement of TradeDispute
Negotiation Fact-finding Conciliation Arbitration
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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.
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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.
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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.
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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.
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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.
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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
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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
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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.
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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