In
Malaysia, Trade Unions are governed by the Trade Union Act and the Industrial
Relations Act 1967 (REVISED 1976), Act 177. The Claim for Recognition is
governed by the Industrial Relations Act, and the relevanr provisions are as follows:-
Section 9 Claim for recognition
(1)
No trade union of workmen the majority of whose membership consists of workmen
who are not employed in any of the following capacities that is to say-
(a) managerial capacity;
(b) executive capacity;
(c) confidential capacity; or
(d) security capacity,
may
seek recognition or serve an invitation under section 13 in respect of workmen
employed in any of the above mentioned capacities.
(1A)
Any dispute arising at any time, whether before or after recognition has been
accorded, as to whether any workman or workmen are employed in a managerial,
executive, confidential or security capacity may be referred to the Director
General by a trade union of workmen or by an employer or by a trade union of
employers.
(1B)
The Director General, upon receipt of a reference under subsection (1A), may
take such steps or make such enquiries as he may consider necessary or
expedient to resolve the matter.
(1C) Where the matter is not resolved under
subsection (1B) the Director General shall notify the Minister.
(1D) Upon receipt of the notification under
subsection (1C), the Minister shall give his decision as to whether any workman
or workmen are employed in a managerial, executive, confidential or security
capacity and communicate in writing the decision to the trade union of workmen,
to the employer and to the trade union of employers concerned.
(2) Subject to subsection (1), a trade union of workmen may serve on an employer or on a trade
union of employers in writing in the prescribed form a claim for recognition in
respect of the workmen or any class of workmen employed by such employer or by
the members of such trade union of employers.
(3) An employer or a trade union of employers
upon whom a claim for recognition has been served shall, within twenty-one days
after the service of the claim-
(a) accord recognition; or
(b) if recognition is not accorded, notify the trade union of workmen
concerned in writing the grounds for not according recognition; or
(3A) Upon according
recognition to the trade union of workmen concerned under paragraph (3)(a),
the employer or the trade union of employers concerned shall notify the
Director General.
(4) Where the trade union
of workmen concerned receives a notification under paragraph (3)(b), or
where the employer or trade union of employers concerned fails to comply with
subsection (3), the trade union of workmen may, within fourteen days-
(a) of the receipt of the notification; or
(b) after the twenty-one day period in subsection (3) has lapsed,
report the matter in
writing to the Director General, failing which the claim for recognition shall
be deemed to have been withdrawn.
(4A) Upon receipt of a report under subsection
(4), the Director General may take such steps or make such enquiries to
ascertain-
(a) the competence of the trade union of workmen concerned to represent
any workmen or class of workmen in respect of whom the recognition is sought to
be accorded; and
(b) by way of secret ballot, the percentage of the workmen or class of
workmen, in respect of whom recognition is being sought, who are members of the
trade union of workmen making the claim.
(4B) For the purposes of carrying out his
functions under subsection (1B) or (4A) the Director General-
(a)
shall have the power to require the trade union of workmen, the employer, or
the trade union of employers concerned to furnish such information as he may
consider necessary or relevant within the period specified in the requirement;
(b) may refer to the Director General of Trade Unions for him to
ascertain the competence of the trade union of workmen concerned to represent
any workmen or class of workmen in respect of whom recognition is sought to be
accorded, and the performance of duties and functions by the Director General
of Trade Unions under this paragraph shall be deemed to be a performance of his
duties and functions under the written law relating to the registration of
trade unions; and
(c)
may enter any place of employment where any workmen in respect of whom a claim
for recognition is sought to be accorded are being employed to examine any
records or documents or to conduct secret ballot.
(4C) Upon ascertaining the matter under
subsection (4A), the Director General shall notify the Minister.
(5) Upon receipt of a notification under
subsection (4C) the Minister 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 trade union of employers concerned, as
the case may be, as from such date as the Minister may specify.
(6) A decision of the Minister under
subsection (1D) or (5) shall be final and shall not be questioned in any court.
Then we have to look at the INDUSTRIAL
RELATIONS REGULATIONS 2009, which dealt with greater detail the procedure when
it comes to claiming recognition, in Particular Part II - RECOGNITION OF TRADE UNIONS
Section 3 – Claim for
Recognition
(1) Any claim for recognition by a trade union of workmen under subsection
9(2) of the Act shall be substantially in Form A and shall be signed by a
responsible officer of such trade union.(2) The purpose of a claim for recognition is to enable the trade union of workmen to commence collective bargaining with the employer or trade union of employers as provided under subsection 13(1) of the Act.
(3) The original of form A together with a copy of the rules of such trade union shall be served-
(a) on the employer or trade union of employers, as the case may be, at their registered address or principal place of business by AR registered post or courier; or
(b) personally on a responsible officer of such employer or trade union of employers.
(4) An acknowledgment of service from the responsible officer in Form A-1 shall be sufficient proof of the service of Form A on him.
(5) A copy of the said form A together with a copy of the rules of such trade union shall at the same time be sent to the Director General.
Section 4 - Notification
for according recognition
Upon according recognition under subsection 9(3A) of the Act, the employer or
trade union of employers shall, within twenty-one days, notify the Director
General of such recognition.
Section 5 Ascertaining the service of Form A
(1) Where a trade union of
workmen makes a report to the Director General within fourteen days under
subsection 9(4) of the Act, the Director General may take such necessary steps
where practicable within fourteen days to determine whether form A has been
served according to subregulation 3(3) on the employer or trade union of
employers concerned.
(2) Where the Director
General is satisfied that form A has not been served according to subregulation
3(3), the claim for recognition is deemed to have lapsed and the trade union of
workmen concerned may serve a new Form A on the employer or trade union of
employers concerned.
Section 6 Ascertaining competency and membership of
trade union
Where the Director General
is satisfied that form A has been properly served, the Director General may,
without delay-
(a) refer the issue on competency of the
trade union concerned to the Director General of Trade Unions for him to
ascertain, where practicable within sixty days from the date of reference; and
(b) direct the employer or the trade union
of employers, as the case may be, to furnish him, within fourteen days from the
receipt of the direction or any other period specified in the direction,
particulars of the workmen in respect of whom the claim for recognition is made
and who are in the employment of the employer, or the respective employers who
are members of the trade union of employers, as the case may be, as on the date
of claim, substantially in Form B signed by a responsible officer.
Section 7 Convening meeting for secret ballot
(1) Upon receipt of Form B,
the Director General shall, by notice in writing, convene a meeting for the
purpose of conducting a secret ballot under paragraph 9(4A)(b) of the Act,
between the trade union of workmen making the claim for recognition and the
employer or the trade union of employers concerned.
(2) In the event that no
agreement is reached between the trade union of workmen making the claim for
recognition and the employer or the trade union of employers concerned
regarding the particulars of the workmen in Form B, the Director General shall
decide on the final list as in Appendix A1 of Form B.
Section 8 Employer and trade union to assist Director
General
(1) Where the Director
General has given direction under paragraph 6(b) or served a notice under
regulation 7, the employer or trade union of employers, and the trade union of
workmen concerned shall furnish the Director General with such information as
he may require and shall give every assistance to the Director General to
enable him to conduct the secret ballot expeditiously.
(2) No person, employer or
trade union shall in any way obstruct the taking of a secret ballot.
Section 9 Notice for secret ballot
(1) Where the Director
General of Trade Unions has ascertained the competency of the trade union of
workmen concerned he shall notify the Director General.
(2) Upon receipt of the
notification that the trade union of workmen concerned is competent, the
Director General shall fix the date for the taking of a secret ballot which
date shall where practicable be within thirty days from the date of the
notification.
(3) Where the date for the
taking of a secret ballot has been determined, the Director General shall issue
a notice in Form C to the trade union of workmen, employer or trade union of
employers concerned.
(4) The employer or trade
union of employers shall cause copies of the notice for secret ballot to be
fixed at a conspicuous place in the premise of the employers concerned as
determined by the Director General for seven consecutive days immediately preceding
the day of the taking of the secret ballot.
(5) No person shall remove,
deface or destroy the notice for secret ballot until after the completion of
the secret ballot.
Section 10 Persons entitled to vote
All workmen or any class of
workmen as in Appendix A1 of Form B shall be entitled to vote in a secret
ballot.
Section 11 Formula to ascertain percentage of membership
(1) The
percentage of membership shall be calculated bases on the following formula:
Number
of Votes Indicating Membership X 100%
Number
of workmen entitled to vote
(2) The strength of the
membership shall be determined on a simple majority vote basis.
Section 12 Notification of result
The Director General shall
as soon as the result of the secret ballot is ascertained communicate such
result to the trade union of workmen, employer or trade union of employers
concerned in Form D.
Section 13 Decision of Minister
(1) A decision of the
Minister under subsection 9(1D) of the Act as to who are the workmen employed
in a managerial, executive, confidential or security capacity shall be
substantially in Form E.
(2) A decision of the Minister
under subsection 9(5) of the Act whether a trade union of workmen be accorded
recognition or not be accorded recognition shall be substantially in Form F.
FORM
B – This is a Form that the Employer is
supposed to fill and deliver. It contains
A - Material particulars
of all workmen on the date of the claim, and
A1 – being the list of
all workmen eligible to vote (now the 2nd list has to be approved
by the Union, if dispute then it will be settled by the Director General
-
The contents of thi table
is my own understanding and simplification
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