Industrial Relations 1 LAWS OF MALAYSIA REPRINT Act 177 INDUSTRIAL RELATIONS ACT 1967 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 Laws of Malaysia ACT 177 INDUSTRIAL RELATIONS ACT 1967 First enacted ... ... ... ... 1967 (Act No. 35 of 1967) Revised ... ... ... ... ... 1976 (Act 177 w.e.f. 1 September 1976) PREVIOUS REPRINT First Reprint ... ... ... ... ... 2002 Industrial Relations 3 LAWS OF MALAYSIA Act 177 INDUSTRIAL RELATIONS ACT 1967 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1.  Short title 2.  Interpretation 2A. Appointment of Director General for Industrial Relations PART II PROTECTION OF RIGHTS OF WORKMEN AND EMPLOYERS AND THEIR TRADE UNIONS 3. Expression "trade union" 4. Rights of workmen and employers 5. Prohibition on employers and their trade unions in respect of certain acts 6.  Leave on trade union business 7.  Prohibition on workmen and their trade unions in respect of certain acts 8.  Reference of complaint to Industrial Court 8A. Employer may provide information on collective bargaining and trade dispute to his workmen PART III RECOGNITION AND SCOPE OF REPRESENTATION OF TRADE UNIONS 9. Claim for recognition 10. Prohibition of strike, lock-out, picketing and termination of service pending recognition of a trade union 11. Trade unions accorded recognition 12. Trade unions not accorded recognition 4 Laws of Malaysia ACT 177 PART IV COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS Section 13. Collective bargaining 14. Collective Agreements 15. Restrictions on collective agreements in certain new undertakings 16. Deposit of collective agreements 17. Effect of collective agreement PART V CONCILIATION 18. Reference of disputes for conciliation 19. Information, documents and compulsory conference for conciliation 19A. The Minister may conciliate in any trade dispute 19B. Representation in conciliation proceedings PART VI REPRESENTATIONS ON DISMISSALS 20. Representations on dismissals PART VII INDUSTRIAL COURT 21. Industrial Court 22. Constitution of the Court 23. Divisions of the Court 23A. Qualification of President and Chairman of Industrial Court 24. Protection and immunity to members of the Court 25. Registrar and officers 26. Reference of trade disputes to the Court 27. Appearance and representation at proceedings before the Court 28. Power of President to regulate procedure and proceedings 29. Power of the Court 30. Awards 31. Agreement during proceeding Industrial Relations 5 Section 32. Effect of an award 33. Interpretation and variation of awards and agreements 33A. Reference to the High Court on a question of law 33B. Award, decision or order of the Court to be final and conclusive PART VIII INVESTIGATION AND INQUIRY 34. Investigation and Inquiry into trade disputes 35. Committee 36. Board 37. Reports PART IX TRADE DISPUTES, STRIKES AND LOCK-OUTS AND MATTERS ARISING THEREFROM 38. Pupils not to take part in trade disputes 39. Intimidation 40. Picketing 41. Breach of contract liable to injure person or property 42. Conspiracy in trade disputes 43. Restrictions on strikes and lock-outs in essential services 44. Prohibition of strikes and lock-outs 45. Illegal strikes and lock-outs 46. Penalty for illegal strikes and lock-outs 47. Penalty for instigation 48. Penalty for giving financial aid to illegal strikes and lock-outs 49. Protection of persons refusing to take part in illegal strikes or lock-outs 50. Offences seizable, and no bail to be granted 51. Prosecution of offences under this Part 6 Laws of Malaysia ACT 177 PART X MISCELLANEOUS Section 52. Application 53. Appointment of public officer 54. Exclusion of evidence as to certain matters 55. Secrecy 56. Non-compliance with award or collective agreement (Deleted) 57. 58. Contempt 59. Injuring a workman on account of certain acts 60. General penalties 61. Schedule 62. Regulations 63. Repeal and Savings SCHEDULE - Essential Services Industrial Relations 7 LAWS OF MALAYSIA Act 177 INDUSTRIAL RELATIONS ACT 1967 An Act to provide for the regulation of the relations between employers and workmen and their trade unions and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom. [7 August 1967] PART I PRELIMINARY Short title 1. (1) This Act may be cited as the Industrial Relations Act 1967. (2) (Omitted). Interpretation In this Act, unless the context otherwise requires-- 2. "award" means an award made by the Court in respect of any trade dispute or matter referred to it or any decision or order made by it under this Act; "Board" means the Board of Inquiry appointed under Part VIII; "Chairman" means the Chairman of a division of the Court constituted under section 23; "collective agreement" means an agreement in writing concluded between an employer or a trade union of employers on the one hand and a trade union of workmen on the other relating to the terms and conditions of employment and work of workmen or concerning relations between such parties; 8 Laws of Malaysia ACT 177 "collective bargaining" means negotiating with a view to the conclusion of a collective agreement; "Committee" means the Committee of Investigation appointed under Part VIII; "contract of employment" means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as a workman and that other agrees to serve his employer as a workman; "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; "Director General" means the Director General for Industrial Relations and includes any other officer acting on his behalf; "Director General of Trade Unions" means the Director General of Trade Unions appointed under section 3 of the Trade Unions Act 1959 [Act 262]; "Division" means a Division of the Court as constituted under section 23; "employer" means any person or body of persons, whether corporate or unincorporate, who employs a workman under a contract of employment, and includes the Government and any statutory authority, unless otherwise expressly stated in this Act; "essential service" means any service specified in the Schedule; "government" means the Federal Government or the Government of a State; "industry" means any business, trade, undertaking, manufacture o r calling of employers, and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen; "injury" includes injury to a person in respect of his business, occupation, employment or other source of income and any actionable wrong; Industrial Relations 9 "intimidate" means to cause in the mind of a person a reasonable apprehension of injury to him or to any member of his family or to any of his dependants, or of violence or damage to any person or property; "lock-out" means-- (a) the closing of a place of employment; or (b) the suspension of work; or (c) the refusal by an employer to continue to employ any number of workmen employed by him, in furtherance of a trade dispute, done with a view to compelling those workmen to accept terms or conditions of or affecting employment; "maliciously" means the doing of a wrongful act intentionally without just cause or excuse, whether or not in furtherance of a trade dispute; "officer of a trade union" means "officer" as defined under any written law relating to the registration of trade unions; "party", with reference to a trade dispute, means a trade union of workmen acting for all or any number of its members in the trade dispute, or an employer acting for himself in the trade dispute, or a trade union of employers acting for all or any number of its members in the trade dispute; "prescribed" means prescribed by regulations made under this Act; "President" means the President of the Court appointed under this Act; "public health service" means any medical or health service and includes any hospital, clinic, sanatorium or other related institution for the care of the sick or any system of public conservancy or sanitation; "Registrar" means the Registrar of the Court appointed under this Act and includes a Deputy Registrar and an Assistant Registrar; 10 Laws of Malaysia ACT 177 "statutory authority" means an authority or body established, appointed or constituted by any written law, and includes any local authority; "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; "trade dispute" means any dispute between an employer and his w o r k m e n which is connected with the employment or non-employment or the terms of employment or the conditions of work of any such workmen; "trade union" means any trade union registered under any law relating to the registration of trade unions; "workman" means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute. Appointment of Director General for Industrial Relations 2A. (1) The Yang di-Pertuan Agong shall appoint a Director General for Industrial Relations who shall have the general direction, control, and supervision of all matters relating to industrial relations. (2) The Yang di-Pertuan Agong may appoint a Deputy Director General for Industrial Relations, and such number of Directors of Industrial Relations, Assistant Directors of Industrial Relations, and Industrial Relations Officers as he considers necessary or expedient for the purposes of carrying out and giving effect to the provisions of this Act. Industrial Relations 11 (3) The Director General shall, in addition to the powers, duties and functions conferred on him under this Act, exercise such other powers, discharge such other duties and perform such other functions as may be necessary or expedient for the purposes of carrying out and giving effect to the provisions of this Act. PART II PROTECTION OF RIGHTS OF WORKMEN AND EMPLOYERS AND THEIR TRADE UNIONS Expression "trade union" 3.  For the purposes of this Part, the expression "trade union" includes an association that has applied to be registered as a trade union. Rights of workmen and employers 4. (1) No person shall interfere with, restrain or coerce a workman or an employer in the exercise of his rights to form and assist in the formation of and join a trade union and to participate in its lawful activities. (2) No trade union of workmen and no trade union of employers shall interfere with each other in the establishment, functioning or administration of that trade union. (3) No employer or trade union of employers and no person acting on behalf of such employer or such trade union shall support any trade union of workmen by financial or other means, with the object of placing it under the control or influence of such employer or such trade union of employers. Prohibition on employers and their trade unions in respect of certain acts 5. (1) No employer or trade union of employers, and no person acting on behalf of an employer or such trade union shall-- (a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to the contract to join a trade union, or to continue his membership in a trade union; 12 Laws of Malaysia ACT 177 (b) refuse to employ any person on the ground that he is or is not a member or an officer of a trade union; (c) discriminate against any person in regard to employment, promotion, any condition of employment or working conditions on the ground that he is or is not a member or officer of a trade union; (d) dismiss or threaten to dismiss a workman, injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice by reason that the workman-- (i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or (ii) participates in the promotion, formation or activities of a trade union; or (e) induce a person to refrain from becoming or to cease to be a member or officer of a trade union by conferring or offering to confer any advantage on or by procuring or offering to procure any advantage for any person. (2) Subsection (1) shall not be deemed to preclude an employer from-- (a) refusing to employ a person for proper cause, or not promoting a workman for proper cause, or suspending, transferring, laying-off or discharging a workman for proper cause; (b) requring at any time that a person who is or has been appointed or promoted to a managerial position shall cease to be or not become a member or officer of a trade union catering for workmen other than those in a managerial position; or (c) requiring that any workman employed in confidential capacity in matters relating to staff relations shall cease to be or not become a member or officer of a trade union. Industrial Relations 13 Leave on trade union business 6.  A workman intending to carry out his duties or to exercise his rights as an officer of a trade union shall apply in writing to his employer for leave of absence stating the durations of and the purposes for which such leave is applied for and the employer shall grant the application for leave if the duration of the leave applied for is for a period that is no longer than what is reasonably required for the purposes stated in the application: Provided that a workman shall not be entitled to leave with pay for the duration of his absence if the purposes for which he is absent from work are not to represent the members of his trade union in relation to industrial matters concerning his employer. Prohibition on workmen and their trade unions in respect of certain acts 7.  No workman or trade union of workmen and no person acting on behalf of such trade union shall-- (a) except with the consent of the employer, persuade at the employer's place of business during working hours a workman of the employer to join or refrain from joining a trade union: Provided that this paragraph shall not be deemed to apply to any act by a workman employed in the same undertaking where the act does not interfere with his normal duties; (b) intimidate any person to become or refrain from becoming or to continue to be or to cease to be a member or officer of a trade union; or (c) induce any person to refrain from becoming or cease to be a member or officer of a trade union by conferring or offering to confer on any person or by procuring or offering to procure any advantage. Reference of complaint to Industrial Court 8. (1) Any complaint of any contravention of section 4, 5, or 7 may be lodged in writing to the Director General setting out all the facts and circumstances constituting the complaint. 14 Laws of Malaysia ACT 177 (2) The Director General upon receiving any complaint under subsection (1) may take such steps or make such enquiries as he considers necessary or expedient to resolve the complaint; where the complaint is not resolved the Director General shall notify the Minister. (2A) Upon receipt of a notification under subsection (2), the Minister may, if he thinks fit, refer the complaint to the Court for hearing. (3) The Court shall thereupon conduct a hearing in accordance with this Act and may make such award as may be deemed necessary or appropriate. (4) This section shall not apply in circumstances where there is a contravention of section 59 and proceedings have been commenced before a court in respect of an offence under subsection 59(1); where, while proceedings are pending under this section, proceedings arising out of the same circumstances are commenced before a court in respect of an offence under subsection 59(1), the proceedings under this section shall not be proceeded with further. Employer may provide information on collective bargaining and trade dispute to his workmen 8A.  Nothing in this Act shall be construed as preventing an employer from conveying to his workmen, in such manner as he may deem appropriate, any information on any matter pertaining to any collective bargaining or trade dispute involving such workmen and the trade union acting for them. PART III RECOGNITION AND SCOPE OF REPRESENTATION OF TRADE UNIONS Claim for recognition * 9 . ( 1 ) N o 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; *NOTE--The amendments made to this section by section 9 of Act A484 came into force on 15-09-1980, vide P.U. (B) 452/1980. Industrial Relations 15 (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 abovementioned 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. (2) 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 (c) apply to the Director General to ascertain whether the workmen in respect of whom recognition is being sought are members of the trade union of workmen concerned and give a written notice of such application to such trade union of workmen. (4) Where the trade union of workmen concerned receives a notification under paragraph (3)(b), or where the employer or t r a d e union of employers concerned fails to comply with subsection (3), the trade union of workmen may report the matter in writing to the Director General. (4A) The Director General, upon receipt of a reference under subsection (1A), or an application under paragraph (3)(c), or a report under subsection (4) may take such steps or make such enquiries as he may consider necessary or expedient to resolve the matter. 16 Laws of Malaysia ACT 177 (4  B ) F o r the purpose of carrying out his functions under subsection (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; and (b) may refer to the Director General of Trade Unions for his decision any question on 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. (4C) Where the matter is not resolved 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; a decision of the Minister under this subsection may include a decision as to who are workmen employed in a managerial, executive, confidential or security capacity. (6) A decision of the Minister under subsection (5) shall be final and shall not be questioned in any court. Prohibition of strike, lock-out, picketing and termination of service pending recognition of a trade union 10. (1) No workman shall go on strike or do anything which is rendered lawful by virtue of the proviso to subsection 40(1) for whatever reason during the pendency of proceedings under section 9, or after the decision of the Minister thereunder by reason of any dissatisfaction with such decision. Industrial Relations 17 (2) No employer shall declare a lock-out or terminate the services of a workman once a trade union of workmen has served on the employer or a trade union of employers to which the employer belongs a claim for recognition under subsection 9(2) in respect of workmen or a class of workmen: Provided that this restriction shall not apply-- (a) where a dismissal is effected on disciplinary grounds; or (b) where the claim for recognition has been resolved under subsection 9(4A) or where a decision thereon has been made by the Minister under subsection 9(5). (3) For the purpose of subsection (2) "lock-out" includes-- (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, effected during the pendency of proceedings under section 9. Trade unions accorded recognition 11.  Where a trade union has been accorded recognition in respect of any workman or class of workmen whether by a decision of the Minister or otherwise no other trade union shall make any claim for recognition in respect of the same workman or class of workmen unless a period of three years has elapsed after such recognition has been accorded or the trade union which has been accorded recognition is no longer in existence. Trade unions not accorded recognition 12.  Where a claim for recognition under subsection 9(2) is resolved under subsection 9(4A), or where a decision thereon has been made by the Minister under subsection 9(5), resulting in the trade union of workmen concerned not being accorded recognition, such trade union shall not make any further claim for recognition until six months have elapsed from the date of such resolution or decision. 18 Laws of Malaysia ACT 177 PART IV COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS Collective bargaining 13. (1) Where a trade union of workmen has been accorded recognition by an employer or a trade union of employers-- (a) the trade union of workmen may invite the employer or t r a d e union of employers to commence collective bargaining; or (b) the employer or the trade union of employers may invite the trade union of workmen to commence collective bargaining. (2) The invitation under subsection (1) shall be in writing and shall set out the proposals for a collective agreement. (3) Notwithstanding subsection (1), no trade union of workmen may include in its proposals for a collective agreement a proposal in relation to any of the following matters, that is to say-- (a) the promotion by an employer of any workman from a lower grade or category to a higher grade or category; (b) the transfer by an employer of a workman within the organization of an employer's profession, business, trade or work, provided that such transfer does not entail a change to the detriment of a workman in regard to his terms of employment; (c) the employment by an employer of any person that he may appoint in the event of a vacancy arising in his establishment; (d) the termination by an employer of the services of a workman by reason of redundancy or by reason of the reorganization of an employer's profession, business, trade or work or the criteria for such termination; (e) the dismissal and reinstatement of a workman by an employer; Industrial Relations 19 (f) the assignment or allocation by an employer of duties or specific tasks to a workman that are consistent or compatible with the terms of his employment: Provided that nothing in this subsection shall prohibit a trade union of workmen to raise in the course of any discussion with an employer or trade union of employers (whether or not the discussion is in the course of any collective bargaining) questions of a general character relating to the procedures of promotion of workmen notwithstanding that such questions do not form part of the proposals aforesaid. (4) The employer, trade union of employers or trade union of workmen to whom invitation under subsection (1) has been made shall, within fourteen days from the receipt of the invitation, reply in writing to the party who has made the invitation notifying acceptance or otherwise of the invitation. (5) Where an invitation to commence collective bargaining has been made and a reply notifying acceptance has been given the parties shall commence collective bargaining within thirty days from the date of receipt of the reply notifying acceptance of the invitation. (6) Where an invitation to commence collective bargaining has been made and the invitation has been refused or not been accepted within fourteen days, or where no collective bargaining has commenced within thirty days from the date of receipt of the reply notifying acceptance of such invitation, the party making the invitation may notify the Director General in writing, whereupon the Director General may take such steps as may be necessary or expedient with a view to bringing the parties to commence collective bargaining without undue delay. (7) If after such steps, as aforesaid, have been taken, there is still refusal to commence collective bargaining, a trade dispute shall be deemed to exist upon the matters set out in the invitation. (8) Where a trade union of workmen considers that an employer or a trade union of employers has refused to allow without just cause or excuse any question referred to under the proviso to subsection (3) to be raised in the course of any discussion, the trade union of workmen may, within one month of such refusal, make representations in writing to the Minister who may, before 20 Laws of Malaysia ACT 177 giving any direction thereon, give an opportunity to the employer or his trade union and the trade union of workmen to be heard; and the direction of the Minister shall be final and conclusive. Collective Agreements 14. (1) A collective agreement shall be in writing and signed by the parties to the agreement or by persons authorized in that behalf. (2) A collective agreement shall set out the terms of the agreement and shall, where appropriate-- (a) name the parties thereto; (b) specify the period it shall continue in force which shall not be less than three years from the date of commencement of the agreement; (c) prescribe the procedure for its modification and termination; and (d) unless there exists appropriate machinery established by virtue of an agreement between the parties for the settlement of disputes, prescribe the procedure for the adjustment of any question that may arise as to the implementation or interpretation of the agreement and reference of any such question to the Court for a decision. (3) Any term or condition of employment, contained in a collective agreement, which is less favourable than or in contravention of the provisions of any written law applicable to workmen covered by the said collective agreement, shall be void and of no effect to that extent and the provisions of such written law shall be substituted therefor. Restrictions on collective agreements in certain new under- takings 15. (1) No collective agreement to which this section applies shall contain provisions with regard to terms and conditions of service that are more favourable to workmen than those contained in Part XII of the Employment Act 1955 [Act 265] unless the provisions are approved by the Minister after considering any representations in that regard made by an employer and a trade union representing his workmen: Provided that the Minister may amend or modify the provisions before approving them. Industrial Relations 21 (2) This section applies to collective agreements made between an employer and a trade union representing his workmen in respect of, or in relation to-- (a) a pioneer company which has been granted pioneer status under section 6 of the Promotion of Investments Act 1986 [Act 327]; (b) any other industry in respect of which the Minister may by notification in the Gazette declare that this section shall apply. ( 3 ) T h i s section shall apply to industries specified in subsection (2) for a period of five years from the date such industries commence, or have commenced, operation in Malaysia: Provided that the Minister may from time to time by notification in the Gazette extend the period for such further period or periods as the Minister may decide. Deposit of collective agreements 16. (1) A signed copy of the collective agreement shall be jointly deposited by the parties with the Registrar within one month from the date on which the agreement has been entered into and the Registrar shall thereupon bring it to the notice of the Court for its cognizance. (2) The Court may in its discretion-- (a) refuse to take cognizance of the collective agreement deposited under subsection (1) if it is of the opinion that the agreement does not comply with section 14; or (b) before taking cognizance of the collective agreement deposited under subsection (1), require that such part thereof as does not comply with section 14 shall be amended in such manner as the Court may direct. (3) If any party to the collective agreement fails to carry out such direction the Court may, notwithstanding any other power exercisable under this Act, amend the copy of the collective agreement in the manner directed after giving the parties a reasonable opportunity of being heard and the agreement so amended shall be deemed to be the collective agreement between the parties. 22 Laws of Malaysia ACT 177 (4) (Omitted). (5) Except in the case provided under subsection (2) or (3), the powers of the Court under this section may be exercised by the President sitting alone or, in the case of a Division, by the Chairman sitting alone. Effect of collective agreement 17. (1) A collective agreement which has been taken cognizance of by the Court shall be deemed to be an award and shall be binding on-- (a) the parties to the agreement including in any case where a party is a trade union of employers, all members of the trade union to whom the agreement relates and their successors, assignees or transferees; and (b) all workmen who are employed or subsequently employed in the undertaking or part of the undertaking to which the agreement relates. (2) As from such date and for such period as may be specified in the collective agreement it shall be an implied term of the contract between the workmen and employers bound by the agreement that the rates of wages to be paid and the conditions of employment to be observed under the contract shall be in accordance with the agreement unless varied by a subsequent agreement or a decision of the Court. PART V CONCILIATION Reference of disputes for conciliation 18. (1) Where a trade dispute exists or is apprehended, that dispute, i f 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. Industrial Relations 23 (2) The Director General shall consider any dispute reported to him under subsection (1) and take such steps as may be necessary or expedient for promoting an expeditious settlement thereof: Provided that where the dispute relates to the dismissal of a workman, section 20 shall apply. (3) Where a trade dispute exists or is apprehended, which in his opinion is not likely to be settled by negotiation between the parties, the Director General may, if he deems it necessary in the public interest, take such steps as may be necessary or expedient for promoting a settlement thereof whether or not the trade dispute has been reported to him. ( 4 ) T h e steps taken by the Director General under s u b s e c t i o n (2) or (3) shall include reference of the dispute f o r settlement to any appropriate machinery which already exists by virtue of an agreement between or applicable to the parties to the dispute, unless-- (a) the dispute has already been referred to such machinery and there has been a failure to reach a settlement; or (b) in his opinion it is unlikely that the dispute will be promptly settled through such machinery. (5) Where, after having taken the steps under subsection (2) or (3), the Director General is satisfied that there is no likelihood of the trade dispute being settled, he shall notify the Minister accordingly. Information, documents and compulsory conference for conciliation 19. (1) Where a trade dispute has been reported to the Director General under subsection 18(1) or where the Director General has taken steps under subsection (3) of that section, the party reporting the dispute and, if directed to do so by the Director General, the other party shall furnish to the Director General within such period as may be specified in the direction all the necessary information relating to the matters in dispute, together with, wherever possible and appropriate, an agreed statement setting out the points, if any, on which they have already reached agreement and the points on which there is still disagreement. 24 Laws of Malaysia ACT 177 (2) The Director General may, if he deems it necessary or expedient, direct any person engaged in or connected directly or indirectly with the trade dispute in respect of which steps have been taken under section 18 to attend a conference to be presided over by the Director General or such person as he may appoint at such time and place as may be specified in the direction. The Minister may conciliate in any trade dispute 19A.  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. Representation in conciliation proceedings 19B. (1) In any conciliation proceedings under this Part-- (a) an employer who is a party to the trade dispute may represent himself or be represented by his duly authorized employee, or, where he is a member of a trade union of employers be represented by an officer or employee of such trade union of employers, or, notwithstanding anything to the contrary contained in any written law relating to the registration of trade unions, by any official of an organization of employers registered in Malaysia (not being a trade union of employers); (b) a trade union of workmen which is a party to the trade dispute may be represented by an officer or employee of such trade union, or, notwithstanding anything to the contrary contained in any written law relating to the r e g i s t r a t i o n of trade unions, by any official of an organization of workmen registered in Malaysia (not being a trade union of workmen). (2) Save as provided in subsection (1), a party to a trade dispute shall not, in any conciliation proceedings under this Part, be represented by an advocate, adviser, consultant or by any other person whatsoever. Industrial Relations 25 PART VI REPRESENTATIONS ON DISMISSALS Representations on dismissals 20. (1) Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed. (1A) The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal: Provided that where a workman is dismissed with notice he may file a representation at any time during the period of such notice but not later than sixty days from the expiry thereof. (2) Upon receipt of the representations the Director General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at; where the Director General is satisfied that there is no likelihood of the representations being settled, he shall notify the Minister accordingly. (3) Upon receiving the notification of the Director General under s u b s e c t i o n (2), the Minister may, if he thinks fit, refer the representations to the Court for an award. (4) Where an award has been made under subsection (3), the award shall operate as a bar to any action for damages by the workman in any court in respect of wrongful dismissal. (5) This section shall not apply to the dismissal of a workman in circumstances arising out of a contravention of section 59 where proceedings have been commenced before a court in respect of an offence under subsection 59(1); where, while proceedings are pending under this section, proceedings arising out of the same dismissal are commenced before a court in respect of an offence under subsection 59(1), the proceedings under this section shall not be proceeded with further. 26 Laws of Malaysia ACT 177 (6) In any proceedings under subsection (2)-- (a) an employer may represent himself or be represented by his duly authorized employee or, where he is a member of a trade union of employers, be represented by an officer or employee of such trade union of employers or, notwithstanding anything to the contrary contained in any written law relating to the registration of trade unions, by any official of an organization of employers registered in Malaysia (not being a trade union of employers); (b) a workman may represent himself or, where he is a member of a trade union of workmen, be represented by an officer o r employee of such trade union of workmen or, notwithstanding anything to the contrary contained in any written law relating to the registration of trade unions, by any official of an organization of workmen registered in Malaysia (not being a trade union of workmen). (7) Save as provided in subsection (6), a workman or employer shall not be represented by an advocate, adviser, consultant or by any other person whatsoever. (8) For the purpose of carrying out his functions under this section the Director General-- (a) shall have the power to direct either party to furnish to him, within such period as may be specified in that direction, such information as he may consider necessary or relevant; and (b) may, if he deems it necessary or expedient, direct any person engaged in or connected directly or indirectly with the dismissals to attend a conference to be presided over by the Director General or such person as he may appoint at such time and place as may be specified in the direction. PART VII INDUSTRIAL COURT Industrial Court 21. (1) For the purposes of this Act, there shall be an Industrial Court which shall consist of-- (a) a President who shall be appointed by the Yang di-Pertuan Agong; and Industrial Relations 27 (b) a panel of persons representing employers and a panel of persons representing workmen all of whom shall be appointed by the Minister: Provided that before appointing the panels the Minister may consult such organizations representing employers and workmen respectively as he may think fit. (2) During the absence of or inability to act from illness or any other cause by the President, the Yang di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the President and, notwithstanding that the President may have resumed the duties of his office, the person so appointed may continue to exercise the powers or perform the functions for the purpose of completing the hearing of and determining any trade dispute or matter commenced before him. (3) The appointments made in subsections (1) and (2) shall be published in the Gazette and shall specify, if any, the terms and conditions upon which they are made. (4) The Minister shall remove from a panel referred to in paragraph (1)(b) a person who has declined to constitute the Court when selected to do so, or has absented himself, when selected, from the proceedings of the Court, unless he has shown reasonable cause for so declining or absenting himself; and the Minister may at any time without assigning any reason therefor revoke the appointment of any person to such panel. Constitution of the Court 22. (1) 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). (2) If any member other than the President is unable to attend or continue to attend any proceedings of the Court or ceases to be a member, the President may select another member from the appropriate panel to fill the vacancy. (3) The Court may with the consent of the parties to the dispute act notwithstanding any vacancy in its number or in the absence of any member other than the President from any hearing or any part thereof and no act, proceeding or award of the Court shall be called in question or invalidated by reason of any such vacancy or absence. 28 Laws of Malaysia ACT 177 (4) Any member of the Court constituted under this section whose appointment expires during the proceedings of the Court shall for the purpose of the proceedings continue to be a member of the Court and the term of his appointment shall be deemed to have been extended until the final disposal of the trade dispute or matter. (5) Notwithstanding the foregoing subsections, for the purpose of dealing with any reference to the Court under subsection 20(3), the Court may be constituted by the President sitting alone. Divisions of the Court 23. (1) The Court may sit in two or more Divisions with the same or different Chairman. (2) The Yang di-Pertuan Agong may by notification in the Gazette appoint any person to be a Chairman of any Division of the Court. (3) Any Division shall be constituted of a Chairman and two members selected by the President, one from each of the panels specified in subsection 21(1). (4) Notwithstanding the foregoing subsections, for the purpose of dealing with any reference to the Court under subsection 20(3), a Division may be constituted by the Chairman sitting alone. (5) The Court may, with the consent of the parties to the dispute, act notwithstanding any vacancy in its number or in the absence of any member other than the Chairman from any hearing or any part thereof and no act, proceeding or award of the Court shall be called in question or be invalidated by reason of any such vacancy or absence. (6) During the absence of or inability to act from illness or any other cause by the Chairman, the Yang di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman and, notwithstanding that the Chairman may have resumed the duties of his office, the person so appointed may continue to exercise the powers or perform the functions for the purpose of completing the hearing of and determining any trade dispute or matter commenced before him. Industrial Relations 29 Qualification of President and Chairman of Industrial Court 23A. (1) 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 an advocate and solicitor within the meaning of the Legal Profession Act 1976 [Act 166] or 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. (2) Any person who, immediately before the commencement of this section, is a President appointed under paragraph 21(1)(a) or a Chairman appointed under subsection 23(2) but is disqualified from being a President or Chairman by virtue of this section, may continue to remain as President or Chairman until the expiry of his term of appointment. Protection and immunity to members of the Court 24. (1) Every person appointed under sections 21 and 23, in the performance of his duties and functions, shall be deemed to be a public servant within the meaning of the Penal Code [Act 574]. (2) Notwithstanding anything to the contrary in any written law, no member of the Court shall be compelled by any court to appear as a witness or party in any proceedings before that Court in relation to any act, matter or thing performed by him as a member of the Court under this Act. Registrar and officers 25. (1) There shall be appointed a Registrar, a Deputy Registrar and such number of Assistant Registrars, of the Court and other officers and staff as may from time to time be considered necessary or expedient for the purposes of this Act. (2) The duties of the Registrar, Deputy Registrar, Assistant Registrars, and other officers and staff of the Court shall, subject to this Act and the rules made thereunder, be as the President directs. 30 Laws of Malaysia ACT 177 Reference of trade disputes to the Court 26. (1) Where a trade dispute exists or is apprehended, the Minister may, if that dispute is not otherwise resolved, refer the dispute to the Court on the joint request in writing to the Minister by the trade union of workmen which is a party to the dispute and the employer who is a party to the dispute or a trade union of employers which is a party to the dispute. (2) The Minister may of his own motion or upon receiving the notification of the Director General under subsection 18(5) refer any trade dispute to the Court if he is satisfied that it is expedient so to do: Provided that in the case of a trade dispute in any Government service or in the service of any statutory authority, reference shall not be made except with the consent of the Yang di-Pertuan Agong or State Authority as the case may require. (3) If there exists in any industry any arrangement for the settlement of trade disputes, made in pursuance of an agreement between an employer or a trade union of employers and a trade union of workmen, the Minister shall not refer the trade dispute to the Court in accordance with subsections (1) and (2) unless there has been a failure to obtain a settlement by means of those arrangements or in his opinion it is unlikely that the dispute will be expeditiously settled through such arrangements. Appearance and representation at proceedings before the Court 27. (1) In any proceedings before the Court a party may-- (a) where the party is a trade union, be represented by an officer or employee of the trade union; (b) where the party is an employer, appear himself personally or be represented by his duly authorized employee, or by an officer or employee of a trade union of employers of which he is a member; (c) where the party is a workman (in proceedings under subsection 20(3)), appear himself personally or where he is a member of a trade union of workmen, be represented by an officer or employee of the trade union; Industrial Relations 31 (d) where the party is a trade union, or an employer, or a workman (in proceedings under subsection 20(3)), be represented with the permission of the President or the Chairman, by an advocate, or, notwithstanding anything to the contrary contained in any written law relating to the registration of trade unions, by any official of an organization (not being a trade union) of employers or of workmen, as the case may be, registered in Malaysia. (2) If any question arises before the Court as to whether the person representing a party under subsection (1) is-- (a) an officer or employee of the trade union which he represents; (b) a duly authorized employee of the employer whom he represents; or (c) an official of a registered organization mentioned in paragraph (1)(d), the question shall be determined by the President or the Chairman, whose decision thereon shall be final. Power of President to regulate procedure and proceedings 28.  Save as otherwise expressly herein provided and subject to any regulations that may be made in that behalf, the President may regulate the procedure and proceedings of the Court as he thinks fit and, with the approval of the Minister, make rules governing such procedure and proceedings. Power of the Court The Court may, in any proceedings before it-- 29. (a) order that any party be joined, substituted or struck off; (b) summon before it the parties to any such proceedings and any other person who in its opinion is connected with the proceedings; (c) take evidence on oath or affirmation and compel the production before it of books, papers, documents and things; 32 Laws of Malaysia ACT 177 (d) hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as may be prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear; (e) conduct its proceedings or any part thereof in private; (f) after consultation with the Minister, call in the aid of one or more experts; and (g) generally direct and do all such things as are necessary or expedient for the expeditious determination of the matter before it. Awards 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. (2) Where the Court is not unanimous on any question or matter to be determined, a decision shall be taken by a majority of members and, if there is no majority decision, by the President or Chairman. (3) The Court shall make its award without delay and where practicable within thirty days from the date of reference to it of the trade dispute or of a reference to it under subsection 20(3). (4) In making its award in respect of a trade dispute, the Court shall have regard to the public interest, the financial implications and the effect of the award on the economy of the country, and on the industry concerned, and also to the probable effect in related or similar industries. (5) The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. (5A) In making its award, the Court may take into consideration any agreement or code relating to employment practices between organizations representative of employers and workmen respectively where such agreement or code has been approved by the Minister. Industrial Relations 33 (6) In making its award, the Court shall not be restricted to the specific relief claimed by the parties or to the demands made by the parties in the course of the trade dispute or in the matter of the reference to it under subsection 20(3) but may include in the award any matter or thing which it thinks necessary or expedient for the purpose of settling the trade dispute or the reference to it under subsection 20(3). (7) An award may specify the period during which it shall continue in force, and may be retrospective to such date as is specified in the award: Provided that the retrospective date of the award may not, except in the case of a decision of the Court under section 33 or an order of the Court under paragraph 56(2)(c) or an award of the Court for the reinstatement of a workman on a reference to it in respect of the dismissal of a workman, be earlier than six months from the date on which the dispute was referred to the Court. (8) The award of the Court shall be signed by the President or the Chairman of any Division or in the event of the President or the Chairman for any reason being unable to sign the award by the remaining members. (9) The Court may rectify in any award any clerical error or mistake arising from any accidental slip or omission. Agreement during proceeding 31.  In the event of an agreement being reached during the proceedings before the Court, the Court in making its award may, subject to this Act, have regard to the terms of the agreement; and in the event of an agreement being reached before the Court commences its proceedings, the Court may be constituted by the President or Chairman sitting alone for the purpose of recording the terms of such agreement. Effect of an award 32. (1) Any award made by the Court under this Act shall be binding on-- (a) all parties to the dispute or the reference to the Court under subsection 20(3) appearing or represented before the Court and all parties joined or substituted or summoned to appear or be represented before the Court as parties t o the dispute or the reference to the Court under subsection 20(3); 34 Laws of Malaysia ACT 177 (b) any successor, assignee or transferee of any employer or trade union of employers and any successor to any trade union of workmen which is a party to the dispute as aforesaid; (c) all workmen who were employed in the undertaking or part of the undertaking to which the dispute relates on the date of the dispute and all workmen who subsequently became employed in that undertaking or part thereof; and (d) all members of a trade union of employers to whom the dispute relates and to which dispute the trade union is a party and the successors, assignees or transferees of such members. (2) As from the date of the award or as from such date and for such period as may be specified therein, it shall be an implied term of the contract between the workmen and employers bound by the award that the rates of wages to be paid and the conditions of employment to be observed under the contract shall be in accordance with the award or decision unless varied by a subsequent award or agreement between the parties. (3) (Deleted by Act A484). Interpretation and variation of awards and agreements 33. (1) If any question arises as to the interpretation of any award or collective agreement taken cognizance of by the Court, the Minister may refer the question, or any party bound by the award or agreement may apply, to the Court for a decision on the question. (2) The Court may, upon the application of any party, by order vary any of the terms of an award or agreement if it considers it desirable so to do for the purpose solely of removing ambiguity or uncertainty. (3) The parties bound by the award or agreement shall be afforded a reasonable opportunity of being heard. (4) The decision of the Court shall be binding in the same manner as the original award or agreement. Industrial Relations 35 (5) The