IR CONCEPT AND APPLICATION
The minimum wage is a basic salary, excluding any allowance or other payment. Salaries and Minimum Wage is defined under section 2 of the National Wages Consultative Council 2011. Income has the same meaning of salary in section 2 of the Employment Act 1955, the Sabah Labour Ordinance (Chapter 67) and the Labour Ordinance Sarawak (Chapter 76) while the minimum wage refers to the basic salary only, does not include any allowance or other payment.
A collective agreement is a written agreement with respect to all conditions of employment and working conditions formulated between employers, employer group, one or more employers or one or more unions of employers on the one hand, and one or more workers' representatives who are appointed or authorized by law national laws and regulations. Whereas section 2 of the Industrial Relations Act 1967 interpreting the collective agreement as a written agreement reached between the employer or trade union of employers on the one hand and the trade unions of workers in the other party in connection with the terms and conditions of employment and work worker a worker or relating to the relationship between the parties.
THE PARTIES TO THE COLLECTIVE AGREEMENT
An employee cannot make a collective agreement with the employer. Similar if the employee has established a group to make a collective agreement with the employer. A collective agreement is between trade unions and employers only or employers' trade union. Trade unions must be established and registered in accordance with the law. Trade Unions Act 1959 defines trade unions as organizations or coalitions of employees or employers in the workplace whether a particular occupation or industry or similar, either temporarily or permanently, intended to:
1. Promoting industrial relations improve working conditions, economic status, social or increase productivity.
2. Regulation of labor relations between workers and employers among fellow employers.
3. Representation in industrial disputes, disputes relating to managing, promoting, organizing or financing the strike or in any trade or industry or the provision of pay or other benefits for its members during a strike.
PROHIBITED ITEMS
Industrial Relations Act 1967 does not specify the matters that can be negotiated in collective bargaining. However there are some anchovy and conditions included in the draft of which is prohibited or suggestions to the collective agreement as it is the prerogative of management. These terms and conditions are:
1. The promotion by the employer against any employees of category or lower grade to grade category or higher.
2. The exchange of employees by employers in the profession, trade or employment, provided that any such change does not result in an adverse change in respect of the employee to the terms of his employment.
3. The appointment of any employee by the employer in the event of a vacancy in the organization.
4. Termination of service of the employee by the employer by reason of redundancy or reorganization of the profession, trade or employment or the employer's reasons for the termination.
5. Removal and reclamation of an employee by the employer.
6. Vesting or allocation of tasks or special tasks to the employee by the employer or appropriate in accordance with the terms of his employment.
TERMS OF COLLECTIVE AGREEMENT
Proposal or draft to collective bargaining has been agreed with the employer either through conciliation or the courts, a collective agreement shall comply with Section 14 (2) of the Industrial Relations Act 1967. The collective agreement shall provide for the terms of agreement:
a) Naming the parties to the agreement.
b) Noting that the effective period shall not be less than three years from the effective date of the agreement.
c) Establish procedures for modification and termination.
d) Unless the existing to set up under the provisions of the agreement between the parties involved resolving the dispute, establish procedures for coordinating the issues that may arise relating to the implementation or interpretation of the agreement and refer the question of the court for a decision.
A collective agreement shall be in writing and signed by the parties to the agreement or a person authorized on its behalf. Although in Section 14 (2) of the Industrial Relations Act provides that the period of force of collective agreement shall not exceed three years. But the agreement can be extended by court order. Trade unions must be on alert about the period of a collective agreement and do not let the agreement lapse of time because it would affect the right of employees to the terms and conditions of service. Preferably the collective agreement shall be renewed before it expires or held a new clause in the agreement.
FORMAT OF COLLECTIVE AGREEMENT
The Industrial Court has decided the format to be followed for each collective agreement through case Malayan Commercial Banks Association and the National Union of Bank Employers. This consists of a three part format, part 1 relating to the status requirements as set out in Section 14 of the Industrial Relations Act and Section 2 of the relationship between employers and trade unions. Meanwhile, part 3 includes the terms and conditions of service.
Part 3 is important to determine the terms and conditions of service of employees. Trade unions play a major role to include as many terms and conditions of employment are important. These terms and conditions are usually presented with precise and clear to avoid problem in the future. There are times when collective agreements are set out in two versions, namely the Malay language and English. Those questions from the interpretation of the terms and conditions can be solved easily. Terms or a condition of employment contained in the collective agreement that are less favorable or is in violation of the provisions of written law applicable to the employees is invalid. Part 3 of the collective agreement shall contain at least the terms and conditions of the following services in detail, namely:
a) Employees probation period
b) Promotion
c) The salaries or wages or adjustments and annual increases
d) The allowance or annual bonus
e) Future work
f) Sick leave
g) Treatment Hospital
h) Annual leave
i) Public holidays
j) Maternity leave
k) Annual leave
l) Leave for union business
m) Leave without pay
n) Courtesy Holidays
o) Break Hajj
p) The temporary or permanent loss of capacity
q) Free transportation and uniforms
r) Activities of trade unions
s) Group personal accident insurance and benefits SOCSO
t) Attendance in court
u) Loan from employer
v) Retirement benefits
w) Termination benefits and layoffs
x) Discipline and domestic investigations
y) The excess labor
z) Training
CERTIFICATE
A copy of the signed collective tracts to be submitted to the Registrar within one month from the date the agreement was made and the Registrar shall obtain a certificate and recognition of court. Pursuant to Section 16 (2) of the Industrial Relations Act, the court has the discretion to grant the certificate. Section 16 (2) to allocate that the court may upon its discretion:
1. Refuse to grant a certificate of collective agreements submitted under subsection (1) if it considers that the agreement does not comply with section 14.
2. Before granting recognition to the agreement requires any parts of the agreement that complies with the provisions of section 14 is amended as directed by the court
Meanwhile, section 16 (3) Industry Relations Act provides that if any of the parties involved in the agreement, failed to explain the directions of the court after being given a reasonable opportunity, the court may amend the collective agreement and a copy of the amended agreement shall be deemed to be a collective agreement between the parties concerned. Certification against the collective agreement is important because without a certificate it is not binding on the parties to the agreement, denying the right of workers to the terms and conditions of service.
EFFECTS OF COLLECTIVE AGREEMENT
Section 17 (1) of the Industrial Relations Act provides that a collective agreement which is certified by the court must be regarded as an award and binding on the parties in the agreement, including any case where a party is a trade union of employers, all members of a trade union the agreement relates and the successor, assignee or transferee them, and all the workers are employed or subsequently employed in the undertaking or part of the undertaking for which the agreement relates.
In addition, the collective agreement shall be an implied term service contracts between workers and employers for the force. All rates of wages and conditions of employment in collective agreements to be complied with unless the agreement is amended by a subsequent agreement or by court decision.
INTERPRETATION AND VARIATION OF COLLECTIVE AGREEMENT
Question as to the interpretation of a collective agreement can be referred to the court by any party bound by the agreement. The parties will be given a reasonable opportunity to be heard. Pursuant to Section 33 (2) of the Industrial relations, the Court has the power to change any terms of this agreement for the purposes of invalidity or uncertainties. Section 33 (2) provides that the court may on application by any party in order to change any terms of an award or agreement. If it thinks fit to do so for the purpose of avoiding invalidity or uncertainties.
COLLECTIVE AGREEMENTS ARE NOT COMPLIANCE
Trade union or parties bound by a collective agreement, is entitled to complain to the court if a collective agreement is not adhered to. The provisions of section 56 (1) of the Industrial Relations Act 1967 has declared that any complaint that any terms of any award or collective agreement that has been recognized by the court is not observed can be reported to the court in writing by any trade union or the person bound by an award or agreement. When the Industrial Court to make a judgment, it must act in accordance with equity, good conscience and the substantial merits of the case without considering the technical matters and the shape of the law. However, a question of law can still be referred to the High Court whose decision is final and cannot be challenged.
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