The Trade Unions (Amendment) Bill 2022 (“2022 Bill”) was first passed at the Dewan Rakyat on 5 October 2022. However, the 2022 Bill was never passed in Dewan Negara because of the dissolution of Parliament on 10 October 2022.
The 2022 Bill was then further refined into the Trade Unions (Amendment) Bill 2023 (“2023 Bill”) and was passed again in Dewan Rakyat on 10 October 2023 and in the Dewan Negara on 28 November 2023.
Some of the key proposed amendments in the 2023 Bill are:
Multiplicity of trade unions
The main objective of the 2023 Bill is to remove the restrictions on the formation of trade unions within a particular establishment, trade, occupation, or industry. The 2023 Bill will now allow multiplicity of trade unions.
Limitation of the Director General’s power to refuse the registration of a trade union
The amendments seek to limit the earlier broader grounds which the Director General can refuse the registration of the trade union.
Under the 2023 Bill, the Director General can refuse registration where the objects, rules and constitution of the trade union would conflict with any provision of the Trade Unions Act 1959 (“Act”) or its regulations, where the name which the trade union is to be registered is identical to that of existing trade union or if it would “promote feelings of ill-will and hostility between different races, religions or nationalities”.
The amendments also require the Director General to inform the trade union in writing of his refusal and the grounds for such refusal.
Lower threshold requirement to organise a strike or declare a lock-out
Currently, strikes and lock-outs can be carried out with the consent of at least two-thirds of its it total number of members who are entitled to vote in a secret ballot.
With the amendments, threshold has been lowered to at least “more than one-half of at least 60% of its total number of members entitled to vote”.
The amendments also specified that workmen who has been dismissed, discharged, retrenched or has retired shall not be entitled to vote on strike and all related matters.
Minimum membership age lowered from 16 to 15
In line with the Children and Young Persons (Employment) Act 1966, the 2023 Bill proposed to lower the minimum membership age from 16 to 15.
Liability of the president, secretary or treasurer of the trade union
The 2023 Bill introduced a new section which provides for the liability of the president, secretary, treasurer or other officer of a trade union or person purporting to act on the instructions of such personnels, for offences committed by the trade union.
Additional enforcement powers of the Director General
5 new sections (ss 63A, 63B, 63C, 63D and 63E) were introduced to empower the Director General to carry out investigation and enforcement under the Act and the regulations made under it. A summary of the new powers:
- S63A: powers to conduct investigation and enforce any provisions of the Act and its regulations.
- S63B: powers to appoint such number of enforcement officers from the officers appointed under s4 of the Act to perform investigative and enforcement duties.
- S63C: powers to compel the attendance of witnesses for examination to assist with the investigation of the offences under the Act.
- S63D: powers to require the production or articles or documents for inspection or for other purposes necessary for the investigation.
- S63E: powers to seize any article or document in carrying out the investigation.
Automatic stay of execution
Amendment to s71A seeks to introduce an automatic stay of execution of the Director General’s decision whenever there is an appeal relating to the cancellation or withdrawal of certificate of registration of a trade union.
Conclusion
The amendment permitting multiple trade unions within a specific establishment or industry has ignited significant controversy. The unrestrained multiplicity of trade unions could lead to: (i) heightened time and financial burdens for companies engaged in union matters and collective bargaining; (ii) inter-union rivalries; and (iii) a potential weakening of overall union bargaining power.
However, this shift also presents a contrasting viewpoint: heightened union competition may positively impact the workforce’s welfare by empowering workers to align with unions that best represent their interests. Presently, the establishment of a single union, if indirectly influenced by employers, can monopolize the workplace and prevent the formation of other unions. This amendment could discourage the creation of such monopolistic entities.
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This article was written by Sabrina Chang (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.
