Recognised trade unions under the Industrial Relations Act 1967 ought to be given due regard by employers in workplace matters. However, it is not so straightforward when such trade unions are in the process of seeking recognition, or when trade unions who do not have recognition are seeking to expand their influence in the workplace.
Union Busting and Union Avoidance
Union busting is where an employer takes steps to disrupt or weaken the power of trade unions to grow their membership in a workplace. Union avoidance is where companies adopt certain methods to keep unions out of the workplace.
Under sections 4 and 5 of the Industrial Relations Act 1967, employers are prohibited from carrying out these activities:
- Interfering, restraining, or coercing a workman 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;
- Interfering with the establishment, functioning or administration of the trade union;
- Supporting any trade union by financial or other means, with the object of placing it under the control or influence of such employer;
- Discriminating any person on the ground that he is or is not a member or an officer of a trade union, including but not limited to refusal of employment, promotion, any condition of employment or working condition;
- Dismiss or threatening to dismiss, injure or alter the workman’s position to his prejudice, by reason that the workman is proposing or seeking to persuade others to join the trade union or participating in the formation, promotion, or activities of a trade union;
- Impose any condition in an employment contract to restrain employee from joining a trade union or to continue such membership; and
- Inducing a person to refrain from or cease being a trade union member or officer by offering any advantage to the said person.
In Ladang Segaria Sdn Bhd v Napsie Ak Ngalit [1995] 2 ILR 764, the claimant was a union member that approached the management about the grievances of a co-worker. At that time, the union was not recognised by the company and was in the midst of recognition negotiations.
The claimant was dismissed on the basis that he was carrying out illegal union activity and that he did not follow the grievance procedure.
In holding that the claimant’s dismissal was unfair, the Industrial Court held:
- The recognition of a lawfully registered union under the Industrial Relations Act 1967 confers upon the union the right to require an employer to enter into negotiations for a collective agreement. It does not mean pending such negotiations, the union or any of its officials are prohibited from engaging in any of its legitimate activities.
- The mere act of the approaching management about the grievances of a co-worker does not constitute misconduct.
- Clause 27 of the Code of Conduct for Industrial Harmony explicitly recommends that even if a trade union has not secured recognition from the employer for negotiating rights, an employer should still be prepared to consider receiving representations from the union on behalf of its members about grievances or other matters which can be settled on an individual basis.
- The dominant purpose of the employer’s action was to rid itself of the claimant who was a union official, and also to undermine the union that was seeking for recognition under the Industrial Relations Act 1967 at that material time.
- The employer’s actions amounted to a victimisation of the claimant for his union activities. This amounted to a breach of section 5(d) of the Industrial Relations Act 1967 and also constituted an unfair labour practice.
Key takeaways
Dismissing or ignoring unrecognised unions in the workplace could be viewed as an attempt to bust or avoid unions, which is problematic. Employers can consider adopting a collaborative mindset in their engagement with unions (even unrecognised ones). Maintaining positive working relationships may be a more effective approach rather than taking aggressive avoidance measures. Employers should evaluate how they interact and deal with union officials and members, since even unintentional actions could potentially have negative consequences.
Giving unions an appropriate level of respect does not equate to automatically deferring to their demands or guaranteeing recognition. An overly combative stance is ill advised, but the same can be said about hastily giving up organizational autonomy at the first sign of union efforts. Prudent middle ground exists between these extremes.
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This article was written by Leow Ho Eng (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.
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