Transcript TOPIC 6 ADS 465 Collective Bargaining

TOPIC 6
COLLECTIVE BARGAINING AND COLLECTIVE
AGREEMENT
UPON COMPLETING THIS TOPIC, STUDENT
SHOULD BE ABLE TO:
•
Distinguish collective bargaining from
collective agreement.
•
Identify common problem faced in
conducting collective bargaining.
•
Discuss the relationship between collective
agreement and Industrial Court.
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6.1 COLLECTIVE BARGAINING
6.1.1 DEFINITION
Collective bargaining is defined as
“negotiation with a view to the conclusion
of a collective agreement.”
(IRA 1967)
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COLLECTIVE BARGAINING … cont’d
Important points about the definition
i.
As the principal means of improving the terms and
conditions of employees’ employment and promoting their
socio-economic interests.
ii.
As the means of regulating the relations between
employers and union within the framework governing
these relations constituted by the State.
iii.
As the most important means of fixing wages and
conditions of employment in the private sector.
iv.
For workers : a negotiation can only be carried out by
workmen’s union.
v.
For employers : a negotiation can only be carried out
either by an individual employer or an employer union.
vi.
The provision of Part IV, IRA does not apply to
government service of any statutory authority, or to any
worker employed by the government or by any statutory
authority.
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8.1.2 OBJECTIVES
Among important objectives:
i. To improve wages and conditions of
works and employment among
employees.
ii. To protect employees welfare
iii. To avoid arbitrary action by employers.
iv. To involve employees in decisions
making.
v. Can avoid unilateral decisions.
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6.1.3 PROCESS
• Once a workmen’s union has been
recognized by an employer/ employer
union or
• A workmen’s union has been accorded
general recognition by its employer, either
party can:
At any time, invite the other party to
commence collective bargaining.
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Steps
i.
ii.
iii.
iv.
v.
The invitor must send a written invitation together with the
proposals for a collective agreement to commence
collective bargaining
The invitee must, within 14 days of its receipt, reply (in
writing) to the invitor…either accepting it or refusing it.
If an invitation has been made and accepted, collective
bargaining must commence within 30 days of the receipt of
the acceptance.
But, if an invitation has been made and;
a. it has not been accepted within 14 days of the receipt, or
it has been
refused, or
b. it has been accepted but bargaining has not commenced
within 30 days of the receipt of the acceptance…
The invitor must file a complaint in the form of written report
to the DGIR.
The DGIR is authorized… to take such steps that necessary… to
get the parties to commence bargaining. (Sec. 13, IRA)
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PROCESS … cont’d
Important points
i.
If, despite the DGIR efforts, there is still a refusal to
commence bargaining it is said that a trade
dispute exists.
ii. If an invitation has been made and accepted, and
collective bargaining has commenced and
successfully concluded the end result is a
collective agreement.
iii. If the bargaining has not been successfully
concluded… the law is silent on this point.
iv. If the bargaining failed to result in an agreement… a
trade dispute is presumably- as exists.
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6.1.4 CONTENT
•
•
i.
ii.
iii.
iv.
v.
The content of collective bargaining is the proposal for
collective agreement.
In the IRA 1967, there is no provision that states
“bargainable subjects”. But, there is a list of “nonbargainable” subjects as follows:
The promotion of a workman (from lower to higher grade).
The transfer of a workman within the organization
(whereby is does not harm an employee in regard of his
term of service)
The termination of service of a worker by reason of
redundancy or reorganization.
The dismissal or reinstatement of a worker.
The assignment or allocation of duties or tasks to a worker
that is compatible with the term of service.
(Sec. 13(3), IRA)
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CONTENT … Important points
The above items are outside the scope of
collective bargaining.
i. These matters are referred to as
“managerial prerogatives” or
“managerial rights”.
ii. But, this Act does not prohibit trade
unions from raising/ discussing general
matters related to procedures for
promotions.
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THE EFFECTS
i. There is no guarantee that recognition
will result in collective bargaining.
ii. There is no guarantee that collective
bargaining will result in a collective
agreement.
iii. If the collective bargaining is
successfully concluded the end result is
a collective agreement.
iv. The failure of collective bargaining will
result in a trade dispute.
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6.1.6 COMMON PROBLEMS
i.
ii.
iii.
Many problems may exist that hinder both parties from
concluding collective bargaining successfully, as
follows:
Delay reply by any party to the collective bargaining
(within 14 days should be replied)
e.g. the Non-Metallic Mineral Products
Manufacturing Employees Union vs the South East
Asia Fire Bricks Sdn. Bhd.
The refusal of any party to attend collective bargaining
conference or to commence the collective bargaining.
e.g. the above cases
When the workmen’s union bargains for matters that
are listed under “managerial prerogatives” (as main
proposal).
e.g. the Sime Darby Malaysia Sdn. Bhd. Vs the
National Union of Commercial Workers.
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6.2 COLLECTIVE AGREEMENT
6.2.1 DEFINITION
Collective agreement is defined as “ an
agreement in writing concluded between
an employer or employer union on the
one hand, and an employee union on the
other, relating to the terms and
conditions of employment and work of
workmen or concerning the relations
between such parties”.
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COLLECTIVE AGREEMENT … definition
Important points
i. It is recognized as a symbol or proof of the
harmonious relations between an employer
(or employer union) and a workmen’s union.
ii. It is considered as a contract regulating the
relationship between the employer and his
employees for a certain period of time.
iii. It is resulted from a successfully concluded
collective bargaining.
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6.2.2 CONTENT
Sec. 14, IRA declares that:
1. A collective agreement must set out the terms and conditions
of employment/ service agreed upon by the parties thereto
and must also, where appropriate:
• Specify the name of the parties to the agreement.
• Specify the duration for which the agreement is to be effective
(not less than 3 years)
• Prescribed the procedure for settling any question over the
interpretation or implementation of the agreement, by the
reference of any such question to the Industrial Court for
arbitration (unless there already exists appropriate machinery
for settling any dispute between them).
2. A collective agreement shall not contain any term or condition
of employment less favourable than or in contravention of the
provisions of any law applicable to the workmen covered by
the agreement: any such term or condition shall be void an of
no effect to that extent
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6.2.3 COGNISANCE
Sec. 16, IRA states that:
1. A collective agreement must be in writing and signed by the
parties to the agreement, or by persons authorized on their
behalf.
2. A signed copy of the collective agreement must be jointly sent
to the Registrar (of the Industrial Court) within one month from
the date on which the agreement has been entered into.
3. The Court may, (before taking cognisance of the collective
agreement), ‘required any part of the agreement as does not
comply with Sec. 14, IRA to be amended (by the parties to the
agreement) as may direct, and if the parties to the agreement
fail to carry out its direction, … the Court may amend the
agreement in the manner directed and the amended
agreement shall be deemed to be the collective agreement
between the parties.
4. The Court may also refuse to take cognisance of the
collective agreement “ if it is of the opinion that the agreement
does not comply with Sec. 14, IRA”.
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6.2.4 THE EFFECTS
Sec. 17, IRA declares that:
1. A collective agreement which has been taken
cognizance of the Industrial Court shall be
deemed as the award of the Court and shall be
binding on:
a. the parties to the agreement, their successors,
assignees and transferees; and
b. all the workmen who are employed to which the
agreement relates.
2. As from the specified date period in the
collective agreement, it shall be an implied
terms of employment contracts between the
workmen and the employer(s) …
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6.2.5 PROHIBITION
•
A collective agreement cannot include
managerial prerogatives without consent
from the employer (as in the Sec. 13(3),
IRA).
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6.2.6 PROBLEMS
•
After a collective agreement has been
approved by the Industrial Court and
becomes effective, several problems may
occur due to:
i.
Misinterpretation of the content of the
collective agreement by any party.
ii. Improper implementation of the collective
agreement by the parties to the agreement.
iii. Violation of any terms and conditions of the
agreement.
iv. Non-compliance of the agreement.
v. Non-implementation of the award.
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6.2.7 THE INDUSTRIAL COURT AND THE COLLECTIVE
AGREEMENT
a) Every collective agreement must be accorded by the
Industrial Court.
b) The Industrial Court has a discretionary power to:
i. accord it or,
ii. refuse to accord it if in its opinion the agreement does
not comply with Sec. 14, IRA or,
iii. ask the parties to the agreement to amend any part of
the agreement (before it accord the agreement).
iv. amend a collective agreement if it thinks necessary
and the amended agreement is considered as the
agreement that concluded by the parties to it.
(Sec. 16, IRA)
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Discussion questions:
1. Outline and explain four (4) factors that can
hinder the conclusion of a collective bargaining.
2. Outline and explain four (4) factors that
contribute to the success of a collective
bargaining.
3. Identify and explain any five (5) items unions
should not include in the collective agreement
proposal.
4. Identify four (4) requisites that determine the
union bargaining strength.
5. Identify four characteristics of effective
negotiators in a bargaining session.
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