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Chapter 7: Collective agreement - Coggle Diagram
Chapter 7: Collective agreement
Collective Agreement
Collective agreement means an agreement in writing concluded between an employer or a trade union of employers on the one hand 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.
2 ways that a collective agreement may come into existence
By mutual agreement, a product of successful collective bargaining
Through an award handed down by the industrial Court pursuant to a reference under S26(1) or S26(2) of IRA 1967.
Contents of Collective Agreement
It must be in writing and signed by parties to the agreement or by persons authorized in that behalf
It must set out the terms of the agreement
It must specify the name of the parties to the agreement
It must specify duration of the agreement, which cannot be less than 3 years
It must include a procedure for a modification and termination of the agreement
It must specify the procedure to be used to settle any dispute over the interpretation and implementation of the agreement
It must not include items of managerial prerogatives
Items in collective agreement
Recognition
Union security - include check-off clause
Compensation and benefits
Existing benefits
Procedures
Items in collective agreement
A clause which states that any current agreement will remain in force until a new agreement is signed
Signed supplementary memoranda with a covering letter stating that they are meant to be read together with the collective agreement
Simple and ambiguous wording
Language used must be understandable
Deposit of collective agreement
Where parties have successfully negotiated for a new CA, it must be jointly deposited with the registrar of the IC under S16 within one month from the date of the agreement
The Industrial court at its discretion
Refuse to take cognisance of CA deposited if it is of the opinion that the agreement does not comply with S14
Before taking cognisance of the CA, require that any part of the CA which does not comply with S14, be amended in such manner as the Court may direct
Under S16(3) of IRA, is any party fails to carry out modification as directed by the IC, the court may amend the copy of the agreement in the manner directed after giving the parties reasonable opportunity of being heard.
The amended agreement shall be deemed to be the CA between such parties.
Effects of collective agreement
S17 of IRA & S32(1), a CA which has been taken cognizance by the IC shall be deemed to be an award and shall be binding on
The parties in the agreement including in any case where a party is a TU of employers, all members to whom the agreement relates and their successors, assignees or transferees
All workmen who are employed or subsequently employed by the employer to which the agreement relates.
As from the date and as for such for such period as specified in the CA, it shall be an implied term of the contract between employer and employee unless varied by a subsequent agreement or the decision pf the IC
Collective agreement awarded by the industrial court
S26(1), refer the dispute to the IC on joint request in writing by the TU and employer
S26(2), upon receiving notifications of the DGIR, refer the dispute to the IC if he satisfied that it is expedient to do so
Industrial court will then hear and adjudicate upon the dispute on the T&C of employment content in CA
After hearing the case presented by parties, the IC will hand down an award, which contains its decision on the T&C of employment
Mis-interpretation of collective agreement
S33(1), if any questions arises as the interpretation of any award or CA taken cognizance of the court, the Minister may refer the question, or any other party bound by the award to the IC for a decision on the question
S33(2), the IC may, upon the application of any party, vary any terms of an award or agreement if it consider desirable to do so for the purpose of removing ambiguity or uncertainty. The parties shall be afforded a reasonable opportunities of being heard.
The decision of the Court shall be binding in the same manner as the original award or agreement.
Non-compliance of collecting agreement
S56 of IRA, any complaint that any terms of the award or agreement has not been complied with, may be lodge with the IC in writing, by aby TU or person bound by such award or agreement
The IC, may upon receipt of the complaint
Make an order directing to the party to comply with the term of the agreement or cease from doing any act in contravention of any terms of the award or agreement
Make such order as it deems fit to make proper rectification for any contravention of any term of such award or agreement
Make such order as it considers desirable to vary or set aside upon special circumstances any term of the award or agreement
Penalty
S56(3) of IRA, any person who fails to comply with an order of the IC shall be guilty of an offence and shall on conviction, be liable to a fine not exceeding RM2000 or to imprisonment for a term not exceeding 1 year or both, and a further fine of RM500 for every day during which such offence continues
Enforcement
S56(4) of IRA, where a person fails to comply with the order of the IC to pay any sum of money or to do/not to do anything, the registrar of the IC may send a certified copy of the order to the High Court or Session Court to be recorded and thereupon the said order shall for all purposes be enforceable as a judgement of the High Court or Session Court.