Written by Sabrina Lee Wei Ling

The Industrial Relations (Amendment) Act 2020 (hereinafter referred to “IRA”) is gazetted on 20 February 2020, with effect from 1 January 2021. In this article, we will be discussing one of the key amendments of the Act pertaining to the reference of complaint to the Industrial Court. The Human Resources Minister, Datuk Seri Saravanan Murugan opined that the amendment of the IRA will improve the protection of workers’ rights in the country.

 [Before] Section 8(2) of the Industrial Relations Act 1967 stipulates that:

“The Director General upon receiving any complaint under subsection (1) may take such steps or make such enquiries as he considers necessary or expedient to resolve the complaint; where the complaint is not resolved the Director General shall notify the Minister”.

 In short, if the Director General of Industrial Relations (“DGIR”) feels that the conciliation meeting at the Industrial Relations Department is likely to fail and cannot be resolved, he shall notify the Minister of Human Resources. The Minister has discretionary power to attend any dispute cases (including unfair dismissal) which are not resolved by the Director General of Industrial Relations at Industrial Court.

 [After] Section 8(2) of the Industrial Relations (Amendment) Act 2020 provides that:

“The Director General upon receiving any complaint under subsection (1) may take such steps or make such enquiries as he considers necessary or expedient to resolve the complaint; where the complaint is not resolved the Director General, may, if he thinks fit, refer the complaint to the Court for hearing”.

 However, the Minister of Human Resources now, no longer can refer representations on disputes as the power is vested on the Director General of Industrial Relations who has the authority of automatic referral to the Industrial Court when there is no settlement.

So, what steps can be taken if you are unfairly dismissed by your employer/boss? The procedures can be referred to Section 20 of IRA.

Step 1

s.20(1), 

s.20(1A)

You may lodge a complaint (representation) to the Director General of Industrial Relations (“DGIR”) at their office nearest to your place of employment within sixty (60) days from the date of your dismissal.

Step 2

s.20(6)(a),(b)

 s.20(6)(b)(iv)

s.20(7)

A conciliation meeting will be arranged by the Industrial Relations Department between the employer and the employee. Any person who is authorized in writing can now represent the parties, subject to the permission of DGIR.

However, no representation by a lawyer during the conciliation meeting.

Step 3

s.20(3)

If no settlement between parties can be reached during the conciliation meeting, the case will be automatically referred by DGIR to the Industrial Court for trial.

Step 4

s.30

second schedule

A trial (with witness testimony) will be conducted in the Industrial Court. If the Court is satisfied that the employee has been unfairly dismissed, the Court may grant the employee, either (a) reinstatement and be paid backwages or (b) compensation as remedy.

Conclusion

This amendment has effectively changed the route for any employees seeking remedy. While before this, all matters would require the approval of the relevant Minister before the matter can be referred to the Industrial Court, but now the matter would need to go through a conciliation process by the Director General of Industrial Relations and if that conciliation is unsuccessful, the case will be automatically be referred to the Industrial Court. This is a welcomed amendment to the Industrial Relations Act, strengthening the rights of the employees to have direct access to the Industrial Court.

Published on 24 May 2021

Photo by Scott Graham on Unsplash

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