Under Malaysian law, a trade agreement to restrict trade under Section 28 of the Malaysian Contracts Act 1950 (CA) is non-applicable and is not applicable. Unlike other common law legal systems in which a trade agreement may be valid on the basis of the “proportionality”19 of the restriction, a clause is automatically invalid in Malaysia as soon as it turns out to be a trade agreement, regardless of the relevance of the deference.20 11 See the 1998 ILO statement on fundamental principles and rights in the workplace. See also Convention 154 on the promotion of collective bargaining; Convention was adopted in 1981. This Convention does not enter into force under Convention 98. Its adoption was intended to encourage Member States to redouble their efforts to achieve the objectives of previous instruments of freedom of association. 66 See the detailed observations of the expert committee on the application of the conventions and recommendations contained in the Malaysia documents, which are available from ILOLEX. However, the ILO committee seems to assume certain prerogatives (such as dismissal or transfer) and not others (for example. B the assignment of certain tasks). The report adds: “While a collective agreement would not normally deal with individual cases of transfer, dismissal and reinstatement, it should be possible, for example, to include general criteria and procedures applicable to these issues, as is often the case in collective agreements in many countries. The Committee urges the Government to amend the legislation to fully align paragraph 3 of Section 13 of the Convention.
Collective bargaining is the best way to achieve a cordial relationship between employers and workers. It is also an effective forum for agreeing on the terms of employment. To achieve these objectives, labour relations systems in a country must provide a legal mechanism for the parties to bargain collectively for the conclusion of a collective agreement. The ILO has adopted a convention that provides Member States with a framework for passing laws that would facilitate such a mechanism. In this regard, Malaysia passed the Industrial Relations Act of 1967, which provides, among other things, a collective bargaining mechanism. In this article, we will discuss the extent of the right of Malaysian workers to collective bargaining within ILO standards. We argue here that Malaysian workers and their unions, despite the available legal mechanism that facilitates collective bargaining between the two parties, face difficulties in negotiating with their employers. Outside of civil courts, the Director General of Labour (DGL) may, under the Employment Act 1955 (EA), hear employment disputes related to the terms of an employment contract or litigation related to a violation of a provision of the EA or Wage Board Act 1947.3 These disputes are brought before the employment tribunal presided over by the DGL; Note, however, that the DGL can only hear cases for employees earning 5,000 Ringgit or less. 12 See Paul Weiler, “Reconcilable Differences: New Directions in Canadian Labour Law,” Carswell Toronto, 1980, 25; John Pencavel, “The legal framework for collective bargaining in developing economies” (1996) at 10. The Malaysian Labour Court (the “Tribunal”) in the case of Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar Dan Restoran, Semenanjung Malaysia v Subang Jaya Hotel Development Sdn Bhd (Grand Dorsett Subang Hotel) has just awarded a distinction in favour of a hotel employer, deciding that it may include a service fee in the calculation if legal minimum wage commitments have been met. The legal minimum wage in Malaysia is RM1000 (about 211 euros).
The service charges have been recovered from the proceeds of the hotel sale and are distributed and paid to hotel employees at each employee`s service pricing points, in accordance with the corresponding collective agreement.