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Law and Regulation

  • Laws can have many meaning depending on the context they are used.
    • Law of nature
    • Law of God
    • Scientific law

Newton’s Law of motion

    • Man-made laws
    • etc.

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Law and Regulation

  • Two concept of laws when they are written are:
    • Orderly
      • In the form of procedures and system
    • Obey
      • Must obey the law
  • There are some rules that possess the same characteristics but must be differentiated from law such as :- Ethics, moral values, traditions etc.
  • All rules and laws must be self sufficient and complete in their own-self.
    • If a law encroaching into realm of public understanding or natural conduct, it will cause debate.
    • If the standard set by the law is too high, it will have problem in enforcing it.

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Law and Regulation

  • The law is given definition according to:
    • Law of nature (natural law)
      • Law of nature set by God and it is fair.
    • Social contract
      • The governing power which comes from the people and the people release it to the government as obligation to carry it out in fairness.
    • A decree
      • Broadly, a law can be viewed as a decree that has to be followed and obeyed
      • Because it is a decree, it must comes from an individual or selected group of people
      • The decree is followed by some action should it is not followed
      • In a civilize community, the law is written by politician and enforce in the court of law.

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Law and Regulation

  • Laws and Nation
    • Laws have existed long before the people have any political alliance.
    • These laws were established through good elements and properly ordered.
    • The type of governing practice in a tribe can have many differences
      • The head of a tribe has an absolute power and above the law
    • But with the court of law system, all cases were brought to justice, including the head of tribe.

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Law and Regulation

    • The law that describe all rules is called The Law of The Nation (Hukum Negara)
    • In Malaysia, the law of the nation is a written law and it is the highest law in the nation.
      • Perlembagaan Negara.
    • The head of the nation is Y.M.M. Agong
      • The head for 3 branches of government
        • Legislature (Dewan penggubal undang-undang / Parliament/Dewan Undangan Negeri)
        • Executive (Pentadbir Kerajaan)
        • Justice
    • The law of the nation can be found in the Federal Constitution and State Constitution and in the form of code.

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Law and Regulation

    • Federal constitution is the highest law together with state constitution.
    • The law was made in parliament and Dewan Undangan Negeri (DUN) under respective constitution.
    • Subsidiary Legislation (Undang-undang tambahan) was made by individual or agency empowered by an act of parliament or DUN.
    • The basis of law is English Common Laws adapted for local situation

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Law and Regulation

  • Implication of laws
    • Law sometimes put legal constraints and liabilities on engineers
      • Suspension of works
        • Please read: Ir. Harban Singh, Suspension of work: An Overview, Buletin Ingenieur, pg 24-35
      • Imposing responsibility
        • Avoid pollution from the waste material
        • Health matter
        • Reducing danger to the environment
      • Provide protection of right of workmen and employers
      • Procedure for investigation and inquiry
      • Managing trade dispute, strike and lock out

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Guidance in performance of Practice

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Guidance in Performance of Practice

  • The professional practice in short is the conduct of how an engineer performs and executes his duties and responsibilities
  • This conduct is governed by a set of rules such as ‘code of professional conduct or code of ethics
  • The codes serves as a guide as they are in essence not too detail and explicit, the professional has to use his better judgment in certain cases as to what is morally correct and what is not
  • Engineers are required to be proficient in engineering practice, standards, code of practice and regulations

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Guidance in Performance of Practice

  • Skills considered ‘expert level’ in yesteryears will become “normal practice” in present times
  • This requires engineers to have Continuous Professional Development (CPD) in order to stay current in his practice
  • Even non-registered engineers who practice engineering will be subject to Torts (tort laws)
  • Once professional service is rendered, an engineer is liable even in the absence of a written contract or appointment (contract law)
  • Therefore, it is important to have a sound understanding of the laws and regulations that governs our profession

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Corporate Governance & the Professional Engineer

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Corporate Governance & �the Professional Engineer

  • What is corporate governance?
    • Corporate governance is generally defined as the system or process by which a company or organization is directed and controlled in order to protect shareholder’s interest and stakeholder’s concern , whilst bearing in mind conformance to law and regulations
    • The concern most of the time is the focus, whether it should be on issue of performance or conformance. It is important to get the balance between the two as strictly leaning to either side will not be good for the organization

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Corporate Governance & �the Professional Engineer

  • What are the elements of corporate governance ?
    • Corporate governance comprises of elements of best practice
      • Strategic guideline
      • Policy formulation
      • The selection of chief executive officer (CEO)
      • Risk management and control
      • Monitoring performance
      • Reporting on stewardship
      • Legislative compliance

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Corporate Governance & �the Professional Engineer

  • Legislative Compliance
    • The Company’s Act 1965 would be a good place to start. It is a regulation that had been tested through time to provide guidance into the management of an organization
    • It draws out the responsibilities and accountabilities of the various officers holding responsible job portfolios in the board and company/organization
    • Besides the Company’s Act there are other legislative regulations that need to be made known to the board and management such that proper governance is maintained at all times

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Major Laws Governing the Engineering Profession

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Major laws governing �the engineering profession

  • Registration of Engineers Act 1967

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Major laws governing �the engineering profession

  • Registration of Engineers Act 1967
    • An act of Parliament passed in 1967 to regulate Engineers
    • The ACT was originally a reaction to building failures in the early 1960s
    • The “Engineers’ Act” is the most important document in Law governing all Engineers

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Major laws governing �the engineering profession

  • Registration of Engineers Act 1967
    • The Registration Of Engineers Regulations 1990 (Revised 2003) contains the following important regulations on:
      • Registration of Registered Engineers – PART III
      • Code of Professional Conduct – PART IV
      • Registration of Engineering Consultancy Practice PART V
      • Professional Assessment Examination – PART VI

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Major laws governing �the engineering profession

  • Employment Act 1955

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Major laws governing �the engineering profession

  • Employment Act 1955
    • Employment Law is covered by various legislation including Employment Act 1955, Industrial Relations Act 1967 and Trade Unions Act 1959
    • These laws governs the relationship between an employer and an employee
    • They aim to safeguard the interests of the employer and society in general and an employee/workman in particular

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Major laws governing �the engineering profession

  • Employment Act 1955
    • The employment act 1955 deals with the contract of employment but it is not applicable to every employee or to every employer
    • Under this act, an employer is any person who enters into a contract of service to employ any other person as an employee
    • A contract of service is an agreement whereby one person agrees to employ another as an employee and the other agrees to serve his employer as an employee

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Major laws governing �the engineering profession

  • Employment Act 1955
    • An employee is any person who enters into contract of service with an employer and whose wages “do not exceed one thousand five hundred ringgit a month
    • However, there are some exceptions, where a person falls within the definition of an employee, even though his wages exceed the above limit
    • For example, persons supervising or overseeing other employees engaged in manual labour employed by the same employer in and throughout the performance of their work and the persons specified in the first schedule of the Act

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Major laws governing �the engineering profession

  • Employment Act 1955
    • The Employment Act 1955 also covers:
      • Payment of Wages – PART III
      • Employment of Women – PART VIII
      • Maternity Protection – PART IX
      • Employment of Children and Young Persons – PART X
        • “Child” means any person who has not completed his fifteenth year of age
        • “Young Person” means any person who, not being a child, has not completed his eighteenth year of age

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4.3 Major laws governing �the engineering profession

Industrial Relations Act 1967 (Revised 1976)

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Industrial Relations Act, 1967

  • A HISTORICAL BACKGROUND
    • Prior to 1965, the voluntary system of industrial relations patterned along the British system was in practice.
      • The concept of self-government and autonomy within industry was the key to industrial harmony.
      • The two sides of industry were encouraged to regulate their collective relationship and to settle any dispute arising there from through their own efforts and through mutually agreed procedures, with minimal State intervention,
        • such intervention being confined mainly to providing a legal frame-work to which the parties could turn to if they so wished, in accordance with the Industrial Courts Ordinance, 1948 and the Trade Disputes Ordinance 1949.

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Industrial Relations Act, 1967

    • The Industrial Courts Ordinance provided for the promotion of peaceful and voluntary settlement of trade disputes through conciliation by a third party or through the voluntary reference of a dispute to the Industrial Court for arbitration.
    • The Trade Disputes Ordinance provided the Government with supervisory powers to maintain vigilance over trade disputes and certain matters arising from such disputes so as to ensure and safeguard the interests of the public generally.

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Industrial Relations Act, 1967

    • In September 1965, the Essential (Trade Disputes in Essential Services) Regulations, 1965 was promulgated.
    • It was designed to ensure that trade disputes in certain scheduled services would not lead to disruption of such services.
      • Services such as Arm forces, Police etc.

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Industrial Relations Act, 1967

    • These Regulations vested in the Minister of Labour certain powers to intervene of his own volition in such disputes and if necessary, to refer them to the Industrial Arbitration Tribunal for settlement.
    • No strike or lock-out could be declared or where already declared could continue once the Minister had so intervened.
    • The award of the Tribunal was final and legally binding on the parties to the dispute.

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Industrial Relations Act, 1967

    • The promulgation of the Essential (Trade Disputes in Essential Services) Regulations in 1965 was indeed a turning point in the pattern of industrial relations system in the country.
    • For the first time an element of compulsory concept was introduced into the system regulating the relationship between management and labour.

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Industrial Relations Act, 1967

    • Subsequent to the promulgation of the Essential (Trade Disputes in Essential Services) Regulations, 1965 the Government conducted a review of the then existing law and practice in the field of industrial relations which resulted in the substitution of the previous laws by the Industrial Relations Act, 1967.
    • This Act came into force on 7th August 1967 and is applicable throughout Malaysia (Revised in 1976) .
    • The Act retains most of the principles and practices as set out in the repealed legislation and continues to promote the voluntary system up to the point where Government intervention is necessary so that the ever present public and national interest are not prejudiced while the parties promote their own respective interests.

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Industrial Relations Act, 1967

  • The summary of act:
    • Bahagian I
      • Part I of the Industrial Relations Act provides an interpretation of some of the terms used. �Among the important ones is the interpretation of strike which is defined as the act of discontinuation of work carried out by a group of workers acting in unison, or jointly refusing or refusing to continue working or to accept employment under a common understanding by a number of employees, and includes any action or omission by a group of workers acting together or under mutual understanding, which is intended to or cause any limitation, restriction, reduction or termination or suspension of the performance or performance of all or any part of the duties relating to the employment.

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Industrial Relations Act, 1967

  • Part II �This section explains:� On the rights of workers and employers and their trade unions�Prohibition on employees, employers and their trade unions in relation to certain actions such as;� anti-union activities, persecution and other unfair labor practices. �A complaint about a violation of any provision under this Part may be made in writing to the Director General who may take such steps as it deems necessary to resolve the complaint.

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Industrial Relations Act, 1967

    • If it is not resolved, he shall notify the Minister of Human Resources who will refer the complaint to the Industrial Court for trial, if deemed appropriate.�Under Section 6 of the Act, an employer shall authorise an employee to take leave for a reasonable period to carry out his duties as a trade union officer; It is also a must for the employer to provide paid leave if the employee's absence is to represent the members of his trade union in matters relating to his employer.

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Industrial Relations Act, 1967

  • Part III �This section deals with the issue of trade union recognition. �It sets out the basic procedures that must be followed in handling a recognition claim. �A trade union may not claim recognition in respect of employees employed in managerial, executive, confidential or security capacities, if the majority of its membership consists of employees who are not employed in any such capacity. �If the claim is not resolved, the matter can be reported in writing to the Director General who will take such steps as he deems necessary to resolve it.

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Industrial Relations Act, 1967

    • To this end, he is empowered under section 9(4B) to request the trade union, employer or employer's trade union to furnish the necessary information and he may also request the Director General of the trade union to decide on the issue of eligibility of the trade union to represent the workers in relation to the claims made.

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Industrial Relations Act, 1967

    • If the matter is not resolved, the Director-General must inform the Minister of Human Resources so that a decision can be made. �This decision includes a decision on which employees are hired in a managerial, executive, confidential or security capacity.� The decision of the Minister made under this Division shall be final and shall not be challenged in any court.

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Industrial Relations Act, 1967

  • Bahagian ini juga melarang :
    • Workers from strike or picketing for any reason whatsoever while awaiting the outcome of proceedings under this Division or after a decision has been made by the Minister and there is any dissatisfaction with the decision; and �An employer from declaring a lock-out or termination of an employee's service (except for disciplinary reasons, retirement, termination of fixed-term contracts, employees on unconfirmed probationary periods in the position and for medical reasons), as soon as a trade union for employees submits a claim for recognition in writing to the employer.�

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Industrial Relations Act, 1967

    • This section also prohibits other workers' unions from making claims for recognition or recognition of the same employee or class of workers if there is an unresolved claim for recognition.

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Industrial Relations Act, 1967

  • Part IV �This section explains the procedure to be followed in submitting wage claims and collective bargaining and the form and content of the collective agreement.�For example, under section 13 (3), certain common law rights such as promotion, exchange, employment, termination of service for excessive employment or reorganisation, removal and reinstatement, assignment or assignment of duties, cannot be included in the collective agreement proposals by a trade union.

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Industrial Relations Act, 1967

    • This division also has provisions to promote training, annual revision of the wage system and performance-based pay system.

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Industrial Relations Act, 1967

  • Part V �This section also encourages direct negotiations between employers and employees and their trade unions in resolving disputes. �Provisions are also provided to resolve corporate disputes through peaceful negotiations and arbitration quickly and thoroughly.

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Industrial Relations Act, 1967

    • This section provides:�The intervening power of the Minister of Human Resources refers a dispute, at any time, to the Industrial Court; and �prohibition of strikes and lock-outs after an enterprise dispute is referred to the Industrial Court and for any matter covered by a collective agreement or by an Industrial Court award.

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Industrial Relations Act, 1967

    • This section is about the enterprise dispute reference for reconciliation. �Either party may make a report to the Director General on any unresolved enterprise dispute between themselves, for peaceful negotiation and resolution.�The Minister can at any time intervene in an enterprise dispute as he sees fit, if he deems it necessary.

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Industrial Relations Act, 1967

    • This section also empowers the Director-General to direct any person involved in or connected with the dispute, whether directly or indirectly, to attend a peace negotiation meeting and to submit necessary information in relation to the matter in dispute. �This section also stipulates who can represent the warring parties in peace negotiation proceedings. �Section 19(B)(2) however prohibits representation by an advocate, advisor, consultant or any other person.

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Industrial Relations Act, 1967

  • Part VI �This section provides that if an employee, regardless of whether he is a member of a trade union or otherwise, considers himself to have been dismissed by the employer without just cause or cause, then he may, within sixty (60) days from the date of his dismissal, make a representation (appeal) in writing to the Director General for reinstatement to his original employment. �If the representation is still not completed after the steps deemed necessary or desirable to complete it have been taken by the Director General, the Minister will be informed of it. �The Minister may, if he thinks fit, refer the matter to the Industrial Court for a decision.

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Industrial Relations Act, 1967

  • Part VII �This section is specifically about the Industrial Court in detail. There are also provisions where:�the parties to the dispute jointly requested the Minister to refer their dispute to the Industrial Court; and �The Minister, on his own volition, shall refer an enterprise dispute to the Industrial Court if he is satisfied that it is expedient provided that in the case of an enterprise dispute involving the services of the Government or a Statutory Authority, such a reference shall not be made except with the consent of the Yang di-Pertuan Agong or the State Authority, as the case may be. �This section also contains provisions for the Industrial Court when making an award under subsection 20(3) taking into account the factors in the Second Schedule.

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Industrial Relations Act, 1967

  • Part VIII �This section is about the establishment and functioning of a Committee of Inquiry or a Board of Inquiry.� This section is to deal with issues or disputes that are not suitable to be handled according to the usual means or methods of resolution and it is considered useful in promoting good relations between employers and employees. �The Minister is empowered to appoint a Committee consisting of one or more members, or a Board consisting of a Chairman and such person as the Minister deems appropriate, to investigate the facts, causes and circumstances of a dispute referred to the body and to submit a report. �A report from the Inquiry Board should be tabled in Parliament as soon as possible.

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Industrial Relations Act, 1967

  • Bahagian IX
    • This section deals with enterprise disputes, pickets, strikes and lock-outs and matters arising therefrom. �There is a provision where students are not allowed to participate in enterprise disputes and any student who is convicted or found to have committed an offence under this Part may be expelled from school. �This section also mentions that intimidation, intentionally and with malicious intent that may cause injury to a person or damage to his property is unlawful and the perpetrator is punishable.

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Industrial Relations Act, 1967

    • Picketing peacefully and in accordance with the rules for the continuation of an enterprise dispute is permissible under this Part provided that the picketing action is carried out near or near the place of employment of the employee and where the enterprise dispute exists. �It shall be unlawful for one or more than one person to attend or be near the place of employment where an employee is employed if such presence, by reason of their style or number, is intended to threaten a person at the place or to obstruct the exit or entry or to disturb the peace.

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Industrial Relations Act, 1967

    • Section 40 prohibits picketing in the following circumstances :-�while awaiting the outcome of the proceedings of a Board of Inquiry appointed by the Minister under Part VIII and seven days after the conclusion of the proceedings; �after an enterprise dispute or matter is referred to the Industrial Court and the parties concerned to it are notified of the referral; �after the Yang di-Pertuan Agong or the State Authority, in the case of an enterprise dispute involving any Government service or Statutory Authority, has not permitted the referral of the dispute to the Industrial Court and the parties concerned thereto have been notified thereof

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Industrial Relations Act, 1967

    • This section also imposes certain limitations on strikes and lock-outs in 'essential services.� Employees in the service must not strike and such an employer may not declare a lock-out without giving notice within 42 days to the other party before taking such action, and within 21 days of the giving of the notice or before the expiry of the date specified in the notice. �It is also mandatory for employers who give or receive such notices to report the particulars contained in such notices to the Director General.

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Industrial Relations Act, 1967

    • Section 44 prohibits strikes or lock-outs in the following circumstances:-�while awaiting the outcome of the proceedings of a Board of Inquiry appointed by the Minister under Part VIII and seven days after the conclusion of the proceedings; �after an enterprise dispute or matter is referred to the Industrial Court and the parties concerned to it are notified of the referral; �after the Yang di-Pertuan Agong or the State Authority, in the case of an enterprise dispute involving any Government service or Statutory Authority, has not authorised the referral of the dispute to the Industrial Court and the parties concerned thereto have been notified of it.

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Industrial Relations Act, 1967

      • against any matter covered by a collective agreement that has been recognised by the Industrial Court or covered by an award; and �against any matter covered under section 13(3) and listed as the prerogative of management.

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Industrial Relations Act, 1967

      • A strike or lock-out declared in contravention of this Part or any other written law, or having any object other than the continuation of an enterprise dispute between the employee and the employer concerned, shall be unlawful. �It is also an offence for any person to provide direct financial assistance to continue or support any illegal strike or lock-out. �Offences under this Part are arrestable offences and are not allowed bail.

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Industrial Relations Act, 1967

      • Under section 52, it is stated under Parts II, III, IV, V and VI that the section relating to the Protection of the Rights of Employees, Employers and their Trade Unions, Recognition and Scope of Trade Union Representation, Collective Bargaining and Collective Agreement, Peace Bargaining and Representation Against Layoffs shall not apply to any Government or Statutory Authority services or to any employee employed by them.

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Industrial Relations Act, 1967

  • Section IXA
    • This section provides for specific matters relating to investigation and prosecution. �Among the provisions in this section are the power of appointment of the Investigating Officer and his powers.

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Industrial Relations Act, 1967

    • Section X
      • This section contains various provisions which, among other things, relate to the procedures to be followed in the case of non-compliance with an award or collective agreement that has been recognized by the Industrial Court, the enforcement of the orders that follow therefrom and the general penalties for violation of certain sections of the Act. �A violation of section 59 makes it an offence to dismiss an employee or to injure or threaten to injure him in his employment or to alter or threaten to change his position so as to harm him by reason of certain circumstances.

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Industrial Relations Act, 1967

    • An employer who contravenes any provision of this subsection is guilty of an offence and upon conviction, shall be punished with imprisonment for a term not exceeding one year or a fine not exceeding two thousand ringgit or both.�Industrial Harmony cannot be operated without the role of two important laws, namely the Labour Act 1955 and the Trade Unions Act 1959. Together with the Corporate Transportation Act 1967 it became the basis for the Corporate Transportation system in Malaysia.

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Industrial Relations Act, 1967

  • Nota: �Industrial Relations Act 1967 (ACT 177) & Regulations Available from:�Percetakan Nasional Malaysia Berhad, �Jalan Chan Sow Lin, �50554 Kuala Lumpur. �Tel : 603-92212022
  • atau Kedai buku utama di Malaysia

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Thank you