Trade Unions (Amendment) Bill 2023 passed in Senate

29 December 2023

On 13 December 2023, the Trade Unions (Amendment) Bill 2023 (“Bill”) was passed by the Senate (Dewan Negara). The Bill will be presented for Royal Assent and subsequently gazetted into law. The proposed amendments aim to eliminate restrictions on the formation of trade unions, and to allow the formation of multiple trade unions in any establishment, trade, occupation or industry. This is in line with the freedom of association as workmen and employers are free to establish or join any trade union of their own choosing.

Minister of Human Resources V. Sivakumar hopes that the amendments will help “foster the development of more mature, progressive, healthy and competitive trade unions, ultimately leading to increased benefits for employees”.

Summary of key amendments introduced by the Bill

Prior to the amendments, a “trade union” or “union” was defined as “any association or combination of workmen or employers... within any particular establishment, trade, occupation or industry or within any similar trades, occupations or industries...”. The amendment has removed the aforesaid restriction of trade union or union to a particular establishment, trade, occupation, or industry, or similar trades, occupations or industries.

Following the amendments, the deadline for a trade union to be registered under the Trade Union Act 1959 (“TUA”) has been extended from one month to six months from the date of establishment. In the event an extension of time is required, the duration of the said extension that the Director General of Trade Union (“DGTU”) may grant has been increased from six months to 12 months in aggregate.

The DGTU can no longer refuse to register a trade union just because a trade union representing the workmen in that particular establishment, trade, occupation or industry already exists. The DGTU may only refuse to register a trade union if:

  • he is satisfied that the objects, rules, and constitution of the trade union conflict with any of the provisions of the TUA; or
  • the name under which the trade union is to be registered is:
  • identical to that of any other existing trade union, or so nearly resembles the name of such other trade union as, in the opinion of the DGTU, is likely to deceive the public or the members of either trade union; or
  • in the opinion of the DGTU, would promote feelings of ill-will and hostility between different races, religions or nationalities.

In the event the DGTU refuses to register a trade union, the new Bill requires the DGTU to inform the trade union in writing of his refusal and the grounds for such refusal.

The amendments restrict and reduce the grounds for cancelling a certificate of registration of a trade union.

They also remove the DGTU’s power to suspend a branch of a trade union.

The threshold requirement for a trade union to organise a strike or declare a lock-out has been reduced (previously at least a two-third majority vote was required).

  • In respect of organising a strike, the trade union of workmen shall obtain at least 60% votes from the total number of its members who are entitled to vote and in respect of whom the strike is to be called, and at least more than half of the votes are in favour of the proposed strike.
  • In respect of declaring a lock-out, a trade union of employer shall obtain at least 60% votes from the total number of its members who are entitled to vote, and at least more than half of the votes are in favour of the proposed lock-out.

The DGTU will also have more time to conduct any necessary investigation in relation to the proposed strike or lock-out, by increasing the period of investigation from seven days to seven working days.

Unless otherwise provided in the rules of the trade union, a person above the age of 15 (previously 16) may also apply to be a member of a registered trade union.

A new subsection has been included to expressly prohibit trade union to confine its membership to a particular race, religion or nationality.

Five new provisions have been introduced to empower the DGTU to:

  • conduct investigation and to enforce any provision of the TUA or any regulations thereunder;
  • appoint enforcement officers to perform investigation and enforcement under the TUA or any regulations thereunder;
  • require the attendance of any person acquainted with the facts and circumstances of a case to appear before him for the purpose of being examined orally by the DGTU in relation to any matter which may, in the opinion of the DGTU, assist in the investigation;
  • require any person in the course of investigation or examination to produce to the DGTU any article or document necessary, and to inspect, make copies of, take extracts from, remove and detain such article or document; and
  • seize any article or document produced if there is reason to believe that an offence has been committed against the TUA or any regulations thereunder.

A new provision has also been introduced to impose liability on a (i) president, (ii) secretary, (iii) treasurer, or (iv) other officer of the trade union or (v) person purporting to act on the instruction of the president, secretary, treasurer, or other officer of the trade. The said persons may be charged severally or jointly in the same proceedings with the trade union, and if the trade union is found guilty of the offence, the said person shall be deemed guilty of that offence and shall be liable to the same fine or penalty as an individual unless having regard to the nature of his functions in that capacity and to all circumstances, he proves that:

  • the offence was committed without his knowledge; and
  • the offence was committed without his consent or connivance and that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.

Following the amendments, an automatic stay of execution of the decision of the DGTU in matters relating to cancellation or withdrawal of certificate of registration of a trade union is introduced.

Under the new Bill, an electronic record of any prescribed form furnished by way of electronic transmissions or any document stored or received by or communicated to the DGTU in an electronic medium or by way of electronic transmissions shall be admissible as evidence of the facts stated or contained therein in any proceeding under the TUA, provided that such electronic document is:

  • certified by the DGTU to contain all or any information furnished, stored, communicated or received in an electronic medium or by way of electronic transmission; or
  • otherwise authenticated in the manner provided in the Evidence Act 1950 for authentication of documents produced by computer.

Prison sentence has been removed as part of the possible punishment for offences of non-compliance under the TUA. At the same time, the Bill will increase the amount of fine that can be imposed in the event of non-compliance under the TUA.