Part IX
TRADE DISPUTES, STRIKES AND LOCK-OUTS AND MATTERS ARISING THEREFROM

Pupils not to take part in trade disputes

38. (1) No pupil as defined in the Education Act 1996 [Act 550], other than a lawful member of a trade union, shall—

(a) do any act in contemplation or furtherance of a trade dispute;
(b) instigate or incite any other person to take part in or continue or to support by money or otherwise or to do any other act in contemplation or furtherance of any strike or lock-out; or
(c) take part in or be a member of any meeting or assembly of more than five persons called for the purpose of instigating or inciting any person to take part in or continue or to support by money or otherwise or to do any other act in contemplation or furtherance of any strike or lockout.

(2) The Minister of Education may, by notice in writing, require the governors or managers of any school to expel any pupil convicted or found guilty of an offence against this section and thereupon the governors or managers shall expel the pupil or cause him to be expelled accordingly.

(3) A pupil who has been expelled from a school by the governors or managers thereof in pursuance of a notice given under this section shall not thereafter—

(a) enter the premises of the school; or
(b) become a pupil of any other school without the permission of the Minister of Education.

Intimidation

39. Any person who in furtherance of a trade dispute and with a view to compelling any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority—

(a) uses violence to or intimidates such other person or any member of his household, or injures his property;
(b) persistently follows such other person about from place to place;
(c) hides any tool, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof;
(d) watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place; or
(e) follows such other person with two or more persons in a disorderly manner in or through any street or road, shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand ringgit or to both.

Picketing

40. (1) Without prejudice to section 39, it shall be unlawful for one or more persons acting on his or their behalf or on behalf of a trade union or of an employer in furtherance of a trade dispute to attend at or near any place:

Provided that it shall not be unlawful for one or more workmen to attend at or near the place where the workman works and where a trade dispute involving such workman exists only for the purpose of peacefully—

(i) obtaining or communicating information; or
(ii) persuading or inducing any workman to work or abstain from working,

and subject to such attendance being not in such numbers or otherwise in such manner as to be calculated—

(a) to intimidate any person;
(b) to obstruct the approach thereto or egress therefrom; or
(c) to lead to a breach of the peace.

(2) Any officer or employee of the trade union to which the workmen referred to in the proviso to subsection (1) belong, may be present with such workmen solely for the purpose of maintaining good order and discipline and ensuring that such workmen comply with the requirements of the said proviso.

(2a) No workman shall go on picket—

(a) during the pendency of the proceedings of a Board of Inquiry appointed by the Minister under Part VIII involving such workman and employer and within seven days after the conclusion of such proceedings;
(b) after a trade dispute or matter involving such workman and such employer has been referred to the Court and the parties concerned have been notified of such reference; and
(c) after the Yang di-Pertuan Agong or State Authority, in the case of a trade dispute relating to any Government sevice or the service of any statutory authority, has withheld consent to the reference of the dispute to the Court under subsection 26(2), and the parties concerned have been notified thereof.

(3) Any person who acts in contravention of subsection (1) or (2a) shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand ringgit or to both.

Breach of contract liable to injure person or property

41. Any person who wilfully and maliciously breaks a contract of service or of hiring knowing or having reason to believe that the probable consequences of his so doing, either alone or in combination with others, will be to endanger human life or the efficient operation of any public health service, or cause serious bodily injury, or to expose valuable property whether real or personal to destruction or serious damage, shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand ringgit or to both.

Conspiracy in trade disputes

42. (1) An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be punishable as a conspiracy if the act committed by one person would not be punishable as a crime.

(2) An act done in pursuance of an agreement or combination by two or more persons, if done in contemplation or furtherance of a trade dispute, shall not be actionable unless the act, if done without any such agreement or combination, would be actionable.

(3) Nothing in this section shall exempt from punishment any person guilty of a conspiracy for which a punishment is awarded by any written law.

(4) Nothing in this section shall affect the law relating to riot, unlawful assembly, breach of the peace, or sedition or any offence against the Yang di-Pertuan Agong or any State Authority.

(5) A crime for the purposes of this section means an offence for the commission of which the offender is liable, under the law making the offence punishable, to be imprisoned either absolutely or at the discretion of a court as an alternative to some other punishment.

Restrictions on strikes and lock-outs in essential services

43. (1) No workman in any essential service shall go on strike—

(a) without giving to the employer notice of strike, within forty-two days before striking;
(b) within twenty-one days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice aforesaid.

(2) No employer carrying on any essential service shall lock-out any of his workmen—

(a) without giving him notice of lock-out, within forty-two days before locking out;
(b) within twenty-one days of giving such notice; or
(c) before the expiry of the date of lock-out specified in any such notice as aforesaid.

(3) The notice referred to in subsections (1) and (2) shall be given in such manner as may be prescribed.

(4) Any employer who receives from any person employed by him any notice referred to in subsection (1) or gives to any person employed by him any notice referred to in subsection (2), shall forthwith report to the Director General the particulars of the notice received or given.

Prohibition of strikes and lock-outs

44. No workman shall go on strike and no employer of any such workman shall declare a lock-out—

(a) during the pendency of the proceedings of a Board of Inquiry appointed by the Minister under Part VIII involving such workman and employer and seven days after the conclusion of such proceedings;
(b) after a trade dispute or matter involving such workman and such employer has been referred to the Court and the parties concerned have been notified of such reference;
(c) after the Yang di-Pertuan Agong or State Authority, in the case of a trade dispute relating to any Government service or the service of any statutory authority, has withheld consent to the reference of the dispute to the Court under subsection 26(2), and the parties concerned have been notified thereof;
(d) in respect of any of the matters covered by a collective agreement taken cognizance of by the Court in accordance with section 16 or by an award; or
(e) in respect of any of the matters covered under subsection 13(3).

Illegal strikes and lock-outs

45. (1) A strike or a lock-out shall be deemed to be illegal if—

(a) it is declared or commenced or continued in contravention of section 43 or 44 or of any provision of any other written law; or
(b) it has any other object than the furtherance of a trade dispute—

(i) between the workmen on strike and their employer; or
(ii) between the employer who declared the lock-out and his workmen.

(2) A lock-out declared in consequence of an illegal strike or strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.

Penalty for illegal strikes and lock-outs

46. (1) Any workman who commences, continues or otherwise acts in furtherance of a strike which is illegal under this Act shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand ringgit or to both and a further fine of fifty ringgit for every day during which such offence may continue.

(2) Any employer who commences, continues or otherwise acts in furtherance of a lock-out which is illegal under this Act shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand ringgit or to both and a further fine of fifty ringgit for every day during which such offence may continue.

Penalty for instigation

47. Any person who instigates or incites others to take part in, or otherwise acts in furtherance of, a strike or lock-out which is illegal under this Act, or who instigates or incites others to withhold their labour or services knowing or having reason to believe that the probable consequences of such action will be to endanger human life or the efficient operation of any public health service or cause serious bodily injury or expose valuable property whether real or personal to destruction or serious damage, shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand ringgit or to both.

Penalty for giving financial aid to illegal strikes and lock-outs

48. Any person who knowingly expends or applies any money in direct furtherance or support of any illegal strike or lock-out shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding five hundred ringgit or to both.

Protection of persons refusing to take part in illegal strikes or lock-outs

49. No person refusing to take part or to continue to take part in any strike or lock-out which is by this Act declared to be illegal shall be, by reason of such refusal or by reason of any action taken by him under this section, subject to expulsion from any trade union, or to any fine or penalty, or to the deprivation of any right or benefit to which he or his legal personal representatives would otherwise be entitled, or be liable to be placed in any respect either directly or indirectly under any disability or at any disadvantage as compared with other members of the union, anything to the contrary in the rules of a trade union notwithstanding.

Offences seizable, and no bail to be granted

50. (1) Every offence under this Part shall be a seizable offence for the purposes of any written law relating to criminal procedure.

(2) Notwithstanding any other written law, bail shall not be granted to an accused person arrested for or charged with an offence under this Part and in respect of whom the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to such accused person.

51. (Deleted by Act A1322).

Part iXa
investigation and prosecution

Investigation officers

51a. the Director General may appoint such number of investigation officers, from amongst the officers appointed under section 2a, as may be necessary for the purposes of this Act.

Authority card

51b. (1) There shall be issued to each investigation officer an authority card which shall be signed by the Director General.

(2) Whenever an investigation officer exercises any of the powers under this Act, he shall on demand produce to the person against whom the power is being exercised the authority card issued to him under subsection (1).

Power to conduct investigation

51c. (1) Where an investigation officer has reason to suspect that a person has committed an offence against this Act, he may make such investigation as he thinks expedient for the due administration of this Act.

(2) Whenever it appears to any Magistrate upon written information and after such enquiry as he thinks necessary, that there is reasonable cause to believe that in any place or building there is any object, article, material, thing, book or other document, which may be used as evidence of the commission of an offence against this Act, he may by warrant empower the investigation officer to enter the place or building, by force if necessary, and thereto search for, seize, take possession of and detain any such object, article, material, thing, book or other document.

Power to examine persons

51d. (1) An investigation officer may for the purpose of enforcing this Act, do all or any of the following:

(a) order any person orally or in writing to attend before him for the purpose of being examined orally by the investigation officer in relation to any matter which may, in the opinion of the investigation officer, assist in the investigation into the offence;
(b) order any person orally or in writing to produce before the investigation officer books, other documents, property, articles, or things which may, in the opinion of the investigation officer, assist in the investigation into the offence; or
(c) by written notice require any person to furnish a statement in writing made on oath or affirmation setting out all such information which may be required under the notice, being information which, in the opinion of the investigation officer, would be of assistance in the investigation into the offence.

(2) A person to whom an order under paragraph (1)(a) or (b), or a written notice under paragraph 1(c), has been given shall comply with the terms of such order or written notice, as the case may be, and, in particular—

(a) a person to whom an order under paragraph 1(a) has been given shall attend in accordance with the terms of the order to be examined, and shall continue to so attend from day to day as directed by the investigation officer until the examination is completed, and shall during such examination disclose all information which is within his knowledge, or which is available to him, or which capable of being obtained by him, in respect of the matter in relation to which he is being examined, whether or not any question is put to him with regard thereto, and where any question is put to him he shall answer the same truthfully and to the best of his knowledge and belief, and shall not refuse to answer any question on the ground that it tends to incriminate him or his spouse;
(b) a person to whom an order has been given under paragraph (1)(b) shall not conceal, hide, destroy, alter, remove from or send out of Malaysia, or deal with expend, or dispose of, any book, other document, property, article, or thing specified in the order, or alter or deface any entry in any such book or other document, or cause the same to be done, or assist or conspire to the same; and
(c) a person to whom a written notice has been given under paragraph (1)(c) shall, in his statement made on oath or affirmation, furnish and disclose truthfully all information required under the notice which is within his knowledge, or which is available to him, or which is capable of being obtained by him, and shall not fail to furnish or disclose the same on the ground that it tends to incriminate him or his spouse.

(3) A person to whom an order or a written notice is given under subsection (1) shall comply with such order or notice and with the provisions of subsection (2) in relation thereto, nothwithstanding the provisions of any written law, whether enacted before or after the commencement of this Act, or of any oath, undertaking or requirement of secrecy, to the contrary, or of any obligation under any contract, agreement or arrangement, whether express or implied, to the contrary.

(4) Where any person discloses any information or produces any book, other document, property, article, or thing, pursuant to subsections (1) and (2), neither the first-mentioned person, nor any other person on whose behalf or direction or as whose agent or employee, the first-mentioned person may be acting, shall, on account of such disclosure or production, be liable to any prosecution for any offence under or by virtue of any law, or to any proceeding or claim in any form or of any description by any person under or by virtue of any agreement or arrangment, or otherwise howsoever.

(5) An investigation officer may seize, take possession of and retain for such duration as he deems necessary, any book, other document, property, article or thing produced before him in the course of an investigation under subsection (1), or search the person who is being examined by him under paragraph (1)(a), or who is producing anything to him under paragraph (1)(b), for ascertaining whether anything relevant to the investigation is concealed, or is otherwise, upon such person.

(6) An examination under paragraph (1)(a) shall be reduced into writing by the investigation officer and shall be read to and signed by the person being examined, and where such person refuses to sign the record, the investigation officer shall endorse thereon under his hand the fact of such refusal and the reasons thereof, if any, stated by the person examined.

(7) The record of an examination under paragraph (1)(a), or a written statement on oath or affirmation made pursuant to paragraph (1)(c), or any book, other document, property, article or thing produced under paragraph (1)(b) or otherwise in the course of an examination under paragraph (1)(a) or under a written statement on oath or affirmation made pursuant to paragraph (1)(c), shall, notwithstanding any written law or rule of law to the contrary, be admissible in evidence in any proceedings in any court—

(a) for, or in relation to, an offence under this Act;
(b) for, or in relation to, any other matter under this Act; or
(c) for, or in relation to, any offence under any other written law,

regardless whether such proceedings are against the person who was examined, or who produced the book, other document, property, article or thing, or who made the written statement on oath or affirmation, or against any other person.

(8) A person who—

(a) makes, orally or in writing, or signs any declaration, return, certificate or other document required by this Act which is untrue or incorrect in any particular; or
(b) fails or refuses to furnish or produce any declaration, return, certificate or other document required by this Act to be furnished or produced,

shall be guilty of an offence.

Prosecution

51e. No prosecution shall be instituted for an offence under this Act or any regulations made under this Act except by or with the consent in writing of the Public Prosecutor.

Offence by bodies corporate, etc.

51f. where an offence under this Act has been committed by a body, whether corporate or unincorporated—

(a) in the case of a body corporate, any person who was a director, manager, secretary or any other officer responsible for the management of the body corporate at the time of the commission of the offence;
(b) in the case of a partnership or sole proprietor, every partner in the partnership or the sole proprietor at the time of the commission of the offence;
(c) in the case of trade union, the President, Secretary, Treasurer or other officer of the trade union at the time of the commission of the offence; or
(d) in the case of a society or any other unincorporated body, the President, Chairman, Secretary, Treasurer or other similar officer of the society or unincorporated body at the time of the commission of the offence, may be charged severally or jointly in the same proceedings as the body corporate, partnership, sole proprietor, trade union, society or unincorporated body and shall be deemed to have committed the offence unless he proves that the offence was committed without his knowledge or connivance or that he took all reasonable precautions or that he had exercised due diligence to prevent the commission of the offence.