PART V
CONSTITUTION


Membership of minors

26. (1) Subject to the provisions of this Act, a person under the age of twenty-one, but above the age of sixteen, may be a member of a registered trade union, unless provision be made in the rules thereof to the contrary, and may, subject to the rules of the trade union, enjoy all the rights of a member except as here in provided, and execute all instruments and give all acquittances necessary to be executed or given under the rules, but shall not be a member of the executive or a trustee of a registered trade union: Provided that no person for whom education is provided in any school, polytechnic, college, university, university college, or any other institution providing education, established by or under any written law, shall join or be a member of or be accepted or retained as a member by any trade union, unless he is—

(a) bona fide employed as a workman; and

(b) over the age of eighteen years.

(1A) No person shall join, or be a member of, or be accepted or retained as a member by, any trade union if he is not employed or engaged in any establishment, trade, occupation or industry in respect of which the trade union is registered. (1B) For the purpose of subsection (1A), any person who is employed by a trade union as a member of its executive under paragraph (a) of the proviso to subsection 29(1) shall be deemed to be employed or engaged in the establishment, trade, occupation or industry concerned.

(2) A member of a trade union who has not attained the age of eighteen years shall not be entitled to vote on any of the following matters:

(a) strikes and lock-outs and all matters relating thereto;

(b) the imposition of a levy;

(c) dissolution of the trade union or of the federation with which it is connected;

(d) amendment of the rules of the trade union where such amendment results in increasing the liability of the members to contribute or in decreasing the benefits to which members are entitled.

(3) Where a trade union of workmen has served a claim for recognition under the Industrial Relations Act 1967 [Act 177], the Director General may, at the request of the Director General for Industrial Relations, carry out a membership check in such manner as may be prescribed by regulations in order to ascertain the percentage of workmen or any class of workmen, in respect of whom recognition is being sought, who are members of the union making the claim.

Membership of public officers and employees of statutory authorities

27. (1) Subject to subsection (2), no public officer shall join or be a member of any trade union or shall be accepted as a member of any trade union.

(2) The Yang di-Pertuan Agong may by notification in the Gazette exempt from the provisions of subsection (1), either wholly or subject to such conditions as may be specified in such notification, any public officers or any category, class or description of public officers other than—

(a) members of the Royal Malaysian Police;

(b) members of any prison service;

(c) members of the Armed Forces;

(d) public officers engaged in a confidential or security capacity;

(e) public officers who are prohibited under any written law from forming or being members of a trade union; and

(f) public officers holding any post in the Managerial and Professional Group, except such public officers, or such class, category or description of public officers in such Group, as are excluded from the operation of this paragraph by a direction in writing issued by the Chief Secretary to the Government.

(3) (a) No person employed by a statutory authority shall join or be a member of, or be accepted as a member by any trade union unless the membership of that trade union is confined exclusively to persons employed by that particular statutory authority. (aa) Notwithstanding paragraph (3)(a), any person employed by a statutory authority who—

(i) holds any post in the Managerial and Professional Group or the equivalent thereof, shall not join, or be a member of, or be accepted or retained as a member by, any trade union, except such of these persons, or such class, category or description of these persons, as are excluded from the operation of this subparagraph by a direction in writing issued by the Chief Secretary to the Government; or

(ii) is engaged in a confidential or security capacity shall not join, or be a member of, or be accepted or retained as a member by, any trade union.

(b) Any trade union whose membership is confined to persons employed by a statutory authority shall not be affiliated to any other trade union or any federation of trade unions whose membership is not otherwise so confined:

Provided that any such trade union may, after obtaining the written approval of the Minister, affiliate with a registered federation of trade unions comprising trade unions of public officers. (bb) Notwithstanding paragraph (3)(b), two or more trade unions of workmen employed by statutory authorities, other than workmen employed by local authorities, may, with the approval of the Minister and subject to the provisions of Part XII, form or create a federation of trade unions.

(c) For the purpose of this subsection the persons appointed to serve and serving in an institution or at a place or under a body or person specified in the first column of the Third Schedule shall be deemed to be persons employed by the authority or body specified in relation to such institution, place or person in the second column of that Schedule, and such authority or body shall be deemed to be a statutory authority.

(d) The Minister may by order add to, delete from or amend the Third Schedule.

(4) Notwithstanding subsection (3), but subject to paragraph (aa) thereof—

(a) employees of a financially autonomous local authority may join or be members of a trade union whose membership is confined exclusively to employees of one or more such financially autonomous local authorities;

(b) employees of statutory authorities other than employees of local authorities may with the approval of the Minister join or be members of a trade union whose membership is confined exclusively to employees of one or more financially autonomous local authorities.

(5) Any question under subsection (2) or (3) as to whether a person is engaged in a confidential or security capacity shall be decided by the Chief Secretary to the Government.

(6) Any person or a group of persons who have sought a direction of the Chief Secretary to the Government under paragraph (2)(f) or under subparagraph (3)(aa) (i), and have failed to obtain such direction, or any person dissatisfied with any decision of the Chief Secretary to the Government under subsection (5), may, within thirty days of the failure to obtain such direction, or of such decision, as the case may be, appeal to the Minister responsible for public services, whose decision thereon shall be final and conclusive.

(7) Any person who, immediately before the commencement of this subsection, is a member of a trade union but is disqualified from being a member thereof by virtue of paragraphs (2)(a) to (f), or by virtue of paragraph (3)(aa), shall cease to be a member thereof upon the expiry of six months after the commencement of this subsection, save that—

(a) in the case of a person to whom paragraph (2)(f) applies, such person shall not cease to be a member thereof if within such period of six months he obtains the direction of the Chief Secretary to the Government under the said paragraph (f) and is exempted by a notification of the Yang di-Pertuan Agong under subsection (2); and

(b) in the case of a person to whom subparagraph (3)(aa) applies such person shall not cease to be a member thereof if within such period of six months he obtains the direction of the Chief Secretary to the Government under the said subparagraph (i):

Provided that where any such person is an officer of his trade union, he may continue to remain a member of such trade union until the expiry of the term of his office, or until he otherwise earlier ceases to hold such office, if the term of his office extends beyond the said period of six months.

(8) (a) In this section “Managerial and Professional Group” means the Kumpulan Pengurusan dan Iktisas referred to in paragraph 7.2 of either Pekeliling Perkhidmatan Bil. 2 Tahun1977 or Pekeliling Perkhidmatan Bil. 4 Tahun 1977 (both dated the 31 March 1977) or in paragraph 8.2 of either Pekeliling Perkhidmatan Bil. 1 Tahun 1978 or Pekeliling Perkhidmatan Bil. 2 Tahun 1978 (both dated the 12 April 1978) issued by the Jabatan Perkhidmatan Awam, Malaysia, or, when used with reference to persons employed by a statutory authority, it means any group of persons corresponding to those referred to in the said paragraph 7.2 or the said paragraph 8.2 of the said Pekeliling-pekeliling, as the case may be. (b) The Minister responsible for public services may, from time to time, by notification in the Gazette, amend the definition of “Managerial and Professional Group” set out in this subsection. Officers

28. (1) A person shall not act as a member of the executive of a trade union or any branch thereof, or of any federation of trade unions, and shall be disqualified for election as such member, if—

(a) he is not a citizen of the Federation;

(b) he has not been engaged or employed for a period of at least one year in any establishment, trade, occupation or industry with which the trade union or federation is connected;

(c) he has been a member of the executive of any trade union the registration of which has been cancelled or withdrawn under subparagraph 15(1)(b)(iv), (v) or (vi) or under any law repealed by this Act;

(c1) he is an office-bearer or employee of a political party;

(d) he has been convicted by any court of law of criminal breach of trust, extortion or intimidation, or of any offence which in the opinion of the Director General renders him unfit to be an officer of a trade union; or

(e) he is a bankrupt:

Provided that paragraphs (a) and (b) shall not apply in the case of a union which, in the opinion of the Minister, is required by its objects to represent persons or the interests of persons who are not resident in Peninsular Malaysia, Sabah or Sarawak, as the case maybe.

(2) Where the Director General certifies in writing to the executive of a trade union or a federation of trade unions that any person who is a member of the executive of that union or federation is disqualified from being a member of such executive, specifying in such certification the grounds on which such person is so disqualified, such person shall immediately thereupon cease to be a member of such executive.

Employees of a trade union

29. (1) A registered trade union may, subject to subsection (2) and of the rules of such union, employ and pay a secretary, treasurer and such other persons as may be necessary for the purposes of such union or of any federation of trade unions to which the union belongs:

Provided that no employee of such union other than—

(a) the holder of a full-time office as secretary, assistant secretary, treasurer or assistant treasurer who is elected in accordance with the rules of such union; or

(b) a secretary, assistant secretary, treasurer or assistant treasurer who is employed as such immediately before the commencement of this paragraph and possessing no power of voting in respect of the affairs of such union or of any of its committees,

shall be a member of the executive of such union.

(2) A person shall not be employed by a registered trade union under subsection (1)—

(a) if he is not a citizen of the Federation resident in Peninsular Malaysia, in the case of a trade union in Peninsular Malaysia, or resident in Sabah, in the case of a trade union in Sabah, or resident in Sarawak, in the case of a trade union in Sarawak;

(b) if he has been convicted by any court of a criminal offence and has not received a free pardon in respect thereof, and such conviction in the opinion of the Director General renders him unfit to be employed by a trade union;

(c) if he is an officer or employee of any other trade union; or

(c1) if he is an office-bearer or employee of a political party: Provided that paragraph (a) shall not apply in the case of a union which, in the opinion of the Minister, is required by its objects to represent persons or the interests of persons who are not resident in Peninsular Malaysia, Sabah or Sarawak as the case may be, and that paragraph (c) shall not apply to a federation of trade unions registered under Part XII.

(3) Any person who is disqualified to be employed by a trade union under subsection (1) or subsection (2) and has himself so employed without first obtaining the exemption of the Minister under paragraph 30(b), 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 two thousand ringgit, or to both.

Power of Minister in relation to sections 28 and 29

30. The Minister may by order— (a) declare that section 28 or 29 shall not apply to any registered trade union or class of registered trade unions specified in the order; or

(b) grant, either absolutely or subject to such conditions as he may consider reasonably necessary, exemption from all or any of the provisions of section 28 or 29 in respect of officers or employees or such proportion or class of officers or employees of any registered trade union or class of registered trade unions as may be specified in the order.

Change of name

31. Any registered trade union may, with the consent of not less than two-thirds of the total number of its members and subject to section 34, change its name.

Amalgamation

32. Any two or more registered trade unions whose members are employed within similar trades, occupations or industries may become amalgamated as one trade union, with or without dissolution or division of the funds of such trade unions or either or any of them, provided that—

(a) the votes of at least one-half of the members of each or every such trade union entitled to vote are recorded; and (b) that at least sixty per centum of the votes recorded are in favour of the proposal.

Transfer of engagements

33. (1) (a) Subject as hereinafter provided a trade union may by a special resolution transfer its engagements to any other trade union whose members are employed within similar trades, occupations or industries which may undertake to fulfil those engagements; but no transfer under this section shall prejudice any right of any creditor of any trade union which is a party thereto. (b) For the purpose of this subsection “a special resolution” means a resolution proposed at any general meeting of which notice specifying the intention to propose that resolution has been duly given according to the rules and passed by not less than twothirds of the members of the union present and entitled to vote at the meeting, or if the general meetings of the union are meetings of delegates, by not less than two-thirds of the delegates present at the meeting.

(2) No transfer under this section shall take effect unless or until—

(a) the consent thereto of not less than two-thirds of the members of the union transferring its engagements has been obtained either at meetings or in writing, or the Director General on application made to him in writing by the union and after notice of the application has been published in the Gazette and (if he so requires) in one or more newspapers, and after hearing the union and any other persons whom he considers entitled to be heard, has dispensed with that consent; and

(b) notice of the transfer (which it shall be the duty of every union transferring its engagements to send to the Director General) has been registered. The application for registration of the notice of transfer shall be made in writing and signed by the chairman of the meeting and the secretary of the union transferring its engagements, and by the president, secretary and trustees of the union undertaking to fulfil the engagements.

(3) The property held for the benefit of any trade union amalgamating with any other trade union or of any trade union transferring its engagements under this section, or for the benefit of a branch of any such union, by the trustees of the union or of any branch thereof, other than property excepted from the operations of this subsection by the instrument of transfer or amalgamation, shall without any conveyance or assignment vest, on registration of notice of the amalgamation or transfer, or on the appointment of the appropriate trustees, whichever is the later, in the appropriate trustees, that is to say—

(a) in the case of any property to be held for the benefit of a branch of the amalgamated union or of a branch of the union undertaking to fulfil the engagements, in the trustees of that branch, unless the rules of that branch provide that property to be so held shall be held by the trustees of the union; and

(b) in any other case in the trustees of the amalgamated union or of the union undertaking to fulfil the engagements.

(4) Every instrument of amalgamation or transfer shall specify any property to be vested under the foregoing provisions, in relation to which the trustees of the amalgamated union or of the union undertaking to fulfil the engagements are not or will not be the appropriate trustees and shall designate the persons who are or will be the appropriate trustees in relation to that property.

Notice of change of name or amalgamation

34. (1) Notice in writing shall be given to the Director General of every change of name and of every amalgamation, signed, in the case of a change of name, by the secretary and by seven members of the registered trade union changing its name, and, in the case of an amalgamation, by the secretary and by seven members of each and every registered trade union which is a party thereto. (2) If the proposed name 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 Director General, is likely to deceive the public or the members of either trade union, or is in the opinion of the Director General undesirable, he shall refuse to register the change of name.

(3) Subject to subsection (2), the Director General shall, if he is satisfied that the provisions of this Act in respect of change of name have been complied with, register the change of name in the prescribed manner, and the change of name shall have effect from the date of such registration.

(4) If the Director General is satisfied that the provisions of his Act in respect of amalgamation have been complied with and that the trade union formed thereby is entitled to registration under section 12, he shall register the trade union in the prescribed manner and the amalgamation shall have effect from the date of such registration.

35. (Deleted by Act A483).

Effect of change of name or amalgamation

36. (1) A change in the name of a registered trade union shall not affect any rights or obligations of that trade union or render defective any legal proceeding by or against the trade union, and any legal proceeding which might have been continued or commenced by or against it under its former name may be continued or commenced by or against it under its new name.

(2) An amalgamation of two or more registered trade unions shall not prejudice any right of either or any such trade unions or any right of a creditor of either or any of them.

Registered office

37. (1) Every registered trade union shall have a registered office situated in Peninsular Malaysia, Sabah or Sarawak, as the case may be, to which all communications and notices may be addressed.

(2) Notice of the situation of such registered office, and of any change therein, shall be given to the Director General and shall be registered by him, and the trade union shall not be deemed to have complied with this Act until such notice has been given.

(3) Every trade union which—

(a) operates without having a registered office, or without giving notice of the situation of its registered office as hereinbefore required; or

(b) operates at any place to which its registered office may have been removed, without having given notice of the change in the situation thereof to the Director General, and every officer of any such union shall, on conviction, be liable to a fine not exceeding fifty ringgit for every day during which such union is so in operation.

Rules

38. (1) The rules of every registered trade union shall make provision for all the matters specified in the First Schedule, and shall not be so altered or amended as to cease to contain provision in respect of all such matters.

(2) A copy printed in National Language or English or Tamil or Chinese of the rules for the time being in force of any registered trade union shall be prominently exhibited in such place as it may easily be read at the registered office thereof and shall be furnished by the secretary of such trade union to any person on demand on payment of a sum not exceeding one ringgit:

Provided that if the copy of the rules is not printed in National Language or English, a typewritten or otherwise mechanically produced copy of the rules in National Language or English as registered and signed by the president, secretary and treasurer of the union shall, in addition, be prominently exhibited at the registered office and shall be furnished by the secretary with every copy of the printed rules of the union in Tamil or Chinese on demand.

(3) A copy in national language of every new rule and of every alteration made in the rules of a registered trade union shall be sent to the Director General within thirty days of the making of such rule or alteration and shall if approved by him be registered by the Director General on payment of the prescribed fee:

Provided that any alteration of the rules which results in increasing the liability of the members to contribute other than the increase of members’ subscription or in decreasing the benefits to which members are entitled shall not be approved by the Director General unless more than one-half of the members entitled to vote in accordance with the union’s rules have voted in favour of the proposed alteration.

(4) Every alteration of the rules of a trade union shall take effect from the date of registration by the Director General unless some later date is specified in the rules.

(5) The Minister may by order add to, delete from or amend the First Schedule.

39. (Deleted by Act A483).

Secret ballot

40. (1) A trade union shall take a secret ballot to make a decision on any of the following matters—

(a) the election of delegates to a general meeting, if the rules of the union provide for meetings of delegates, or to a federation of trade unions;

(b) the election of officers (other than trustees) by the members in accordance with the rules of the union;

(c) all matters relating to strikes or lock-outs;

(d) the imposition of a levy;

(e) dissolution of the trade union or federation of trade unions;

(f) amendment of the rules where such amendment results in increasing the liability of the members to contribute or in decreasing the benefits to which members are entitled;

(g) amalgamation with another trade union or transfer of engagements to another trade union.

(h) (Deleted by Act A717).

(2) Where a secret ballot is taken on any matter relating to a strike or a lock-out, it shall contain a resolution setting out clearly the issues leading to the proposed strike or lock-out and describing clearly the nature of the acts which are to be done or omitted to be done in the course of such strike or lock-out; and a secret ballot which does not fulfil these requirements shall be invalid and of no effect, and no strike or lock-out shall be carried out on the basis of such secret ballot.

(3) A secret ballot which has been taken on any matter relating to a strike or lock-out shall cease to have effect upon the expiry of ninety days after the date on which the secret ballot is taken and no strike or lock-out shall thereafter be carried out on the basis of such secret ballot.

(4) In carrying out any secret ballot, a trade union shall ensure that every member thereof has an equal right and a reasonable opportunity to record his vote freely, that the secrecy of the ballot is properly secured and that the results of the ballot are correctly ascertained.

(5) The results of a secret ballot taken to decide on any of the matters specified in subsection (1) shall be submitted by the secretary of the trade union to the Director General in triplicate, substantially in the form prescribed by regulations, within fourteen days after the taking of the secret ballot.

(6) Where a trade union has taken a secret ballot to call for a strike or to declare a lock-out, the Director General may upon receipt of the results thereof under subsection (5), carry out all such investigations as he may deem necessary, and where he is satisfied that the proposed strike or lock-out if carried out would contravene this Act or any other written law he shall direct the trade union not to commence the proposed strike or lock-out.

(7) The secretary of the trade union shall take all such steps as are necessary to ensure that all ballot papers and documents used in connection with or relevant to a secret ballot are kept at the registered office of the trade union for a period of not less than six months after the completion of the ballot.

(8) For the purpose of satisfying himself that a secret ballot taken by a trade union has been properly conducted, the Director General may require any person to deliver to him any ballot papers, envelopes, lists, or other documents whatsoever, which have been used in connection with or are relevant to the secret ballot and which are in the possession or under the control of that person, and may inspect any such document and retain it for such period as he deems necessary; but save as aforesaid or as may be provided in the rules of the trade union no person shall be allowed to inspect or copy any document relating to a secret ballot.

(9) The Director General may in any particular case declare a secret ballot taken by a trade union to be invalid if he is satisfied that the trade union has contravened any provision of this Act, or of any regulations, or of any of its rules in carrying out such secret ballot.

Notification of changes of officers and employees

41. (1) A trade union shall exhibit prominently in its registered office in a place where it may be easily read a list showing the names and titles of the officers and employees for the time being of the union, and shall also so exhibit at the office of each branch of the trade union a list showing the names and titles of the officers and employees for the time being of the branch.

(2) Notice in the form prescribed by regulations of every change of officer, employee or of the title of any officer or employee shall, together with the fee prescribed by regulations, be sent to the Director General within fourteen days after the change, and the Director General shall, on being satisfied that such change is not contrary to the rules of the union or this Act or any regulations, alter the register accordingly.

Notification of dissolution

42. When a registered trade union is dissolved voluntarily, notice of the dissolution signed by seven members and by the secretary of the trade union shall, within fourteen days of the dissolution, be sent to the Director General, and shall be registered by him if he is satisfied that the dissolution has been effected in accordance with the rules of the trade union and this Act and any regulations made thereunder; and the dissolution shall have effect from the date of such registration.

Trustees

43. (1) The rules of a registered trade union shall provide for the appointment or election of trustees and for the filling of vacancies in the office of trustee so that, as far as may be, there shall always be at least three trustees of the union.

(2) No secretary or treasurer of a registered trade union may be a trustee thereof.

(3) A corporation approved by the Director General may be appointed as sole trustee by a registered trade union, and references in this Act to “trustees” shall include reference to a corporation so appointed.

(4) The names and particulars of the trustees appointed or elected or any changes therein shall be forwarded by the union to the Director General for entry in the register within fourteen days after the change and such appointment or election shall not take effect until so registered.