CONCILIATION - DEFINITION

The Industrial Relations Act does not provide a definition of the term “conciliation”. In general usage, the term relates to the act of assisting parties to a dispute find an acceptable solution. The Industrial Relations officers in the Department of Industrial Relations provide a conciliation service for trade disputes and cases where dismissed employees claim reinstatement.

CONCILIATION OF TRADE DISPUTES

[Industrial Relations Act 1967, Sections 18 and 19]

Once a trade dispute exists between an employer and a trade union representing his workers or between a union of employers and a union of employees, it may be reported to the Director General of Industrial Relations either by the employer or the union of employers or by the trade union involved in the dispute. The Director General is authorised by the Industrial Relations Act to take whatever steps necessary to settle the dispute. In this situation, the conciliation conducted by the Director General or his officers is voluntarily requested by the parties to the dispute.

Where the Director General becomes aware of a trade dispute which he believes is not likely to be settled by the parties without third party assistance, in the public interest, the parties may be ordered to attend conciliation sessions. Prior to calling the parties to conciliation, the Director General may refer them to any dispute settlement machinery established by the parties, if any. Thus, conciliation may be either voluntary or compulsory.

For the purpose of conciliation, the Director General may require the parties to provide information relevant to the dispute, together with a statement laying out which points have been agreed and which are still in dispute.

Conciliation is conducted by officers of the Department of Industrial Relations. However, the Minister of Human Resources is authorised to conciliate any trade dispute if he considers that his services might be helpful in settling the dispute.

During conciliation sessions, the parties may be represented as follows:

i. The employer may represent himself or be represented by any of his employees; or

ii. If the employer is a member of a trade union of employers, he may be represented by an officer or employee of the union; or

iii. The employer may be represented by an official of the organisation which represents employers, i.e. the Malaysian Employers Federation.

iv. A trade union of employees may be represented by an officer or employee of the union; or

v. A trade union of employees may be represented by an official of the organisation which represents trade unions, i.e. the Malaysian Trades Union Congress.

Neither legal counsel, consultants nor any other persons are permitted to represent either of the parties during conciliation sessions.

CONCILIATION DISCUSSIONS AND THE COURTS

[Industrial Relations Act 1967, Section 54]

Matters discussed during conciliation sessions or offers made in relation to the dispute may not be used in evidence at the Industrial Court or any other court, except in the form of a written statement agreed to by both parties to the dispute.

Although the following award relates to dismissal of an employee and was not a trade dispute, the issue relating to matters discussed during a conciliation session is the same. In Nooraizan Mohd Tahir v Takaful Nasional Bhd, [2010] 4 ILR 520, the Industrial Court said as follows: “On the issue of the company's objection to the introduction as evidence of the claimant's letter to the Industrial Relations Officer pursuant to s. 54(2) of the Industrial Relations Act, it would be overruled. The purpose of Parliament barring from the Courts the admission of evidence given at the proceeding before the Director General ('DG') was so that whatever had transpired at the conciliation meetings between the parties before the DG would remain confidential. Whatever is said there, whatever offers and counter-offers and whatever admissions and denials by the parties ought to remain confidential and should not be allowed to be introduced as evidence in Court later, should the case end up in Court, due to their probable prejudicial effect. In this case, the letter had not contained any of those things referred to above and hence in admitting the same as evidence, there had absolutely not been any probability of any prejudicial effect of the company's case. In any event, there had been abundant oral evidence from the claimant's testimony "repeating" what she had expressed earlier in her said letter. Even independently of the letter, she would have been able to sufficiently have built up her case based on her oral evidence.

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