Professional Documents
Culture Documents
2010937999 Group B
Negotiation
a) Positional bargaining
- A negotiation where negotiator took on a position and undergo contest of will.
- Two position in this bargaining process:-
I- Soft positional negotiator
II- Hard positional negotiator
- Therefore, it can be said that positional bargaining is where negotiator took a stand as a basis
for negotiation either to use soft or hard approach.
- The weakness of this method of negotiation is that the negotiator will often give more focus on
position rather than their dispute.
- This will cause the disputing parties to unable reach agreement.
- Even if the disputing parties may come to an agreement, the agreement may perhaps not be fair
to both sides.
b) Principled Negotiation
- This method of negotiation was developed in the Harvard Negotiation Project.
- This method of negotiation focus on four principle
I- People
o The negotiator separates the people from the problem.
o They work as team and focus on the problem instead of the people.
o This principle is where the negotiator uses the hard approach against the
problem and soft approach against the people.
II- Interest
o Negotiator focus on interest instead of the position of the disputing
parties.
o This will enable both parties to safeguard their interest.
o Therefore, a more acceptable agreement to both parties may be
reached.
III- Options
o The parties may generate variety of possible solutions for the dispute.
o They may invent a solution from the variety of suggestion of options
generated.
o They may the pick the most suitable solution for mutual gains.
IV- Criteria
o The parties, may, in choosing the option for solution, insist that it must
be based on some objective standard.
o Both parties must be able to reason and be open to reason.
o This will enable a fair and mutually beneficial solution to both parties.
o The parties should only yield to the principle; they must not yield to the
pressure or a positional influence.
Collective bargaining and collective agreement is both governed by Industrial Relation Act (IRA)
- Definition
a)Section 2 of IRA
b) Negotiating with a view to the conclusion of agreement.
- Procedure
a)Section 13
(2) Invitation must be made in writing. The proposal which may be put forward, training for
workmen, annual review of wage system, r performance based remuneration system.
(3) May not contain proposal for promotion or dismissal or reinstatement of any worker as it is
the discretion of the employer.
(4) Reply notifying acceptance or rejection to the invitation shall be made within 14 days of
receipt of invitation.
(5) After invitation and reply notifying invitation is made, CB shall commence within 30 days of
receipt of reply notifying acceptance of invitation.
(6) If invitation is refused, or not accepted within 14days, or CB is not started within 30 days of
reply notifying acceptance to invitation, a party may make notification to Director General
(DG), in writing for him to take necessary step to commence CB without undue delay.
(7) If such step has been taken, and there is still refusal to commence CB, a trade dispute shall
deem to exist.
- Definition
a) Section 2 of IRA
b) An agreement in writing concluded between an employer or trade union of employer with trade
union of employee on matter concerning conditions & term of employment or relations
between employer and employee.
- Content of CA
a) Section 14 (2)
b) Must contain
I- Name of parties in agreement
II- The period it shall be enforceable (must be enforceable for at least 3 years)
III- Procedure for termination or modification of CA
IV- Procedure for interpretation or reference to court for any issue that may arise unless a
machinery to settle such issue is already provided.
- Procedure to enforce CA
a) Section 16
(1) Signed copy of document shall be jointly deposited by parties within one month from
the date of the agreement being entered into for court to take cognizance.
(3) Court itself may amend the CA and enforce it if parties agree to the amended CA.
- Effect of CA
a) Section 17 (1)
CA is binding on
I- Successors, assignees, transferees of employer or trade union of employer.
II- All workmen employed, subsequently employed, or employed in the undertaking of the
said CA.
b) The effect of this section was illustrated in the case of Kesatuan Kebangsaan Wartawan
Malaysia v Syarikat Pemandangan Sinar.
Mediation
Process
Difference
- Free of charge, salary of Sulh officer - Fees depend on the value of subject
is determined by State. matter in mediation and may be
charged with additional
administration fees.
Qualification Qualification
Attendance Attendance
Mediator Mediator
- Sulh officer is a full time mediator - There shall be a part time (lawyer)
and full time mediator.
Venue Venue
Similarities
Confidentiality Confidentiality
Roles
Conciliation
Definition
- To pacify, or to cool down state of anger.
- Conciliation in dispute settlement is basically similar with negotiation, but differ in the use
of neutral third party to negotiate to reach settlement.
Role of conciliator
- Contact & interview disputing parties.
- Assist parties in exchange of information
- Facilitate the resolution by suggesting options
- Family matter
a) Law Reform (Marriage & Divorce) Act
b) Islamic Family Law (Federal Territories) Act
- S18
(1) If trade dispute failed to be resolved, either party to the dispute, may report to DG
(3) if the failed collective bargaining involves public interest, DG will intervene regardless of report
being made or not.
- S19
(2) DG may require the disputing parties to attend compulsory conference presided by him.
- S19A
Minister may take necessary steps to conciliate trade dispute
- S19B
Difference
IFLA LRA
Governed by Section 47 of IFLA Governed by Section 106 of LRA
b) One representative for each husband and b) A marriage tribunal which shall consist of:
wife appointed by Court I- A Chairman
II- Not less than 2 and not more than 4
members
III- Appointed by the Minister or officer
he delegate his power to
- Syariah court will dismiss the - LRA is silent on the effect of successful
application for divorce conciliation.
Exemption of conciliation process Exemption of conciliation process
a) Other party is residing in outside West a) Other party is residing abroad and is
Malaysia and is foreseeable not to come foreseeable not to come back within 6
back within 6 months from date of months from date of petition.
application.
b) Other party is imprisoned for 3/more b) Other party is imprisoned for 5/more
years. years.
Similarities
IFLA LRA
Method to count period to effect conciliation Method to count period to effect conciliation
a) Within 6 month from the date of a) Within 6 month from the date of reference
conciliatory committee being established of the petition of divorce
Exemption of conciliation process Exemption of conciliation process
a) Applicant alleged d that there has been a a) Applicant alleged d that there has been a
desertion of spouse or unknown desertion of spouse or unknown
whereabouts of spouse. whereabouts of spouse.
b) Applicants alleged other party is suffering b) Applicants alleged other party is suffering
from incurable mental illness. from incurable mental illness.
c) Where Court satisfied there is exceptional c) Where Court satisfied there is exceptional
circumstances circumstances
Representation Representation
a) Court will issue certificate regarding b) Court will issue certificate regarding
maintenance, division of matrimonial maintenance, division of matrimonial
property and custody of minor children property and custody of minor children.
other matter related to marriage.
Disciplinary Board
Establishment & Composition
- Section 93 of Legal Profession Act (LPA)
- Proceedings for disciplinary purpose shall be under Disciplinary Board established under
this proviso.
- Disciplinary Board shall consist of
a) Chairman which is a judge or retired judge (of High Court/ Court of Appeal/ Federal
Court) that is to be appointed by Chief Judge after consultation with Bar Council.
b) President of Bar Council or any member of Bar Council as his representative.
c) Fifteen practitioner members of Bar Council of 15 years standing appointed by Chief
Judge for a term of two years.
- The chairman of the Disciplinary Board, President of Bar or his representative shall disqualify
themselves in the interest of justice and the remaining members of Disciplinary Board shall
elect one of them to preside over the meeting.
Complaint
- Section 99
- Any complaint of misconduct of any advocate and solicitor or of any pupil shall be in writing
and referred to the Disciplinary Board.
Investigation of Complaint
- Section 100
- If there is no merit in the complaint, shall dismiss the complaint and notify both complainant
and the advocate and solicitor.
- If there is merit in the complaint, the Board shall require a written explanation.
- Whether the advocate and solicitor provide a written explanation or not, after the
expiration of period to produce written explanation, the Board may determine,
a) if formal investigation is necessary, proceed to appoint Disciplinary Committee
b) if no formal investigation is necessary, proceed to consider the merit of the complaint.
Disciplinary Committee
- Section 103A
- If formal investigation is necessary, Board will appoint Disciplinary Committee from
Disciplinary Committee Panel.
- Shall consist of three persons
a) Two advocates and solicitors
b) One lay person
- Section 103B
- The Disciplinary Committee shall commence its investigation of the complaint into writing
and report to the Board.
- Section 103C
- Disciplinary Committee shall record its finding and make recommendation
a) That no cause for disciplinary action exists.
b) That cause of disciplinary action exist but is not enough to warrant punishment except
for warning
c) There is merit to complaint and disciplinary action should be taken.
- Section 103D
- The Board may affirm, reject the recommendation by Disciplinary Committee.
- Section 103E
- Appeal from decision of Board may be made to High Court, then Court of Appeal, then
Federal Court.
Arbitration
Definition
a) Arbitration
- Grace Xavier Law and Practice, Arbitration in Malaysia
- Agreement of parties to submit all existing and future dispute to arbitration.
- Syed Khalid Rashid ADR in Malaysia
- Legal process which enables parties to a contract to refer their disputes to an arbitrators or
panel of arbitrator.
- Arbitral tribunal
Means sole arbitrator or a panel of arbitrator.
- Award
Decisions of arbitral tribunal on the substance of dispute but does not include interlocutory
order.
- Presiding arbitrator
Means arbitrator designated in arbitration agreement to be presiding arbitrator, or
chairman of arbitrator tribunal, a single arbitrator, or the third arbitrator appointed by the
two arbitrators. (Basically, arbitrator that is agreed by both party to have power to give
award)
- Seat of arbitration
Means the place where the arbitration is based on. (referring to the process and the rules
that apply to the arbitration process is the rule applicable in the rules of the place not the
venue of arbitration)
- Arbitration agreement
Agreement to submit all or part of the dispute that may arise or already exist to the
arbitration process (definition pursuant to Section 9)
Type of arbitration
- Section 3
a) Section 3 provide for two types of arbitration, domestic and international arbitration.
b) Difference
1) Definition 1) Defintion
- Section 2 - Section 2
- Arbitration which is not international - One of the parties to arbitration, at
arbitration. the time of conclusion of that
agreement, has it place of business in
other State than Malaysia.
- Or
- Any three situation
a) The seat of arbitration is
determined outside Malaysia.
b) The substantial part of obligation is
to be performed outside
Malaysia.
c) Parties have expressly agreed that
the subject matter of arbitration
agreement relates to more than
one State.
2) Application 2) Application
- Section 3 - Section 3
- Part III of AC shall apply unless party - Part III of AC shall not apply unless
agreed otherwise in writing. party agreed otherwise.
Number of arbitrators
- Section 12
- International arbitration, three arbitrators.
- Domestic arbitration, single arbitrators.
Appointment of arbitrators.
- Section 13
- Parties are free to appoint arbitrators.
- If parties failed agree on appointing arbitrators, each party may appoint arbitrator from
their part, and the two arbitrator shall appoint the third arbitrator ( which shall be the
presiding arbitrator)
- If both the appointed arbitrator fails to appoint the third (presiding) arbitrator within the
period agreed between parties, either party may apply to the Director of Kuala Lumpur
Regional Centre for Arbitration (KLRCA) for such appointment.
- In arbitration with single arbitrator, if parties failed to agree on arbitrator appointment or
procedure of appointment, either party may apply to Director of KLRCA.
- If parties agreed with the procedure of appointment of arbitrators, but
a) Fails to act under such procedure or
b) Unable to reach agreement under such procedure
Either of them may apply to Director of KLRCA to take measures to secure appointment of
arbitrator.
- If Director of KLRCA fails to perform as such within 30days of request, parties may apply to
High Court for such appointment.
- Director of KLRCA shall, take into accounts when appointing the arbitrators
a) Qualification required by parties
b) Other factor to secure independent of arbitrator.
- No appeal against the decision of Director or High Court in appointing arbitrators.
Conduct of proceedings
- Section 24 Language
- Arbitral tribunal shall determine the language to be used.
- May order documentary evidence to be accompanied with translation.
- Section 26 Hearing
- Arbitral tribunal shall decide whether to hold oral hearing for presentation of evidence or
oral argument, or conduct the proceeding on the basis of documentary evidence only.
Effect of award
- Section 36
- Award shall be final and binding.