Employment law and industrial relations

Danielle Tan and Leonard Yeoh from Tay & Partners discuss the world of employment law, industrial relations and a lawyer's role in what can sometimes be a high-profile arena.

Employment/industrial relations can be a specialised area of practice for lawyers. It is fairly wide and the areas of practice may be in both contentious litigation and non-contentious advisory and transactional matters. The employment and industrial relations law in Malaysia can be very different even from other common law jurisdictions. As Malaysia is not a welfare state, its employment law is perceived by many as being geared towards the protection of the employees, as opposed to the employers.

Broadly speaking, employment means work or services performed by an individual for another person or entity in exchange for wages or other remuneration. While employees and employers are at liberty to negotiate terms and conditions of their employment contracts, usually the employees will not be in a position to bargain for the legal protection that protects their best interests. So, employment law steps in to ensure that the interest and welfare of the employees are protected.

Industrial relations

The relationship between the employees and the employers is referred to as industrial relations. It covers all aspects of the employment relationship, including human resource management, employee relations and union-management relations. Any trade dispute, ie any disagreement between the employer and the employee relating to the employment, can be referred to the Industrial Court.

The need for legal advice

As mentioned, Malaysian employment/industrial relations law is perceived to be pro-employee. An employer (especially a foreign company) which is ill-informed or ill-advised regarding the laws could incur severe penalties. These could include being ordered to pay a huge sum in back wages and compensation in lieu of reinstatement in a wrongful dismissal claim.

The different types of practice

Generally, there are three groups of employment/industrial relations lawyers in Malaysia:

• General employment lawyers, who represent employees and employers
• Lawyers who will only take up cases representing the employees
• Lawyers who act and represent corporations and employers.

The skills required and work involved

The skills required in this area include the need to be practical and have a sound knowledge of employment/industrial relations law. Employment/industrial relations lawyers are also expected to have good advocacy skills, as court appearances are needed in many matters.

Work involved in this area includes:

• Drafting of and reviewing employment contracts/staff handbooks
• Personnel policies and procedures
• Executive service contracts
• Confidential agreements
• Restrictive covenants
• Dealing with disciplinary and poor performance issues in the workplace
• Advising on a broad range of employment issues, such as: transfers; mergers; restructuring; retrenchment; strikes; outsourcing; termination of employment; sexual harassment; health and safety; immigration and work permits; employee benefits; human resources and employment due diligence; negotiating with or for trade unions in collective agreements; and appearing in courts at all levels, including the Labour Court, the Industrial Court, the High Court and the Appellate Court.

As our employment law trends and labour practices are evolving due to global influence, trainees will find this area challenging and with plenty of growth potential.

About the authors

Danielle Tan is an Associate with the firm of Tay & Partners in the Litigation and Dispute Resolution Practice Group and practices in the area of general litigation. She graduated from the University of London with an LLB (Hons) in 2006, earned her Certificate in Legal Practice (CLP) in 2007 and was admitted as an Advocate and Solicitor of the High Court of Malaya in 2008. She has been with Tay & Partners for two months.

Leonard Yeoh is a Partner and Head of the Labour & Employment and Litigation & Dispute Resolution Practice Group at Tay & Partners, and has been with the firm for six years. He graduated from the University of Leeds with an LLB (Hons) in 1994. A member of the Honourable Society of Lincoln's Inn, London, he was admitted as an Utter Barrister to the Bar of England & Wales in 1995. He has been admitted as an Advocate and Solicitor of the High Court of Malaya and the Supreme Court of Singapore.

© GTI Specialist Publishers. Reproduced with permission.