Doctors’ Right To Industrial Action: A Legal Perspective — Shariffullah Majeed & Nur Azmeena Azahar

Section 43 of the IRA 1967 requires workers in essential services (which includes public health) to give their employer notice of the intended strike within 42 days before the event; strikes can also be held after 21 days of giving such notice.

Since the beginning of the Covid-19 pandemic, health care workers in countries that have been the hardest hit have expressed their frustrations to their respective governments for being either overworked, underpaid, or both.

In August 2020, when South Korea was facing one of its worst outbreaks from the virus, medical residents and doctors went on a 24-hour strike in Seoul to protest a government plan.

At the start of July 2021, the British Medical Association advised “exhausted and demoralised” members to take industrial action if their annual pay was not increased to at least 5 per cent.

In Malaysia, on July 26, 2021, the Hartal Doktor Kontrak stirke unfolded at various public hospitals, which saw junior contract doctors — dressed in black and holding placards — walk out of their posts into the streets.

Here, we will discuss the right of our doctors to initiate industrial action under Malaysian employment laws.

Hartal Doktor Kontrak

Labour rights in Malaysia have been made constitutional rights guaranteed under the Federal Constitution, by expanding the meaning of the “right of life” to include the “right to livelihood”.

“Hartal”, Gujarati for mass protest or strike, was the culmination of a years-long issue that saw junior doctors under fixed-term employment contracts (contract system) being offered poorer employment terms than their predecessors in public hospitals.

On July 1, 2021, an anonymous group of doctors, relying on their right to freedom of speech and expression under the Federal Constitution, released an online public memorandum that they would proceed with a nationwide strike on July 26, based on the following demands:

  1. The government must offer a permanent employment contract to all the contract doctors.
  2. A detailed explanation of what the permanent employment contract entails must be issued.

The Contract System

In October 2016, the former health minister, Dr S. Subramaniam, announced that in line with the 2017 Budget, the government would introduce the contract system to solve the problems of graduates who are forced to wait too long for placements.

Starting in December 2016, medical school graduates were given five-year contracts to fast-track their entry into the workforce.

Prior to the introduction of the contract system, medical officers who completed their housemanship training were guaranteed permanent posts in government health care facilities.

However, after the implementation of the contract system, medical officers who have entered the workforce are now only employed on five-year contracts, without job security beyond their term of contract.

Right To Industrial Action

The principal aim of the Industrial Relations Act 1967 (IRA 1967) is to regulate relations between employers, workers and trade unions. Accordingly, Dr Milton Lum, the former president of the Malaysian Medical Association (MMA), disagreements over the contract system should in fact be brought to the Labour Department instead of the Malaysian Medical Council (MMC), since the issue is an employer-employee conflict.

Strikes, pickets, and lockouts are expressions used to describe the various types of common industrial actions. Industrial action is usually resorted to when employees are involved in a trade dispute with their employer that cannot be resolved by negotiation per se.

It is pertinent to note that these industrial actions are recognised and regulated under the IRA 1967 and the Trade Unions Act 1959. Although workers have the general right to strike, this right is very closely regulated under the law in order to minimise the disruptive and potentially crippling consequences of strikes to the nation.

Statutory Compliance

Under the First Schedule of the IRA 1967, “public health services” are listed as “essential services”. Section 43 requires workers in essential services to give their employer notice of the intended strike within 42 days before the event.

However, it also allows strikes to be held after 21 days of giving such notice. The planned strike can be deemed illegal if it contravenes Section 45.

Power To Restrain Strikes

Although doctors have the right to strike, they should be mindful of Section 44A in the IRA 1967, which gives the minister of human resources the power to restrain them from carrying out the strike, if he deems that it may endanger the lives, personal safety, or health of the whole or part of the population.


The contract system has no clear policy in terms of renewals, and is not automatically renewed based on years of service or even merit. This has led to contract doctors fearing termination at the end of their contracts, despite years of study and compulsory training.

Unfortunately, this has led to a brain drain in the public medical service, as many have left for greener pastures in the private sector or overseas. Their extraordinary efforts as Malaysia’s foremost frontliners in the battle against Covid-19 must be appreciated and rewarded accordingly.

Shariffullah Majeed is a partner (employment & industrial relations) at Lee Hishammuddin Allen & Gledhill, while Nur Azmeena Azahar is a pupil in chambers.

The views and opinions attributable to the authors or editor of this publication are not to be imputed to the firm, Lee Hishammuddin Allen & Gledhill. The contents of this publication are intended for purposes of general information and academic discussion only. It should not be construed as legal advice or legal opinion on any fact or circumstance.

This article was originally published on LHAG’s “LHAG Insights” website on August 27, 2021, republished by CodeBlue with permission.

  • This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.

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