LAW 564INDUSTRIAL RELATIONS LAW

1. ABU ZUFAR BIN ABU ZARIM2. SARILNEZAM BINSALLEH3. MOHD MUHAIMIN BIN ZAKARIA4. NUR HIDAYAHTUL NABIHAH BINTI

MANAS

HISTORICAL BACKGROUND FOR THE ESTABLISHMENT OF THE INDUSTRIAL COURT

Industrial court is a specialised tribunal established as a permanent body by Industrial Relations Act 1967 to provide compulsory forum for the settlement of the trade dispute.

The earliest statute that provide for Industrial Court establishment are: Industrial Court Enactment 1940 (Federated Malay

State). Industrial Court Enactment 1940 (Kedah). Industrial Court Ordinance 1940 (Straits

Settlements).Note: no Industrial court ever established due to the

outbreak of war.

Pre-war enactments and ordinances were replaced by: Industrial Court Ordinance 1948. Trade Disputes Ordinance 1949. Essential (Prohibition of Strikes and

Prescribed Industrial actions) Regulations 1965 passed under the Emergency Act 1964 by the YdPA.

Replaced by: Essential (Trade Disputes in the Essential Services) Regulations 1965. Confrontation with Indonesia. Trade union is a target for subversion. Government want to have greater control of trade

union activities as they could disrupt economy.

Industrial Relations Act 1967 has been enacted as Act no 35: Repealed all the previous legislations. Brought into being the current system. Since 1967 IRA has been revised and amended for

several time. However, the functions of Industrial court remained

unchanged except for the composition of the court (1989).

Power of the Industrial Court

Industrial Court is the creature of the Industrial Relations Act 1967. therefore it has to function within the limits imposed by the statute that created it and according to its provisions.

The provisions that can be referred to in regards to the power of Industrial Court are section 29 and 30 of the IRA.

Lee Wah Bank Ltd v National Union of Bank Employees (1981) 1 MLJ 170. Hashim Yeop A. Sani J pointed out that “since the

industrial court is a creature of the Industrial Relations Act 1967, its power must be discovered only from the four corners of the act-expressly or by necessary implications.”

POWERS UNDER SECTION 29 OF THE INDUSTRIAL RELATIONS ACT 1967.

1. Orders under section 29 (a)-(g) of the IRA 1967. Rules of the game – V. Anantharaman:

(a) Order party to be joined or substituted. (b) summon anyone connected to the proceedings. (c) Take evidence. (d) Hear and determine case in absence of written

statement or conduct ex-parte hearings. (e) Conduct proceedings in private. (f) call expert. (fa) order case to be struck-off or reinstated. (g) do all things that are necessary or expedient for

expeditious determination before it.

POWERS UNDER SECTION 30(1)-(9) OF THE INDUSTRIAL RELATIONS ACT 1967.

1. Make an award relating to all or any of the issues relating to the trade disputes referred to it under section 30(1) of the IRA.

Dr A. Dutt v. Assunta Hospital (1981) 1 MLJ 304

“the right to compensation must be issue in representation for reinstatement and necessarily arises where the court would not order reinstatement.”

Under section 20 of the IRA, an employee alleging wrongful dismissal could only make representation for reinstatement.

When the Industrial Court issue compensation for wrongful dismissal, Federal Court relied on section 30(1) of IRA to uphold the award.

2. In making an award, the court shall have regard to public interest, financial implications and the effect of the award on the economy, on the industry concerned and probable effect to the similar industries under section 30(4).

This requirement will be heeded by the industrial court when the case to be settled is interest dispute: Wage dispute. Industry that play vital role for the country economy.

3. Court shall act in according to equity, good conscience and the substantial merits of the case under section 30(5).

Court shall adopt a broad approach of common sense and common fairness, eschewing all legal and other technicalities.

Industrial court should see itself as court of special jury and discard strict rule of evidences.

Malayawata Steel Bhd Butterworth v Mohd Yusof Abu Bakar (219/1993): Industrial court as a quasi-judicial body subject to

the requirement of natural justice.

4. Consideration on any agreement or code relating to the employment practices that has been approved by Minister of Human Resources under section 30(5A).

The best reference can be made to The Code of Conduct for Industrial Harmony .

It lay down principles and guidelines to the employers and workers on the practice of industrial relations for achieving greater industrial harmony.

It has been given a ‘teeth’ by the introduction of section 30(5) in the year 1980.

5. Industrial court award not restricted to the special relief or demand plead by the parties but can include other award under section 30(6).

Dr A. Dutt v. Assunta Hospital (1981) 1 MLJ 304:“the court shall not be restricted to the special relief

claimed.”

Sabah Banking Employees Union v Sabah Commercial Banks Association (1989) 2 MLJ 284:“fixing the retirement benefit along without saying how they should be invested would potentially leave the dispute unsettled.”

the industrial court not only fix the quantum of retirement benefit but also directed the benefit to be contributed to EPF.

The Federal Court cited section 30(6) defended the award.

6. Industrial Court can make an award with retrospective effect.

The retrospective effect must not be earlier than 6 months from the date which the dispute is referred.

Malayawata Steel Sdn Bhd v Union of Malayawata Steel Workers (1987) 1 MLJ 87: High Court ruled that making award with

retrospective operation beyond the period allowed was in excess of industrial court jurisdiction.

POWERS UNDER SECTION 31 OF THE INDUSTRIAL RELATIONS ACT 1967.

1. Industrial Court have the power to take into consideration the terms of any agreement reached by the parties before it, prior to or during the proceedings. Award made in accordance with agreement of the

parties is termed as consent award. As long as the agreement conforms with section

14 of the IRA, it will be effective. A consent award is still an award of the Industrial

Court, and enforceable as such.

Powers of the Industrial Court under section 30, 31 and 33B of the IRA 1967.

Award, decision, or the order of the court shall be final and conclusive, and not be challenged, appealed against, reviewed, quashed or called into question in any court.

Section 30 with the privative clause in the act makes Industrial Court power formidable.

Dunlop Estates Bhd v All Malaysia Estates Staff Union (1980) 1 MLJ 249: Also M.P Jain, Administrative Law in the Common Law Countries: Recent Development and Future Trends. In the examining the effects of the case South-East Asia

Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturers Employees’ Union (1980) 2 MLJ 165:

“If the inferior tribunal had merely made an error of law which does not affect its jurisdiction, and if its decision is not nullify for some reason such as breach of natural justice, then the ouster clause will be effective.”

JURISDICTION OF THE INDUSTRIAL COURT

JURISDICTION OF THE INDUSTRIAL COURT To settle and hear complaints of unfair

labour practices – Section 8 of Industrial Relations Act

Representation for alleged unjust dismissal – Section 20 of Industrial Relations Act

Reference of trade disputes to the Industrial Court – Section 26 of Industrial Relations Act

Here, the reference is made either by the Minister of Human Resource or on a joint request of parties

On questions involving interpretation of an award or collective agreement, by reference – Section 33(1) of Industrial Relations Act

All Malayan Estates Staff Union v Malayan Agriculture Producer’s Association (Award 1/79) – in dealing with an application under Section 33(1), the Industrial Court while affirming the principle in an earlier award (No 6/69) that it could amend an award to reflect its true meaning, it was not empowered to extend the scope of the award as it was apparent the award was intended to operate within a limited scope

The Industrial Court can vary the terms of an award or collective agreement to remove ambiguity or uncertainty – Section 33(2) of Industrial Relations Act

Socfin Co Bhd (Minyak Estate) v National Union of Plantation Workers (Award 226/1986) – Once a collective agreement has been given cognizance, parties to the agreement are bound by its terms unless varied by a subsequent agreement (also given cognizance by the court) or unless varied by the Industrial Court

4) Non-compliance with the award or collective agreement

•Section 56 IRA allows for direct access to the Industrial Court.

• With any term of an award/ collective agreement which has been taken cognizance.

• Trade Union or person bound to such award/ agreement.

• In writing

Complaint (Section 56(1))

• Satisfy itself that complaint concerns with violation of any term of award/ agreement

• If no breach = not proceed further.

• If breach = exercise it’s jurisdiction under Section 56(2)

Steps taken by Industrial Court

• a) Directing any parties to comply/ cease from doing any act contrary with any term of award/ agreement

• b) Make proper rectification (correction)/ restitution(restoring the prior status)

• c) Vary/ set aside upon special circumstances term of award/ agreement

Order by Industrial Court

(Section 56(2))

Dunlop Industries Employees Union v. Dunlop Malaysian Industries Bhd & Anor [1987] 2 MLJ 81

The appellant lodged a complaint with the Industrial Court alleging non-compliance of the collective agreement by the respondent. The term in particular is regarding the term of notice not less than two months prior to any retrenchment. The respondent informed the appellant and proceeded to serve the notice on the same day. The Industrial Court was said to exercise his jurisdiction under Section 56(2)(b)-for purposes of making proper rectification and restitution in ordering the reinstatement of the employees.

5) Reference to High Court on question of law

Section 33A IRA provides that the Industrial Court may refer to High Court on a question of law.

Industrial Court1.Requirements (Section 33A

(1)): a) Question of law arose in the

course of the proceedingsb) The determination by the Court has affected the award

c) In the opinion of the court, it is sufficient important to merit such

referenced) Determination raises in the

opinion of the court is sufficient doubt to merit such reference. 2.within 30 days of the date on

the award has been made. Section 33A(3)

High Court1. Decides time and place for

hearing. Section 33A(4)2. May vary, confirm, substitute

or quash the award of the Industrial Court. Section 33A(5)3. Decision has the same effect

as an award of the Industrial Court. Section 33A(6)

4. Decision shall be final, conclusive and shall not be

challenged, appealed, reviewed or quashed. Section 33A(7)

~ouster clause Section 33B(1), not to exclude judicial

review

Hotel Equatorial (M) Sdn Bhd v. National Union of Hotel, Bar and Restaurant Workers [1984] 1 MLJ 363

The Industrial Court had made an award binding the parties. The Hotel applied for the question of law to be referred to the High Court and this was dismissed by the Court. Then, the Hotel took the matter to the High Court where the High Court allowed the application on certain questions but dismissed one of them. The Federal Court heard the appeal in respect of that dismissal had decided that to quashed the decision of the Industrial Court on the grounds that the Industrial Court had wrongly dismissed the application and acted in excess of jurisdiction when adjudicated with a question that it has no power to do so. The Federal Court had made an order of mandamus directing it to hear and determine the issues in accordance with Section 33A(1).

6) Claim for wages under collective agreement

• Complaint by an employee• Determine by Officer of the

Labour Office under Section 69 of Employment ActNon-payment of

wages

• Industrial Court• Interpretation issue under Section

33 or Non-compliance under Section 56

If relates with any terms of an award/ collective

agreement

Securicor Malaysia Sdn Bhd v. Mohd Lazi bin Katan [1989] 3 MLJ 243

The respondent was dismissed for misconduct. He claimed under Section 69(1) of the Employment Act 1955 for several wages. A labour officer conducted an inquiry and then made an order for the appellant to pay sum of money to the respondent in compliance with an award of the Industrial Court. The High Court in regards to this matter had decided the labour officer has no jurisdiction to determine a claim where it involved the interpretation or compliance with an award or collective agreement.

This rule was followed in Uvarajah & Anor v. Penolong Pengarah Buruh, Butterworth & Ors [1992] 1 MLJ 681

Conclusion

The provisions that can be referred to in regards to the power of Industrial Court are section 29, 30, 31 and 33B of the IRA.

Whereas the jurisdictions of the Industrial Court can be derived from Section 8, 20, 26, 3A, 56 of the IRA.