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Can the Industrial Court go beyond ‘just cause and excuse’ and interpret disputes?

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Can the Industrial Court go beyond ‘just cause and excuse’ and interpret disputes?

 

Joe Fernandez

 

Existing benefits would refer only to small or minor items and would have limited use or application.

 

ANALYSIS . . . The Industrial Court, set up under the Industrial Relations Act 1967 (Act 177), is not a court of law but a Tribunal within the Ministry of Human Resources. It’s not bound by the technicalities that often bog down cases in a court of law.

 

The Industrial Court deals with cases, filed within 60 days of dismissal, under Section 20 of the Act.  The only remedy allowed under the law is reinstatement. However, if reinstatement is ordered, the court will rule payment of back wages up to a maximum 24 months and a further six months in lieu of reinstatement. The court cannot compel reinstatement. Most employers who refuse to reinstate an employee will claim “loss of goodwill”.

 

The court will look at only one issue i.e. whether there has been just cause and excuse in dismissing an employee. The burden is on the employer to prove the case against the employee. A job is the property of the worker under Article 5 (1) “right to life” of the Federal Constitution.

 

Lawyers are generally not encouraged to appear in Industrial Court cases, since it’s a Tribunal, except where points of law are needed from the High Court.

 

Industrial Court can interpret collective agreements and awards

 

Besides dismissal cases, the Act in fact provides for the Industrial Court to interpret, for example, collective agreements and awards.

 

The question that arose in Award No. 613 of 2004 on a non-compliance matter between Maybank Bhd and Association of Maybank Class One Officers [2004] 3 ILR 440-442 was whether the Industrial Court has jurisdiction to interpret under Section 31 in an application under Section 56 of the Industrial Relations Act, 1967.

 

The court was satisfied that it has jurisdiction in three areas that arose viz. on a complaint of non-compliance with Article 31 in the collective agreement on existing benefit, to interpret the said article, and to determine whether or not a dealing allowance (commission) given to treasury dealers is an existing benefit for the purpose of Article 31 of the collective agreement.

 

The cases state there is an interpretative exercise involved

 

The court referred to the decision of Gopal Sri Ram JCA in the Court of Appeal case of Syarikat Kenderaan Melayu Kelantan Bhd vs. Transport Workers Union [1955] 2 CLI 748 where it was held as follows: “The argument that the court, under Section 56(1), may never interpret an award or collective agreement in any circumstances is fallacious and not worthy of a second glance.”

 

The court carefully considered the arguments of the parties in conflict and the authorities forwarded in support of their arguments.

 

The dealing allowance was not an existing benefit

 

The crux of the matter, the counsel for the bank argued, was whether the dealing allowance was an existing benefit.

 

It was noted the courts, from the authorities (i.e. cases) cited, held that existing benefits would refer only to small or minor items and would have limited use or application. Hence, the dealing allowance was not an existing benefit.

 

There were three cases in Maybank’s Bundle of Authorities to support the argument that the dealing allowance was not an existing benefit.

 

Shaw Computer & Management Services Sdn Bhd & Shaw Brothers (Penang) Sendirian Berhad vs National Union of Cinema & Amusement Workers [1982] 1 ILR 153.

 

Assunta Hospital Petaling Jaya vs Union of Employees in Private Medical & Health Services [1986] 2 ILR 1017.

 

Holiday Inn Kuala Lumpur v National Union of Hotel, Bar & Restaurant Workers [1988] 1 CLJ 133 and Dragon & Phoenix Berhad v Kesatuan Pekerja Pekerja Perusahaan Pembuat Tekstil & Pakaian Pulau Pinang & Another [1991] 1 CLJ 244.

 

The court told the counsel for the union that the bank was not guilty of an act of non-compliance under Article 4(1) of the Collective Agreement.

 

Existing benefits, in summation from the cases, would cover such items like the Special Relief Allowance of RM30 monthly, the employer providing free tea or coffee once a day, a necktie on promotion, or complimentary passes to shows for members of the employees’ immediate family.

 

This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

 

 

Tags: industrial court, interpretation, maybank, union

This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy.
Tags:
industrial court
interpretation
maybank
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