INDUSTRIAL COURTS - A REAL COURT?

INDUSTRIAL COURTS

1. INTRODUCTION

The beginning of industrial law is a legacy of the British colonial government. The growth of industrial law has been in tandem with the economic growth and the industrialisation of the country. The first legislation was the Industrial Courts Enactment 1940 by the Federated Malay States, Industrial Courts Ordinance 1940 for the Straits Settlement and the Industrial Courts Enactment 1360 of Kedah. When the Federation of Malaya was formed in 1948, these laws were repealed and the Industrial Courts Ordinance 1948 was enacted. The Industrial Courts Ordinance 1948 provided for the settlement of trade disputes by a permanent Industrial Court and ad hoc Boards of arbitration and inquiry. It provided for a voluntary system of arbitration of trade disputes.

The Essential (Arbitration in the Essential Services ) Regulations1965 and the Essential (Prohibition of Strikes and Proscribed Industrial Action) Regulations 1965 provided special provisions for certain industries during a period of emergency. They were later repealed by the Essential (Trade Disputes in the Essential Services) Regulations 1965.

The present Industrial Court was established under the Industrial Relations Act 1967. The Industrial Courts Ordinance 1948 and the Essential (Trade Disputes in the Essential Services) Regulations 1965 were repealed by the Act.

The preamble of the Industrial Relations Act 1967 (the ‘IRA’) reads as follows:

“An Act to promote and maintain industrial harmony and to provide for the regulation of the relations between employers and workmen and their trade unions and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom.”

Role of the Industrial Court:-

1. Uphold social justice;

2. To act in accordance with equity, good conscience and substantial merits of the case;

3. Creating a harmonious industrial environment through the process of arbitration and the decisions of the Court (Award) consistent within Industrial Relations Act 1967

Functions of the Industrial Court:-

1. To hear and hand down decisions or awards in industrial disputes referred to it by the Minister or directly by the parties.

2. To grant cognizance to the collective agreements which have been jointly deposited by the employers/trade union of employers and trade union of employees.

2. STRUCTURE AND THE PROCEDURE OF THE COURT

An Industrial Court shall consist:

(a) a President who shall be appointed by the Yang di-Pertuan Agong; and

(b) a panel of persons representing employers and a panel of persons representing workmen all of whom shall be appointed by the Minister:

The Court may sit in two or more Divisions with the same or different Chairman. The Yang di-Pertuan Agong may appoint any person to be a Chairman of any Division of the Court. (Sec 23(2) IRA)

A person is qualified for appointment as President and as Chairman if, for the seven years preceding his appointment, he has been an advocate and solicitor within the meaning of the Legal Profession Act or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another. (Sec 23A IRA).

In any proceedings before the Court a party may:

a.       where the party is a trade union, be represented by an officer or employee of the trade union;

b.      where the party is an employer, appear himself personally or be represented by his duly authorized employee, or by an officer or employee of a trade union of employers of which he is a member;

c.       where the party is a workman, appear himself personally or where he is a member of a trade union of workmen, be represented by an officer or employee of the trade union;

d.      where the party is a trade union, or an employer, or a  workman, be represented with the permission of the President or the Chairman, by an advocate, or, notwithstanding anything to the contrary contained in any written law relating to the registration of trade unions, by any official of an organization (not being a trade union) of employers or of workmen, as the case may be, registered in Malaysia.

Power of the Court

a.       order that any party be joined, substituted or struck off;

b.      summon before it the parties to any such proceedings and any other person who in its opinion is connected with the proceedings;

c.       take evidence on oath or affirmation and compel the production before it of books, papers, documents and things;

d.      hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as may be prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear;

e.       conduct its proceedings or any part thereof in private;

f.       after consultation with the Minister, call in the aid of one or more experts;

g.      order a case to be struck off or reinstated; and

h.      generally direct and do all such things as are necessary or expedient for the expeditious determination of the matter before it

3. JURISDICTION OF THE COURT

Types of Cases heard in the Industrial Court:-

a.       Dismissal of workmen which have been referred to the Industrial Court by the Minister;

b.      Trade disputes between employers/trade unions of employers and trade union of workmen which have been referred to the Industrial Court;

c.       Applications by any party bound by an Award or collective agreement for the interpretation/amendment/variation thereof;

d.      Applications made by any party bound by an Award to refer to the High Court on questions of law;

e.       Complaints of non-compliance of an Award or collective agreement;

f.       Cases of victimization in connection with trade union activities

4. AWARDS OF THE COURT

The decision of the industrial court is called “award” (in ordinary civil court is called judgment).   The Court shall have power in relation to a trade dispute referred to it or in relation to a reference to it, to make an award (including an interim award) relating to all or any of the issues (Sec 30 (1) IRA). Sample of an award is produced below:

Any award made by the Court under this Act shall be binding on:

1.      all parties to the dispute appearing or represented before the Court and all parties joined or substituted or summoned to appear or be represented before the Court as parties to the dispute or the reference to the Court

2.      any successor, assignee or transferee of any employer or trade union of employers and any successor to any trade union of workmen which is a party to the dispute as aforesaid;

3.      all workmen who were employed in the undertaking or part of the undertaking to which the dispute relates on the date of the dispute and all workmen who subsequently became employed in that undertaking or part thereof; and

4.      all members of a trade union of employers to whom the dispute relates and to which dispute the trade union is a party and the successors, assignees or transferees of such members.

The award, decision or order of the Court shall be final and conclusive, and shall not be challenged, appealed against, reviewed, quashed or called in question in any court (Sec 33B (1) IRA). This provision is included to protect the sovereignty of the Court.

However, under the Malaysian Legal system, we have three-tier system which means any party can  bring this matter to the higher court if he did not satisfied with the decision of the court. The final and highest court is Federal Court according to the hierarchy of Malaysian courts.

The party who did not satisfied with the award can bring the case to the High Court as provided under Order 53 Rules of the High Court for judicial review (not as an appeal). The judicial review must be filed within 40 days from the date of award given.