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were repealed and the Industrial Courts Ordinance 1948 was enacted.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 They were later repealed by the Essential (Trade Disputes in the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the Essential Services) Regulations 1965 were repealed by the Act.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.
INDUSTRIAL COURTS - A REAL COURT?
Reviewed by Kamaruddin Mahmood
on
9:42:00 PTG
Rating:

Tiada ulasan: