Malaysian Law 98286 AWARD 23622
Malaysian Law 98286 AWARD 23622
Coram
Venue
: 16.6.2016
Date of Hearing
: 15.7.2016
Representation
3(1)/6-683/16
AWARD
Background
[1]
The Application for Interpretation of Award No. 288 of 2016 in the
Case No. 3/2-122/14 was received and registered by the Industrial Court
on 12 May 2016. Award No. 288 of 2016 was handed down by this court
after hearing the dispute over some of the Articles of the proposed 14 th
Collective Agreement (CA) between Kesatuan Pekerja-Pekerja
Perkilangan Perusahaan Makanan (the Applicant/Union) and F & N
Dairies Manufacturing Sdn. Bhd. (the Company).
[2]
employer's panel for the sittings of the hearing until Award No. 288 of
2016 (the said Award) was handed down on 16 March 2016. She could
not be empanelled for the hearing of this application because she has
not been reappointed as a panel member.
of the Industrial Relations Act 1967 (the Act) and relates to the
interpretation of the said Award. The said Award was handed down
following a Ministerial reference in respect of a trade dispute pertaining
to the terms and conditions to be incorporated into the proposed 14 th CA
for the period from 1 May 2012 to 30 April 2015 as pleaded by the
parties. Based on the Form M of the Industrial Court Rules 1967 which
the Union had filed, the Union contended that the duration of the 14 th CA
should be effective on 1 May 2012 as provided for under Article 3 of the
14th CA. It was stated that this was by virtue of the said Article being an
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Agreed Article and therefore it should not have been made effective from
1 October 2013 as stipulated in the said Award.
The Application
[4]
interpretation of the following provision of the said Award for the purpose
of removing an alleged ambiguity or uncertainty were drafted in the
following manner (the relevant paragraphs of the said Award were
extracted):
[66] Section 30(7) of the Act states that an award may
specify the period during which it shall continue in force, and
may be made retrospective to such date as is specified in the
award, provided that the retrospective date of the award may
not be earlier than six (6) months from the date on which the
dispute was referred to the court. This dispute was referred
by the Minister on 4 February 2014 and the period for the 14 th
CA from May 2012 to April 2015 has since lapsed.
In
Compared with:
[2]
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award..
And
[66]
[5]
The Applicant has submitted that the provision for the duration of
[6]
when this court stated in the said Award that the agreed Article 3 formed
part of the Award, it directly meant that the effective period of the 14 th CA
was from 1 May 2012 to 30 April 2015. The basis for this argument was
that it was per the signed and agreed Article 3 between the parties, that
had been annexed to the said Award.
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expressly in paragraph 66 of the said Award that Article 3 shall form part
of the Award. On the other hand, at the same paragraph 66 of the said
Award, the Court had ordered the CA to be implemented retrospectively
from 1 October 2013.
[7]
(b)
[8]
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of the said Award provided that the undisputed articles which had been
mutually agreed to by the parties, including Article 3, shall form part of
the said Award. However, the Company submitted that Article 3 should
be read in its entirely. The Company, like the Union, also relied on
Article 3.1 of the 14th CA which are in the following words:
3.1 This Agreement shall be effective and binding on the
parties with effect from 1st May 2012 and thereafter
continue in force until superseded by a new collective
agreement or award or unless terminated as provided
herein..
[10]
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[11]
section 30(7) of the Act did not allow an implementation date as sought
by the union. It was stated that the date of the Ministerial reference was
22 April 2003. Therefore, to keep within the time frame stipulated in the
proviso to section 30(7), the court could not order a retrospective date
any earlier than 23 November 2002. Instead, an effective date of 1
January 2003 was deemed fair and equitable by the court as that would
allow for a simpler calculation of benefits for the employees.
The
Company's SIR (in the pleadings filed for the hearing) on the application
of section 30 (7) of the Act, the Union had averred in its Rejoinder that
the Union contends that once the effective date is agreed between the
parties, it cannot be later changed pursuant to section 30 (7)... In the
written submission delivered to the court before the said Award was
handed down, the Company again raised this issue in its written
submission but the Union had failed to address this or submitted any
reply to the Company's submission regarding this issue.
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[13]
The Company's
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jurisdiction.
The High Court then dealt with the submission of the Counsel for the
trade union that the Company had consented that the new collective
agreement be effective immediately following the date of the expiry of
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For the reasons stated above the Industrial Court committed an error of
law by back dating the collective agreement to 1 November 2006 i.e. the
date following the expiry of the previous collective agreement.
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[16]
It is further stated in the book above at page 156 that the above
principle of law was also stated in the case of Transport Workers Union
v. Dindings Transport Sdn. Bhd., Sitiawan, Award No. 47 of 1981. The
President of the Court, Harun J (as his Lordship then was) held as
follows:
At the commencement of the hearing, the Union and the
parties had agreed that the new agreement will be for a period
of three years with effect from 1.4.80. As the reference is
dated 13.11.80, the agreed date 1.4.80 will offend against s.
30(7) IRA. It being more than six months from the date the
dispute was referred to us. The earliest date this Award may
be back dated is 13.5.80 but for administrative convenience
we think the effective date be 1.6.80..
Decision
[17]
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[18]
member and the Chairman of this court that there was no ambiguity in
the said Award. Before making the order for the CA to take effect from 1
October 2014 in the said Award, I had perused the Articles in the
proposed 14th CA, read and considered the pleadings filed by the parties
and the written submissions of learned counsels. I had also done
research on the retrospective effect of an award under section 30 (7) of
the Act. Therefore, the said Award was handed down after a considered
and conscious effort without any error on my part, regardless of the
alleged 'ambiguity' of paragraphs 2 and 66.
[19]
The Union's counsel had pointed out that the Union members
would lose out 17 months in the increment given if the said Award was
not back dated to 1 May 2012 and the court was urged to act in equity
and good conscience. Likewise, acting in equity and good conscience,
the court had considered if the Company could pay the extra 17 months'
increment for the Union members' or if that could be a financial burden
on the Company. It is clearly stated under section 30 (4) of the Act that
in making an award in respect of a trade dispute, the court shall have
regard to the financial implications of the award.
[20]
that this court had ordered a salary adjustment of 8% which was higher
than the preceding collective agreements. In making that order, this
court had taken into account the fact that the last salary adjustment for
the Union members was made on 30 April 2009. Therefore, it was never
the case that the court had not taken all these factors into consideration.
I must also emphasise that the order for the 8% increment in salary was
a unanimous decision of the court in the said Award.
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[21]
CA which was part of the Agreed Articles that the duration of the 14 th CA
could be superseded by an award of the court. That was exactly what
this court was empowered to do in the said Award when it ordered that
the date of commencement of the then proposed 14 th CA be made
retrospective to 1 October 2013 only.
[22]
Having considered all the above and acting in equity and good
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