AWARD

Sudha TA Ramadas ("the claimant") has made an application under s. 33 of the Industrial Relations Act, 1967 for variation of Workers Institute ofTechnology Education Holding Sdn Bhd v. Sudha TA Ramadass [2003] 2 ILR 629 which was handed down in respect of Case No. 4/4-837/98 between the Workers Institute of Technology Education Holdings Sdn Bhd ("the company") and the claimant. The variation or amendment sought is to amend the name of the company from Workers Institute of Technology Education Holdings Sdn Bhd to Kolej WIT Sdn. Bhd.

Background

Court records for Case No. 4/4-837/98 reveal that originally the parties to the dispute were Workers Institute of Technology and the claimant. On 30 July 2003, Watson Peters from Messrs Watson Peters & Mohd Fuad, counsel for the claimant, had made an oral application to change the name of the company from Workers Institute of Technology to Workers Institute of Technology Education Holdings Sdn Bhd. D Kalaimany from Messrs Kalai & Partners who was representing the company had no objections to the amendment sought and the Court thus allowed the application.

The case was subsequently amicably settled between the parties and the terms of settlement, duly recorded by the Court, read as follows:

TERMS OF SETTLEMENT

By consent it is agreed that the Company, without admission of liability and by way of ex-gratia , shall pay the Claimant a sum of Ringgit Malaysia Forty-Two Thousand One Hundred and Eighty (42,180.00) only within thirty (30) days from the date hereof in full and final settlement of the Claimant's claim and the payment shall be made through the Claimant's solicitors.

The company referred to in the above Terms of Settlement is the company named in Technology Education Holding Sdn Bhd v. Sudha TA Ramadass [2003] 2 ILR 629, ie, Workers Institute of Technology Education Holdings Sdn. Bhd.

The reason for this present application is that the sum of RM42,180 awarded has not been paid because the Workers Institute of Technology Education Holdings Sdn Bhd does not exist in law. A search made at the Suruhanjaya Syarikat Malaysia reveals that the company previously known as WIT Education Holdings Sdn Bhd had on 24 July 2000 changed its name to Kolej WIT Sdn. Bhd.

In the claimant's application it is stated that it was counsel for the company who had first intimated that the proper name for the company was Workers Institute of Technology Education Holdings Sdn Bhd. In light of these developments claimant's solicitors had then written to the company's solicitors to enquire whether they would consent to an amendment of the name of the company. Vide a letter dated 29 March 2004 the company's solicitors had stated categorically that they had no objections to the amendment sought. The last sentence in their letter which reads : "We only came to know of the change in name recently after you raised the query" points to the unfortunate situation being a result of an "innocent error" as opposed to a "deliberate attempt to frustrate the effect of the Award".

The application is made under s. 33(2) of the Industrial Relations Act 1967 which reads as follows:

33. Interpretation and variation of awards and agreements.

(1) ...

(2) The Court may, upon the application of any party, by order vary any of the terms of an award or agreement, if it considers it desirable so to do for the purpose solely of removing ambiguity or uncertainty.

(3) ...

(4) The decision of the Court shall be binding in the same manner as the original award or agreement.

(5) ... .

When considering this application the Court's primary concern was whether the variation sought fell within the provisions of s. 33(2).

What can the Court vary under s. 33(2)? The short answer is that it can vary any of the terms of an award. What is the claimant seeking to vary in the instant case? It is seeking to amend one of the parties to Technology Education Holding Sdn Bhd v. Sudha TA Ramadass [2003] 2 ILR 629. Is such a variation allowed under the law?

Watson Peters,