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1990 MarsdenLR 1110
SUPREME COURT, KUALA LUMPUR
DRAGON & PHOENIX BERHAD & KESATUAN PEKERJA-PEKERJA PERUSAHAAN MEMBUAT TEKSTIL & PAKAIAN PULAU PINANG....
[Supreme Court Civil Appeal No: 02-212-89]
In Award No. 364 of 1987 (the First Award), the Industrial Court determined the wages, terms and conditions of employment of the Dragon & Phoenix Berhad, Penang (the company). The First Schedule to the award provides (in so far as it is relevant):
1Article 14 - Working Hours
Working hours for all employees shall be as follows:
(a)
(b) Factory & Store
45 hours per week, excluding lunch breaks; with no tea breaks in the morning and afternoon; and
(c) Factory & Store working hours shall be as follows:
8.00 a.m. to 12.00 noon; and
1.00 p.m. to 4.30 p.m.
Article 26 - Overtime
(1) ....
(2) ....
(3) ....
(4) Employees who are required to work for sixteen (16) hours or more in any one day due to emergency shall be granted a paid day-off the following day. The company had to fulfil overseas orders and requested nine store workers to work on 29 December 1987 from:
8.00 a.m. to 12.00 noon;
1.00 p.m. to 4.30 p.m.; and
4.30 p.m. to 12 midnight.
On 30 December 1987 requested thirteen packing workers to work from:
8.00 a.m. to 12.00 noon;
1.00 p.m. to 4.30 p.m. and
5.00 p.m. to 12.30 a.m. the following day.
The workers from both sections were not given a paid day-off the following day. The company contended that the employees worked only 15 hours on the dates in question and were therefore not entitled to the benefit under article 26(4). The Penang & Seberang Prai Textile & Garment Industry Employees' Union (the union) representing the company's employees, on the other hand contended that the one-hour lunch break should be included in the calculation of the hours worked and therefore the employees had worked 16 hours to entitle them to the benefit of article 26(4).
The union complained to the Industrial Court under section 56 of the Industrial Relations Act that the company had not complied with article 26(4). The Industrial Court in Award No: 116 of 1988 (the Second Award) agreed with the union and ordered the company to give the 22 employees "one paid day-off or a day's pay in lieu ".
The company was not pleased with the Second Award and applied to the High Court for an order of certiorari to quash the award. The learned judge found that there was no jurisdictional error on the part of the Industrial Court. He agreed with the findings and the reasons given by the Industrial Court in respect of the Second Award and dismissed the application. Hence this appeal.
In a complaint of non-compliance with any term of a collective agreement or award under section 56 of the Industrial Relation Act , the Industrial Court should, as a general rule, look at the terms of the contract by confining itself to within the four walls of the collective agreement or award and decide whether the term has or has not been complied with. It is a purely enforcement function. It should not embark on an expedition to examine the provisions of the Employment Act, 1955 in order to determine the meaning of the term complained of unless there is a specific reference to it because to do so would invoke the interpretative function of the Court under section 33 of the Industrial Relations Act which is an entirely different exercise from the under section 56 . It is important to recognise the difference between these two functions of the Court because failure to comply with an order under section 56 is an offence with penal provisions whereas there are no such consequences in respect of a matter dealt with under section 33 . It is also important to separate the two functions in order to determine which particular jurisdiction the Industrial Court is exercising in any particular case. It may well be that in a dispute such as in the present case there should have been two separate applications to the Court, the first under section 33 to invite the Court to exercise its interpretative function and if there is still non-compliance, a second application for enforcement under section 56 .
In the instant case, the matter came before the Industrial Court as a complaint as a complai
