Union's allegations regarding the abuse of VSS and the employment of contract workers lack sufficient evidence and do not constitute a trade dispute under the Industrial Relations Act.

[1] This was an order of reference by the Honourable Minister of Human Resources to the Industrial Court pursuant to s 26(2) of the Industrial Relations Act 1967 (Act 177) ("the IR Act") arising out of a trade dispute between Kesatuan Pekerja-Pekerja Perusahaan Simen (SM) (hereinafter referred to as "the union") and Lafarge Cement Berhad (hereinafter referred to as "the company").

The Dispute Under The Honourable Minister's Reference

[2] The honourable minister's reference with regard to the dispute between the union and the company concerns "mengenai Tawaran VSS (Voluntary Separation Scheme) Serta Pekerja-Pekerja Kontrak Di Tempat Kerja..."

Filing Of Written Submissions

[3] The hearing of this matter under s 26(2) of the IR Act took place on 31 January 2012, 20 July 2012, 24 August 2012, 8 November 2012, 15 January 2013 and 7 February 2013 respectively.

[4] After the hearing the Court directed the union to file its written submission by 6 March 2013. Despite the express direction by the Court for the union to file its written submission by 6 March 2013, the union failed to do so. The Court vide letter dated 26 March 2013 reminded the union to file its written submission by 27 March 2013 but it still failed to file its written submission. Without wasting anymore time, the Court then directed the company to file its written submission by 6 May 2013. On 3 June 2013, the company filed its written submission. The Court then fixed 28 June 2013 to hear clarification by the respective parties on this dispute.

[5] I shall now deal with the subject matter in dispute.

[6] In essence, the union's dispute with regard to the minister's reference is two fold:

(i) the company's continued abuse of the voluntary separation scheme (VSS); and

(ii) the employment of contract workers by the company since 2004 to replace permanent employees.

Voluntary Separation Scheme (VSS)

Did The Company Force Or Abuse The VSS Against The Union Members Employees?

[7] The union in para 4 of its Statement of Case ("SOC") had essentially pleaded inter alia that the company had forced VSS upon the union members in the following manner:

(1) In 2004 the company had forced VSS upon 22 employees at the Rawang Plant (Associated Pan Malaysia Cement Sdn Bhd) Lafarge Cement Bhd at the Packing Plant Section and replaced them with contract workers;

(2) In 2005 the company had forced VSS upon 32 workers at the quarry section in Rawang and also replaced them with contract workers;

(3) In 2006 the company had forced VSS upon 22 workers at Mobile Plant and Yard section in APMC Kanthan, Plant at Kanthan Chemor and replaced them with contract workers;

(4) In 2007 the company forced VSS upon 24 workers at Mobile Plant, Yard section and Garage at Rawang Plant - Lafarge Cement (APMC Sdn Bhd). However, out of the 24 workers, three of them refused to accept the VSS and were subsequently retrench and were replaced with contract workers;

(5) In the year 2009 the company forced VSS upon 22 drivers and replaced them with contract workers.

[8] The union in paras 5, 7 and 8 of its SOC had also pleaded inter alia that the company had abused the VSS on its employees in that:

(1) the company had abused the VSS in order to reduce the number of permanent workers and as such it is an unfair labour practice; and

(2) the VSS and the employment of contract workers is absolutely an abuse of management's prerogative and unfair labour practice.

Company's Version

[9] There is no doubt that the company had from time to time made offers for VSS to various affected employees, group of employees, or locations or branches. According to the company, these exercises have taken place prior to 2004 and subsequent thereto. It is also the com