AWARD

Bumiputra-Commerce Bank Bhd. executive staff union, Peninsular Malaysia (the union) lodged a complaint of non-compliance under s. 56(1) of the IRA 1967 ("the Act") against Bumiputra-Commerce Bank Bhd. ("the Bank") alleging that art. 24.3 in the collective agreement (Cognizance No. 1 of 2003) had not been complied with by the bank.

Facts of The Case

The bank vide letter dated 20 January 2004 informed all staff that 24 January 2004 had been declared a Saturday rest day and that as replacement, 7 February 2004 would be a working day. The union was dissatisfied with the bank's action and wrote a letter dated 24 February 2004 expressing its protest and objections to the bank's action in declaring 7 February 2004 as a working day and also informed the bank that this was in breach of art. 24.3 of the collective agreement

Union's Case

The union's learned counsel submitted that the bank had requested the workers to work on the first Saturday of February 2004 and the bank failed to declare another day as additional rest day. The union wrote to the bank protesting the bank's action but the bank failed to respond. The bank's statement in reply at para 1(a), Bank Negara's letter says "hari bercuti" which means a public holiday and not "hari rehat" and therefore 24 January 2004 is a public holiday. The bank requested the staff to work on 7 February 2004 which was a rest day and therefore the bank must provide another day as a rest day. The rest day on 7 February 2004 brought forward to 24 January 2004 is not valid.

Section 120(1) BAFIA says "holiday" but holiday is not a rest day. S.120(3) of the same Act says "public holiday" means everybody is on leave. 24 January 2004 is a public holiday only for the banks and not for the whole nation therefore 7 February 2004 is not a replacement and another Saturday should be declared a rest day.

The Bank's Case

The bank's learned counsel submitted that by a letter dated 20 January 2004, Bank Negara Malaysia informed the bank that 24 January 2004 was to be declared a holiday and to be replaced on 7 February 2004 which would be a working day.

The learned counsel further submitted that if an employee is required to work on additional rest day, then he should be entitled to an off-day on any other Saturday, subject to prior approval. The Bank Negara's letter is in fact a substitution effected under s. 120(1) of BAFIA and s. 54 of Islamic Banking Act 1983. The bank is bound to follow a directive form Bank Negara.

The bank was asked to work on one Saturday of February, that is 7 February, and the replacement is brought forward to 24 January 2004, therefore no breach by the bank. Section 120(1) of BAFIA says "holiday" and not a public holiday. Section 120(3) states that a holiday shall not necessarily be public holiday.

Decision

The issue in this case is over the non-compliance of art. 24.3 of collective agreement by the bank. Article 24.3 provides:

Every Officer shall be allowed an additional rest day on the first Saturday and on the third Saturday of each month.

Article 24.4 stated as follows:

In the event the first Saturday or third Saturday of the month falls on a public holiday, the following Saturday shall be observed as the additional rest day in the month.

Further to the two above articles, the bank has also entered into a memorandum agreement which was taken cognizance of by the Industrial Court and registered as cognizance No.29-1/2003-3 whereby both parties agreed as follows:

Effective 1/1/2003, officers who are required to work on any additional rest day as set out in Article 24.3 and 24.4 of the Collective Agreement shall be eligible for an off day on any working Saturday subject to prior approval.

By a letter from Bank Negara Malaysia dated 20 January 2004 addressed to the association of all banks whereby all the banks were requested to declare 24 January 2004 as a holiday for all financial instructions and to declare 7 Fe