AWARD

Introduction

The parties to the trade dispute are Dynamic Plantations Bhd (Pemilik Ladang Bukit Dinding, Karak, Pahang) (hereinafter referred to as "the company") and Kesatuan Kebangsaan Pekerja-pekerja Ladang (NUPW) (hereinafter referred to as "the union").

The company was a member of the Malayan Agricultural Producers Association (MAPA) bound by the following collective agreements between MAPA and the union. These are:

(i)MAPA/NUPW Rubber Tappers' Wage Agreement 1999 (Cog. No. 27/99); and

(ii)MAPA/NUPW Field And Other General Employees and Fringe Benefits Agreement 1999 (Cog. No. 18/99)

In 1999 the company gave wage increments to the Malaysian employees employed at Ladang Bukit Dinding, Karak, Pahang, in accordance with the terms of the above collective agreements. Furthermore in 1999 also the Malaysian employees were paid ex gratia payments by the company during the period 1 June 1998 till 31 December 1998 in the following amounts:

Rubber tapper: RM 230

Field and general employees: RM 170

The company has not or has refused to pay the aforesaid wage increments and ex gratia payments to the non-Malaysian employees employed to work at the said Ladang. These claimants are as listed in exh. U1.

The result is a dispute over the alleged discriminatory practice of the company between its Malaysian and non-Malaysian employees in respect of the above payment of wage increments and ex gratia payments.

The issue before the court is whether the 30 non-Malaysian employees as listed in exh. U1 employed at Ladang Bukit Dinding, Karak, Pahang are entitled to the wage increments and ex gratia payments paid to their Malaysian counterparts in 1999.

Contentions

It is the union's contention that since the 30 non-Malaysian employees were union members in benefit at the material time it follows that the union can represent them in this case.

The union contends that the company cannot refuse to pay the 30 non-Malaysian employees the increments and ex gratia payments following the signing of the 1999 collective agreements especially since they have fulfilled the criteria that they were in service during the last six months of 1998.

It is the union's contention that s. 17(1)(b) of the Industrial Relations Act 1967, (hereinafter referred to as "the Act") requires that the company give equal treatment to non-Malaysian employees with their Malaysian counterparts with regards to payment of wage increments and ex gratia payments. To support their argument the union cites the case of Kolej Tunku Abdul Rahman v. Kesatuan Kakitangan Am Kolej Tunku Abdul Rahman[1987] 3 MELR 419; [1987] 2 ILR 309. In that case the Industrial court held that the statutory implication of s. 17 of the Act is that the same work must be given the same pay, whether the workman is on a permanent or temporary basis.

The union also contends that even though the ex gratia payments were paid under an agreement signed by MAPA and NUPW on 15 January 1999 (exh. U4) they were clearly connected to the collective agreements. Hence the union's contention is that even through the ex gratia payments were not included as an express article under the 1999 collective agreements, based on the spirit of s. 5(1)(c), s. 17(1)(b) and s. 30(5) of the Act, the non-Malaysian workers ought to be paid these payments.

It is the company's submission that the first issue to be considered is whether the union can represent the said employees on 7 November 2000 ie, the date the statement of case and exh. U1 were filed in court. The company contends that the unrebutted evidence is that only 11 of the 30 employees were members in benefit and therefore the union is not competent to represent the other 19. The company then questions as to the reason why the 11 employees were not produced in court to show that the union is in fact authorised to represent them.

The company submits that art. 24 on special provisions of the rubber tappers' wage agreement 1999 made it possible for employees whether Malaysian or otherwise, to be paid