Abdul Hamid Omar LP:

The question we shall have to decide in this appeal is whether the High Court properly entertained the motion for certiorari to quash an award from the Industrial Court. In determining the question it is necessary for us to consider the proper approach the Court below should take in exercising its supervisory role in regard to an Industrial Court award which, in law, is somewhat protected from full appellate review.

The appellant, Sabah Banking Employees' Union, represents non-officer bank employees in the State of Sabah. In 1985, labour contract negotiations were conducted between the appellant and the Sabah Commercial Banks' Association (the respondent) for a new collective labour agreement covering bank branches in that state. The parties reached agreement on all issues except the quantum of retirement benefits. During negotiations, the respondent proposed retirement benefits 15% of the employee's basic salary while the appellant had sought retirement benefits based on 15% of all wages, including the "Sabah Allowance", an allowance given to compensate for the state's high cost-of-living.

In July 1985 the parties signed a document embodying the agreed terms of a new collective labour agreement. This agreement was deposited with the Industrial Court which took cognizance of it on 9 August 1985. The parties also made a joint application to the Minister of Labour under s. 26(1) of theIndustrial Relations Act 1967 (the Act) to settle the quantum of retirement benefits. Pursuant to s. 26(1) of the Act, the Minister of Labour referred this dispute to the Industrial Court for adjudication. On 28 December 1985, the Court made Award No. 268/85 which provided, in part, that:

(4) ...

(a) with effect from 1 December 1985, the banks shall contribute each month 15% of the wages for that month to the Employees Provident Fund. Such contribution shall be deemed to be inclusive of any employer's contribution to the Employees Provident Fund as may be prescribed by law from time to time.

(b) for the purpose of sub-clause (a) above, `wages' shall have the meaning assigned to it be the EPF Act 1951.

The respondent applied for a writ of certiorari to quash the award. On 2 September 1987, the High Court Borneo allowed the application and quashed Award No. 268/85 on the grounds that no basis could be found for the quantum of retirement benefits and that, if any basis existed, it would have been an error of law. Hence this appeal.

As in other certiorari cases considered by this Court and by the Privy Council, two essential questions must be borne in mind. First, to what degree are awards of the Industrial Court statutorily protected from correction and supervision by the High Courts. Second, is this award infirm in such a way that it should have been quashed by the High Court in exercising its limited supervisory function?

The first of these two questions has caused some confusion as to when and under what circumstances a writ of certiorari is appropriate against an Industrial Court award.

Industrial Court awards are statutorily sheltered from appellate review byI s. 33B(1) of the Act which provides that "an award, decision or order of the Court ... shall be final and conclusive, and shall not be challenged, appealed against, reviewed, quashed, or called in question in any Court." Nonetheless, it has been consistently held that such privative or ouster clauses cannot prescribe certiorari against awards that exceed the inferior tribunal's jurisdiction. The Privy Council so interpreted this same ouster clause when it was then s. 29(3) of the Act. South East Asia Fire Bricks v. Non-Metallic Mineral Products Manufacturing Employees Union [1980] 2 MLJ 165, at 166-167 (PC). And following the decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147 at p. 171 Lord Reid in his speech made it clear that the ouster clause will not have the effect of ousting the power "although the tribuna