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2023 MarsdenLR 1056
INDUSTRIAL COURT KUALA LUMPUR
KESATUAN PEKERJA-PEKERJA PERKILANGAN PERUSAHAAN MAKANAN – Appellant
Versus
NESTLE MANUFACTURING (MALAYSIA) SDN BHD – Respondent
Award No: 2310 of 2023 [Case No: 4/3-430/22]
The Court ruled that all employees classified as boiler men must be treated equally, and any unequal salary adjustments constituted unfair discrimination.
Headnote:(A) Industrial Relations Act 1967 - Section 26(2) - Trade dispute regarding salary adjustment of RM400.00 for four boiler men not paid since 2017 - Claim by Union for equal treatment under Collective Agreement - Company denied discrimination, asserting differences in roles of boiler men and chiller men. (Paras 1, 4, 6, 10, 29)
(B) Discrimination - The Court found that the distinction made by the Company between boiler men and chiller men was unfounded and constituted unfair discrimination, as all employees were classified as boiler men under the Collective Agreement. (Paras 21, 23, 29)
(C) Delay - The Court ruled that any delay in raising grievances was not significant in context, as it stemmed from the Company’s failure to address concerns adequately. (Paras 27, 28)
Facts of the case:
The Union claimed salary adjustment for four boiler men who were not compensated similarly to their counterparts performing similar duties. The Company argued that the roles were distinct, leading to different treatment.
Findings of Court:
The Court concluded that all employees were boiler men and the Company’s failure to provide equal salary adjustments constituted discrimination. The claim was upheld.
Issues: The main issues included whether discrimination occurred and the justification for salary adjustments based on differing roles.
Ratio Decidendi: The Court emphasized the importance of treating all employees equally under similar circumstances, rejecting the Company’s justification for unequal treatment.
Result: Union's claim allowed; salary adjustment ordered.
| Table of Content |
|---|
| 1. reference by minister under industrial relations act. (Para 1 , 2 , 3) |
| 2. dispute over salary adjustment for boiler men. (Para 4 , 5 , 6) |
| 3. union's and company's summary of cases. (Para 8 , 9) |
| 4. court's jurisdiction and statutory obligations. (Para 10 , 11 , 12 , 13) |
| 5. burden of proof standards in industrial court. (Para 14 , 15 , 16) |
| 6. court's evaluation of evidence and discrimination. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 7. evidence of discriminatory practices and duties. (Para 24 , 25 , 26) |
| 8. delay in grievance and equity considerations. (Para 27 , 28) |
| 9. court's decision based on merits of the case. (Para 29) |
The Reference
[1] This is a reference dated 13 January 2022 by the Honourable Minister of Human Resources pursuant to s 26(2) of the Industrial Relations Act 1967 ("The Act") arising out of a trade dispute between KESATUAN PEKERJA- PEKERJA PERKILANGAN PERUSAHAAN MAKANAN ("the Union") and NESTLE MANUFACTURING (MALAYSIA) SDN BHD ("the Company") in relations to "Tuntutan Pelarasan Gaji Sebanyak RM400.00 & Tunggakan Gaji Oleh 4 orang Boilerman".
[2] The parties in this matter filed their respective written submissions dated 23 August 2023 (Union's Written Submissions), 1 September 2023 (Company's Written Submissions), 18 September 2023 (Company's Reply Submissions) and 18 September 2023 (Union's Reply Submissions).
[3] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:
(i) The Union's Statement of Case dated 29 April 2022;
(ii) The Company's Statement In Reply dated 14 June 2022;
(iii) The Union's Rejoinder dated 15 July 2022;
(iv) The Union's Bundle of Documents - UB1;
(v) The Union's Documents - U2;
(vi) The Company's Bundle of Documents - COB;
(vii) Union's Witness Statement - UW-WS (Encik Mahfudz Bin Harun);
(viii) Company's Witness Statement - COW1-WS (Encik Maizol Hazidy Mahady);
(ix) Company's Witness Statement - COW2-WS (Mr Tee Chee Sin);
Introduction
[4] This is a trade dispute between the Union and the Company arising from the claim of the Union for the salary adjustment for 4 boiler men in the Engineering Department who were allegedly not paid the salary adjustment of RM400.00 monthly in 2017.
[5] The Union states that the Company has a total of 8 boiler men. 4 boiler men of the Company were discriminated wherein these 4 boiler men were not paid a one off salary adjustment in 2017. The Union states that only 4 boiler men were paid the one off salary adjustment of RM400.00 per month on the basis that these 4 boiler men were made to carry out extra duties at the Company's waste water treatment plant which were in actual fact not to be considered as any extra work since in their absence the 4 discriminated boiler men had to shoulder the work left behind at the boiler house by the other 4 boiler men on duty at the waste water treatment plant. The Union prays for the one off salary adjustment and payment to be made in favour of the 4 boiler men in this case from 2017.
[6] The Company maintains that it had at no time discriminated the 4 boiler men who were purportedly not paid the one off salary adjustment of RM400.00 per month since 2017. The Company states that although all the 8 employees are boiler men according to the Collective Agreement between the Union and the Company, in practice the 4 boiler men who carried out the extra work at the waste water treatment plant were in fact "chiller men" whereas the 4 purportedly discriminated employees were "full time boiler men". The law requires the full time boiler men to be stationed at the boiler house to deal with any emergencies whereas the chiller men are allowed to carry out other tasks. The Company states that the boiler men and chiller men carry out different duties and functions wherein the chiller men's duties include additional work of constant surveillance of the waste water treatment plant hence the one time salary adjustment and increase of RM400.00 a
