Mohd. Yusoff Mohamed J:

The only question arising in this motion for an order of certiorari to quash the award of the Industrial Court dated 24 December 1987, is whether the Court committed jurisdictional error in holding that check-off is not a trade dispute under s. 2 of the Industrial Relations Act 1967 (the Act).

It is argued firstly that by declining to exercise jurisdiction in refusing to incorporate this check-off provision into the Court's award it has committed jurisdictional error. Secondly, it is said that the Court failed to give proper interpretation and effect to s. 30(5A) of the Act and thus declined its jurisdiction.

This dispute arose from a re-negotiated collective agreement between the applicant trade union representing the workers and 1st respondent, the employer. Check-off provision existed in the previous agreement but upon re-negotiation the 1st respondent refused to accede to incorporate it in the new agreement. Through the relevant Minister the matter was referred to Industrial Court under s. 26 of the Act.

Check-off is a deduction by the management (employer) of trade union subscriptions from employees and remit them to the union by the management. An essential feature of the arrangement is a written consent by the employees for such arrangement.

In Non-Metallic Mineral Products Manufacturing Employees Union v. Malaya Glass Factory Bhd. [1984] 1 CLJ (Rep) 305 the then Federal Court had occasion to consider a similar issue and it was held that the Industrial Court acted outside its jurisdiction in ordering the company there to deduct the union's subscription of workers. At p. 307 the Court holds:

The first is Article 6- "Check off". The appellants thereby sought to get the respondents to deduct union subscriptions from union members who have authorised the company (respondents) to do so. Encik Gangadharan says that this is a continuation of what was already in practice under the previous agreement and therefore cannot be in excess of jurisdiction.

On behalf of respondents it was argued that this item is not a trade dispute as defined in s. 2 i.e. it is not connected with the employment or non-employment or the terms of employment or the conditions of work. It is not a condition of service. The previous collective agreement continued Encik Chelliah, was a separate matter so that the Court acted in excess of jurisdiction.

He cited The Queen v. Portus & Anor. as authority for the proposition that consensual practice of employees and employers cannot expand the jurisdiction of the tribunal. We are inclined to agree with him, and would hold that the Tribunal was, on this matter, acting outside its jurisdiction.

Relying on the Non-Metallic Mineral case the Industrial Court in this case rejected the applicant's claim. I am in agreement with the Industrial Court. The decision of the Federal Court in Non- Metallic Mineral case is binding on the Industrial Court and indeed on this Court as well.

Now, the learned Counsel on behalf of applicant contends that Non-Metallic Mineral case is no longer good law as the Federal Court was concerned only with the state of the law prior to May 1980 that was when the amendment to the Act was effected.

I do not agree with the learned Counsel's view. The Federal Court's concern with the state of law prior to May 1980 as expressly stated in the judgment relates to s. 32(3)(a. only. That provision dealt with finality of the Industrial Court award which was then repealed by May 1980 amendment. In my opinion that amendment to s. 32(3)(a) has no relevance to the similar issue decided there.

Another amendment to the Act in May 1980, which is relevant to this case relates to the definition of the words "trade disputes" in s. 2 of the Act. The amendment takes away from the definition the disputes as between workmen and workmen and between employers and employers but retains trade disputes as between employer and his workmen. The 1980 amendment thus confined the Industrial Cour