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2023 MarsdenLR 2998
INDUSTRIAL COURT SARAWAK
KESATUAN PEKERJA TELEKOM MALAYSIA BERHAD SARAWAK – Appellant
Versus
TELEKOM MALAYSIA BERHAD – Respondent
Award No: 2343 Of 2023 [Case No: 8(21)/3-381/23]
Eligibility for upgrading under a collective agreement is conditional upon meeting specified criteria, and employers have the prerogative to reorganize operations in good faith.
Headnote:(A) Industrial Relations Act 1967 - Article 27.10 of the Twelfth Collective Agreement - Dispute over eligibility for upgrading of non-executive employees - The Company found only 33 out of 123 employees met job enrichment criteria for upgrading - Union's claim of automatic eligibility for upgrading without meeting criteria dismissed - The Court ruled that the implementation of Article 27.10 is conditional based on fulfilled criteria. (Paras 20, 28, 30)
(B) Interpretation of Contracts - The Court emphasized that the interpretation of a contract must be confined within its four corners, and external influences should not be imported to decipher the parties' intentions. (Paras 11, 12)
Facts of the case:
A trade dispute arose between the Union and the Company regarding the upgrading exercise of non-executive employees, with the Union claiming non-compliance by the Company with Article 27.10 of the Twelfth Collective Agreement since 2018. (Paras 2, 8)
Findings of Court:
The Court found that the eligibility for upgrading is conditional upon meeting the specified job enrichment criteria, which were agreed upon by the parties. (Paras 28, 30)
Issues: The main issues were whether the Union's claim falls under the Twelfth Collective Agreement and whether there was non-compliance by the Company of Article 27.10. (Paras 15, 20)
Ratio Decidendi: The Court concluded that the terms of Article 27.10 require specific criteria to be met for upgrading, and the implementation is not automatic. The Court also recognized the employer's managerial prerogative to reorganize its affairs. (Paras 28, 30)
Result: The Union's prayer is disallowed.
| Table of Content |
|---|
| 1. dispute over collective agreement terms. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. interpretation principles of contracts. (Para 10 , 11 , 12 , 13 , 14) |
| 3. evaluation of utes's claim under the agreement. (Para 15 , 16 , 17 , 18 , 19) |
| 4. conditions for employee upgrades under the agreement. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30) |
| 5. court's adherence to equity and merit. (Para 31) |
Reference
[1] This is an order of reference dated 11 January 2023 by the Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 arising out of the alleged trade dispute between the parties on the terms of Collective Agreement.
Brief Facts
[2] The dispute arose based on the interpretation and execution of a provision in the Twelfh Collective Agreement between the Kesatuan Pekerja Telekom Malaysia Berhad Sarawak (UTES) and Telekom Malaysia Berhad (the Company) regarding the upgrading exercise by the Company.
[3] In November 2021, the Company was involved in an upgrading exercise for 123 of its non-executive employees in Sarawak who are members of UTES.
[4] During the said upgrading exercise, the Company found that only 33 of the said 123 non-executive employees had passed the job enrichment criteria and therefore eligible to proceed to the next upgrading process.
[5] The Company found that there was no job enrichment at that particular time for the other 40 non-executive employees based on their validated job specifications hence, they were ineligible for upgrading
[6] The other 50 non-executive employees were already successfully upgraded and have been taken off the list with the UTES acknowledgment.
[7] UTES disagreed with the Company's decision as regards the ineligible 40 non-executive employees and insisted that they should automatically be made eligible for upgrading without the Company considering the element of job enrichment.
[8] Thereafter, UTES filed its Statement of Case alleging non-compliance by the Company since 2018 of art 27.10 of the Twelfh Collective Agreement between the Company and UTES.
[9] The Company denied UTES's allegation of non-compliance with the said Article.
The Law
[10] This Court is guided by the principle enunciated in the Federal Court case of Ismail Nasaruddin Abdul Wahab v. Malaysian Airline System Bhd ; [2022] 6 MLJ 414; [2022] 7 AMR 641 on the spirit of Act 177 as follows:
"[53] We note that the IRA , which consolidated all previous laws concerning industrial disputes, contains several protective measures for trade unions as a peace offering meant to forestall opposition to permanent compulsory arbitration, and that it was legislated not only to safeguard the legitimate rights and interests of employers and workers or their trade unions, but also to ensure the speedy and just settlement of industrial disputes, so that public and national interests are not prejudiced while the parties promote their own particular interests (see Parliamentary Debates, Dewan Rakyat, Second Parliament, Fourth Session, 22 June 1967, 1531 to 1532 (V Manickavasagam).".
[11] The Collective Agreement is the ultimate source and refers to the Court of Appeal decision in Syarikat Binaan Utara Jaya (A Firm) v. Koperasi Serbaguna Sungai Glugor Berhad ; , Abdul Malik Ishak JCA stated the following key principle:
"[16] I am fortunate that the contract here is in writing and so the parties are confined within the four corners of the document in which they have chosen to seal their agreement and neither of them can adduce evidence to say that his intention has been misstated or overlooked in the agreement or that some essential features of the contract has been omitted or ignored. To allow such evidence would involve the plain violation of s 92 of the Evidence Act 1950 (Afshar MM Tacki v. Dharamsey Tricamdas [1947] AIR (34) 98 Bombay)".
[12] The Court of Appeal has guided the best method for the interpretation of the Collective Agreement or contract by using the contract its
