AWARD

Franklin Goonting:

[1] This trade dispute between Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan ("the union") and Kumpulan O'Connor's (M) Sdn Bhd ("the company") which has been referred to the court pursuant to s. 26(2) of the Industrial Relations Act 1967 ("the Act") concerns the terms to be incorporated into the sixth collective agreement for those workmen coming within its scope.

[2] The parties have agreed to most of the articles leaving only the following to be resolved:

[3] As directed by the court counsel filed outline submissions, and oral submissions were heard on 2 September 2009. Mr. Chandra Segaran from Messrs Prem & Chandra represented the union while Mr. James Ling from Messrs Ten & Colin represented the company.

Article 1 - Commencement Date

[4] The company's counsel cites s. 30(7) of the Act which provides as follows:

(7) An award may specify the period during which it shall continue in force, and may be retrospective to such date as is specified in the award: Provided that the retrospective date of the award may not except in the case of a decision of the court under s. 33 or an order of the court under s. 56(2)(c) or an award of the court for the reinstatement of a workman or a reference to it in respect of the dismissal of the workman, be earlier than six months from the date on which the dispute was referred to the court.

[5] Counsel submits that since the date of the Minister's reference is 5 December 2008 then, going back six months, the effective date of the collective agreement should not be earlier than 6 June 2008. The union's stand is that this collective agreement should take effect immediately upon the expiry of the previous collective agreement Cog. 187/2004 which expired on 31 October 2006.

[6] This is not the first collective agreement between the parties; they have had five previous consecutive agreements. The company's letters dated 12 October 2006 and 20 April 2007 giving its proposals are captioned "New Collective Agreement Proposal 2006 - 2009" and nowhere in them is it stated that implementation of the collective agreement should commence only upon resolvement of its terms. By implication therefore the company had agreed that the collective agreement take effect from the expiry of the previous agreement Cog. 187/2004. It cannot now come to the court and make an issue of the effective date of the agreement by attempting to rely on s. 30(7) of the Act . This will not augur well for industrial harmony. Accordingly the court holds that the retrospective effective date of the collective agreement should be 1 November 2006.

Article 5 - Probationary Period

[7] In the course of their submissions both counsel agreed that the status quo be maintained and that this article as contained in the collective agreement Cog. No. 187/2004 remain as it is.

Article 6 - Promotion

[8] The current provision in Article 6(c) requires employees, whether technical or non-technical, upon promotion, to undergo a trial period of not exceeding three (3) months. While agreeing that this trial period remain at three (3) months for non-technical staff the company proposes to insert a new clause ie. Article 6(c)(ii), requiring a trial period of six (6) months for promoted technical staff. The company submits that this proposed amendment will be fairer and more equitable to technical staff promoted as otherwise, based on the current provision the company might have to either revert him to his original position after three (3) months should it not be fully satisfied with such staff's performance in his new/promoted position, or extend his trial period for a furthe