The court held that the strike was illegal and the company's non-payment of salaries was justified.

The Non Metallic Mineral Products Manufacturing Employees Union ("the union") lodged a complaint with the court under s. 56(1) of the Industrial Relations Act 1967 ("the Act") that Highway Quarry Sdn. Bhd. ("the company") has not complied with art. 39 (on payment of salary) and art. 13 (on efficiency and discipline) of the collective agreement handed down by the court in Award No. 586 of 1997. The complaint of the union is accompanied by a statement of case which it has subsequently amended. Briefly it alleged that the company had issued a final warning letters to its employees who are members of the union for taking part in what the company alleged an illegal strike and at the same time deducted their salaries for the days that they went on strike. This the union alleged contravened art. 13 which provides for the company to go through disciplinary procedures of issuing show cause letter and conducting due inquiry which the company did not do. It also alleged that the company contravened art. 39 for not paying the employees' salaries on time.

The company in its reply contended that the company was justified in deducting the employees' salaries and giving them the final warning because they went on an illegal strike.

It is not disputed that the employees did not do any work on the days the company alleged they were on strike. What they did was they punched in their attendance cards but did no work. The reason for this is that the company had not been paying their salaries on time. It is the company's contention that this was despite the union's undertaking made at the conciliation proceeding at the department of industrial relations on the union's complaint on late payment of their salaries.

The company in its written submission submitted that what the employees did amounted to an illegal strike and the company was justified to deduct their salaries and issued the warning. It submitted what the employees did amounted to a strike under s. 2 of the Act which defines "strike" as:

the cessation of work by a body of workmen acting in combination, or a concerted refusal or a refusal under a common understanding of a number of workmen to continue to work or to accept employment, and includes any act or omission by a body of workmen acting in combination or under a common understanding, which is intended to or does result in any limitation, restriction, reduction or cessation of or dilatoriness in the performance or execution of the whole or any part of the duties connected with their employment.

The court agrees that the employees were on strike on those days alleged by the company. The union also did not specifically plead the employees did not go on strike. It in fact attempted to justify why they went on strike. The justification is that they had not been paid their salaries and they went to the company's office to enquire.

The next issue is whether the strike was justified. It is the company's contention that under ss. 44(d) and 45(1)(a) of the Act that the strike was illegal. Section 44 provides:

No workman shall go on strike and no employer shall declare a lock-out.

(d) in respect of any of the matters covered by a collective agreement taken cognizance of by the court in accordance with section 16 or an award.

Section 45 (1) provides:

A strike or a lock out shall be deemed to be illegal if

(a) it is or commenced or continued in contravention of s. 43 or s. 44 or any provision of any written law.

Again the court agrees that the employees went on strike on the issue of the non payment of their salaries. The issue of non payment or late payment of salaries is not specifically covered by the collective agreement. However the obligation to pay salaries is covered by art. 39. The union ought to have lodged a complaint of non-compliance under s. 56(1) of the Act or report the matter to the labour department. It is the court's opinion that the matter over which the employees went on strike is covered by the collective agreement. Therefore th

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