Harun Hashim SCJ:

On 6 April 1990 the Malayan Agricultural Producers Association (MAPA) and the National Union of Plantation Workers (NUPW) entered into a collective agreement for a period of three years effective from 1 May 1990 to 30 April 1993. On 14 April 1990 both parties presented the collective agreement to the Industrial Court with a request for a consent award. The Industrial Court acceded to the request and recorded a consent award as Award No. 92/90.

On 23 May 1990, the Minister, acting under s. 33(1) of the Industrial Relations Act 1967, referred the following question to the Industrial Court for interpretation:

Tafsiran Artikel 8 dalam Keputusan Mahkamah Perusahaan No. 92/90 yang bertajuk - Minumum Number of Days' Work in Each Month.

Article 8 of the Award provides:

Minimum Number of Days' Work in Each Month. The provisions of s. 16 of the Employment Act 1955 shall apply to employees covered by the said section.

Section 16 of the Employment Act 1955 reads:

(1) Where an employee is employed in any agricultural undertaking on an estate on a contract of service under which he earns wages calculated by reference to the number of days' work performed in each month of his service, his employer shall be bound either to provide him with work suitable to his capacity on not less than twenty-four days in each month during the whole of which he is so employed, or if the employer is unable or fails to provide work on twenty-four days in each month whereon the employee is willing and fit to work, the employer shall nevertheless be bound to pay to the employee in respect of each of such days wages at the same rate as if such employee had performed a day's work:

Provided that any dispute as to whether an employee was willing or fit to work shall be referred to the Director General for his decision:

Provided further that in computing twenty-four days for the purposes of this subsection account shall not be taken of more than six days in any week.

(2) A contract of service shall be deemed to be broken by an employer if he fails to provide work or pay wages in accordance with subsection (1).

At the hearing before the Industrial Court, NUPW raised a preliminary objection on the ground that the Industrial Court had no jurisdiction to hear the reference for the following reasons:

(a) The union states that the purported reference letter dated 24 May 1990 by the Y.B. Minister of Human Resources (the Reference) is void for uncertainty and or is ultra vires the provisions of s. 33(1) of the Industrial Relations Act 1967 (the Act) and therefore this Court is not seized with jurisdiction to hear the case.

(b) The union states that MAPA had associated itself with this contention of the NUPW on 3 June 1990 in Court. A copy of a New Straits Times Press report on the matter is annexed hereto marked "NUPW1".

Further or in the alternative, the union avers and will contend at the hearing that this Honourable Court ought not to hear the said reference on its merits or otherwise because to do so will be to usurp the statutory duties of the Director General of Labour and or eventually the jurisdiction of the High Court and the Supreme Court by virtue of:

(a) the provisions of Article 8 of the said Award 92 of 1990 which is the subject matter of the said reference; and or

(b) the provisions of the Employment Act 1955 which provides the remedy therein to an aggrieved employee for breach or otherwise of any provision thereof.

The Industrial Court on 15 October 1990 dismissed the preliminary objection and directed NUPW to file its statement in reply to MAPA's statement of case.

On 26 October 1990 NUPW applied to the High Court for leave to issue a writ of certiorari to quash the said ruling of the Industrial Court. The leave was granted and the motion proper was heard on 27 March 1991 wherein the learned Judge allowed the application and quashed the Award of the Industrial Court. Hence this appeal.

Section 33 of the Industrial Relations Act 1967