Abdul Aziz Mohamad JCA:

[1] This was an appeal against the quashing of an award of the Industrial Court. By a majority decision (Mohd Noor Abdullah JCA, dissenting), we dismissed the appeal.

[2] Mohamad Kassim bin Shik Adam ("Kassim") was an employee of the respondent company ("the company"). On May 5,2000, when his age was 53 years 11 months 11 days, he wrote to the company a letter headed "Optional Retirement" in which he said "I ... hereby tender notice to terminate my employment with immediate effect" and asked for payment of "the retirement benefits due under cl. 15 of the collective agreement". The collective agreement referred to was one between the company and the appellant union ("the Union"), of which Kassim was a member. Clause 15.1 of the collective agreement said: "Employees who leave the service of the company shall be paid a retirement benefits (sic) based on the length of service and the last drawn wage". One of the grounds of entitlement to retirement benefits was stated by cl. 15.3.1 to be "Retirement at the age of 55 years or at the optional retirement age of 45 years."

[3] The company refused to pay Kassim the retirement benefits. In a letter to the Union dated 20 June 2000, the company said "no retirement benefit due to (Kassim) upon his resignation on 5 May 2000 as he has not complied with ... cl. 15 ...". It may be observed that the company treated Kassim's case as one of resignation on 5 May 2000. On 3 July 2000, the Union, in reference to Kassim, lodged a complaint with the Industrial Court under subsection (1) of s. 56 of the Industrial Relations Act 1967 ("the Act"), which provides for the lodging with the Industrial Court of any complaint that "any term of any award or of any collective agreement ... has not been complied with". The Industrial Court is empowered by subsection (2), "upon receipt of the complaint", to make certain orders. There is power (para. (a)(i)) to "make an order directing any party ... to comply with any term of the award or collective agreement".

[4] Later, the Union, in reference to Kassim, made an application dated 4 December 2000, under subsection (1) of s. 33 of the Act for a decision on the question of the interpretation of cl. 15.3.1 of the collective agreement. That subsection says: "If any question arises as to the interpretation of any award or collective agreement ... any party bound by the award or agreement may apply to the (Industrial) Court for a decision on the question". By r. 14(1) of the Industrial Court Rules 1967, an application under s. 33(1) shall be made in Form M. So the Union used Form M. Form M required the Union to state two matters: the provision requiring interpretation and the Union's interpretation of it. The Union stated these matters in an appendix attached to Form M, named Appendix A. In Appendix A the Union, in para. 1, stated cl. 15.3.1 as the provision requiring interpretation. In para. 2, it stated: "And whereas an employee named Mohd Kassim bin Shik Adam retired on 5 May 2000, at the age of 53 years, 11 month (sic)and 11 days". It was an averment of fact that Kassim "retired" and that he did so on the stated date and at the stated age. In para. 3 the Union raised what amounted to two questions. It did so in these words: "Is this employee" - that is Kassim - "entitled to be paid retirement benefits or is the benefit only payable if an employee retires exactly at the age of 55 years or 45 years?". As far as interpretation was concerned, the question was whether retirement benefits were "only payable if an employee retires exactly at the age of 55 years or 45 years". The Union gave its interpretation in para. 4, that "an employee who retires at any time after attaining the age of 45 years is entitled to the retirement benefits". So far so good. That was the interpretation question. It was about the age ("the entitling age") at which an employee, not just Kassim, had to go on retirement or optional retirement in order to be entitled