Franklin Goonting:

[1] On the joint request of the parties the Honourable Minister of Human Resources referred to this court, under s. 26(1) of the Industrial Relations Act 1967 (the IRA), a dispute between Kesatuan Pekerja-Pekerja Perusahaan Simen (SM) ("the union) and Lafarge Malayan Cement (APMC) Sdn. Bhd. ("the company). The dispute concerns the Sales Fleet Incentives payable to the sales fleet drivers of the company.

[2] In its statement of case the union referred to Consent Award No. 965 of 2001 on the terms and conditions of the 11th Collective Agreement for the period 1 July 2000 to 30 Jun 2003 and, in particular, to art. 13 clause (d) thereof concerning, inter alia, the Sales Fleet Incentive Scheme for these drivers. The union alleged that with effect from 1 January 2002 the company had introduced a new table for the calculation of payment of the said Sales Fleet Incentive. This new table had the effect of reducing the take-home pay of the drivers. The union prayed for an award directing the company to follow the "old table" until an agreement is reached for the "new table" between the company and the union.

[3] In its statement in reply the company pleaded, inter alia:

a) that the said Collective Agreement (for convenience hereinafter referred to as the previous Collective Agreement) is superceded by a subsequent consent award, that is, Award No. 2069 of 2005 governing the period 1 July 2003 to 30 June 2006;

b) that the prescribed requirement was to pay the drivers according to "the total loaded kilometre travelled" and at all material times the company had complied with this requirement;

c) there is only one method of compensation and that is to pay the employee based on "the total loaded kilometre travelled";

d) in the alternative the company pleaded that the union had on 29 June 2005 concluded a collective agreement with the company for the period 1 July 2003 to 30 June 2006 (for convenience hereinafter referred to as the "new Collective Agreement") and that this new Collective Agreement constitutes a full and final settlement of all disputes and therefore the union is precluded from advancing or maintaining these claims.

[4] On 6 April 2006 we directed the parties, through their respective representatives, to file written submissions on a preliminary point, that is, the effect of art. 4 Clause (b) of the new Collective Agreement as awarded by consent vide Award No. 2069 of 2005.

[5] Article 4 Clause (b) aforesaid reads as follows:

The provisions of this Agreement have been accepted by the employees and the union and the company in full and complete settlement of all claims submitted either by the employees directly or through the union to the company or by the company regarding the general terms and conditions of employment. (Italics for emphasis).

[6] We have since read the written submissions of the parties and now hand down our decision.

[7] The provisions for Sales Fleet Incentives in the new Collective Agreement are contained in Appendix V thereof. This is reproduced:

Notes On Sales Fleet Incentive Scheme
(Scheme 1)

1. For return loads payment shall be made as follows:

a) For single loaded trip with a return load, the incentive paid shall be double the rate for one trip.

b) For two loaded trips with one return load, the incentive paid shall be 1.5 times the rate for two trips.

c) For two loaded trips with two return loads the incentive paid shall be double the rate for two trips.

2. Where deliveries during any one continuous work period are made ex Works, Depots and BBC wagons, the incentive payable shall be based on the total loaded kilometre travelled for all trips made during that work period. (Emphasis added).

[8] In his submissions the union's representative Mr. Ponusami refers to a table appearing on p. 35 of its bundle of documents which he calls the "old table" and which he says had been followed by the company right up to 31 December 2001. He next refers to another table, on p. 36 of the bundle of documents,