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2023 MarsdenLR 2095
INDUSTRIAL COURT KUALA LUMPUR
KESATUAN PEKERJA-PEKERJA KELAB SEMENANJUNG MALAYSIA – Appellant
Versus
BUKIT KIARA RESORT BERHAD – Respondent
Award No: 1594 Of 2023 [Case No: 3/3-1/21]
Modifications to a collective agreement must be mutually agreed upon, and unilateral changes by an employer can constitute a breach, leading to enforcement of prior practices.
Headnote:(A) Industrial Relations Act 1967 - Subsections 18(1), 26(2), 30(4), and 30(5) - Collective Agreement - Dispute regarding change of working hours and split shift allowance - Union claims violation of CA terms by the Club - Court finds that the Club's actions constituted a breach of the CA, necessitating adherence to prior payment practices - The Club is estopped from reinterpreting the CA after prior compliance without objection. (Paras 3, 11, 23, 31)
(B) Contractual Interpretation - The principle that modifications to a contract must be by mutual agreement - The Court is bound to interpret the CA based on its written terms, without external influences. (Paras 20, 24)
Facts of the case:
The dispute arose from the Club's unilateral change of working hours for Union members without consent, leading to claims of lost income and overtime. The Union alleges breach of the CA, while the Club denies any violation. (Paras 2, 3)
Findings of Court:
The Court concluded that the Club must continue payments as previously made under the CA until its expiration, affirming the Union's claims. (Paras 31)
Issues: Whether the Club's change in working hours constituted a breach of the CA and whether it required the Union's consent. (Paras 15, 18)
Ratio Decidendi: The Court ruled that modifications to the CA require mutual agreement, and the Club's prior compliance estops it from claiming otherwise. The CA's terms must be interpreted as written. (Paras 20, 23)
Result: The Union's claims are upheld; the Club must honor the terms of the CA regarding payments.
| Table of Content |
|---|
| 1. dispute over collective agreement terms (Para 1 , 2 , 3 , 4 , 5) |
| 2. court's evidence review process (Para 6 , 7) |
| 3. chairperson's authority and procedural fairness (Para 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 4. assessors' differing views on compliance (Para 15 , 16 , 17) |
| 5. interpretation of contractual obligations (Para 18 , 19 , 20 , 21 , 22) |
| 6. estoppel in contractual disputes (Para 23 , 24 , 25 , 26 , 27 , 28) |
| 7. union's claim validated by majority decision (Para 29 , 30 , 31) |
Reference
[1] This is a reference dated 18 November 2020 made by the Minister of Human Resources pursuant to subsection 26(2) of the Industrial Relations Act 1967 (Act 177) following a complaint of a trade dispute made Kesatuan Pekerja-Pekerja Kelab Semenanjung Malaysia ("the Union") against by Bukit Kiara Resort Berhad ("the Club") under subsection 18(1) of Act 177.
Brief Facts
[2] The dispute arose based on the interpretation and execution of a provision in the Collective Agreement ("the CA") that was deposited in this Court bearing Cognizance No: 025/2019. This is also the seventh edition of the CA between the Union and the Club. This version of the CA was valid from 1 January 2018 till 31 December 2020.
[3] The Union claims that the Club had violated the terms of the CA after the Club changed the working hours of two categories of workers from the Union, namely the Groomers and Supervisors, without discussing with and obtaining consent of the Union. The Club denies this by stating that the Club's action does not contravene the CA and that there was no mention of any split shift allowance. The Club acknowledged that the Club did pay the aggrieved workers the split shift until the Club made the proposed changes. The Club's proposal called for a change from the split shift to a double shift.
[4] The Club further stated that there were negotiations albeit via emails between the Club's and the Union's representative in April 2020. According to the Club, there were further negotiations between the Club and Union representatives on 15 June 2020 and 1 July 2020 but both failed to come to any resolution. The dispute was referred to the Industrial Relations Department and a conciliatory meeting held on 8 July 2020.
[5] Besides the change from split shift to double shift working hours, the main issue is the of split shift overtime allowance. The Union claims that the change of working hours has caused their affected members to lose out on their income and this includes overtime payments. Hence the claim today. The justification of the Union's claims are all based on the interpretation to the CA and will be dealt with by this Court further down this Award.
[6] The trial was held on 7 September 2022 and as the norm was in the presence of two assessors; namely Mr Ismail bin Ali representing the Union and Mr Alan Sunil Netto A/L E F Netto for the Club. All of the evidence in Court has been recorded and is available in the Court's system for this Court's viewing should the need arises.
[7] The Court has gone through the evidence as given through testimony in Court and the documents and submissions that have been filed. Those documents and submissions are listed for ease of reference as follows:
(i) Statement of Case dated 25 February 2021;
(ii) Statement of Reply dated 17 March 2021;
(iii) Rejoinder dated 30 March 2021;
(iv) The Claimant's Bundle of Documents marked as UB1 received 4 March 2021;
(v) The Company's Bundle of Documents - Volume 1 marked as COB1 received 17 March 2021;
(vi) The Union's Supplementary Bundle of Documents marked as UB2 received 6 September 2021;
(vii) The Company's Bundle of Documents - Volume 2 marked as COB2 received 28 September 2021;
(viii) The Union's Witness Statement marked as UWS1 signed in Court on 7 September 2022;
(ix) The Union's Witness Statement marked as UWS2 signed in Court on 7 September 2022
(x) The Club's Witness Statement marked as COWS1 signed in Court on 7 September 2022;
(xi) The Written Submission f
