AWARD

Wan Jeffry Kassim:

Non-Compliance Proceedings

[1] This is an application filed by Non-Metallic Mineral Products Manufacturing Employees Union pursuant to s 56(1) of the Industrial Relations Act 1967 ("IRA"). The application seeks an order for non-compliance with art 26 - Bonus of the 10th Collective Agreement ("CA"), that was awarded through Award No 1217 of 2023 [Non-Metalic Mineral Products Manufacturing Employees' Union v. PGF Insulation Sdn Bhd], dated 1 June 2023 ("Award") between Non-Metallic Mineral Products Manufacturing Employees' Union ("Union") and PGF Insulation Sdn Bhd ("Respondent Company").

[2] A complaint is hereby lodged by the Union regarding the provision of art 26 - Bonus, as stipulated in the 10th CA for the period from 1 March 2020 until 28 February 2023. The Union contends that the provision, as outlined in the Award handed down by the Industrial Court of Penang, has not been complied with by the Respondent Company.

[3] The following documents were referred to during the hearing and have been marked accordingly:

(a) Statement of Case dated 24 June 2024;

(b) Statement in Reply dated 26 July 2024;

(c) Rejoinder dated 9 August 2024;

(d) Union's Bundle of Documents marked as "UB-1";

(e) Respondent Company's Bundle of Documents (Volume 1) marked as "COB-1";

(f) Respondent Company's Bundle of Documents (Volume 2) marked as "COB-2";

(g) Respondent Company's Witness Statement of Loo Chee Hin marked as "COWS-1";

(h) Union's Bundle of Authorities marked as "A1";

(i) Respondent Company's Bundle of Authorities (Vol 1) marked as "B1";

(j) Union's Bundle of Authorities 2 marked as "C1"; and

(k) Notes of Proceeding marked as "E";

[4] The Union filed written submissions on 25 October 2024 (Enclosure A) and 3 December 2024 (Enclosure C). The Respondent Company filed written submissions on 29 October 2024 (Enclosure B) and 6 December 2024 (Enclosure D). During the trial, the Respondent Company called Mr Loo Chee Hin as its only witness, and his witness statement was marked as "COWS-1".

Submission By The Union

[5] The Union's submissions can be summarized as follows:

(a) The Respondent Company has failed to comply with art 26 - Bonus, in respect of the 10th CA for the period from 1 March 2020 to 28 February 2023, which was handed down by the Industrial Court of Penang in Award No 1217/2023, dated 1 June 2023;

(b) The Award, when read in its entirety, clearly states at para 22 that the decision regarding art 26 - Bonus was not unanimous decision. The panel members, representing both the employer and employee, decided that the bonus payment in the 10th CA should be increased from 1.5 months to 2 months. Their views can be found at para 9 of the said Award;

(c) Therefore, it is crystal clear that the views of the panel members prevail in respect of art 26 - Bonus, and the Respondent Company should be paying 2 months' bonus and not 1.5 months' bonus;

(d) The Respondent Company's argument that the Award, particularly Paragraph 21, states that "the terms of art 21(d) and (e), art 26, art 47 and art 52 in the 9th CA be maintained for the 10th CA" should prevail is a myopic view. This argument fails to consider the totality of the Award, which clearly indicates that the majority decision of the Industrial Court regarding art 26 - Bonus is for a 2 months' pay out. The Learned Chairlady herself, in the said Award, acknowledged that her view represents the minority view. The Union refers to para 19 of the Award; which states as follows:

"[19] Nevertheless, I'm not agreeable with the views of the Members of Panel that the fixed contractual bonus of 1.5 months in art 26 be increased to 2.0 months on the grounds that the Company had been making profits even during the COVID-19 pandemic and the quantum of 1.5 months had been paid since 1996 via the 2nd CA. This is simply because this point was never raised by the Union nor submitted by the learned counsel for the Union."

(e) The Union refers to the case of Kesatuan Pekerja-Pekerja Dalam Perkhidmatan