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2022 MarsdenLR 2099
HIGH COURT (KUALA LUMPUR)
WAN AHMAD FARID WAN SALLEH, J
PEPS-JV (Melaka) Sdn Bhd – Plaintiff
Versus
Industrial Court of Malaysia & Anor – Defendant
PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO WA-25-194-05/2021
Wee Choo Keong (Wee Choo Keong & Faaiz) for the applicant.
Chandrasegaran a/l Rajandran (Prem & Chandra) for the second respondent.
The court confirmed the Industrial Court's award, emphasizing the consideration of financial capacity and public interest in trade dispute resolutions.
Headnote:(A) Industrial Relations Act 1967 - Section 26(1) - Application for judicial review of Industrial Court's award for a new Collective Agreement.
(B) The court affirmed that the Industrial Court acted with equity, considering the financial ability of the applicant and public interest.
(C) Key disputes included recognition of union, salary adjustment, working hours, and benefits.
(D) The primary issue was whether the Industrial Court's decisions reflected the applicant's financial incapacity. (E) The court found that the Industrial Court effectively considered comprehensive financial evidence, dispelling claims of irrationality in its decision. (F) The application for judicial review was dismissed with costs of RM7,000. (G) Parties include a manufacturing company and a trade union representing employees. (H) No dissenting opinions were noted.
| Table of Content |
|---|
| 1. trade dispute between union and company (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. agreements maintained during court reference (Para 7 , 8 , 9) |
| 3. dispute over union room provision (Para 10 , 11 , 12) |
| 4. condition on benefit entitlement for employees (Para 13 , 14 , 15) |
| 5. retention of increment clauses (Para 16 , 17 , 18) |
| 6. wage computing for employees (Para 19 , 20 , 21) |
| 7. annual increment determination (Para 22 , 23 , 24 , 25) |
| 8. working hours and conditions (Para 26 , 27 , 28 , 29 , 30) |
| 9. shift allowances adjustments (Para 31 , 32 , 33 , 34) |
| 10. retention of subsistence allowances (Para 35 , 36 , 37) |
| 11. public holiday provisions (Para 38 , 39 , 40) |
| 12. annual leave provisions (Para 41 , 42 , 43) |
| 13. retirement terms (Para 44 , 45 , 46) |
| 14. retention of existing benefits (Para 47 , 48 , 49) |
| 15. check-off provision arguments (Para 50 , 51 , 52) |
| 16. attendance allowances considerations (Para 53 , 54) |
| 17. salary adjustments discussion (Para 55 , 56 , 57 , 58 , 59 , 60) |
| 18. duration of the collective agreement (Para 61 , 62 , 63 , 64) |
| 19. pilgrimage leave disposition (Para 65 , 66 , 67 , 68) |
| 20. judicial review application initiation (Para 69 , 70 , 71 , 72 , 73 , 74) |
| 21. applicant's financial considerations (Para 75 , 76 , 77 , 78 , 79 , 80 , 81) |
| 22. impact of covid-19 on operations (Para 82 , 83 , 84 , 85 , 86) |
| 23. challenges to industrial court's decisions (Para 87 , 88 , 89 , 90 , 91 , 92 , 93) |
| 24. court's approach to applicant's finances (Para 94 , 95 , 96 , 97 , 98) |
| 25. evaluation of claims and arguments (Para 99 , 100 , 101 , 102 , 103) |
| 26. final ruling and judicial review dismissal (Para 104 , 105 , 106 , 107) |
JUDGMENT
[1]This case is about a trade dispute.
[2]The applicant Company is in the business of manufacturing specialised automotive metal-based components and modular assembly parts for cars. The manufacturing plant is located in Melaka.
[3]The 2nd respondent is a trade union having the exclusive bargaining agent in respect of the categories of employees of the 1st applicant Company.
[4]The Union entered into a first Collective Agreement (“1st CA”) with the applicant for the period from 1.4.2016 to 31.3.2019. Art 41(a) of the 1st CA provides that it is to continue in force thereafter “until and unless superseded by a new collective Agreement or Award”.
[5]A trade dispute arose when the parties could not conclude a 2nd Collective Agreement (“2nd CA”). The dispute was reported to the Director General of Industrial Relations. Unfortunately, the matter could not be resolved.
[6]The parties then made a joint request to the Minister of Human Resources (“the Minister”) and thereafter, the Minister, acting under s 26(1) Industrial Relations Act 1967 Court for adjudication and an award.
[7]The matter referred to by the Minister arose from the trade dispute in respect of Perjanjian Kolektif Ke-2 bagi tempoh 01.04.2019 hingga 31.03.2022 pertaining to the terms and conditions of employment applicable to the employees.
At the Industrial Court
[8]At the outset of the reference before the Industrial Court, the parties agreed to maintain the status quo of some of the articles in the 1st CA.
[9]Only the remaining un-agreed articles that were in dispute were referred to the Industrial Court for the adjudication and award. The un-agreed articles proposed under the new 2nd CA are as follows:
[10]After having heard the evidence, submissions of the parties and making a comparative analysis with other collective agreements in similar industries, the Industrial Court handed down the award, which can be summarised as follows:
Art 3: Recognition of Union and Security
[11]The dispute is in respect of the existing art 3(g) which provides that the Union Room shall be provided upon request and subject to availability for the Union’s legitimate use. The Union requested for the applicant company to provide a Union Room equipped with a notice board and sought to remove the phrase “subject to availability”.
[12]The Industrial Court decided to retain the status quo in the 1s
