INDUSTRIAL COURT OF MALAYSIA BETWEEN KESATUAN PEKERJA TELEKOM MALAYSIA BERHAD SARAWAK (UNION)

AND TELEKOM MALAYSIA BERHAD (RESPONDENT)

AWARD NO: 2343 OF 2023 BEFORE : Y.A. TUAN NAZRI BIN ISMAIL Chairman PANEL FOR UNION : Mr Sukhdeep Singh PANEL FOR RESPONDENT : Puan Keoh Cheng Kim @ Josephine Keoh VENUE : Industrial Court Malaysia, Sarawak DATE OF ORDER OF : 11.01.2023 REFERENCE DATE OF RECEIPT OF : 02.02.2023 ORDER OF REFERENCE DATES OF MENTION : 14.03.2023 DATES OF HEARING : 11.09.2023, 12.09.2023 REPRESENTATION FOR UNION : Tuan Haji Mohd. Ibrahim Hamid Malaysian Trade Union Congress (MTUC) Sarawak Division FOR RESPONDENT : Mr Libat Langub Ms Ganit Libat Messrs Dr. Yaacob & Ismail Advocates AWARD REFERENCE This is an order of reference dated 11.01.2023 by the Honourable Minister of Human Resources pursuant to section 20(3) of the Industrial Relations Act 1967 arising out of the alleged trade dispute between the parties on the terms of Collective Agreement.

BRIEF FACTS [1] The dispute arose based on the interpretation and execution of a provision in the Twelfh Collective Agreement between the Kesatuan Pekerja Telekom Malaysia Berhad Sarawak (UTES) and Telekom Malaysia Berhad (the Company) regarding the upgrading exercise by the Company.

[2] In November 2021, the Company was involved in an upgrading exercise for 123 of its non-executive employees in Sarawak who are members of UTES.

[3] During the said upgrading exercise, the Company found that only 33 of the said 123 non-executive employees had passed the job enrichment criteria and therefore eligible to proceed to the next upgrading process.

[4] The Company found that there was no job enrichment at that particular time for the other 40 non-executive employees based on their validated job specifications hence, they were ineligible for upgrading [5] The other 50 non-executive employees were already successfully upgraded and have been taken off the list with the UTES acknowledgment. [6] UTES disagreed with the Company’s decision as regards the ineligible 40 non-executive employees and insisted that they should automatically be made eligible for upgrading without the Company considering the element of job enrichment.

[7] Thereafter, UTES filed its Statement of Case alleging non-compliance by the Company since 2018 of Article 27.10 of the Twelfh Collective Agreement between the Company and UTES.

[8] The Company denied UTES's allegation of non-compliance with the said Article.

THE LAW [9] This Court is guided by the principle enunciated in the Federal Court case of Ismail Nasaruddin Abdul Wahab v. Malaysian Airline System Bhd. [2022] 9 CLJ 801 on the spirit of Act 177 as follows:

“[53] We note that the IRA, which consolidated all previous laws concerning industrial disputes, contains several protective measures for trade unions as a peace offering meant to forestall opposition to permanent compulsory arbitration, and that it was legislated not only to safeguard the legitimate rights and interests of employers and workers or their trade unions, but also to ensure the speedy and just settlement of industrial disputes, so that public and national interests are not prejudiced while the parties promote their own particular interests (see Parliamentary Debates, Dewan Rakyat, Second Parliament, Fourth Session, 22 June 1967, 1531 to 1532 (V Manickavasagam).”.

[10] The Collective Agreement is the ultimate source and refers to the Court of Appeal decision in Syarikat Binaan Utara Jaya (A Firm) v. Koperasi Serbaguna Sungei Glugor Berhad [2009] 1 CLJ 786 [2009] 2 AMR 50, Abdul Malik Ishak JCA stated the following key principle:-

“[16] I am fortunate that the contract here is in writing and so the parties are confined within the four corners of the document in which they have chosen to seal their agreement and neither of them can adduce evidence to say that his intention has been misstated or overlooked in the agreement or that some essential features of the contract has been omitted or ignored. To allow