INDUSTRIAL COURT OF MALAYSIA BETWEEN KESATUAN KEBANGSAAN PEKERJA-PEKERJA PERDAGANGAN AND KUMPULAN O'CONNOR'S (M) SDN. BHD.

AWARD NO : 1343 OF 2009 Before : TUAN FRANKLIN GOONTING - Chairman MR. MUHAMMAD RAWI RAVI - Employer’s Panel BIN ABDULLH MR. HASHIM BIN AHMAD @ - Employee’s Panel MUHAMED Venue : Industrial Court Malaysia, Kuala Lumpur Date of Reference : 6.11.2008 Dates of Mention : 15.1.2009, 18.2.2009, 19.3.2009, 20.4.2009, 7.7.2009, 2.9.2009, 5.8.2009, 20.8.2009 Date of Hearing : 2.9.2009 Date of Discussion with Panel Member : 23.10.2009 Representation : Mr. Chandra Segaran &

Mr. Fong Fook Chuen, From Messrs Prem & Chandra, Counsel for the Union.

Mr. James Ling &

Ms. Norsuhaila Bte Mat Nudin, From Messrs Ten & Colin, Counsel for the Company.

Reference :

This is a dispute referred under Section 26 (2) of the Industrial Relations Act 1967 between Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan (hereinafter referred to as “the Union”) and Kumpulan O'connor's (M) Sdn Bhd (hereinafter referred to as “the Company”).

AWARD This trade dispute between Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan (“the Union”) and Kumpulan O'Connor's (M) Sdn Bhd (“the Company”) which has been referred to the Court pursuant to Section 26 (2) of the Industrial Relations Act 1967 (“the Act”) concerns the terms to be incorporated into the sixth collective agreement for those workmen coming within its scope.

The parties have agreed to most of the articles leaving only the following to be resolved:

(i) Article 1 Retrospective commencement date of the collective agreement.

(ii) Article 5(a) Probationary period.

(iii) Article 6(c) Promotion (iv) Article 10(f) Annual leave (v) Article 14 11(a) Medical benefit (vi) Article 18(d) Retirement (vii) Article 23(b)(iii) General advances (viii) Article 24 Bonus (ix) Article 26 Salary structure (x) Article 32 Duration of the collective agreement As directed by the Court counsel filed outline submissions, and oral submissions were heard on 2^nd September 2009. Mr. Chandra Segaran from Messrs Prem & Chandra represented the union while Mr.

James Ling from Messrs Ten & Colin represented the company.

Article 1 – Commencement Date The company's counsel cites Section 30(7) of the Act which provides as follows:

“(7) An award may specify the period during which it shall continue in force, and may be retrospective to such date as is specified in the award : Provided that the retrospective date of the award may not except in the case of a decision of the Court under Section 33 or an order of the Court under Section 56(2) (c) or an award of the Court for the reinstatement of a workman or a reference to it in respect of the dismissal of the workman, be earlier than six months from the date on which the dispute was referred to the Court.

Counsel submits that since the date of the Minister's reference is

5^th December 2008 then, going back six months, the effective date of the collective agreement should not be earlier than 6^th June 2008. The union's stand is that this collective agreement should take effect immediately upon the expiry of the previous collective agreement Cog.

187/2004 which expired on 31^st October 2006.

This is not the first collective agreement between the parties; they have had five previous consecutive agreements. The company's letters dated 12^th October 2006 and 20^th April 2007 giving its proposals are captioned “New Collective Agreement Proposal 2006 – 2009” and nowhere in them is it stated that implementation of the collective agreement should commence only upon resolvement of its terms. By implication therefore the company had agreed that the collective agreement take effect from the expiry of the previous agreement Cog. 187/2004. It cannot now come to the Court and make an issue of the effective date of the agreement by attempting to rely on Section 30(7) of the Act. This will not augur well for industrial harmony. Accordingly the Court holds that the retrospective effective date of the collective agreement should be