Non-compliance of an award under the Industrial Relations Act must be established to direct enforcement and payment.

[1] The complaint of non-compliance was filed in Forms S pursuant to r 56(1) Industrial Relations Act 1967 and r 24A (1) of the Industrial Rule 1967 ( IRA ) in respect Award No 584 of 2017 in Case No 14/4-1152/15 on 20 April 2017.

[2] The complaint lodged by the Complainant in relation of the following provision in para 60 of the said Award has not been complied as follows:

"The Court orders that the total sum of RM106,122.59 less statutory deductions (SOCSO and EPF contributions and income tax) shall be paid by the company to the Claimant within 30 days from the date of this Award."

Complainant's Submissions

[3] The Statement of Case was filed on 28 February 2018 and paras 7 & 9 states that the Company had filed an application for judicial review in Kuala Lumpur High Court Case No. WA-25-194-07/2017 where the application was dismissed by the High Court on 29 January 2018 (RB1 Tab I). To date no stay order was given by the High Court.

[4] The Complainant prays for an order of non-compliance against the Company under s 56 (2) (a) (i) IRA . The Complainant's counsel submits that the said Award was handed down on 20 February 2017 and since then the Company has yet to comply with the Award. Counsel urged the Court to order compliance of the said Award by the Respondent.

Respondent's Submissions

[5] The Respondent's counsel referred to the Notice of Appeal filed on 28 February 2018 (RB2 Tabs J & K). The Notice of Appeal is pending registration of a civil appeal number and case management date. The Respondent is seeking the Court's discretion to stay the proceedings pending the disposal of the matter in the Court of Appeal. The Court ruled that this application to proceed under s 29 (d) & (g) of the IRA .

[6] The Respondent's counsel submits that there is no evidence to show that the Claimant is able to refund the monies should the Court of Appeal decides in favour of the Company and urged the Court to maintain the status quo of the parties pending the disposal of the appeal.

The Law

[7] The Industrial Court in the case of Kesatuan Pekerja-pekerja Perkilangan Perusahaan Makanan v. Gold Coin Specialities Sdn Bhd ; [2017] 2 ILR 260 at p 262 referred the case of Holiday Inn, Kuala Lumpur v. National Union of Hotel, Bar and Restaurant Workers [1988] 1 CLJ 133 in relation the application of s 56 of the Industrial Relations Act 1967 , where the Supreme Court decided as follows:

"Now, s 56 is concerned with the enforcement in a summary manner of an award made by the Industrial Court or of a collective agreement which has been taken cognisance of by the Court under s 17 after a complaint has been lodged as to its non-compliance. The non-compliance of a term of the award or collective agreement must exist as an antecedent fact before the Industrial Court can exercise its power contained in subsection (2) thereof. It is therefore, a condition precedent to the exercise of those powers that there should be in existence a breach or non-observance of a term of the award or collective agreement. There must be satisfactorily established by the complainant."

[8] In the case of Dragon & Phoenix Berhad v. Kesatuan Pekerja-pekerja Perusahaan Membuat Tekstil & Pakaian Pulau Pinang & Anor, [1991] 1 MLJ 89 at p 616; [1991] 1 CLJ 109, the Supreme Court as follows:

"In a complaint of non-compliance with any term of a collective agreement or award under s 56 of the Industrial should, as a general rule, look at the terms of the contract by confining itself to within the four walls of the collective agreement or award and decide whether the term has or has not been complied with. It is purely enforcement function."

Decision

[9] In respect of "