JUDGMENTBY: NIK HASHIM J

: A trade dispute between the Kesatuan Pekeria-pekerja Pengangkutan Semenanjung Malaysia (the union) and Mersing Omnibus Co Sdn Bhd (the company) was referred to the Industrial Court for an award by the Minister of Human Resources under s 26(1) of the Industrial Relations Act 1967 (the Act) over the third collective agreement between the company and the union respecting the terms and conditions of service. The Industrial Court handed down the award incorporating a memorandum on terms and conditions of employment between the company and the union for a period of three years from 1 March 1995 to 28 February 1998. Dissatisfied with arts 14, 24, 25, 31 and 33 of the award, the company applied under O 53 of the Rules of the High Court 1980 for an order of certiorari to quash the award that granted increased wages and allowance and enhanced benefits in art 14 (increase in percentage of daily takings by 3%, art 24 (meal allowance of RM10 per night to the employees who are required to stay away from their home base), art 25 (accommodation facilities to the employees who are required to stay away overnight), art 31 (group personal accident insurance for 24 hour coverage for each employee for a sum of RM20,000 with annual premium to be paid equally by the company and the employee), and art 33 (retirement benefits including those who resign after completing five years continuous service), on the usual grounds that the Industrial Court acted without jurisdiction and/or in excess of jurisdiction and/or erred in law in that:

(i) it failed to take relevant matters into consideration;

(ii) it took irrelevant matters into consideration;

(iii) it came to a decision in disregard of the law;

(iv) it applied the wrong test;

(v) it acted in breach of the rules of natural justice; and

(vi) its decision is clearly perverse and so devoid of plausible

justification that no reasonable body of persons could have reached it,

and cited Malayan Banking Bhd v Association of Bank Officers Peninsula Malaysia & Industrial Court [1988] 3 MLJ 204 and Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 MLJ 317 in support.

The union, on the other hand, argued that the Industrial Court had not committed any jurisdictional error and urged the court not to interfere with the award.

The laws respecting the duty of the High Court in an application for certiorari is well-established. The High Court is not sitting in its appellate jurisdiction but in its supervisory jurisdiction. The court is only concerned with the decision-making process and not with the decision. It is not an appeal from the decision made but a review of the manner in which it was made and it is not the courts function to consider whether on the merits of the facts of the case, the said decision was fair and reasonabIe ( Azman Abdullah v Ketua Polis Negara [1997] 1 CLJ 257; Michael Lee Fook Wah v Minister of Human Resources Malaysia & Anor [1998] 1 MLJ 305). Judicial review, as the words imply, is not concerned with the merits of a decision but with its legality (see Viking Askim Sdn Bhd v National Union of Employees in Companies Manufacturing Rubber Products & Anor [1991] 2 MLJ 115). The Industrial Court has wide powers under s 30(4), (5) and (6) of the Act in settling trade disputes. In settling disputes between an employer and its employees, the Industrial Court is not confined to administration of justice in accordance with law. It can also confer rights and privileges on either party which it considers reasonable and proper though they may not be within the terms of any existing agreement. Its function is not merely to interpret or to give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace (see Dr A Dutt v Assunta Hospital [1981] 1 MLJ 304; Lim Seng Huat lwn Fiamma Sdn Bhd [1996] 3 MLJ 604). However,