INDUSTRIAL COURT OF MALAYSIA CASE NO.

1/1-643/09
BETWEEN KESATUAN PEKERJA-PEKERJA PERKILANGAN PERUSAHAAN MAKANAN AND KOPERASI NELAYAN NEGERI TERENGGANU BHD

AWARD NO : 851 OF 2011

Coram :

Y.A PUAN SUSILA SITHAMPARAM MR. GILBERT JOHN AROKIA RAJ PUAN SARITA BERAM SHAH @ RAJARAM

PRESIDENT EMPLOYEES PANEL EMPLOYERS PANEL

Venue

Industrial Court, Kuala Lumpur. : : : 17 December 2009. 3 June 2011. Encik Sharifullah Majeed Messrs Jeevaratnam & Co. Counsel for the complainant/union. Encik Mohd. Zabidi bin Ahmad Yusof Encik Azrulrizal bin Ibrahim Messrs Azman Wan Helmi & Associates Counsel for the respondent.

Date of filing of Form S Date of hearing Representation

AWARD

This is an application in Form S dated 17 December 2009 by the complainant/union for an order of non-compliance against the

respondent for not complying with article 1 of the collective agreement which was handed down by the Industrial Court vide Award No. 488 of 2009 in a trade dispute case no 15(20)(15)/2-1417/05.

Background facts

The complainant/union and the respondent had entered into a collective agreement dated 4 July 2002 for a period of three years which expired on 30 June 2005 (hereinafter referred to as the said collective agreement). The proposal for the extension of the collective agreement by the union was rejected by the respondent and the matter was referred to the Industrial Court as a trade dispute by the Honourable Minister of Human Resources vide case no 15(20)(15)/2-1417/05.

The Industrial Court heard the trade dispute and handed down

Award No. 488 of 2009. read:

The last paragraph of Award No. 488 of 2009

Having regard, therefore, to the provisions of Articles 1(a) read together with Article 1(d) of the said Collective Agreement, the Court is of the view that the said Collective Agreement should continue in existence until a fresh collective agreement has been negotiated or otherwise terminated in accordance with Article 1(e) of the said Collective Agreement. The Koperasi cannot unilaterally reject the proposed new Collective Agreement outright simply because it subsequently held the view that the Collective Agreement which has been given cognizance is in contravention of section 90 of the Cooperative Societies Act.

On 1 October 2009, the respondent sent a letter to the union whereby it gave three months notice to terminate the said collective agreement (hereinafter referred to as the said letter of termination) vide Bundle RB2, page 1.

The complaint

The complaint is that the respondent has failed to comply with Award No. 488 of 2009 when it sent the said letter of termination. Counsel for the complainant submitted that article 1(a) and article 1(e) of the said collective agreement should be read together and a purposive
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interpretation should be given. The effect of reading the two provisions together is that the said collective agreement would continue to apply until there is a fresh collective agreement.

He also submitted that the respondent had not applied for judicial review of Award No. 488 of 2009.

The relevant provisions in the collective agreement

Article 1 read:

PERKARA 1 TEMPOH, ATURCARA, UBAHSUAI DAN PENAMATAN PERJANJIAN a. Perjanjian ini akan berkuatkuasa selama 3 tahun mulai dari 1 Julai 2002 hingga 30 Jun 2005 dan kemudian daripada itu akan terus berkuatkuasa sehingga digantikan dengan Perjanjian bersama yang baru atau ditamatkan sebagaimana yang diperuntukan dalam Perjanjian ini. ... e. Mana-mana pihak boleh menamatkan Perjanjian ini dengan memberi kepada pihak yang lain tiga (3) bulan notis bertulis tetapi notis tersebut tidak boleh diberi sebelum 1 Mac 2005.

The reply by the respondent

The respondent raised a preliminary issue as to whether the Industrial Court had jurisdiction to decide on whether or not the collective agreement had been terminated in an application pursuant to section 56, Industrial Relations Act 1967 (hereinafter referred to as the said Act). The complainant had failed to state in its application in what way the respondent had failed to comply with the said collective agreement. The respondent has paid all wages and benefits under the said collective agreement to-date.

Counsel for the respondent submitted that the Industrial Court had stated expressly in the last paragraph of Award No. 488 of 2009 that either party could terminate the said collective agreement. He also submitted that the Industrial Court had extended the period of the said collective agreement for a further period of three years from 1 July 2005 until 30 June 2008.

The relevant statutory provision

Section 56 read:

56. Non-Compliance with award or collective agreement (1) Any complaint that any term of any award or of any collective agreement which has been taken cognizance of by the Court has not been complied with may be lodged with the Court in writing by any trade union or person bound by such award agreement.

Decision

The court held that it had jurisdiction to decide on the application for non-compliance which read:

A complaint is hereby lodged by Kesatuan PekerjaPekerja Perkilangan Makanan that the following provisions of the above-mentioned Award/Collective Agreement have not been complied with : Perkara 1 - Tempoh, Aturcara, Ubahsuai dan Penamatan Perjanjian.

The prayer in the application for non-compliance referred to a specific provision in the said collective agreement namely article 1 which had been referred to in Award No. 488 of 2009. The issue before the court was whether a purposive interpretation should be given to article 1 and the effect of reading article 1(a) and article 1(e) together.
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Upon perusal of Award No. 488 of 2009 in its entirety, the court found that the Industrial Court in that case did not extend the period of the said collective agreement. It held that the said collective agreement would continue to apply until a fresh collective agreement was entered into or either party terminated the said collective agreement by giving due notice. It did not make any ruling that the said collective agreement would continue to apply until it was replaced by a fresh collective agreement.

Since a decision has been made by another division of the Industrial Court that either party may terminate the said collective agreement by giving due notice, the issue has already been decided on. Thus, the principle of res judicata will apply with regard to the interpretation of article 1 of the said collective agreement.

The respondent was merely following the decision of the Industrial Court in Award No. 488 of 2009 that it could terminate the said collective agreement by giving due notice pursuant to article 1(e) of the said collective agreement.

In the circumstances, the application is dismissed.

HANDED DOWN AND DATED THIS 13th DAY OF JUNE 2011

signed... ( SUSILA SITHAMPARAM ) PRESIDENT INDUSTRIAL COURT OF MALAYSIA