award no : 1180 of 2010 kesatuan pekerja-pekerja perusahaan logam and kong brothers engineering...

7/29/2019 AWARD NO : 1180 OF 2010 KESATUAN PEKERJA-PEKERJA PERUSAHAAN LOGAM AND KONG BROTHERS ENGINEERIN

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INDUSTRIAL COURT OF MALAYSIA

CASE NO. 1/6-149/10

BETWEEN

KESATUAN PEKERJA-PEKERJA PERUSAHAAN LOGAM

AND

KONG BROTHERS ENGINEERING SDN. BHD.

AWARD NO : 1180 OF 2010

Coram : YAPUAN SUSILA SITHAMPARAM PRESIDENT

MR. JEY KUMAR s/o P. RAMAN EMPLOYEES PANEL

MISS LIM SIEW BOON EMPLOYERS PANEL

Venue : Industrial Court Kuala Lumpur.

Date of filing of Form M : 9 February 2010.

Date of hearing and oral : 25 August 2010submissions

Representation : Mr. G. RajasekaranSecretary Generalfor and on behalf the applicant/union.

Mr. M. V. GopalSenior Consultantfor and on behalf the respondent/company.

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AWARD

This was an application by Kesatuan Pekerja=Pekerja Perusahaan Logam

(hereinafter referred to as the union) in Form M dated 5 February 2010 for

an interpretation of clause 8(iii) of Award 738 of 2006 (hereinafter referred to as

the said award) which was handed down in case 15/2-1575/05 (hereinafter

referred to as the said application).

The facts

The union and Kong Brothers Engineering Sdn Bhd (hereinafter referred

to as the company) had entered into a collective agreement dated 21 May

2001, cognizance number 228/2001 which was for the period of three years

commencing 1 May 2000 (hereinafter referred to as the 2000 collective

agreement) videBundle COB, pages 2 to 18.

A trade dispute arose pertaining to the collective agreement which was to

supercede the 2000 collective agreement vide case 15/2-1575/05. The said

award was handed down by consent vide Bundle COB, pages 20 to 23. It read:

i) The 2000 Agreement shall continue to remain in force

after its date of expiry, for the period commencing on

1.5.2003 up to 31.12.2007. All terms and conditions,

save those relating to the duration of the collective

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agreement and sub articles ancillary to it, shall remain

status quo.

ii) Appendix 1 to the 2000 Agreement shall continue to

apply in as far as salary scales are concerned.

However, that part entitled Wage/Salary Adjustment

shall cease to apply.

iii) The Company shall grant annual increments of salary

at the rates prescribed, on the due dates of 1.1.2006

and 1.1.2007 to all employees even if employees have

reached the maximum of their salary scale as stated in

Appendix 1 to the 2000 Agreement. Increments of

salaries so granted shall be on a personal-to-holder

basis.

iv) Both parties shall incorporate the terms of this award

into a collective agreement and submit the same to the

Registrar of the Industrial Court for action as

envisaged under 16(1) of the Act.

Initially, the company did not comply with the said award and did not

pay the 20 affected employees who had reached the maximum salaries in their

salary groups under the 2000 collective agreement their annual increments for

the years 2006, 2007 and 2008. Subsequently, they paid them the shortfall in

their salaries.

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On 20 May 2009, the parties signed a collective agreement for a period of

three years commencing 1 May 2007, cognizance number 131/2009

(hereinafter referred to as the 2007 collective agreement) vide Bundle COB,

pages 88 to 105. There was a new salary scale for the employees with new

maximum and minimum salaries for each salary group. The 20 affected

employees also received new maximum salaries under the 2007 collective

agreement.

An illustration by the company

There were 20 affected employees who had received their annual

increments on a personal-to-holder basis after they had reached their

maximum salaries in their salary groups under the 2000 collective agreement

in accordance with the said award. The company tendered documents in

respect of one of the affected employees by the name of Chandran s/o

Narayanasamy vide Bundle COB, page 1. He was a Hydraulic Operator and

was paid wages on a daily basis.

Under the 2000 collective agreement, his maximum salary was RM53.82

per day. By virtue of the said award, he was given an annual increment of

RM2.23 per day for the years 2006 and 2007 even though he had reached his

maximum salary of RM53.82 under the 2000 collective agreement.

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Initially, the company did not comply with the said award and paid him

RM53.82 per day in 2006, 2007 and 2008. Subsequently, they complied with

the said award and paid him the shortfall. After the shortfall of salary was

paid to him, he received RM56.05 per day for 2006; and RM58.28 per day for

2007, 2008 and 2009.

When the 2007 collective agreement was signed, his maximum salary

was increased to RM58.30 per day with effect from 1 May 2007. He was paid

the arrears of salary which was the difference of his new maximum salary of

RM58.30 and the salary of RM58.28 per day which he had received from 1 May

2007 until the end of 2009.In 2010, he was paid RM58.30 per day.

The unions contention

The union contended that the 20 affected employees should continue to

receive the annual increments on a personal-to-holder basis for so long as they

are employed by the company as follows:

Chandran A/L Narayanasamy RM4.40

Murugan A/L Munusamy RM4.40

Nadaraja A/L Kugen RM4.40

Murugusubramaniyam A/L Periannek RM4.40

Selvaraju A/L Nadarajan RM5.52

Chandran A/L Arumugam RM5.52

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Rajakumar A/L Dorasamy Naikkar RM5.52

Balu A/L Varatharaj RM5.52

Rames A/L Raju RM5.52

Musa Bin Muss RM5.52

Kandasamy A/L Kuppan RM4.20

Chan Yoon Fah RM4.20

Lee Chee Sum RM5.52

Look Peng keong RM3.20

Sammizal RM5.52

Amerasan A/L Periasamy RM5.00

Chang Woon Yieng RM5.52

Imss Thomas RM5.52

Rama Moorthy A/L Thurkayan RM4.20

Ng Sween Chin RM5.52.

The representative of the union submitted that the 20 affected employees

should receive the annual increments at the rate as stated above which is over

and above their new maximum salaries under the 2007 collective agreement.

The companys contention

The company contended that it had complied with the said award and

denied that the 20 affected employees should receive the annual increments as

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stated in the said application which was over and above their new maximum

salaries under the 2007 collective agreement.

Decision

Clause 8(iii) of the said award must be read in the context of the whole

award. The learned Chairman had referred specifically to the salary scale in

Appendix 1 of the 2000 collective agreement.

When the 2007 collective agreement came into force with retrospective

effect from 1 May 2007, it did not mean that the new salary scale in Appendix

1 of the 2007 collective agreement was incorporated into the said award.

From the illustration of the salary which was paid to the said Chandran

s/o Narayanasamy, the company had complied with the said award.

The 20 affected employees were not entitled to be paid annual

increments over and above their new maximum salaries under the 2007

collective agreement on a personal-to-holder basis.

HANDED DOWN AND DATED THIS 7TH DAY OF SEPTEMBER 2010

Signed.( SUSILA SITHAMPARAM )

PRESIDENTINDUSTRIAL COURT OF MALAYSIA.

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award no : 1180 of 2010 kesatuan pekerja-pekerja perusahaan logam and kong brothers engineering...

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