award no : 851 of 2011 kesatuan pekerja-pekerja perkilangan perusahaan makanan and koperasi...

7/29/2019 AWARD NO : 851 OF 2011 KESATUAN PEKERJA-PEKERJA PERKILANGAN PERUSAHAAN MAKANAN AND KOPERASI NEL

1/8

INDUSTRIAL COURT OF MALAYSIA

CASE NO. 1/1-643/09

BETWEEN

KESATUAN PEKERJA-PEKERJA PERKILANGANPERUSAHAAN MAKANAN

AND

KOPERASI NELAYAN NEGERI TERENGGANU BHD

AWARD NO : 851 OF 2011

Coram : Y.APUAN SUSILA SITHAMPARAM PRESIDENT

MR. GILBERT JOHN AROKIA RAJ EMPLOYEES PANEL

PUAN SARITA BERAM SHAH @ EMPLOYERS PANELRAJARAM

Venue : Industrial Court, Kuala Lumpur.

Date of filing of Form S : 17 December 2009.

Date of hearing : 3 June 2011.

Representation : Encik Sharifullah MajeedMessrs Jeevaratnam & Co.Counsel for the complainant/union.

Encik Mohd. Zabidi bin Ahmad YusofEncik Azrulrizal bin IbrahimMessrs Azman Wan Helmi & AssociatesCounsel for the respondent.

1


2/8

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 videAward 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 videcase no 15(20)(15)/2-1417/05.

The Industrial Court heard the trade dispute and handed down

2


3/8

Award No. 488 of 2009. The last paragraph of Award No. 488 of 2009

read:

Having regard, therefore, to the provisions ofArticles 1(a) read together with Article 1(d) of the saidCollective Agreement, the Court is of the view that thesaid Collective Agreement should continue in existenceuntil a fresh collective agreement has been negotiated orotherwise terminated in accordance with Article 1(e) ofthe said Collective Agreement. The Koperasi cannotunilaterally reject the proposed new CollectiveAgreement outright simply because it subsequently heldthe view that the Collective Agreement which has been

given cognizance is in contravention of section 90 of theCooperative 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

3


4/8

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 DANPENAMATAN PERJANJIAN

a. Perjanjian ini akan berkuatkuasa selama 3 tahun

mulai dari 1 Julai 2002 hingga 30 Jun 2005 dankemudian daripada itu akan terus berkuatkuasasehingga digantikan dengan Perjanjian bersama

yang baru atau ditamatkan sebagaimana yangdiperuntukan dalam Perjanjian ini.

...

e. Mana-mana pihak boleh menamatkan Perjanjianini dengan memberi kepada pihak yang lain tiga

(3) bulan notis bertulis tetapi notis tersebut tidakboleh diberi sebelum 1 Mac 2005.

4


5/8

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:

5


6/8

56. Non-Compliance with award or collectiveagreement

(1) Any complaint that any term of any award or of

any collective agreement which has been takencognizance of by the Court has not been complied withmay be lodged with the Court in writing by any tradeunion 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 Pekerja-Pekerja Perkilangan Makanan that the followingprovisions of the above-mentioned Award/Collective

Agreement have not been complied with :

Perkara 1 - Tempoh, Aturcara, Ubahsuai danPenamatan 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.

6


7/8

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.

7


8/8

In the circumstances, the application is dismissed.

HANDED DOWN AND DATED THIS 13th DAY OF JUNE 2011

signed...

( SUSILA SITHAMPARAM )

PRESIDENTINDUSTRIAL COURT OF MALAYSIA

8

award no : 851 of 2011 kesatuan pekerja-pekerja perkilangan perusahaan makanan and koperasi...

Documents