semakan kehakiman no. r3(2)-25-190-2006 nissho iwai corporation dan kesatuan kebangsaan pekerja- ...

7/29/2019 SEMAKAN KEHAKIMAN NO. R3(2)-25-190-2006 NISSHO IWAI CORPORATION dan KESATUAN KEBANGSAAN PEKERJA- PEKERJA PERDAGANGAN

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS)

PERMOHONAN UNTUK SEMAKAN KEHAKIMAN

NO. R3(2)-25-190-2006

Dalam perkara mengenaipermohonan untuk suatu certioraridan mandamus berkenaan AwardNo. 727 Tahun 2006 bertarikh28.04.2006 yang dibuat dalamkes Mahkamah Perusahaan No.

1(12)/1-591/2004 dan 1/6-566/2004;

Dan

Dalam perkara mengenai Seksyen20 Akta PerhubunganPerusahaan, 1967;

Dan

Dalam perkara mengenai Aturan53 Kaedah-Kaedah MahkamahTinggi, 1980;

Dan

Dalam perkara mengenai Jadual1, Akta Mahkamah Kehakiman,

1964;

Dan

Dalam Perkara mengenaiSeksyen 44(1) Akta Relif Spesifik,1950


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ANTARA

NISSHO IWAI CORPORATION ... PEMOHON

DAN

1. KESATUAN KEBANGSAAN PEKERJA-PEKERJA PERDAGANGAN ... RESPONDEN

PERTAMA

2. MAHKAMAH PERUSAHAAN MALAYSIA ... RESPONDENKEDUA

GROUNDS OF DECISION

This judicial review application for an order of certiorari to

quash the Award of the Industrial Court dated 28.4.2006 (Award No.

727 of 2006), and for consequential reliefs as may be appropriate,

raised a very short point on compliance by the Applicant Company of

a Collective Agreement, more exactly Article 18 of that Collective

Agreement.

The application for judicial review was dismissed with costs to

be taxed unless agreed. No jurisdictional error on the part of the

learned Industrial Court Chairman was found established. The

Applicant founded this case essentially on the decision of the

Industrial Court being manifestly unreasonable. Upon perusal of the

facts and applying the law, the decision of the Industrial Court, inexercising its discretion under the Industrial Relations Act 1967, could


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not be said to be a decision which no reasonable tribunal in the same

position as the Industrial Court would have made.

There were only two issues before the Industrial Court, namely:

(1) Whether the notice period given by the Applicant to the

employees before retrenchment was shorter than what was

provided in the Collective Agreement.

(2) Whether any notice was given by the Applicant to the Union

(the 1st Respondent) before the Applicant served the Notice

of Retrenchment to the employees.

It was agreed that on the facts, these notices were not given

within the period as required under the Collective Agreement.

The relevant provision in the Collective Agreement was Article

18 (b) which provided in its relevant parts:

"The Company shall inform the employees affected by

redundancy with as much notice as possible and in no

event shall such notice be less than the following:-

(i)

(ii)

(iii) For those with more than five years of service -

8 weeks notice or 8 weeks salary in lieu of

notice.

However, the Union shall be notified of the

above at least one month before service of

Notice of Retrenchment to the redundant


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employees to provide the opportunity for

discussions between the Company and the

Union on the Company's intention to retrench."

It was not in dispute that the Applicant Company did not comply

with the above provisions on length of notice.

Two employees were involved. As regards the first employee,

Tan Hock Huat, the Notice of Retrenchment was dated 27.2.2004. He

was informed he would be retrenched on 31.3.2004. As regards the

second employee, Halimah binti Fedros Khan, the Notice of

Retrenchment was 18.3.2004, with the retrenchment to take effect on

30.4.2004. The first Notice of Retrenchment on Tan Hock Huat was

subsequently amended and by another Notice dated 18.3.2004, with

retrenchment to take effect on 30.4.2004. Taking the effective date of

the Notice of Retrenchment as 18.3.2004, there was still short service

by 17 days. Retrenchment should have been on 17.5.2004, as was

observed by the Industrial Court.

The panel member representing the employees wanted them

compensated with eight weeks salary for the short service, basing the

argument on Article 18(b) (iii), as stated above. The Industrial Court,

however, by a majority decided to award only 17 days salary. The

majority noted:

"The court took into account that this is a case of a

short notice to the employees and not the case of no

notice been given. The Company needs only

compensate them for the shortage in notice period.

The court takes the 18th March 2004 as the date of


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the notice. Then by giving eight weeks Notice the

Retrenchment should be on 17th May 2004. However,

there were retrenched on 30th of April 2004. In the

case of Tan Hock Huat although he was retrenched

on 31st March 2004 (at his request), he was paid April

2004 salary. The court therefore by a majority

decision orders the company to compensate the

employees with 17 days salary only." (At pages 5 to

6 of the award).

There was nothing punitive or manifestly unreasonable in this

conclusion of the majority.

As regards the notice to the Union, it was agreed that no notice

was given. The Company nevertheless submitted that negotiation in

fact took place between the Company and the Union, and further,

during the negotiation the Union did not raise the issue of notice. On

the second issue, the Industrial Court unanimously agreed that for

this non-compliance the Company should pay the employees a

further three months salary. It was made clear in the award that the

panel agreed they should follow the decision of the Industrial Court in

the Raintree Club case. See the reported decision, Raintree Club

Kuala Lumpur v Club Employees Union Peninsular Malaysia

[2002] 1 ILR 723.

Counsel for the Applicant appraised the court on the Court of

Appeal decision in the matter. The Raintree Club case was reversed

by the Court of Appeal, but no grounds of decision were given.

Counsel therefore argued it would be wrong for the Industrial Court to

still award the three months salary in lieu of notice as a form ofcompensation since this would be punitive in nature. There was


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simply no provision in the Industrial Relations Act to allow for this sort

of punitive compensation. Counsel also relied on the decision of the

Supreme Court in Dunlop Industries Employees Union v Dunlop

Malaysia Industries Berhad & Another [1987] 2 MLJ 81, for the

proposition that any form of compensation for a breach of this notice

requirement vis a visa Union, must be awarded to the Union and not

to the employees. This was a case of reinstatement, not the award of

compensation for retrenchment. In any event, the Supreme Court set

aside the order of the High Court which quashed the Award of the

Industrial Court in this matter. The thrust of the Supreme Court

position in Dunlop Industries recognised the wide powers and

discretion available to the Industrial Court in this connection. It was

observed that the purpose of the notice requirement of the union was

to provide an advance notice "to give time and make way for mutual

consultation and negotiation in line with the provisions of the Code of

Conduct for Industrial Harmony so as to obviate and abort anyimminent trade dispute" (Per Abdoolcader SCJ at page 83 of the

Report).

The Supreme Court further observed:

"It accordingly follows that in dealing with the

complaint of non-compliance under section 56 the

Industrial Court has all the powers with which it is

invested in relation to trade disputes The provisions

of section 30(5) and (6) will also therefore equally

applied in considering a complaint under section

56"


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Thus, with the statutory invocation to act "according to equity,

good conscience and the substantial merits of the case without

regard to technicalities and legal form under section 30 (5), the

Industrial Court in this instant judicial review application had acted

properly in law. The High Court should be slow in upsetting the

Industrial Court's decision unless there was a clear jurisdictional error

or manifest unreasonableness. It could not be regarded as obviously

perverse for the Industrial Court to have awarded the three months

salary. To have awarded less, or no compensation at all, would have

meant allowing the employer to act with impunity and disregard a

very important term in the Collective Agreement which has as its

purpose the maintenance of Industrial harmony and encouragement

of negotiation to prevent industrial disputes.

For the above reasons, the application for judicial review was

dismissed with costs to be taxed unless agreed.

Dated 14th December 2009

Sgd( MOHAMAD ARIFF BIN MD. YUSOF )

JUDGEHIGH COURT MALAYA

KUALA LUMPUR


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COUNSELS

For the applicant:

Anthony Gomez

Messrs Gomez & Associates.

For the 1st respondent:

Ramdas TikamdasMessrs Siva, Ram & Associates.

semakan kehakiman no. r3(2)-25-190-2006 nissho iwai corporation dan kesatuan kebangsaan pekerja- ...

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