TOPIC 9
ARBITRATION MECHANISMS
UPON COMPLETING THIS TOPIC, STUDENT SHOULD
BE ABLE TO:
•
Explain the available mechanisms for arbitration
•
Distinguish Labour Court from industrial Court
•
Evaluate the advantages and disadvantages of both
courts
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9.1 THE LABOUR COURT
9.1.1 Introduction
•
It is a labour tribunal i.e. a body that
exercises a quasi-judicial power.
•
As an administrative tribunal its function
and powers are specifically mentioned
in Part XV and XVI of the EA.
•
It is headed by the DGL.
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THE LABOUR COURT ….. Cont’d
9.1.2 Jurisdiction
•
It refers to the authorities/ powers of the DGL given
by the EA: 1.
To inquire into and decide any dispute between an
employee and his employer in respect of wages or
any other payment in cash due to such employee
under: i. any term of the contract or service between such
employee and his employer, or
ii. any of the provisions of this Act or any subsidiary
legislation made thereunder or,
iii. the provision of the Wages Councils Act 1947 or any
order made thereunder and, in conjunction with such
decision he is also authorized to make an order in the
prescribed form for the payment by the employer of
such sum of money as he deems just (without limitation
of the amount thereof) (Sec. 69, EA)
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THE LABOUR COURT ….. Cont’d
2. To hear and decide any claim by: i) an employee against any person liable to
pay his wage, or
ii) a subcontractor for labour against a
contractor or subcontractor for any sum (due to
any labour provided by him under a contract)
iii) an employer against his employee or an
employee against his employer due to
termination without notice (indemnity).
• He is also authorized to make orders to give
effect to his decisions (Sec. 69(2), EA)
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THE LABOUR COURT ….. Cont’d
3.
•
•
To inquire into and confirm or set aside any
decision made by an employer i.e.: i) Dismiss without notice.
ii) Downgrade
iii) Or, impose any lesser punishment.
He is also authorized to make such
consequential orders to give effect to his
decisions. (Sec.69 (3), EA)
The failure to comply with his decision or
orders can be fined not exceeding RM2,000/and further fine not exceeding RM50/- for
each day during which the non-compliance
continues. (Sec.69 (4), EA)
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THE LABOUR COURT ….. Cont’d
9.1.3 Procedure
1. The complainant must in person make a
statement to the DGL of his complaints
and of the remedy, which he seeks.
2. The DGL must examine the complainant
and record the statement in his
casebook.
3. The DGL must make such inquiry as he
deems necessary to satisfy himself and
summoned the person complained
against.
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THE LABOUR COURT ….. Cont’d
4. In issuing a summons to a person
complained against the DGL must give
such person notice: i) the nature of the complaint made
ii) name of the complainant
iii) date, time and place he is required to
attend
iv) any witness he can bring
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THE LABOUR COURT ….. Cont’d
5. When the DGL issues a summon to a person
complained against, he must inform the complainant of
the date, place and time mentioned in the notice and
instruct the complainant to bring any witnesses- and
summon the witnesses to appear.
6. He can summon any persons whose financial
interests are likely to be affected by such decisions.
7. The DGL can examine those summoned on oath or
affirmation or present any evidents to the matter in the
issue.
8. The DGL can hear and decide the complaint in the
absence of such persons (complained against or whose
financial interests to be affected)- after summoned to
attend.
9.
The DGL must make an order in the prescribed form
to enable a court to enforce the decision. (Sec. 70, EA)
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THE LABOUR COURT ….. Cont’d
9.1.4 Limitation
The Employment Act declares that the DGL: 1. Cannot inquire into, hear, decide or make any
order in respect of any claim or dispute which
are the following:
(a) has been referred to or is pending in any
proceedings before the Industrial Court.
(b) is pending any inquiry or any proceedings
under the IRA.
2. Has no competent authority for resolving
questions of law. Therefore, he must refer a
question of law to the High Court. (Sec. 76, EA)
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THE LABOUR COURT ….. Cont’d
9.1.5 Enforcement
• It refers to the implementation of the DGL’s
decisions.
• To ensure the DGL’s decisions (order) are
enforced he must:
1.Send a copy of order to the Registrar of
Sessions Court or the Court of First Class
Magistret:
i) in the place to which the order relates of,
ii) in the place where the order was made.
2.The court must record the order.
3.The Order is considered as a judgement of
the Session Court. (Sec. 75, EA)
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THE LABOUR COURT ….. Cont’d
9.1.6 Appeal
• Any person affected by the order may appeal
to the High Court.
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9.2 The Industrial Court
9.2.1 Introduction
• Industrial Court is a specialised tribunal
established as a permanent body by the IRA
1967, NOT a court of law
• As a successor to the Industrial Arbitration
Tribunal and the Arbitration Court.
• This Court is highly specialised and deals with
trade disputes i.e. to provide a peaceful and
unbiased means of settling disputes
• The composition, jurisdiction, powers, awards &
appeal are mentioned in Part VII of the IRA
1967.
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Industrial Court ……cont’d
9.2.2 Composition
• It is composed of a president and a number of
chairmen (appointed by the YDPA),
• and two panels (one representing employers
and the other representing employees –
members are appointed by the MHRs)
• Normally the Court is constituted by the
president or a chairman, and two panel
members – one from each panel
• In some cases, the president or a chairman
sitting alone
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Industrial Court ….. Cont’d
9.2.3 Jurisdiction
The IC has jurisdiction over the following:
i. Trade disputes referred to it for arbitration by
the Minister
ii. Complaints alleging contravention of the trade
union rights and responsibilities
iii. Representations alleging unjustified dismissals
(unionised or non-unionised workers)
iv. All collective agreements concluded by
employers and employees
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Industrial Court ….. Cont’d
9.2.4 Powers
The IC has the power to:
i. summon, join, substitute or strike off parties,
ii. Take evidence on oath or affirmation,
iii. Compel the production of books, papers, documents
and things,
iv. Conduct its proceedings in private,
v. Call in the aid of experts,
vi. ‘generally direct and do all such things as are
necessary or expedient for the expeditious
determination of the matter before it’
vii. Make awards.
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Industrial Court ….. Cont’d
9.2.5 Awards
The IC is required to :
i. make awards without delay (if possible within 30 days
of the date a dispute is referred to it)
ii. act (in making awards) according to ‘equity, good
conscience and the substantial merits of the case’
iii. consider the public interests, the financial implications
and the effects of the awards on the national economy
and the industry concerned
iv. consider the probable effect of the awards on similar or
related industries
v. specify the period for which an award is to be effective
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Industrial Court ….. Cont’d
Awards of the Court:
i. Shall be final and conclusive
ii. Shall not be challenged, appealed against,
reviewed, quashed or called in questioned in any
court
iii. Is binding on inter alia all the parties to those
proceedings before the Court and all those who
are made parties to those proceedings (and
successors, assignees and transferees)
iv. Also supersedes the employment contracts
between the employers and the employees
bound by it
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Industrial Court ….. Cont’d
9.2.6 Limitations
i. If a question of law arouse in the course
of any proceedings before it, the IC may
refer the question to the High Court (the
HC’s decision is final and conclusive)
ii. The IC is also subject to the supervisory
jurisdiction by the law courts through the
prerogative writs over subordinate courts
and tribunals.
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Industrial Court ….. Cont’d
9.2.7 Representation
Parties to proceedings before the IC may
be represented with the permission of the
president or chairman by an advocate
(i.e. lawyer)
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Discussion questions
1. Explain the four conditions must be
fulfilled for a question of law to be
referred to the High Court.
2. Describe any Industrial Court’s awards on
termination and dismissal, termination,
dismissal, reinstatement & back pay, and
discipline & punishment.
3. Explain the relationship between the IC
and constructive dismissals.
END Norhayati
OF LECTURE
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