DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
[BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS]
PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. R2-25-46-07
Dalam Perkara suatu Permohonan
untuk Perintah Certiorari di bawah
Aturan
53,
Kaedah-Kaedah
Mahkamah Tinggi 1980
Dan
Dalam Perkara Akta Perhubungan
Perusahaan 1967
Dan
Dalam Perkara Award Mahkamah
Perusahaan No. 55 Tahun 2007
bertarikh 10hb Januari 2007
ANTARA
ROYAL SELANGOR GOLF CLUB
…
PEMOHON
DAN
1. CLUB EMPLOYEES UNION, PENINSULAR MALAYSIA
2. MAHKAMAH PERUSAHAAN MALAYSIA …
RESPONDENRESPONDEN
1
JUDGMENT
Mohd Zawawi Salleh, J:
Introduction
[1]
This is an application by the Applicant for an order of
certiorari to quash the Industrial Court Award No. 55 of 2007
handed down by the Industrial Court (“Second Respondent”) on
10.1.2007. The Second Respondent held that the Applicant
had not complied with clause 24.2 of the Collective Agreement
(“Impugned Award”).
[2]
After hearing the oral arguments of learned counsels
appearing for both parties, considering the written submissions
and perusing the cause papers filed herein, the Court
dismissed the application with costs.
Antecedent Facts
[3]
The antecedent facts are as follows:
(a) The First Respondent is the Union representing the
employees at the Applicant’s Club.
2
(b) The Applicant’s club provides sporting activities,
recreational facilities and social events for its
members.
(c) The applicant and the First Respondent entered into
a Collective Agreement and both parties are
bound by the terms of the said Collective
Agreement.
(d) The Applicant had incurred financial losses at its
Food
and
Beverage
Department
(“F&B
Department”) where as at 4.2.2004, the F&B
Department had incurred losses of RM900,000 per
annum.
The Applicant further as at 4.2.2004
incurred financial losses at its Golf Section in the
Applicant’s Sports Department.
Applicant
decided
to
outsource
Hence, the
its
F&B
Department and computerize the Golf Section in
the Applicant’s Sports Department.
(e) As a result of the outsourcing of the F&B
Department and computerizing of the Golf Section
in the Applicant’s Sports Department, employees
at both departments were made redundant.
3
(f) Article 24 in the Collective Agreement between the
Applicant and the First Respondent provided the
terms to be followed by the Applicant if
there
arose retrenchment situation at the Applicant’s
Club. Article 24 of the Collective Agreement, inter
alia, reads as follows:
“24. RETRENCHMENT
24.1 The provisions of this clause shall
apply only to those employees of
the
Club
who
are
declared
redundant, i.e. whose services are
surplus
to
the
Club’s
requirements.
24.2 The Club shall inform the Union no
later than one (1) month prior to
the date of notice on which the
services
of
the
employees
concerned are to be terminated.
24.3 The
Club
employee(s)
shall
notify
effected
the
by
redundancy no less than two (2)
months or pay in lieu of notice
4
prior to the date of termination of
employment”.
(g) The Applicant’s vide its letter dated 27.1.2004,
informed the First Respondent of its proposal to
have a meeting on 4.2.2004 with the First
Respondent to discuss about the Applicant’s
operation mainly the Food & Beverage (F&B)
Department and Sports Department.
(h) During the meeting on 4.2.2004, the Applicant
informed the First Respondent of its intention to
retrench the employees in the two Departments.
(i)
On the same date i.e. 4.2.2004, the Applicant
issued a letter to the First Respondent informing of
its intention to offer to the forty-seven employees
the VSS/RET benefits.
(j)
On the same date i.e 4.2.2004, the Applicant also
notified
the
employees
vide
“Message
to
Employees” and letter to employees of the offer of
VSS to all employees in the F&B Department and
sports and that their services will be terminated
after they did not opt for VSS.
5
(k) Thereafter, the First Respondent wrote a letter
dated 5.2.2004 to the Applicant stating that the
Applicant
was
in
breach
of
the
Collective
Agreement and requested the Club to withdraw its
letters and “Message”. The Applicant did not give
any response to this letter.
(l)
Thereafter, the First Respondent filed a complaint
under section 56 of the Industrial Relations Act
1967 for non-compliance by the Applicant of
clause 24.2 of the Collective Agreement between
the Applicant and the First Respondent.
(m) The learned Chairman of the Industrial Court sitting
with Panel members under section 23 of the
Industrial Act 1967, handed down Award No. 55 of
2007 on 10.1.2007 in favour of
the First
Respondent.
Ground of Challenge
[4]
The substance of the Applicant challenges is that the
Second Respondent had erred in law and/or acted beyond its
jurisdiction when it decided that the Applicant had not complied
with Article 24.2 of the Collective Agreement.
6
[5]
The Applicant submits that it had complied with Article
24.2 of the Collective Agreement between the Applicant and the
First Respondent wherein on 4.2.2004 it informed the First
Respondent at a meeting in respect of the Applicant’s intention
to retrench employees at the F&B Department and the Golf
Section at the Applicant’s Sports Department and had given the
First Respondent the particulars of the number of employees
involved.
The Applicant contends that the effective date of
termination was one month after this meeting where the Union
was informed of the pending retrenchment.
[6]
According to learned counsel for the Applicant, the
Applicant subsequent to the meeting issued a message to all its
employees at its F&B Department and the Golf Section at the
Applicant’s Sports Department on 4.2.2004 wherein the
employees were informed that the F&B Department operations
will cease on 1.3.2004 and the Golf Section at the Applicant’s
Sports Department had a surplus of five (5) employees. The
Applicant further informed the employees that it was offering a
Voluntary Separation Scheme (“VSS”) and in the event the
employees did not wish to apply for the VSS, the Applicant then
may have to retrench the employees concerned if the Applicant
is unable to transfer the employees to other Departments at the
Applicant’s Club or the Applicant is unable to offer any
alternative employment at the Applicant’s club.
7
[7]
Further, the Applicant thereafter issued a Notice dated
9.2.2004 to the employees of the Applicant wherein they were
notified in respect of job opportunities at three other employers.
This was a general notification to the employees.
On
16.2.2004, the Applicant issued a Notice to the employees in
respect of the particulars of the termination benefits under the
VSS and reminded the employees that the VSS was open for
application till noon of 20.2.2004. The Applicant vide letters
dated 4.2.2004 had offered VSS to its employees and later
vide
letters
dated
27.2.2004,
the
Applicant
accepted
applications for VSS from its employees. The Applicant also
vide a letter dated 23.2.2004 transferred an employee to
another Department at the Applicant’s Club.
The applicant
submits that at this juncture there was no notice of termination
of employment and the letters to the employees were offers
VSS and as such there was no requirement to comply with
Article 24.2 at that juncture.
[8]
The
Applicant
thereafter
through
a
letter
dated
23.2.2004 and letters dated 29.2.2004 the Applicant had
offered alternative employment to other employees.
The
Applicant also via letters dated 27.2.2004 wrote to the
employees affected by the retrenchment exercise informing
them of their retrenchment and the reasons for such
retrenchment with details of termination benefits pursuant to the
Collective Agreement between the applicant and the First
Respondent. The employees covered were expressly told that
8
although the date of termination was to take effect on 29.2.2004
they would be paid until 4.3.2004.
The last day for the
employees retrenched was 4.3.2004 as they were paid until
that day by the Applicant.
Impugned Award
[9]
After considering the totality of the facts, evidence and
submission of parties, the Second Respondent held that the
First Respondent was informed for the first time of the
Applicant’s intention to terminate the employees from the two
Departments at the meeting held on 4.2.2004.
[10]
At page 279 of the Impugned Award, the Second
Respondent made the following findings of fact:
“After considering the evidence put forward during
the hearing the Court is of view that the Club had
not complied with clause 24.2. Evidence had
shown that on the date the Club informed the
Union of its intention to retrench the employees in
the two Departments, the Club then proceeded to
notify
the
employees
about
their
pending
retrenchment due to cessation of the operations in
the Departments concerned as from 1.3.2004.
What the Club had done was contrary to what has
been provided for in clause 24.2 where the Club
9
has to inform the Union first.
Clause 24.2.
envisages the Club having to give the Union an
advance notice…”
[11]
Further, at pages 295 – 296, the Impugned Award
stated:
“When determining the complaint as to whether
the Club had complied with clause 24.2 of the
Collective Agreement, the relevant factors to be
considered are as to when the Union was
informed by Club about the Club’s intention to
terminate the employees, and when was the date
of the notice informing the employees of their
retrenchment”.
And at page 298 of the Impugned Award, the Second
Respondent made the following findings of fact:
“In the present case, it is clear that on the very day
the Club informed the Union of its intention to
retrench the employees, the Club then went ahead
to notify the employees about their pending
retrenchment. Also it is not a disputed fact that
the employees were terminated as of 29.2.2004.
In this circumstances, the Club cannot be said to
have complied with clause 24.2 eventhough the
10
Club had make payment to the employees in
respect of their salary until 4.3.2004”.
Findings of the Court
[12]
It is clear that the Applicant’s grounds of challenge
against the Impugned Award are a clear attack on the Second
Respondent’s findings of fact. Although the decisions in the
case of Syarikat Kenderaan Melayu Kelantan Bhd v
Transport Workers’s Union [1995] 2 MLJ 318; [1995] 2 CLJ
748; and R Ramachandran v The Industrial Court of
Malaysia [1997] 1 CLJ 147 seem to provide potential for
parties to reargue “on the merits” decision that have been
adverse to them, but the Court of Appeal moved quickly in a
series of later judgments to explain that the traditional
supervisory role of the superior courts in judicial review
proceedings had not, in any way, been abrogated and that the
procedure should not be utilized as a cloak for what was
essentially an appeal.
For instance, the Court of Appeal in
William Jacks v S Balasingham [1997] 3 AMR 2585, in
relation to this issue, stated:
“It is well settled that a court cannot utilize
certiorari proceedings as a cloak to entertain what,
in truth, is an appeal against findings of fact. If
authority is needed for that proposition, it may be
found in the decision of the Indian Supreme Court
11
in Basappa v Nagappa AIR 1954 SC 440 and in
Dharangadhra Chemical Works Ltd v State of
Saurashtra & Others AIR 1957 SC 264”.
[13]
Likewise, in Airspace Management Service Sdn Bhd v
Harbans Singh [2000] 4 CLJ 77, the Court of Appeal
elaborated further, in relation to when the High Court was
entitled to intervene, in a judicial review application, on the
question of review of facts:
“The
authorities
therefore
establish
a
clear
distinction between cases involving a review of
facts as found by the Industrial Court based on the
credibility of witnesses and those where no such
exercise is involved.
Cases where intervention
has taken place, such as, Rama Chandran
[supra] and those decisions that followed it fall
into two categories. The first category comprises
cases where what is undertaken is an objective
assessment
of
the
reasonableness
of
the
Industrial Court’s decision based on the facts as
found by the Industrial Court.
The second are
cases where the Industrial Court failed to have
regard to the issues raised by the parties or took
into account some irrelevant consideration in
arriving at its conclusion, apart from any specific
findings of fact based on the credibility of
12
witnesses. But where the Industrial Court has
accepted
or
rejected
the
evidence
of
a
particular witness and gone on to make a
finding based on such acceptance or rejection,
the High Court is bound to accept such
findings”. (emphasis added)
[14]
Guidance on the approach which should be taken to the
interpretation of collective agreements can be found in the
decision of the Court of Appeal for England and Wales in
Adams & Others v British Airways plc [1996] IRLR 577.
Here, at paragraphs 21/22 of the report, Sir Thomas Bingham
MR said the following:
“The court is not concerned to investigate the
subjective intentions of the parties to an argument
(which may not have coincided anyway). Its task
is to elicit the parties’ objective intentions from the
language which they used. The starting point is
that the parties meant what they said and said
what they meant. But an agreement is not made
in a vacuum and should not be construed as if it
had been. Just as the true meaning and effect of
a mediaeval charter may be heavily dependent on
understanding the historical, geographical, social
and legal background known to the parties at the
time, so must a more modern instrument be
13
construed in its factual setting as known is clear
beyond argument, the factual setting will have little
or no bearing on construction; but to construe an
agreement in its factual setting is a proper,
because
a
common-sense,
approach
to
construction, and it is not necessary to find an
agreement ambiguous before following it”.
“On the facts here, it was a collective agreement
which was incorporated into the contracts of the
individual plaintiffs.
A collective agreement has
special characteristics, being made between an
employer or employers’ organisation on one side
and a trade union or trade unions representative of
employees on the other, usually following a
negotiation.
Thus it represents an industrial
bargain, and probably represents a compromise
between the conflicting aims of the parties, or
‘sides’ as in this context they are revealingly
called. But despite these special characteristics, a
collective agreement must be construed like any
other, giving a fair meaning to the words used in
the factual context (known to the parties) which
gave rise to the agreement”.
[15]
It is now well established that the Courts should refrain
from substituting their own interpretation of a collective
14
agreement for that of the Industrial Court, and avoid intervening
when the interpretation which the Industrial Court has given to
the agreement is one which the wording of the agreement may
reasonably bear and could be supported by the evidence. A
Court may interfere with such interpretation and application only
if such interpretation is absurd and the Industrial Court fails to
take into consideration all the relevant facts in arriving at its
conclusion.
[16]
In my considered opinion, the Second Respondent had
weighed and taken into consideration all relevant facts when it
arrived at its findings of fact as stated in the Impugned Award
above and the Court agrees with the conclusion reached by the
Second Respondent.
[17]
The
Applicant
further
submits
that
the
Second
Respondent was in error for applying the ratio in Dunlop
Industries Employees Union v Dunlop (M) Industries Bhd
[1987] 1 CLJ 86 (Rep) [1987] 1 CLJ 232 as if the case was on
all fours in the First Respondent’s case before it. According to
the Applicant, the issue of “advance notice” is not envisaged by
Article 24.2 of the Collective Agreement.
[18]
With respect, the Court disagrees. The facts and issue
in Dunlop’s case are somewhat similar to the current case. In
Dunlop’s case, the Supreme Court was looking into Article
42(a) of the Collective Agreement which provided that the
15
Respondent would give such advance notice in writing of any
redundancy or retrenchment but such notice shall not be less
than two months prior to retrenchment. The Appellant received
a letter at about 2.30 pm on June 24 1986 from the Respondent
explaining the need to retrench some 114 employees who are
members of the appellant due to sharp decline in its business,
and after meeting between the parties, notices of retrenchment
were issued at about 3.30 pm that very day to 112 employees.
[19]
The issue in Dunlop’s case was the failure of the
respondent to give requisite advance notice to the appellant as
provided for in Article 42(a) of the Collective Agreement. In the
Dunlop’s case it was held that:
“The right of the 1st Respondent to retrench
employees is not disputed and the purpose of the
advance notice in relation to any redundancy or
retrenchment under Article 42(a) is to give time
and make way for mutual consultation and
negotiation to prevent a trade dispute from
resulting”.
His Lordship Eusoffee Abdoolcader SCJ in his judgment held
that:
16
“… Article 42(a) is clearly designed to facilitate
mutual consultation and negotiation to avert
retrenchment and would appear to be a corollary
to give effect to the provisions of Clauses 20 and
21 of the Code of Conduct for Industrial Harmony
which
the
Industrial
Court
can
take
into
consideration in making an award by virtue of s
30(5A)”.
[20]
Based on the foregoing reason, the Second Respondent
in applying the Dunlop’s case did not take into account
irrelevant considerations nor did it fail to take into account all
relevant considerations. This is clearly evident at page 298 of
the Impugned Award where the Industrial Court stated that:
“From what had been held by the Supreme Court
(Dunlop’s case) that the Industrial Court could in
the circumstances of the complaint of noncompliance make the order for the retrenched
employees to be reinstated, it therefore can be
said that the Supreme Court had agreed with the
award of the Industrial Court that a case of noncompliance had been make out”.
[21]
The Applicant contends that the Second Respondent in
ordering the Applicant to reinstate of the employees purported
to be retrenched to any suitable position in the club without loss
17
of seniority or of pay had misconstrued and erroneously stated
the intention, policy and scope of the Industrial Relations Act
1967.
[22]
With respect, it is trite that section 56(2)(b) of the
Industrial Relations Act 1967 empowers the Industrial Court to
“make such order as it deems fit to make proper rectification or
restitutions for any contravention of any term of such award or
collective agreement”. It was held in Dunlop’s case [supra]:
“… it is abundantly clear that the Industrial Court
could in the circumstances of the complaint of
non-compliance which is the subject matter of this
appeal make the order that it did for the
retrenched employees to be reinstated, and this
order was properly made in accordance with the
provisions of s. 56(2)(b) for the purposes of
making proper rectification and restitution for a
contravention
of
a
term
of
the
collective
agreement”.
[23]
Further, section 30(6) confers upon the Industrial Court
a certain degree of flexibility by allowing it to include the award
“any matter or thing which it thinks necessary or expedient for
the purpose of settling the trade dispute or the reference to it
under section 20(3)”. The Industrial Court is not restricted to
the specific relief claimed or demanded by the disputants.
18
[24]
Learned counsel for the First Respondent informs the
Court that the employees remained ready and willing at all
material times and still remain willing to make full repayment of
the monies paid to them as termination benefits through
deductions from their salaries. Alternatively, the employees are
prepared to give written undertakings that the substantial
gratuities due to them under their contract of employment upon
their mandatory or early retirement to set-off against the monies
paid to them.
[25]
The termination benefits given to the twenty (20)
employees was calculated in accordance with Article 23
(Separation Benefits) of the Collective Agreement pursuant to
Article 24.4 of the Collective Agreement. There are five (5)
employees who had applied for the separation benefits and had
received the separation benefits from the Applicant whilst still in
employment till this day (see Exhibit “AS-3” at pages 26-32 of
the First Respondent Further Affidavit). In the circumstances,
learned counsel for the First Respondent contends that since
the Applicant has allowed employees to apply for the
separation benefits whilst still in employment, the twenty (20)
employees who had received the termination benefits should be
allowed to report back to work in accordance with the terms of
the Award without the monies being refunded.
19
Conclusion
[26]
The Court is satisfied that the Impugned Award does not
suffer any infirmities of “illegality”, irrationality” or “procedural
impropriety” warranting intervention by this Court by way of
juridical review.
[27]
Wherefore, the application is dismissed with costs. The
Impugned Award dated 10.1.2007 is affirmed.
So ordered.
Dated: 8 JULY 2010
(DATO’ HAJI MOHD ZAWAWI BIN SALLEH)
JUDGE
HIGH COURT MALAYA
KUALA LUMPUR
For the Applicant
: Peter Chanther Jayaraja
Messrs Ramadass & Associates
Advocates & Solicitors
Kuala Lumpur.
For the Respondent
: R Sivarasa
Messrs Daim & Gamany
Advocates & Solicitors
Kuala Lumpur.
20
21