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TOPIC 9 ARBITRATION MECHANISMS

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. 9.1 THE LABOUR COURT. 9.1.1 Introduction

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TOPIC 9 ARBITRATION MECHANISMS

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  1. TOPIC 9ARBITRATION 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 Norhayati Mohd Salleh ADS 465

  2. 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. Norhayati Mohd Salleh ADS 465

  3. 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) Norhayati Mohd Salleh ADS 465

  4. 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) Norhayati Mohd Salleh ADS 465

  5. 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) Norhayati Mohd Salleh ADS 465

  6. 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. Norhayati Mohd Salleh ADS 465

  7. 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 Norhayati Mohd Salleh ADS 465

  8. 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) Norhayati Mohd Salleh ADS 465

  9. 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) Norhayati Mohd Salleh ADS 465

  10. 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) Norhayati Mohd Salleh ADS 465

  11. THE LABOUR COURT ….. Cont’d 9.1.6 Appeal • Any person affected by the order may appeal to the High Court. Norhayati Mohd Salleh ADS 465

  12. 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. Norhayati Mohd Salleh PAD 365

  13. 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 Norhayati Mohd Salleh PAD 365

  14. Industrial Court ….. Cont’d 9.2.3 Jurisdiction The IC has jurisdiction over the following: • Trade disputes referred to it for arbitration by the Minister • Complaints alleging contravention of the trade union rights and responsibilities • Representations alleging unjustified dismissals (unionised or non-unionised workers) • All collective agreements concluded by employers and employees Norhayati Mohd Salleh PAD 365

  15. Industrial Court ….. Cont’d 9.2.4 Powers The IC has the power to: • summon, join, substitute or strike off parties, • Take evidence on oath or affirmation, • Compel the production of books, papers, documents and things, • Conduct its proceedings in private, • Call in the aid of experts, • ‘generally direct and do all such things as are necessary or expedient for the expeditious determination of the matter before it’ • Make awards. Norhayati Mohd Salleh PAD 365

  16. Industrial Court ….. Cont’d 9.2.5 Awards The IC is required to : • make awards without delay (if possible within 30 days of the date a dispute is referred to it) • act (in making awards) according to ‘equity, good conscience and the substantial merits of the case’ • consider the public interests, the financial implications and the effects of the awards on the national economy and the industry concerned • consider the probable effect of the awards on similar or related industries • specify the period for which an award is to be effective Norhayati Mohd Salleh PAD 365

  17. Industrial Court ….. Cont’d Awards of the Court: • Shall be final and conclusive • Shall not be challenged, appealed against, reviewed, quashed or called in questioned in any court • 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) • Also supersedes the employment contracts between the employers and the employees bound by it Norhayati Mohd Salleh PAD 365

  18. Industrial Court ….. Cont’d 9.2.6 Limitations • 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) • The IC is also subject to the supervisory jurisdiction by the law courts through the prerogative writs over subordinate courts and tribunals. Norhayati Mohd Salleh PAD 365

  19. 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) Norhayati Mohd Salleh PAD 365

  20. Discussion questions • Explain the four conditions must be fulfilled for a question of law to be referred to the High Court. • Describe any Industrial Court’s awards on termination and dismissal, termination, dismissal, reinstatement & back pay, and discipline & punishment. • Explain the relationship between the IC and constructive dismissals. END OF LECTURE Norhayati Mohd Salleh PAD 365

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