Part VII - INDUSTRIAL COURT
21. Industrial Court
(1) For the purposes of this Act, there shall be an Industrial Court which shall consist of—
(a) a President who shall be appointed by the Yang di-Pertuan Agong; and
(b) a panel of persons representing employers and a panel of persons representing workmen all of whom shall be appointed by the Minister: Provided that before appointing the panels the Minister may consult such organizations representing employers and workmen respectively as he may think fit.
(2) During the absence of or inability to act from illness or any other cause by the President, the Yang di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the President and, notwithstanding that the President may have resumed the duties of his office, the person so appointed may continue to exercise the powers or perform the functions for the purpose of completing the hearing of and determining any trade dispute or matter commenced before him.
(3) The appointments made in subsections (1) and (2) shall be published in the Gazette and shall specify, if any, the terms and conditions upon which they are made.
(4) The Minister shall remove from a panel referred to in paragraph (1)(b) a person who has declined to constitute the Court when selected to do so, or has absented himself, when selected, from the proceedings of the Court, unless he has shown reasonable cause for so declining or absenting himself; and the Minister may at any time without assigning any reason thereof revoke the appointment of any person to such panel.
22. Constitution of the Court
(1) For the purpose of dealing with any trade dispute referred to it, the Court, except where otherwise provided by this Act, shall be constituted of the President and two members selected by the President, one from each of the panels specified in subsection 21(1).
(2) If any member other than the President is unable to attend or continue to attend any proceedings of the Court or ceases to be a member, the President may select another member from the appropriate panel to fill the vacancy.
(3) The Court may with the consent of the parties to the dispute act notwithstanding any vacancy in its number or in the absence of any member other than the President from any hearing or any part thereof and no act, proceeding or award of the Court shall be called in question or invalidated by reason of any such vacancy or absence.
(4) Any member of the Court constituted under this section whose appointment expires during the proceedings of the Court shall for the purpose of the proceedings continue to be a member of the Court and the term of his appointment shall be deemed to have been extended until the final disposal of the trade dispute or matter.
(5) Notwithstanding the foregoing subsections, for the purpose of dealing with any reference to the Court under subsection 20(3) or any application for reference to the High Court under subsection 33a(1), the Court may be constituted by the President sitting alone.
23. Divisions of the Court
(1) The Court may sit in two or more Divisions with the same or different Chairman.
(2) The Yang di-Pertuan Agong may by notification in the Gazette appoint any person to be a Chairman of any Division of the Court.
(3) Any Division shall be constituted of a Chairman and two members selected by the President, one from each of the panels specified in subsection 21(1).
(4) Notwithstanding the foregoing subsections, for the purpose of dealing with any reference to the Court under subsection 20(3) or any application for reference to the High Court under subsection 33a(1), a Division may be constituted by the Chairman sitting alone.
(5) The Court may, with the consent of the parties to the dispute, act notwithstanding any vacancy in its number or in the absence of any member other than the Chairman from any hearing or any part thereof and no act, proceeding or award of the Court shall be called in question or be invalidated by reason of any such vacancy or absence.
(6) During the absence of or inability to act from illness or any other cause by the Chairman, the Yang di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman and, notwithstanding that the Chairman may have resumed the duties of his office, the person so appointed may continue to exercise the powers or perform the functions for the purpose of completing the hearing of and determining any trade dispute or matter commenced before him.
23A. Qualification of President and Chairman of Industrial Court
(1) A person is qualified for appointment as President under paragraph 21(1)(a) and as Chairman under subsection 23(2) if, for the seven years preceding his appointment, he has been an advocate and solicitor within the meaning of the Legal Profession Act 1976 [Act 166] or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another.
(2) (Deleted by Act A1322).
24. Protection and immunity to members of the Court
(1) Every person appointed under sections 21 and 23, in the performance of his duties and functions, shall be deemed to be a public servant within the meaning of the Penal Code [Act 574].
(2) Notwithstanding anything to the contrary in any written law, no member of the Court shall be compelled by any court to appear as a witness or party in any proceedings before that Court in relation to any act, matter or thing performed by him as a member of the Court under this Act.
25. Registrar and officers
(1) There shall be appointed a Registrar, a Deputy Registrar and such number of Assistant Registrars, of the Court and other officers and staff as may from time to time be considered necessary or expedient for the purposes of this Act.
(2) The duties of the Registrar, Deputy Registrar, Assistant Registrars, and other officers and staff of the Court shall, subject to this Act and the rules made thereunder, be as the President directs.
26. Reference of trade disputes to the Court
(1) Where a trade dispute exists or is apprehended, the Minister may, if that dispute is not otherwise resolved, refer the dispute to the Court on the joint request in writing to the Minister by the trade union of workmen which is a party to the dispute and the employer who is a party to the dispute or a trade union of employers which is a party to the dispute. (2) The Minister may of his own motion or upon receiving the notification of the Director General under subsection 18(5) refer any trade dispute to the Court if he is satisfied that it is expedient so to do: Provided that in the case of a trade dispute in any Government service or in the service of any statutory authority, reference shall not be made except with the consent of the Yang di-Pertuan Agong or State Authority as the case may require. (3) If there exists in any industry any arrangement for the settlement of trade disputes, made in pursuance of an agreement between an employer or a trade union of employers and a trade union of workmen, the Minister shall not refer the trade dispute to the Court in accordance with subsections (1) and (2) unless there has been a failure to obtain a settlement by means of those arrangements or in his opinion it is unlikely that the dispute will be expeditiously settled through such arrangements.
27. Appearance and representation at proceedings before the Court
(1) In any proceedings before the Court a party may—
(a) where the party is a trade union, be represented by an officer or employee of the trade union;
(b) where the party is an employer, appear himself personally or be represented by his duly authorized employee, or by an officer or employee of a trade union of employers of which he is a member;
(c) where the party is a workman, appear himself personally or where he is a member of a trade union of workmen, be represented by an officer or employee of the trade union;
(d) where the party is a trade union, or an employer, or a workman, be represented with the permission of the President or the Chairman, by an advocate, or, notwithstanding anything to the contrary contained in any written law relating to the registration of trade unions, by any official of an organization (not being a trade union) of employers or of workmen, as the case may be, registered in Malaysia.
(2) If any question arises before the Court as to whether the person representing a party under subsection (1) is—
(a) an officer or employee of the trade union which he represents;
(b) a duly authorized employee of the employer whom he represents; or
(c) an official of an organization mentioned in paragraph (1)(d),
the question shall be determined by the President or the Chairman, whose decision thereon shall be final.
28. Power of President to regulate procedure and proceedings
Save as otherwise expressly herein provided and subject to any regulations that may be made in that behalf, the President may regulate the procedure and proceedings of the Court as he thinks fit and, with the approval of the Minister, make rules governing such procedure and proceedings.
29. Power of the Court
The Court may, in any proceedings before it—
(a) order that any party be joined, substituted or struck off;
(b) summon before it the parties to any such proceedings and any other person who in its opinion is connected with the proceedings;
(c) take evidence on oath or affirmation and compel the production before it of books, papers, documents and things;
(d) hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as may be prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear;
(e) conduct its proceedings or any part thereof in private;
(f) after consultation with the Minister, call in the aid of one or more experts;
(fa) order a case to be struck off or reinstated; and
(g) generally direct and do all such things as are necessary or expedient for the expeditious determination of the matter before it.
(1) The Court shall have power in relation to a trade dispute referred to it or in relation to a reference to it under subsection 20(3), to make an award (including an interim award) relating to all or any of the issues.
(2) Where the Court is not unanimous on any question or matter to be determined, a decision shall be taken by a majority of members and, if there is no majority decision, by the President or Chairman.
(3) The Court shall make its award without delay and where practicable within thirty days from the date of reference to it of the trade dispute or of a reference to it under subsection 20(3).
(4) In making its award in respect of a trade dispute, the Court shall have regard to the public interest, the financial implications and the effect of the award on the economy of the country, and on the industry concerned, and also to the probable effect in related or similar industries.
(5) The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.
(5A) In making its award, the Court may take into consideration any agreement or code relating to employment practices between organizations representative of employers and workmen respectively where such agreement or code has been approved by the Minister.
(6) In making its award, the Court shall not be restricted to the specific relief claimed by the parties or to the demands made by the parties in the course of the trade dispute or in the matter of the reference to it under subsection 20(3) but may include in 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 subsection 20(3).
(6A) Notwithstanding subsection (6), the Court in making an award in relation to a reference to it under subsection 20(3) shall take into consideration the factors specified in the Second Schedule.
(7) An award may specify the period during which it shall continue in force, and may be retrospective to such date as is specified in the award:
Provided that the retrospective date of the award may not, except in the case of a decision of the Court under section 33 or an order of the Court under paragraph 56(2)(c) or an award of the Court for the reinstatement of a workman on a reference to it in respect of the dismissal of a workman, be earlier than six months from the date on which the dispute was referred to the Court.
(8) The award of the Court shall be signed by the President or the Chairman of any Division or in the event of the President or the Chairman for any reason being unable to sign the award by the remaining members.
(9) The Court may rectify in any award any clerical error or mistake arising from any accidental slip or omission.
31. Agreement during proceeding
In the event of an agreement being reached during the proceedings before the Court, the Court in making its award may, subject to this Act, have regard to the terms of the agreement; and in the event of an agreement being reached before the Court commences its proceedings, the Court may be constituted by the President or Chairman sitting alone for the purpose of recording the terms of such agreement.
32. Effect of an award
(1) Any award made by the Court under this Act shall be binding on—
(a) all parties to the dispute or the reference to the Court under subsection 20(3) appearing or represented before the Court and all parties joined or substituted or summoned to appear or be represented before the Court as parties to the dispute or the reference to the Court under subsection 20(3);
(b) any successor, assignee or transferee of any employer or trade union of employers and any successor to any trade union of workmen which is a party to the dispute as aforesaid;
(c) all workmen who were employed in the undertaking or part of the undertaking to which the dispute relates on the date of the dispute and all workmen who subsequently became employed in that undertaking or part thereof; and
(d) all members of a trade union of employers to whom the dispute relates and to which dispute the trade union is a party and the successors, assignees or transferees of such members.
(2) As from the date of the award or as from such date and for such period as may be specified therein, it shall be an implied term of the contract between the workmen and employers bound by the award that the rates of wages to be paid and the conditions of employment to be observed under the contract shall be in accordance with the award or decision unless varied by a subsequent award or agreement between the parties.
(3) (Deleted by Act A484).
33. Interpretation and variation of awards and agreements
(1) If any question arises as to the interpretation of any award or collective agreement taken cognizance of by the Court, the Minister may refer the question, or any party bound by the award or agreement may apply, to the Court for a decision on the question.
(2) The Court may, upon the application of any party, by order vary any of the terms of an award or agreement if it considers it desirable so to do for the purpose solely of removing ambiguity or uncertainty.
(3) The parties bound by the award or agreement shall be afforded a reasonable opportunity of being heard.
(4) The decision of the Court shall be binding in the same manner as the original award or agreement.
(5) The expression “Court” for the purpose of this section, means the Court by which the award was made or any other Court specially constituted under section 22 or 23 for the purpose.
33A. Reference to the High Court on a question of law
(1) Where the Court has made an award under subsection 30(1) it may, in its discretion, on the application of any party to the proceedings in which the award was made, refer to the High Court a question of law—
(a) which arose in the course of the proceedings;
(b) the determination of which by the Court has affected the award;
(c) which, in the opinion of the Court, is of sufficient importance to merit such reference; and
(d) the determination of which by the Court raises, in the opinion of the Court, sufficient doubt to merit such reference.
(2) Where an application under subsection (1) has been granted by the Court, compliance with the award in respect of which the application has been granted shall be stayed pending the disposal of the reference by the High Court, unless the Court otherwise directs in respect of the whole or a part of the award.
(3) An application under this section shall be made within thirty days of the date on which the award was made.
(4) Where a question has been referred to the High Court under this section, the Court shall forward the record of its proceedings to the Registrar of the High Court who shall thereupon appoint and notify to the parties to the proceedings the time and place for its hearing.
(5) The High Court shall hear and determine the question referred to it under this section as if the reference were an appeal to the High Court against the award of the Court, and may, consequently, confirm, vary, substitute or quash the award, or make such other order as it considers just or necessary.
(6) A decision of the High Court under subsection (5) shall have the same force and effect as an award of the Court has under section 32, and may be enforced as if it were an award of the Court.
(7) A decision of the High Court under subsection (5) shall be final and conclusive, and no such decision shall be challenged, appealed against, reviewed, quashed or called in question in any other court or before any other authority, judicial or otherwise, whatsoever.
33B. Award, decision or order of the Court to be final and conclusive
(1) Subject to this Act and section 33A, an award, decision or order of the Court under this Act (including the decision of the Court whether to grant or not to grant an application under subsection 33A(1)) shall be final and conclusive, and shall not be challenged, appealed against, reviewed, quashed or called in question in any court.
(2) Subject to section 33A, no award of the Court for the reinstatement or reemployment of a workman shall be subject to any stay of proceedings by any court.