SEMAKAN KEHAKIMAN NO. R2-25-46-07 ROYAL SELANGOR GOLF CLUB…PEMOHON DAN 1.CLUB EMPLOYEES...

7/30/2019 SEMAKAN KEHAKIMAN NO. R2-25-46-07 ROYAL SELANGOR GOLF CLUB PEMOHON DAN 1. CLUB EMPLOYEES UNI

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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 Permohonanuntuk Perintah Certiorari di bawah

Aturan 53, Kaedah-KaedahMahkamah Tinggi 1980

Dan

Dalam Perkara Akta Perhubungan

Perusahaan 1967

Dan

Dalam Perkara Award MahkamahPerusahaan No. 55 Tahun 2007bertarikh 10hb Januari 2007

ANTARA

ROYAL SELANGOR GOLF CLUB PEMOHON

DAN

1. CLUB EMPLOYEES UNION, PENINSULAR MALAYSIA

2. MAHKAMAH PERUSAHAAN MALAYSIA RESPONDEN-RESPONDEN

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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 Applicants Club.

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(b) The Applicants 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

Applicants Sports Department. Hence, the

Applicant decided to outsource its F&B

Department and computerize the Golf Section in

the Applicants Sports Department.

(e) As a result of the outsourcing of the F&B

Department and computerizing of the Golf Section

in the Applicants Sports Department, employees

at both departments were made redundant.

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(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 Applicants

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 Clubs

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 shall notify the

employee(s) effected by

redundancy no less than two (2)

months or pay in lieu of notice

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prior to the date of termination of

employment.

(g) The Applicants 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 Applicants

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.

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(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 itsjurisdiction when it decided that the Applicant had not complied

with Article 24.2 of the Collective Agreement.

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[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 Applicants intention

to retrench employees at the F&B Department and the Golf

Section at the Applicants 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

Applicants 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 Applicants

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

Applicants Club or the Applicant is unable to offer any

alternative employment at the Applicants club.

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[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 Applicants 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

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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

Applicants 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 pendingretrenchment 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

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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 Clubs 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 pendingretrenchment. 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

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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 Applicants grounds of challenge

against the Impugned Award are a clear attack on the Second

Respondents findings of fact. Although the decisions in the

case of Syarikat Kenderaan Melayu Kelantan Bhd v

Transport Workerss 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 utilizecertiorari 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

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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 Courts 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

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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

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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

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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 Respondents 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 Dunlops case are somewhat similar to the current case. In

Dunlops case, the Supreme Court was looking into Article

42(a) of the Collective Agreement which provided that the

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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 Dunlops 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

Dunlops 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:

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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 Dunlops 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

(Dunlops case) that the Industrial Court could in

the circumstances of the complaint of non-

compliance 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 non-

compliance 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

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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 Dunlops 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.

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[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.

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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 MALAYAKUALA LUMPUR

For the Applicant : Peter Chanther JayarajaMessrs Ramadass & AssociatesAdvocates & SolicitorsKuala Lumpur.

For the Respondent : R SivarasaMessrs Daim & GamanyAdvocates & SolicitorsKuala Lumpur.

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SEMAKAN KEHAKIMAN NO. R2-25-46-07 ROYAL SELANGOR GOLF CLUB…PEMOHON DAN 1.CLUB EMPLOYEES...

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