An Overview of The Industrial Court of Malaysia

Dato’ Fredrick Nicholas

 

Introduction

This article covers a brief commentary on the history and role that the Industrial Court of Malaysia plays in the concept of labour justice in the country. The notion of the practice of labour justice in Malaysia is wide-encompassing and involves several statutes which have a direct bearing on its workings. These include:

1. the Employment Act 1955 for peninsular Malaysia; &
2. the Sabah Labour Ordinance; and
3. the Labour Ordinance (Sarawak CAP. 76) for those two east Malaysian states across that body of water known as the South China Sea.

These laws, in general, govern employer-employee relations and legislate various basic or minimum terms and conditions of employment, which every employer is obliged to comply with. The terms and conditions imposed by those laws include provisions for the hours of work, wages, weekly rest days, public holidays, annual leave, sick leave and maternity leave; and termination or layoff and maternity benefits.

The requirements under those laws are enforced by administrative officers under the direction and control of the Director General of Labour, Malaysia.

Apart from those laws we have:

1. the Employees’ Social Security Act 1969, administered by the Social Security Organization Board, generally known by its acronym ‘SOCSO’, which primarily provides workers’ protection in the form of social security insurance for Malaysian nationals; and
2. the Workmen’s’ Compensation Act 1952, which provides benevolent protection to all, including foreign nationals employed in the country.

Those areas of labour justice, however, are outside the province of this article, and so will be left there.

The evolution of Industrial Law in Malaysia from its most rudimentary beginnings to its present form has been derived from the progressive reforms introduced by the Parliament of Malaysia, juxtaposed with the judicious insight of industrial adjudication through the efforts of its Judges, ably assisted by legal and lay practitioners in our Courts; which came about over the fullness of time.

This realm of the law saw its beginnings in the Industrial Courts Enactment 1940; culminating in the Industrial Relations Act 1967 – the latter being an enlightened piece of social legislation that has the primary and noble aim of promoting and maintaining industrial harmony in the country; and dare I say ~ constituting part of the very bedrock of modern civil society in Malaysia. It provides for the regulation of relations between its main stakeholders, id est, ‘employers’, ‘workmen’ and their ‘trade unions’.

This piece of beneficent parliamentary legislation, together with far-reaching and dynamic adjudication upon it, has brought us to the current phase of the ongoing development of Malaysian Industrial Law.

The broad and liberal approach adopted by the early adjudicators has entrenched principles that are very much taken for granted today as part of our general industrial jurisprudence. These principles have been worked on and expanded, and new ones established by the adjudicators who came after them. The values and philosophy of Industrial Law continue to evolve from generation to generation of adjudicators, the present set not being an exception.

 

A Short History

 In 1967, the Malaysian Parliament acknowledging the need to enhance the concept of industrial harmony in the country, enacted the Industrial Relations Act 1967; which introduced the notion of compulsory arbitration to resolve trade disputes. Before that, the Industrial Courts Ordinance 1948 established a Court where disputing parties could refer matters to it purely on a voluntary basis and which heard those disputes on an ad hoc basis. As it was purely a ‘voluntary’ set-up, only 4 disputes were heard between the years 1948 and 1964, a period of 16 years. As you may observe, it was hardly a roaring success!

The Industrial Courts Enactment 1940, which was even before the 1948 Ordinance, was a non-starter as it was rudely interrupted, shortly after its enactment, by the cascade of the Second World War into this part of the world.

Going forward to 1964/1965, a certain amount of executive tweaking through the promulgation of Regulations [*] was carried out under the Emergency (Essential Powers) Act 1964 – which prohibited any industrial action in sectors that were classified as ‘essential services’ both in the public service and in private enterprise. Trade disputes for such services were subject to compulsory arbitration by a body known as the ‘Industrial Arbitration Tribunal’. Trade disputes in non-essential services at that time continued to be under a voluntary system of arbitration until 1967.

[*]        The Regulations concerned were:

(i)         The Essential (Prohibition of Strikes and Proscribed Industrial Actions) Regulations 1965;

(ii)        The Essential (Arbitration in the Essential Services) Regulations 1965; and

(iii)       The Essential (Trade Disputes in the Essential Services) Regulations 1965;

All promulgated by His Majesty the King of Malaysia (DYMM Seri Paduka Baginda Yang di-Pertuan Agong) by the powers conferred under section 2 of the Emergency (Essential Powers) Act 1964 – which was legislated as a result of national security concerns stemming from communist terrorist insurgency, the confrontation and related activity in the country at that time.

Then came that enlightened Act of 1967, which established the Industrial Court of Malaysia, as we know it today. This Court is thus a creature of statute that is subject to clearly defined principles that specify the legitimately acceptable ways of resolving employer/employee and/or employer/trade union differences or disputes.

 

The Composition

The Industrial Court is composed of a President (the Head) and 21 Divisional Chairmen (all officially appointed by His Majesty the King of Malaysia); and of two panels, one representing employers and the other representing employees, whose members are appointed by the Honourable Minister of Human Resources, Malaysia.

Of the 22 Courts, within Peninsular Malaysia, 16 are in Kuala Lumpur, the federal capital (including that of the Court of the President); 2 sit in the northern state of Penang; 1 in Ipoh, Perak – the central region; 1 in the southern state of Johor; and across the South China Sea, 1 in each East Malaysian states of Sabah and Sarawak.

Under normal circumstances, each individual Court is constituted of the President or a Chairman; sitting with two panel members – one from each panel mentioned above. There are, however, specified cases (e.g., in dismissal cases) where the President or a Divisional Chairman adjudicates alone.

  

Its Role

 The Industrial Court of Malaysia stands as a sentinel in its commitment to fostering a harmonious balance between the stakeholders and its services, i.e., labour and management. The modern landscape of industrial relations is marked by the rapid tempo of technological progress and the evolution of work paradigms. In the whole scheme of things, the Court has recognised the necessity of adapting to change and weaving innovation into its administration of justice. Virtual hearings, digitised evidence management and online dispute resolution mechanisms are not merely novelties, but indeed tools that are applied effectively to enhance accessibility, streamline proceedings, and provide for the evolving needs of litigants.