LETTER | Confer Industrial Court with power to enforce its own award

LETTER | Any dispute involving the dismissal of workmen from employment is referred to the Industrial Court when the conciliation at the Industrial Relations Department failed to arrive at an amicable solution of the dispute. 

The Industrial Court after hearing the parties will make an award either allowing the claimant’s representation under the Industrial Relations Act (IRA) or dismissing his claim.

An award in favour of the claimant must be complied within the period stipulated in the award.

Unless a stay of execution pending appeal against the award in the civil courts has been granted, the successful party may take the appropriate steps to enforce the award pursuant to Section 56 of the IRA. This section is concerned with the enforcement of an award by the Industrial Court in a summary manner.

A proceeding for the non-compliance of the award is backed by criminal sanction where the Industrial Court may with the written consent of the public prosecutor under Section 51E of the IRA impose the appropriate punishment on the defaulting party. 

Section 51E makes it clear that no prosecution may be instituted except with the consent in writing of the public prosecutor.

In fact, this provision reinforces Article 145(3) of the Federal Constitution which provides,  inter alia, that the discretion to institute a prosecution is within the exclusive domain of the attorney-general with the exception of the syariah courts, native courts and court martial.

In relation to criminal liability, although the company when duly incorporated is a separate legal entity, the veil of the company could be lifted to make the directors of the company personally liable for the non-compliance of the award. 

The liability of the company’s officers for the offences committed is governed by Section 51F of the IRA.

In relation to the execution of the original award of the Industrial Court, the IRA provides that the registrar of the Industrial Court shall send a certified copy of the said award to the senior assistant registrar of the High Court or the registrar of the Sessions Court having jurisdiction in the place to which the order relates or in the place where the order was made.

The appropriate civil courts where the award will have to be registered will depend on the monetary amount awarded by the Industrial Court.

Upon registration, the award shall for all purposes, be enforceable as a judgment of the High Court or the Sessions Court, as the case may be, in accordance with such rules of court as may be applicable or in such manner as it may deem just or expedient. 

The procedure and the machinery for obtaining satisfaction of a judgment or compelling compliance of the above mentioned civil courts are governed by the Rules of Court 2012. 

Having said the above and in order to avoid the unnecessary hassle on a successful party from going through the earlier mentioned procedures on enforcement of the award, it is suggested that the Industrial Court should be vested with the power to enforce its own award and further, to punish the defaulting party so that the fruits of the award can be materialised forthwith.

In fact, upon the expiry of the stipulated time frame for compliance of the award, the premises of the defaulting party must be sealed, a measure taken to ensure that the Industrial Court’s award is taken with greater respect.

Further, the Industrial Court should also be conferred with the power to hold the defaulting party in contempt of court so as to pressure them into compliance with the award.

ASHGAR ALI ALI MOHAMED is a law professor at the International Islamic University Malaysia (IIUM).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.