Consider Industrial Appeal Court, not civil appeal to High Court

COMMENT | The Industrial Court is a quasi-judicial body, specialising in industrial jurisprudence.

Its task is to solve the labour disputes expeditiously, with consideration of equity and a good conscience and the substantial merits of the case without regard to a technicality and legal form, and this is specifically provided for in section 30(5) of the Industrial Relations Act 1967.

The scope of its inquiry is not confined to the law as in a civil suit in the civil court but to broader aspects of equity and social justice with a view of preserving industrial peace and harmony in the country.

In the recent years, however, the Industrial Court has become comparable to a court of law of general jurisdictions thus moving away from its primary role as a court that promotes social justice to one that upholds legal justice.

Often one hears complaints that the Court is overly legalistic, presentations of trials being adversarial, procedural rules and evidence accustomed to civil courts are freely used in the Industrial Court, such as subjecting parties to pleadings, requiring parties to submit bundles of documents, the examination of witnesses and submission of the case, among others.

Furthermore, the Court is expected to give a full reasoned judgment in the nature of an award and as such, the settlement of disputes is often time-consuming.

The reason for the move from social justice to legal justice in the Industrial Court is largely because the award of the Court is often contested in the civil courts vide the judicial review process and in the settlement of the dispute, the civil courts often invoke the principles and procedures of the civil courts into the industrial jurisprudence.

It is submitted that the proposed amendment to the Industrial Relations Act 1967 presented in Parliament recently, particularly in relations to allowing the aggrieved parties to the Industrial Court award to file a civil appeal with the High Court, would only transform the Industrial Court yet into another court of law and this will certainly make the industrial adjudication more expensive and protracted.

This is particularly so since the aggrieved workperson dissatisfied with the award of the court will have to incur a substantial cost to hire lawyers to represent them in the civil courts with high potential of further appeal to upper courts.

Aside from the above, instead of administering social justice, it is feared that the civil courts will administer legal justice peculiar to these courts. This is proven through the current judicial review process as highlighted above.

It is submitted that contesting the Industrial Court’s award in the civil courts does more harm than good to the aims of the Industrial Relations Act, which is to provide a speedy, fair and just resolution of differences between parties to the employment contract.

Hence, the Human Resources Ministry should consider seriously an Industrial Appeal Court and not civil appeals to the High Court to deal exclusively with industrial cases, having in mind that the call for an Industrial Appeal Court system in Malaysia has existed for a long time.

With the establishment of an industrial appeal process, apart from speeding up settlement of industrial disputes in light of the spirit and objective of the Industrial Relations Act, the appeals against the Industrial Court awards would be heard and determined in light of the ethos of the industrial jurisprudence of the country.

It is also noteworthy that such an industrial appeal process exists in many parts of common law jurisdictions and as contained in the United Kingdom Employment Rights Act 1996, Australia Fair Work Act 2009 (Cth) and New Zealand Employment Relations Act 2000, among others.

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

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