Make Industrial Court chairpersons tenures permanent, urge bodies
The Bar Council, Malaysian Trade Union Congress (MTUC) and the Malaysian Employers Federation (MEF) today reached a consensus in support of the proposal that Industrial court chairpersons' tenures be permanent instead of short term contracts.
The consensus was reached during a discussion at the Bar Council's Industrial Adjudication Reform workshop in Kuala Lumpur where all had agreed that the chairpersons should be able to serve until the age of 65 and be given retirement benefits similar to other court judges.
"We can safely conclude from this workshop that we are all in support of this proposal.
"We are also in agreement that the industrial law is a specialised area which requires experts. It is unfair that cadre officers are being made chairpersons where they can suddenly be replaced by someone else within months," said the council's Industrial Court practice committee chairperson Roy Rajasingham.
He also said that both participants and speakers have generally agreed that there is a need for an industrial court of appeal to expedite the finality of an industrial award or settlement.
He said these opinions will be documented as a memorandum to be submitted to Prime Minister Dr Mahathir Mohamad, the Human Resources Ministry and de-facto Law Minister Dr Rais Yatim in their quest for better adjudication of industrial disputes.
MTUC 's S Somahsundram and A Sivananthan and MEF's A Ramadass were among the participants of the workshop which mainly discussed the tenures of industrial court chairpersons, reforms and amendments to industrial laws and the proposal for a appellate industrial court.
Among the speakers at the workshop, officiated by Chief Judge of Sabah and Sarawak Steve Shim, were lawyers N Sivabalah, Romesh Abraham and KP Gengadharan who presented a working paper aimed to reform the adjudication of industrial disputes and Court of Appeal judge Gopal Sri Ram.
Wrong decisions
In his keynote address, Gopal said wrong decisions have been made in industrial disputes because some judges failed to realise that industrial laws are different from the common law which has very little regard to the workmen.
"The common law has no place in the modern industrial laws but we have difficulties to understand the basic concept. And the very judges who make decisions in industrial disputes are trained under the common law.
"Even the language of the common law is harsh. It refers to employee-employer relationship as that between a master and a servant. What servant? We are talking about a worker and an employer. Such medieval concept which is appropriate in the common law should be thrown out in cases of industrial disputes," he said.
He said judges must realise that the worker-employee relationship is a "real life" issue which involves social justice and individual economic well being.
He suggested that there should be a written provision which bars judges of any tier from adopting the common law when deciding industrial disputes.
He also said that lawyers who had faithfully practiced the industrial law should be the main candidates to be appointed as industrial court chairpersons as it will ensure smooth and speedy enforcement of the law.
"While we welcome the appointments of chairpersons from the judicial and legal service department who have been on the bench and exposed to the mechanism of decision making, but they are exposed to the common law.
"I always find it easy to deal with a dispute which I am familiar with. Nothing can substitute the wisdom and experience derived from actual practice of the law," he said.
Meanwhile, several proposals were made by Sivabalah, Romesh and Gengadharan in their working paper which included the amendment to Section 20 of the Industrial Relations Act for a definite period for conciliation.
They said the provision should be amended to state that an industrial dispute which cannot be settled amicably within three months should immediately be referred to the Industrial Court instead of the minister.
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