Bar proposes reforms to speed up industrial court cases
The Bar Council has asked the government to make changes to the Industrial Relations Act 1967 (IRA) to speed up the disposal of cases which can take up to three years under the present system.
It has proposed that the ministerial reference provided under Section 20(3) of the Act be replaced with an automatic reference to shorten the wait from the time the complaint is lodged with the director-general of the Industrial Relations Department to the time when the matter is referred to the minister.
The proposal allows a case to proceed without any delay to the next phase of an Industrial Court hearing in case a settlement is not recorded within a specified period.
To facilitate an expeditious settlement within a specified time-frame, the council has proposed for the amendment of Section 20(2) of the IRA.
In May, the council's Industrial Court Practice Committee had organised a workshop attended by representatives from the Malaysian Employers' Federation, the Malaysian Trades Union Congress, lawyers and academicians to discuss reform in the IRA.
The council, led by committee chairperson Roy Rajasingham and accompanied by several senior labour law practitioners, submitted a memorandum on 'Industrial Adjudication Reform' to Human Resources Minister Dr Fong Chan Onn for urgent consideration on Oct 22.
Reforms
As part of the reform, the council proposed that the Industrial Court Bench be appointed from among the legally-qualified civil servants and private practitioners, and to revise and define the terms and conditions of service for contract staff.
Rajasingham said Fong had promised to look into the proposed reforms and "take appropriate action".
"(This) includes the appointments of the Industrial Court president and chairpersons to be from both the government and the private sector," he said.
The memorandum also proposed that the judicial independence of the Industrial Court chairperson/president should be maintained by guaranteeing security of tenure in office until the age of 65.
"Such persons cannot be removed from office save for misconduct on account of breach of a code of ethics prescribed by the Yang di-Pertuan Agong, or inability or from infirmity of body and mind."
The memorandum noted that "excessive formality" in the conduct of conciliation proceedings, including requiring parties to file written submissions, has an adverse impact on dispute resolutions.
It stated that the requirement to satisfy a certain criteria, including the duty to give reasons, may effectively delay the reference process.
The 12-page document also raised the inadequacy of the review mechanism under Section 33A of the IRA.
It indicated that the provision was seldom used due to the "highly restrictive conditions" imposed on the party who, dissatisfied with an award of the Industrial Court, wants to appeal to the High Court for a decision.
Lack of specialisation
The lack of specialisation in the High Court has also caused industrial adjudication to be mixed with the civil court system, resulting in inevitable delay considering the appeal process in the civil courts.
"Furthermore, the application of common law principles by the reviewing court may compromise established principles of industrial law."
Other review proposals include the setting up of an Industrial Appeal Tribunal with three High Court judges, for appeal to be "as of right" to the tribunal and to define the jurisdictional limitations of the civil courts.
Another alternative review process proposed in the memorandum is for a "direct right of appeal" from an Industrial Court to a higher body such as the Employment Appeal Tribunal (EAT), modeled after an English one.
A High Court judge has been proposed to preside over the Malaysian EAT assisted by a representative from the employers and one from the workmen, similar to the English model.
"Under this, appeals will go from the Malaysian EAT to the Court of Appeal, and there will be no appeal to the Federal Court after that.
"This has the advantage of ensuring that industrial adjudication, at the appeal stage, is determined by a combined panel with employer/union representatives rather than by a single judge," stated the memorandum.
Among other concerns raised are the significant disparity in the terms and conditions of appointments between Industrial Court chairpersons/presidents and the inequality of treatment where some appointees were paid more than others despite having the same job functions.
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