The Human Resources Ministry should find ways to reduce the backlog of 6,000 cases in the Industrial Relations Department before attempting to change the Industrial Court structure, said a senior member of the Malaysian Bar.

The ministry is currently toying with the idea of replacing Industrial Court chairpersons with judges and placing it under the civil court system in order to enhance efficiency.

The plan was opposed by former Malaysian Bar vice-president Roy Rajasingham on grounds that, among others, senior lawyers would be left out by default if the plan is carried out.

Roy, who chairs the Bar Council Industrial Court Practice committee, said the criteria for appointment of senior lawyers to serve in the Industrial Court should be based on seniority, sufficient experience and persons of high integrity and discipline.

Serious problem

At present, there are close to 1,000 cases pending at the Industrial Court. But more pressing than changing the Industrial Court structure was the 6,000-case backlog awaiting conciliatory proceedings at the Industrial Relations Department.

"This is a serious problem that needs immediate attention. The (human resources) minister (Dr Fong Chan Onn) should focus on cleaning up the IRD and improve on it instead of changing the system," he said.

He added that for immediate improvement, qualified persons should be appointed as conciliatory officers at the IRD.

"The minister should appoint properly-trained people with the right knowledge, and ensure there is good supervision."

"The urgency to clear this backlog is more important and must surely take precedence. Qualified conciliatory officers should be appointed and properly supervised," he added.

Rajasingham said Malaysia should study closely the industrial adjudication systems in Australia, Britain and South Africa which are independent bodies or tribunals.

"In England, the Industrial Tribunal is the first step and then on appeal, (the matter) goes to the Court of Appeal.

"In Malaysia, as there is no court of appeal for industrial matters, so appeals must go to the High Court for judicial review, including orders for certiorari and/or mandamus."

Taking years

In other countries, he said, a dispute that is not resolved within 60 days is immediately referred to an industrial tribunal, with awards made at the conciliatory stage for dismissals and terminations.

"In Malaysia, it takes years at the IRD's conciliatory stage to and more years before the matter is even referred to the Industrial Court by the minister," he added.

"Moreover, the Industrial Court is empowered to award compensation and back wages where a dismissal or termination is found to be without just cause or excuse."

Rajasingham said provisions in the US were different from Commonwealth countries where the employers were required to pay punitive payments.

Last Saturday, Bar Council secretary Ambiga Sreenevasan, in rejecting Fong's idea, said a better move would be to establish an Employment Appeals Tribunal or an appellate court within the Industrial Court structure.

"Awards that are being challenged can go through this tribunal and totally bypass the civil court system where cases on appeal usually get stuck for years on end," she said, noting that the ministry has not consulted the Bar on the matter.