The government's recent decision for parties in an Industrial Court case to sit through a final round of mandatory mediation before it is heard has raised some questions among legal practitioners.

On Wednesday, Human Resources Minister Dr Fong Chan Onn announced the introduction of a mandatory mediation system at the Industrial Court to ease the backlog of an estimated 1,000 and 6,000 cases pending at the court level and the Industrial Relations Department respectively.

According to Fong, the Malaysian Trades Union Congress and the Malaysian Employers Federation were agreeable to the idea.

However, former Bar vice-president, Roy Rajasingham, disputed this.

"It is reliably learnt that the MTUC and MEF have not been consulted to make mediation mandatory at the Industrial Court," he said when contacted today.

"He has not considered the implications and repercussions."

Rajasingham said he has received calls from several labour lawyers who were unhappy with Fong's statement.

Impulsive call

Rajasingham noted that the Industrial Relations Act 1967 already provides for reconciliation as a prelude to resolving trade disputes.

Only where conciliation was not possible or unsuccessful would the matter be referred to the Industrial Court by way of the minister's discretionary order, he said.

"The minister's call for mandatory mediation is impulsive."

Rajasingham, who previously headed the Bar Council Industrial Court Practice Committee, also questioned Fong's statement on the training of Industrial Court chairpersons as mediators.

"This would be contrary to the principles of natural justice and accepted principles of law of a fair hearing."

He said that the appointed mediator is someone who facilitates an amicable settlement between the parties.

"The mediator does not participate, but remains neutral."

Rajasingham urged the ministry to first study the full implications of mediation before introducing it into the Industrial Court system.

Fong had also said that the 21 serving chairpersons and court officers would be trained by three Australian Industrial Court practitioners beginning July.

However, Rajasingham said that "blindly following a system that is adopted and is successful in another country" may not be good.

"(This is because) the jurisdiction and structure of the legal system and adjudication in that country may be adequate to dispense social justice."

Ad hoc decision

He said the minister had previously announced the Bar Council's involvement in discussing related matters.

"But in this instance, the minister has made an ad hoc decision regarding the mandatory mediation system without any consultation or getting the views from the Bar Council.

"The minister should not make open statements without proper consultation with the bodies concerned because it tends to confuse the public and practitioners of employment law," he said.

Fong had also mentioned plans to appoint another 20 chairpersons to help clear the cases.

Rajasingham said such statements could be damaging as it did not fully consider the Industrial Court structure and the limits of industrial adjudicating powers provided by law, especially with regards "equity and good conscience".

He said the Industrial Court needs quality, not quantity, when it came to personnel.

The MTUC and MEF could not be reached for comments.