The industrial court's slow intervention in trade disputes, coupled with the huge backlog at the conciliation stage, may seriously hamper economic and social development, an appellate judge said today.

Justice Gopal Sri Ram said that without industrial peace, neither could succeed.

As the delays increased in duration - in one case, 14 years - the judiciary was compelled to arrest the situation because "it was a terrible injustice", he said when delivering a keynote address at a conference on employment laws and contracts in Kuala Lumpur today.

He said a 1997 case had made it clear that the industrial court should cease the practice of entertaining preliminary objections such as the definition of a workman and related jurisdictional issues, all of which contributed to the delay.

The Industrial Court, he said, was created by Parliament through the Industrial Relations Act 1967 (IRA) to ensure speedy settlement of trade disputes through the process of dispute resolution.

"The IRA is itself a beneficial piece of social legislation that has elevated the status of a workman from the vulnerable position he found himself at common law to the owner of a proprietary right.

"That is because he cannot be deprived of his right to work and earn a living without just cause or excuse," said Gopal, best known for giving some of the most controversial judgments.

"In fact, we have recognised that the right to earn a livelihood is a constitutionally guaranteed right."

Preliminary objections

The senior judge delivered his keynote address titled 'The Industrial Court as an Avenue for Redress on Termination and Dispute Settlements' at a conference on employment law and contracts in Kuala Lumpur today.

The two-day event, organised by The Asia Business Forum, is to develop a deeper understanding of Malaysian employment law principles and contracts given the ever-changing job environment and challenges facing the workforce.

Gopal said that although delays do occur in any civilised justice system, the practice under the IRA unfortunately has been preliminary objections to the court's jurisdiction.

"This exacerbated the problem of delays because the industrial justice system is not designed to handle this method of disposing a case in stages," he said.

In October 2002, the Bar Council Industrial Court Practice committee submitted a memorandum to the government to implement changes for a speed up matters pending at the industrial relations department and industrial court.

To address the delay, the 'Industrial Adjudication Reform' memorandum proposed, among others, an automatic reference to the industrial court thus bypassing the minister and appointment of senior lawyers as court chairpersons.

"Till today, there is no result," said senior labour lawyer Roy Rajasingham, who was then the committee chairperson.

The organising committee chairperson for today's conference, Rajasingham, echoing Gopal's view, said bureaucracy is another major contributory factor to delay in resolving trade disputes.

"Due to red-tape at the IRD and the slow movement of hearing cases at the industrial court, there is a backlog which is getting heavier," he said after delivering his paper 'Procedural Requirements and Proceedings at the Industrial Court and the Role of the Counsel Representing the Parties'.

He said the mediation procedures adopted by the industrial court also overlapped on its own functions.

Waste of time

Last May, Human Resources Minister Dr Fong Chan Onn had proposed for parties in an Industrial Court dispute to proceed with a mandatory mediation before being heard to ease the thousands of case backlog at the department and in court.

Legal practitioners were opposed to the idea on grounds that it was a waste of time and goes against the principles of natural justice.

"In fact, attempting at reconciliation twice is a total waste of time," said Rajasingham.

"We've asked the minister to streamline related procedures with regard to termination of employment without just cause or excuse."

Manpower shortage, particularly in the number of Industrial Relations personnel and Industrial Court chairperson have been previously cited as factors leading to the delay and case backlog.

There are currently about 23 Industrial Court chairpersons and 60 IRD officers.