AWARD NO: 1615 OF 2010 KESATUAN PEKERJA-PEKERJA PERUSAHAAN LOGAM SEMENANJUNG MALAYSA AND SYARIKAT...
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Transcript of AWARD NO: 1615 OF 2010 KESATUAN PEKERJA-PEKERJA PERUSAHAAN LOGAM SEMENANJUNG MALAYSA AND SYARIKAT...
IN THE INDUSTRIAL COURT OF MALAYSIAIN THE INDUSTRIAL COURT OF MALAYSIAIN THE INDUSTRIAL COURT OF MALAYSIAIN THE INDUSTRIAL COURT OF MALAYSIA
CASE NO: 15(1)/2 - 1333/07CASE NO: 15(1)/2 - 1333/07CASE NO: 15(1)/2 - 1333/07CASE NO: 15(1)/2 - 1333/07
BETWEEN
KESATUAN PEKERJA-PEKERJA PERUSAHAAN LOGAMKESATUAN PEKERJA-PEKERJA PERUSAHAAN LOGAMKESATUAN PEKERJA-PEKERJA PERUSAHAAN LOGAMKESATUAN PEKERJA-PEKERJA PERUSAHAAN LOGAM SEMENANJUNG MALAYSA SEMENANJUNG MALAYSA SEMENANJUNG MALAYSA SEMENANJUNG MALAYSA
AND
SYARIKAT NSG (M) SDN. BHD.SYARIKAT NSG (M) SDN. BHD.SYARIKAT NSG (M) SDN. BHD.SYARIKAT NSG (M) SDN. BHD.
AWARD NO: 1615 OF 2010AWARD NO: 1615 OF 2010AWARD NO: 1615 OF 2010AWARD NO: 1615 OF 2010
Before: Before: Before: Before: PUAN ONG GEOK LANPUAN ONG GEOK LANPUAN ONG GEOK LANPUAN ONG GEOK LAN - - - - CHAIRMANCHAIRMANCHAIRMANCHAIRMAN
MR. OOI KOK WAHMR. OOI KOK WAHMR. OOI KOK WAHMR. OOI KOK WAH - EMPLOYER’S PANEL
MR. MOHAMED BIN OSMAN - EMPLOYEE’S PANEL
VenueVenueVenueVenue :::: Industrial Court Malaysia, Kuala Lumpur.
Date of ReferenceDate of ReferenceDate of ReferenceDate of Reference :::: 30.05.2007
Dates of MentionDates of MentionDates of MentionDates of Mention :::: 01.02.2007; 03.10.2007; 06.11.2007; 10.12.2007; 03.03.2008; 09.04.2008; 10.06.2008; 09.07.2008;22.07.2008; 21.01.2009; 26.05.2009; 14.04.2009;16.04.2009; 08.09.2009; 09.10.2009;
Date of HearingDate of HearingDate of HearingDate of Hearing :::: 21.04.2009; 22.04.2009; 14.09.2009; 04.02.2010;06.08.2010; 01.09.2010;
RepresentativeRepresentativeRepresentativeRepresentative :::: Mr. Vijayan VeeriahIndustrial Relation OfficerMetal Industry Employees' Unionrepresenting the Union.
Mr. Balan Nairfrom Messrs Seah Balan Ravi & CoCounsel for the Respondent.
1
REFERENCE :REFERENCE :REFERENCE :REFERENCE :
This is a reference under section 26(2) of the Industrial Relations Act
1967 (“the Act”)(“the Act”)(“the Act”)(“the Act”) pertaining to the trade dispute involving the 1st Collective
Agreement between Kesatuan Pekerja-Pekerja Perusahaan LogamKesatuan Pekerja-Pekerja Perusahaan LogamKesatuan Pekerja-Pekerja Perusahaan LogamKesatuan Pekerja-Pekerja Perusahaan Logam
Semenanjung MalaysiaSemenanjung MalaysiaSemenanjung MalaysiaSemenanjung Malaysia (“the Union”) (“the Union”) (“the Union”) (“the Union”) and Syarikat NSG (M) Sdn. Bhd. (“theSyarikat NSG (M) Sdn. Bhd. (“theSyarikat NSG (M) Sdn. Bhd. (“theSyarikat NSG (M) Sdn. Bhd. (“the
Company”)Company”)Company”)Company”).
A W A R DA W A R DA W A R DA W A R D
The reference pertains to the trade dispute between the Kesatuan
Pekerja-Pekerja Perusahaan Logam Semenanjung Malaysia (“the Union”) and
Syarikat NSG (M) Sdn. Bhd. (“the Company”) over the terms and conditions of
employment to be incorporated into the 1st Collective Agreement for those of
the Company's employees who are within the Union's scope of
representation.
By his decision contained in the Form D dated 10.5.2005 the
Honourable Minister of Human Resources accorded recognition to the Union
pursuant to section 9(5) of the Act. The Union submitted to the Company its
proposals for the 1st Collective Agreement vide its letter dated 10.4.2006.
The Company, however, refused to negotiate with the Union of the ground
that they were challenging the decision of the Honourable Minister.
When the dispute was called up for hearing on 6.11.2008 before the
then President, Y.A. Dato' Umi Kalthum bt. Abdul Majid, Mr. Balan of Messrs
Seah Balan Ravi & Co. raised a preliminary objection that the Court had no
2
jurisdiction to proceed with the hearing on merits of the dispute relating to
the Collective Agreement between the Company and the Union. It was the
Company's case that the Company had not granted recognition to the Union.
According to the Company, the Honourable Minister's decision under section
9(5) of the Act was only a deeming provision. The Company had applied to
the High Court to review the Minister's decision and until a final
determination of the issue of recognition is secured, the Court should not
proceed with the hearing of the dispute.
It was not disputed that the Company did not obtain a stay order from
the High Court. The Union's representative submitted that the Minister's
decision under section 9(5) of the Act was final. The Court unanimously
dismissed the preliminary objection and directed the parties to proceed with
the hearing. The parties requested for an adjournment to enable them to
negotiate on the terms. The Court noted that both parties were not ready for
trial.
The Union's representative informed the Court that out of 32 articles,
15 had been agreed upon leaving a balance of 17 articles which they
intended to negotiate on further. The Company on its part complained that
till that day it did not know who were the Union members. The Court directed
the Union to inform the Company on members of the Union post haste.
The dispute was fixed for mention on 3 occasions at the Industrial
Court in Kuala Lumpur before the then President, Puan Amelia Tee Hong
Geok. The parties were directed to file their witness statements.
This dispute was called up for hearing before Y.A. Puan Amelia Tee
Hong Geok on 21.4.2009.
3
The parties informed this Court that they had reached an agreement on
the following 19 Articles:-
1. ARTICLE 1 – PARTIES TO THE AGREEMENTARTICLE 1 – PARTIES TO THE AGREEMENTARTICLE 1 – PARTIES TO THE AGREEMENTARTICLE 1 – PARTIES TO THE AGREEMENT
This Agreement is made this ____ day of _________ between the
METAL INDUSTRY EMPLOYEES' UNION being a trade Union of
employees registered pursuant to the Trade Union Act, 1959
(hereinafter called “the Union”) of the one part and NSG (M) SDN. BHD.
(hereinafter called “the Company”) of the other part wherein it is agreed
that the terms and conditions of employment shall be observed by the
Union and the employees coming within the scope of this Agreement
on the one part and the Company on the other part.
2.2.2.2. ARTICLE 3 – SCOPE OF AGREEMENTARTICLE 3 – SCOPE OF AGREEMENTARTICLE 3 – SCOPE OF AGREEMENTARTICLE 3 – SCOPE OF AGREEMENT
a) This Agreement shall cover all employees eligible for the Union
membership excluding:-
i) Directors and Managers
ii) Employees in confidential capacities
iii) Managerial and Executive Staff having authority in the interest of
the Company to hire, transfer, suspend, lay-off, recall, promote,
dismiss, assign, reward or discipline other employees or
responsible to direct them or rectify their grievances
iv) All employees engaged in security work
4
3.3.3.3. ARTICLE 4 – INTERPRETATIONARTICLE 4 – INTERPRETATIONARTICLE 4 – INTERPRETATIONARTICLE 4 – INTERPRETATION
a) Where any clause in any current contract of service exists which
is in conflict with the terms of this agreement then such clause
shall be superseded by the relevant terms of this agreement.
b) If this agreement is translated into other languages, the English
version shall be the authoritative edition.
c) This agreement supersedes all contracts signed by any individual
employee with the Company regarding general terms and
conditions of employment which are covered by this agreement.
4. ARTICLE 6 – GENERAL UNDERTAKINGARTICLE 6 – GENERAL UNDERTAKINGARTICLE 6 – GENERAL UNDERTAKINGARTICLE 6 – GENERAL UNDERTAKING
The Union agree that none of its worksite officials, who are employees
of the Company, shall engage in the Union's activities in the Company's
time and in the Company's premises except with the Company's prior
consent. Provided that matters relating to members grievances shall
not be treated as union activity. Both parties shall ensure that Labour
Management relations shall always remain calm and harmonious.
5.5.5.5. ARTICLE 7 – RECOGNITION OF THE COMPANYARTICLE 7 – RECOGNITION OF THE COMPANYARTICLE 7 – RECOGNITION OF THE COMPANYARTICLE 7 – RECOGNITION OF THE COMPANY
The Union recognises the right of the Company to operate and manage
its business and authority to execute all the various duties, functions
and responsibilities incident thereof shall be vested with the Company.
However, such authority shall be exercised in a justifiable manner and
shall not, in anyway, violate any of the provisions of this agreement or
any law.
5
6.6.6.6. ARTICLE 8 – PROBATIONARTICLE 8 – PROBATIONARTICLE 8 – PROBATIONARTICLE 8 – PROBATION
a) All newly engaged employees shall serve a probationary period
of three (3) months. This period of probation may be extended in
writing to the employee concerned, but the entire period of
probation shall not exceed six (6) months in total.
b) On completion of probationary period, the employee may be
confirmed in writing within seven (7) working days and shall be
considered as a permanent employee back-dated to the date of
appointment if the Company deems that the employee has
reached the set standards as in the appraisal form.
c) The Company may require new employees to undergo medical
examination either before appointment, on probation or before
confirmation. The fees incurred shall be borne by the Company.
7 ARTICLE 10 – TRANSFER/RELOCATIONARTICLE 10 – TRANSFER/RELOCATIONARTICLE 10 – TRANSFER/RELOCATIONARTICLE 10 – TRANSFER/RELOCATION
a) An employee may be transferred from one section to another
with the Company provided that such transfer does not entail a
change to the detriment of the employee in regard to his terms
and conditions of employment. The employee shall also retain
his salary or wages.
b) A female pregnant employee under her request shall be
transferred to light duty section which can protect her health
concern.
c) In the event that the Company relocates to different premises,
the employees would be required to relocate to new premises.
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d) In the event the transfer or relocation entails expenses on the
part of the employee, the Company will reimburse all reasonable
expenses in accordance with its policy.
8. ARTICLE 11- HOURS OF WORK/REST DAYSARTICLE 11- HOURS OF WORK/REST DAYSARTICLE 11- HOURS OF WORK/REST DAYSARTICLE 11- HOURS OF WORK/REST DAYS
a) All employees shall work an average of forty-eight (48) hours per
week with alternative Saturdays as off days.
b) The working hours are as follows:-
NormalNormalNormalNormal
7.30 a.m. to 4.30 p.m.
with one (1) tea break for 15 minutes
Lunch break for 45 minutes.
ShiftShiftShiftShift
A Shift - 7.30 a.m. to 4. 30 p.m.
1 tea break for 15 minutes.
Lunch break for 45 minutes.
B Shift - 4.30 p.m. to 12.30 a.m.
Dinner break for ½ hour from
7.30 p.m. to 8.00 p.m.
C Shift - 12.30 a.m. to 7.30 a.m.
Break for ½ hour.
7
9. ARTICLE 12 – OVERTIME & OVERTIME PAY AND WORK ON REST DAY ARTICLE 12 – OVERTIME & OVERTIME PAY AND WORK ON REST DAY ARTICLE 12 – OVERTIME & OVERTIME PAY AND WORK ON REST DAY ARTICLE 12 – OVERTIME & OVERTIME PAY AND WORK ON REST DAY
AND PUBLIC HOLIDAYSAND PUBLIC HOLIDAYSAND PUBLIC HOLIDAYSAND PUBLIC HOLIDAYS
a) Employees may be required to work overtime and on rest days
and public holidays only at the request of the Company and with
the consent of the employees.
b) Employees would be paid at rates based on the ordinary rate of
pay (ORP) as follows for overtime work and work on rest days
and public holidays.
a) Rest days: (Normal hours)
i) Monthly Rated:
● For work not exceeding ½ the normal hours/day :1/2ORP
● For work exceeding ½ but not exceeding normal
hours/day : 1 ORP
b) Public Holidays (Normal hours)
● For any work not exceeding normal hours of work : 2 ORP
c) Overtime (Work in excess of normal hours)
● Normal days : 1.5 times the hourly rate for each hour
● Rest days : 2 times the hourly rate for each hour
● Public holiday : 3 times the hourly rate for each hour
c. Employees who are required to do such work shall not
unreasonably refuse to do so.
d. As far as possible, the Company shall distribute overtime work
equitably between personnel in each of the various job
categories.
8
10).10).10).10). ARTICLE 15 – MATERNITY LEAVEARTICLE 15 – MATERNITY LEAVEARTICLE 15 – MATERNITY LEAVEARTICLE 15 – MATERNITY LEAVE
a) All female employees will be entitled to paid maternity leave for
a total of sixty (60) days for each confinement subject to the
following conditions:
(i) They have been in employment for some time during the
four (4) months preceding confinement and for 90 days
during the nine (9) months preceding confinement.
(ii) They do not have 5 or more surviving natural children.
b) Absence from work due to illness or miscarriage prior to 28th
week of pregnancy shall be considered as maternity leave but
normal sick leave. Any absence from work after maternity leave
supported by medical certificate from the Company's doctor or
the General Hospital or other registered medical practitioner
shall be treated as normal sick leave.
c. The Company shall grant paid time off to the pregnant
employees who go for medical check-up on presentation of
relevant documents.
d. Employees are expected to notify the Company at least 2
months before they intend to commence maternity leave inform
the Company of the person they have appointed as their
nominee.
11)11)11)11) ARTICLE 16 – PUBLIC HOLIDAYSARTICLE 16 – PUBLIC HOLIDAYSARTICLE 16 – PUBLIC HOLIDAYSARTICLE 16 – PUBLIC HOLIDAYS
a) All employees shall be granted paid holidays on all public
holidays, either gazetted or declared, by the Federal Government
of Malaysia or by the State Government of Penang.
9
b) If a holiday falls on a weekly rest day, the next working day shall
be observed as the holiday.
c) Where a holiday falls during the period of sick leave, annual
leave or the period of temporary disablement under SOCSO,
another day shall be granted in substitution.
d) An employee who is absent on the working day before or after a
holiday, without reasonable excuse, shall not be entitled to the
holiday pay for that holiday.
12) ARTICLE 18 – RETIREMENTARTICLE 18 – RETIREMENTARTICLE 18 – RETIREMENTARTICLE 18 – RETIREMENT
a) Employees shall retire upon attaining the age of 55 years.
b) The Company may invite an employee to continue in the
employment of the Company for a further period beyond the age
of 55 years for male or female but such extension of
employment shall be with the written consent of the employee
concerned. The Company will give six (6) months' notice of its
intention to either call for retirement or to invite the employee to
extend the period of employment for one year.
c) All such extension of employment beyond the age of 55 years
for male or female employees shall be for a period of not more
the one (1) year at a time and shall be subject to the employee
being certified physically fit by the medical practitioner
appointed by the Company.
10
13)13)13)13) ARTICLE 21 – UNIFORMSARTICLE 21 – UNIFORMSARTICLE 21 – UNIFORMSARTICLE 21 – UNIFORMS
The Company shall supply free uniforms and safety shoes to all
employees.
14)14)14)14) ARTICLE 24 – GREIVANCE PROCEDUREARTICLE 24 – GREIVANCE PROCEDUREARTICLE 24 – GREIVANCE PROCEDUREARTICLE 24 – GREIVANCE PROCEDURE
Objective Of Grievance Procedure
The objective of the grievance procedure machinery is to resolve
all complaints and/or grievances of employees swiftly and
equitably. Towards this objective the following procedure, for the
settlement of complaints and/or grievances, is agreed:-
a) All complaints and/or grievances shall be brought to the
attention of the Company by either the employee concerned or
by the Union.
b) The Company shall, on receipt of such a complaint and/or
grievances, investigate the said complaint and/or grievances,
within three (3) working days. Thereafter the Company shall take
all the necessary steps to resolve the issue within a further
period of seven (7) working days.
c) Where the Company fails to resolve the complaint and/or
grievance or where the employee or the Union is not satisfied
with the Company's actions in the matter, the complaint and/or
grievances shall be jointly referred to the Minister of Human
Resources or reported to the Director General for Industrial
Relations for conciliation.
11
15) ARTICLE 25 – ARBITRATIONARTICLE 25 – ARBITRATIONARTICLE 25 – ARBITRATIONARTICLE 25 – ARBITRATION
Any dispute relating to the interpretation or implementation of this
agreement shall, unless settled by negotiations between the Company
and the Union, be referred to the Industrial Court in accordance with the
relevant provisions of the Industrial Relations Act 1967.
16).16).16).16). ARTICLE 27 – INDUSTRIAL ACCIDENTARTICLE 27 – INDUSTRIAL ACCIDENTARTICLE 27 – INDUSTRIAL ACCIDENTARTICLE 27 – INDUSTRIAL ACCIDENT
All employees are to be properly registered with SOCSO. Any employee
who meets with an accident during the course of employment will be
entitled to apply for benefits from SOCSO. The Company shall provide
all assistance to the employee in recovering benefits from SOCSO.
17).17).17).17). ARTICLE 28 – HEALTH AND SAFETYARTICLE 28 – HEALTH AND SAFETYARTICLE 28 – HEALTH AND SAFETYARTICLE 28 – HEALTH AND SAFETY
a) The Company shall agree that whilst the Union recognises its
right to operate and manage its business in all respects, it shall
at all times strictly follow the provisions of the Occupational
Safety And Health Act, 1994 or any subsequent amendments to
the said Act which will contribute to the well-being and interest
of all parties concerned.
b) In the event of the Union being able to justify that the Company
has breached any of the provisions as stipulated in the
Occupational Safety and Health Act, 1994, in relations to safety,
health and welfare, the Company shall make rectification in
accordance with the requirements of the said Act.
c) A Health and Safety committee, with Union representation shall
be formed and chaired by the departmental heads of either the
12
production or maintenance departments. The said committee
shall be independent of its functions.
d) In recognition of the importance of a better working
environment, placing emphasis on the safety, health and
welfare of its employees, the Company shall endeavour to
implement any suggestion or recommendation that may be put
forward by the said committee.
18).18).18).18). ARTICLE 30 – LEGISLATIONARTICLE 30 – LEGISLATIONARTICLE 30 – LEGISLATIONARTICLE 30 – LEGISLATION
a) If any legislation provides for a lower level of benefits than which
is provided in this agreement, then the benefits to which the
employee is entitled to shall be the terms of this agreement.
b) If any legislation provides for terms which are more favourable
than of this agreement, then the terms of such legislation shall
supercede the relevant provisions contained in this agreement.
19).19).19).19). ARTICLE 31 – CASUAL/COMPASSIONATE LEAVEARTICLE 31 – CASUAL/COMPASSIONATE LEAVEARTICLE 31 – CASUAL/COMPASSIONATE LEAVEARTICLE 31 – CASUAL/COMPASSIONATE LEAVE
Casual leave with full pay shall be granted for the following:-
Employees' first legal marriage - 3 working days
Death of member of his immediate family
which expression shall include wife, husband,
children or parents - 2 working days
Death of parent-in-law, grandparents,
brothers or sisters - 2 working days
Birth of child - 2 working days
Natural Disaster affecting the employees
residence - 2 working days
13
per occasion.
The dispute was called up for continued hearing on 22.4.2009 before
Y.A. Puan Amelia Tee Hong Geok. The parties informed the Court that after
further negotiations, they had agreed on another 4 articles. They were as
follows:-
1)1)1)1) ARTICLE 9 – PROMOTION/ACTING APPOINTMENTSARTICLE 9 – PROMOTION/ACTING APPOINTMENTSARTICLE 9 – PROMOTION/ACTING APPOINTMENTSARTICLE 9 – PROMOTION/ACTING APPOINTMENTS
a) Promotion
i) Where vacancies occur or are created in higher grades or
post, the Company shall promote serving employees.
Where no serving employee is found to be suitable, the
Company may fill such vacancy from outside recruitment.
ii) An employee of the Company who has been selected for
promotion to a new grade or group may be required to
serve a probationary period not exceeding three (3)
months. On completion of the prescribed probationary
period, if any, the employee shall be notified in writing
within 7 working days whether he has been confirmed in
his new grade or group.
iii) During the period of probation, an employee shall have his
wage or salary adjusted to the minimum starting wage or
salary for the new grade if his wage or salary in the
previous grade was lower than the minimum wage or
salary for the new grade but such adjustment shall not be
less than one (1) increment in the previous scale.
14
On confirmation of probation, the employee shall be
granted a salary adjustment equivalent to one increment
of the promoted scale.
iv) Salary adjustments, granted under clause (iii) above shall
not affect the employee's entitlement to his normal
annual increment of the year.
v) Whenever it is decided not to confirm the promotion, the
employee shall revert to his former grade or group or be
given another job compatible to his capability and shall be
paid the same salary or wages that he last drew or would
have drawn including the annual increment in his former
post.
2). ARTICLE 13 – ANNUAL LEAVEARTICLE 13 – ANNUAL LEAVEARTICLE 13 – ANNUAL LEAVEARTICLE 13 – ANNUAL LEAVE
a) Employees shall be eligible for paid annual leave as follows for
every twelve (12) months of continuous service:
Calendar Year
● less than 2 years' service : 14 days
● More than 2 to 5 years' service : 16 days
● More than 5 years' service : 18 days
b) All applications for annual leave shall be submitted at least 3
days before such leave is required, and employees can only
physically commence such annual leave after the leave has been
approved.
c) Every effort will be made by the management to approve any
annual leave applied for, but if due to certain exigencies such
leave cannot be approved, then the employee concerned will be
compensated for such leave not taken.
15
3). ARTICLE 19 – RETIREMENT BENEFITSARTICLE 19 – RETIREMENT BENEFITSARTICLE 19 – RETIREMENT BENEFITSARTICLE 19 – RETIREMENT BENEFITS
Employee who retire after 10 years of service with the Company shall
be paid an ex-gratia sum of RM1,500.00.
4) ARTICLE 22 – RETRENCHMENT/CLOSURE & RETRENCHMENT/ ARTICLE 22 – RETRENCHMENT/CLOSURE & RETRENCHMENT/ ARTICLE 22 – RETRENCHMENT/CLOSURE & RETRENCHMENT/ ARTICLE 22 – RETRENCHMENT/CLOSURE & RETRENCHMENT/
TERMINATION BENEFITSTERMINATION BENEFITSTERMINATION BENEFITSTERMINATION BENEFITS
22.1 The Company's general policy is not retrench employees and so
will take all necessary action to avert retrenchments. However if
retrenchment becomes inevitable, the Company will attempt to
give as much notice as is practically possible to employees and
will endeavour to obtain alternate employment for affected
employees.
22.2 Where the Company has to retrench employees, the selection
would made bona fide and based on the following criteria:
● Operational needs of the Company;
● Skill, experience and qualification of the employees;
● length of service;
● Age and family situation of employee;
● Other criteria like medical, performance and disciplinary
records.
22.3 Retrenchment benefits be paid based on the provisions of the
Employment (Termination and Lay Off Benefits) Regulations
1980.
In respect of all the agreed articles, this Court shall incorporate them
into this award as consent items. The Court then proceeded to hear the
parties on the remaining disputed articles. The Company's witness was Md.
16
Rashid bin Abdul Rauf, the Human Resources Executive in charge of Human
Resources and General Affairs Department of the Company. However, during
the course of the hearing, the parties came to an agreement on certain of the
remaining disputed articles:-
1)1)1)1) ARTICLE 5 – RECOGNITION OF THE UNIONARTICLE 5 – RECOGNITION OF THE UNIONARTICLE 5 – RECOGNITION OF THE UNIONARTICLE 5 – RECOGNITION OF THE UNION
a) The Company recognises the Union as the exclusive Collective
Bargaining principal in respect of and on behalf of such
categories of employees who are eligible for Membership
thereof, and who are employed by the Company and defined as
coming within the scope of this agreement in accordance with
the provisions of Article 3 herein before stated.
b) The Company undertakes to inform all employees coming within
the scope of this agreement, that their terms of employment are
governed by the provisions of this agreement and a copy of the
notification shall be given to the Union Worksite Committee. The
Company shall supply free of charge to all employees a copy of
the collective agreement.
ARTICLE 6 – GENERAL UNDERTAKINGARTICLE 6 – GENERAL UNDERTAKINGARTICLE 6 – GENERAL UNDERTAKINGARTICLE 6 – GENERAL UNDERTAKING
The Union agreed that none of its worksite officials, who are
employees of the Company, shall engage in the Union's activities in the
Company's time and in the Company's premises except with the
Company's prior consent. Provided that matters relating to members'
grievances shall not be treated as union activity. Both parties shall
ensure that Labour Management relations shall always remain calm
and harmonious.
17
2)2)2)2) ARTICLE 14 – SICK LEAVE/MEDICAL LEAVEARTICLE 14 – SICK LEAVE/MEDICAL LEAVEARTICLE 14 – SICK LEAVE/MEDICAL LEAVEARTICLE 14 – SICK LEAVE/MEDICAL LEAVE
a) Employees certified unfit for work by a registered medical
practitioner or by a registered dental surgeon shall be entitled to
paid sick leave.
b) Where no hospitalisation is necessary, an employee shall be
entitled to paid sick leave of:
(i) 14 days per year if an employee has been employed for
less than 2 years.
(ii) 18 days per year if an employee has been employed for 2
years or more but less than 5 years.
(iii) 22 days per year if an employee has been employed for 5
years or more.
c) Where hospitalisation is necessary, the sick leave entitlement
shall be sixty (60) days in each calendar year inclusive of the
days taken in preceding clause (b).
d) Sick leave granted immediately after the hospitalisation period
shall be considered as hospitalisation leave coming within the
meaning of clause( c ) of this article provided it is in respect of
the same clause of hospitalisation.
e) All employees will be entitled to medical treatment at any
registered medical clinic or dental clinic subject to a maximum
reimbursement of RM300.00 per year. Employees would be
required to submit claims for reimbursement of medical
expenses supported by receipts.
f) In the event of hospitalisation, the Company shall provide free
treatment at any government hospital.
18
The case was called up for continued hearing on 13.7.2009. After
discussions, the parties agreed on the following provisions on Article 17:
3)3)3)3) ARTICLE 17 – ALLOWANCESARTICLE 17 – ALLOWANCESARTICLE 17 – ALLOWANCESARTICLE 17 – ALLOWANCES
a) Shift AllowanceShift AllowanceShift AllowanceShift Allowance
Shift allowance shall be paid to employees on shift duty as
scheduled below:-
A Shift - 7.30 a.m. to 4.30 p.m. - RM2.50
B Shift - 4.30 p.m. to 12.30 a.m. - RM5.50
C Shift - 12.30 a.m. to 7.30 a.m. - RM5.50
b) Transport AllowanceTransport AllowanceTransport AllowanceTransport Allowance
The Company shall pay transport allowance as follows to
employees who report for work:
(i) First 1 to 5 km - 45 sen/km
(ii) Next 5 to 9 km - 25 sen/km
(iii) 10 km and more - 20 sen/km
c) Mid-Day Meal AllowanceMid-Day Meal AllowanceMid-Day Meal AllowanceMid-Day Meal Allowance
Employees who are required to work outside the Company's
premises and who are unable to return to the Company before
their lunch break, shall be paid a meal allowance of RM2.00 per
occasion.
d) Full Attendance IncentiveFull Attendance IncentiveFull Attendance IncentiveFull Attendance Incentive
The Company shall pay full attendance incentive of RM50.00 per
month subject to full attendance at work.
e) Heat and Dust AllowanceHeat and Dust AllowanceHeat and Dust AllowanceHeat and Dust Allowance
Employees whose nature of regular duties entail exposure to
direct sunlight for more than one half (½) their normal hours of
19
work shall be eligible to receive RM70.00 as Heat and Dust
Allowance.
f) Overtime Meal AllowanceOvertime Meal AllowanceOvertime Meal AllowanceOvertime Meal Allowance
A meal allowance of RM2.00 per occasion shall be paid to:
(i) An employees who works overtime up to 2 hours or more
on a normal working day
(ii) An employees who works on a rest day or public holiday
recognised by the Company
(iii) Employees who work overtime shall be provided with
transport. If transport is not provided, an allowance as per
clause (b) of this Article shall be given.
Upon Y.A. Puan Amelia Tee being appointed a Judicial Commissioner,
this dispute was then transferred to Court 15 for continued hearing. The
dispute was called up for continued hearing on 4.2.2010 and on 6.8.2010.
The parties informed the Court that after further discussions the parties had
agreed to the following Articles:
ARTICLE 20 – BONUSARTICLE 20 – BONUSARTICLE 20 – BONUSARTICLE 20 – BONUS
(a) All confirmed employees shall be paid an annual bonus
equivalent to one (1) month's salary and an additional one (1)
month's bonus shall be made at the discretion of the Company
based on the Company's appraisal process.
(b) Employees with less than one (1) year's service as at 31st
December will receive pro-rata bonus based on the number of
months' service during that calendar year.
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ARTICLE 23 – ANNUAL INCREMENT/INCREMENTAL DATEARTICLE 23 – ANNUAL INCREMENT/INCREMENTAL DATEARTICLE 23 – ANNUAL INCREMENT/INCREMENTAL DATEARTICLE 23 – ANNUAL INCREMENT/INCREMENTAL DATE
(a) Every employee shall receive an annual increment on 1st January
of each year at the flat rate of three (3) % on the maximum scale
across the board as set out in Article 32.
(b) Confirmed employees who have completed less than one (1)
year's service will have their 1st annual increment on 1st January
on a pro rata basis calculating from the date of 1st appointment
on probation. Thereafter they shall be granted one (1) full
increment on 1st January of each year.
ARTICLE 32 – SALARY SCALEARTICLE 32 – SALARY SCALEARTICLE 32 – SALARY SCALEARTICLE 32 – SALARY SCALE
Job PositionJob PositionJob PositionJob Position Minimum ScaleMinimum ScaleMinimum ScaleMinimum Scale Maximum ScaleMaximum ScaleMaximum ScaleMaximum Scale Annual IncrementAnnual IncrementAnnual IncrementAnnual Increment
(i) Operator RM546.00 RM850.00 RM26.00
(ii) QA/QC/Storehand RM600.00 RM1,020.00 RM31.00
(iii) Clerk RM750.00 RM1,275.00 RM38.00
(iv) Senior Clerk RM800.00 RM1,360.00 RM41.00
(v) Technician RM850.0 RM1,445.00 RM43.00
(vi) Leader/Storekeeper RM650.00 RM1,105.00 RM33.00
(vii) Assistant Supervisor RM850.00 RM1,445.00 RM43.00
(viii) Supervisor RM1,100.00 RM1,600.00 RM48.00
(ix) Boiler Man Grade II RM900.00 RM1,530.00 RM46.00
ARTICLE 29 – EXISTING BENEFITSARTICLE 29 – EXISTING BENEFITSARTICLE 29 – EXISTING BENEFITSARTICLE 29 – EXISTING BENEFITS
The Company shall continue any of the existing benefits not covered by
or in excess of the provisions of this Agreement.
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The parties could not agree on Article 2 and Article 26 and this Court
proceeded to hear the parties on those Articles.
ARTICLE 2 – DURATION AND TERMINATION OF AGREEMENTARTICLE 2 – DURATION AND TERMINATION OF AGREEMENTARTICLE 2 – DURATION AND TERMINATION OF AGREEMENTARTICLE 2 – DURATION AND TERMINATION OF AGREEMENT
The date of the Honourable Minister's reference was 30.5.2007. The
Union requested that the effective date of commencement be 1.11.2006
which was about 6 months before the date of reference. It submitted that it
had first submitted its proposals to the Company on 10.4.2006.
The Company's Counsel had proposed that the effective date be
1.4.2009 which was the month when the hearing of this dispute began. He
submitted that if the Collective Agreement is backdated to the year 2006, it
would be a heavy burden for the Company in light of the present economic
climate.
Section 30(7) of the Act allows for an award to be retrospective to such
date which may not be earlier than 6 months from the date on which the
dispute was referred to the Industrial Court. Section 14(2)(b) of the Act
makes it mandatory for a Collective Agreement to continues in force for a
period of not less than 3 years.
The Court finds the demand by the Union for the effective date of the
Agreement to be on 1.11.2006 to be unacceptable. The agreement would
have expired on 31.10.2009 which is more than a year before the parties
could even execute the Agreement.
It was submitted for the Company that it has been giving increments to
its employees over the years except for the year 2009 when the Company's
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volume of sales dropped. However, the Company did on 1.4.2010 give its
employees a salary adjustment. Therefore, the employees would not be
prejudiced if the effective date of the Agreement be brought forward.
The Court is of the view then that the Company's proposal for the
effective date to be on 1.4.2009 to be reasonable. Based on the mandatory
3 years' duration, the Collective Agreement would only expire on 31.3.2012.
Notwithstanding that the unexpired duration is about 1 year 3 months, that
would give the parties sufficient time to work out and implement the terms of
the Collective Agreement as in this case, the Company has only 188
employees. Accordingly, this Court orders that the effective date of this
Award be 1.4.2009. The Collective Agreement shall remain in force for a
period of 3 years expiring on 31.3.2012 and shall continue to apply
thereafter until superseded by a new Collective Agreement or an Award of the
Industrial Court.
ARTICLE 26 – SALARY ADJUSTMENT/CONVERSIONARTICLE 26 – SALARY ADJUSTMENT/CONVERSIONARTICLE 26 – SALARY ADJUSTMENT/CONVERSIONARTICLE 26 – SALARY ADJUSTMENT/CONVERSION
Counsel for the Company submitted that there should not be any
adjustment as the Company has been giving increment over the years and
the Company had recently made the necessary adjustment in April 2010. He
further submitted that if the Court is mindful of giving a salary adjustment, it
should be at the rate of 3%.
The Company is a subsidiary of Nansin Co. Ltd., a company
incorporated in Japan. The principal activity of the Company at its factory in
the Bukit Tengah Industrial Park in Bukit Mertajam is the manufacture of
castor wheels, wheels and moulded and extruded rubber products for
automotive, electrical and electronic industries and household applications.
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The Annual Statement of the Company for the Financial Year ending
31.3.2009 shows a gross profit of RM2.2 million. For the Financial year
2008, the gross profit was RM3.3 million.
The Company pointed out that the profits for the year 2009 was due
mainly to the higher value of the Japanese Yen as the volume of sales had
dropped. The Company was making more money from the “Other Operating
Income” instead of sales. The Company was not doing well compared to the
Financial Years of 2004 and 2005 when its gross profits were in the region of
RM11 million.
The Union submitted that the Company paid annual increments based
on the number of years of service of the employees. The recent adjustment
by the Company was not given to all the employees. Looking at the
Company's Financial Statement for the year 2009, the Company did make
profits and therefore has the financial ability to pay. The Union demanded an
adjustment at the rate of 5%.
In the case between Arab-Malaysian Development BerhadArab-Malaysian Development BerhadArab-Malaysian Development BerhadArab-Malaysian Development Berhad and PerakPerakPerakPerak
Textile & Garments Manufacturing Employees' Union Textile & Garments Manufacturing Employees' Union Textile & Garments Manufacturing Employees' Union Textile & Garments Manufacturing Employees' Union [1987] ILR February
118 at page 129, the Industrial Court has set out the principles involved in
considering a revision of a wage system or a wage structure:-
“ In considering any revision of a wage system or
wage structure, it is well established that justice should be
done to the interests not only of employer but also of
employees. On the side of employees, the object of
constructing a wage structure would be to ensure that they
obtain a fair wage for their labour . This is their hope and
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aspiration in a claim for pay revision. And there can be
little doubt that it the employees are paid a better wage,
which will enable them to live in fair comfort and
discharge their obligations to members of their families in
a reasonable way, they will be encouraged to work whole
heartedly and their work shall appreciably increase in
efficiency and productivity. On the side of employer, his
capacity to bear the burden of a new wage structure is a
primary consideration, bearing in mind, inter alia, that it is
right that he should be allowed a fair allocation from
profits to reserves and depreciation and a fair return for
his capital. Thus, the fixation of a wage structure is always
a delicate task, because a balance has to be struck
between the demands of social justice which require that
the employees should receive their proper share of
national income which they help to produce, with a view to
improving their standard of living and depletion which
every increase in wages makes in the profits, as this tends
to divert capital from industry into other channels thought
to be more profitable.”
It is well established in Industrial Law that in deciding on the question
of wage increases and wage structure, the Court has to take into account the
following factors:
(i) Wages and salaries prevailing in comparable establishments in
the same region;
(ii) Any rise in the cost of living since the existing wages or salaries
were last revised; and
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(iii) The financial capacity of the Company to pay the higher
wages/increases.
Of the aforementioned 3 factors, the primary consideration and
essential pre-requisite is the financial capacity of the Company to pay. It is
not the economic slow down as it has been found that there are companies
who can and do make substantial profits in the face of general downturn of
the economy. Cost of living generally and inevitably goes up and wages and
salaries prevailing in comparable establishments are higher but the financial
capacity of the Company has still to be considered. If the Company is not
able financially to bear the burden of the revised wage system, it may
eventually lead to the closure of its business resulting in the loss of jobs for
the employees. That would not be in the interest of both the Company and
its employees.
It is not disputed that the Company has made profits. However, there
had been a decline. The Company's Annual Statement for the Financial Year
ended March 2009 shows a gross profit of RM2.2 million compared to the
year 2008 where the gross profits was RM3.3. million. Notwithstanding the
said decline, the Company had proposed a wage adjustment of 3%.
The cumulative average increase in the Consumer Price Index (“CPI”)
for the years 2007 to 2009 was 7.42%. The Court is of the view that it is fair
and equitable that that the wage adjustment be fixed at 4.5% which
approximately 2/3 of 7.42%. In coming to its decision the Court took into
the account the following:-
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(a) The general guideline laid down in the case between MalayanMalayanMalayanMalayan
Commercial Banks AssociationCommercial Banks AssociationCommercial Banks AssociationCommercial Banks Association vs. National Union of BankNational Union of BankNational Union of BankNational Union of Bank
Employees Employees Employees Employees [1982] M.L.L.R. 246 or better known as Harun J's
2/3rd principle:
“As a general rule, salary increases based purely on increase in
the CPI should not be less than 60% or more than 2/3 of the
average increase in the CPI over the previous 3 years' period.”
(b) The Company with the 188 employees within the Union's scope
of representation has the financial capacity to meet this
adjustment. Though the Company for the Financial Year ended
March 2009 had a decline in the amount of profits, there is an
increase in the cost of living . The Court acting according to
equity and good conscience is of the considered view that the
adjustment rate of 4.5% is fair and equitable.
We now come to the issue of conversion. The first principle of
conversion from present to new salary is that the employee should not take
home less then what he is at present receiving. Where there is no previous
wage structure and where a new wage structure is established for the first
time, the employee's salary, plus COLA/Special Relief Allowance, if any, will
be adjusted to scale with or without any additional step or steps, depending
upon the financial ability of the Company to pay. But where there is an
established salary scale and conditions of appointment and promotion are
the same or at least similar, conversion on a point to point basis is fair and
reasonable.
27
In this case there is no alteration to the established wage structure
except for the rates. This Court is of the view that the principle of point-to-
point conversion fits in very well. We therefore order that a point-to-point
conversion be adopted for all confirmed employees as at 1.4.2009. Hence
the order will be as follows:-
(i) If the salary of an employee is more than the minimum of the
new scale, convert to the same or the next higher point of the
new scale;
(ii) If the salary of the employee is less than the minimum, convert
to the minimum. However, if the difference between his salary
and the minimum of the new scale is less than one increment
to add one step;
(iii) If the employee is drawing the maximum or more than the
maximum of the new scale, he will continue to draw that scale
on a personal-to-holder basis and be given one increment.
Thereafter, he will not be given any annual increment.
In handing down this award, this Court did, as was required by section
30(4) of the Act, “have regard to the public interest, the financial implications
and the effect of the award on the economy of the country, and on the
industry concerned and also the probable effect in related or similar
industries.” It has also, in compliance with section 30(5) of the Act,
endeavoured to “act according to equity, good conscience and substantial
merits of the case.
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The parties may now draw up their Collective Agreement incorporating
the Articles that are not disputed and those they had agreed upon
subsequently together with the Award of this Court on the disputed articles.
HANDED DOWN AND DATED 22HANDED DOWN AND DATED 22HANDED DOWN AND DATED 22HANDED DOWN AND DATED 22NDNDNDND OF DECEMBER, 2010. OF DECEMBER, 2010. OF DECEMBER, 2010. OF DECEMBER, 2010.
( ONG GEOK LAN )( ONG GEOK LAN )( ONG GEOK LAN )( ONG GEOK LAN )CHAIRMANCHAIRMANCHAIRMANCHAIRMAN
INDUSTRIAL COURT MALAYSIAINDUSTRIAL COURT MALAYSIAINDUSTRIAL COURT MALAYSIAINDUSTRIAL COURT MALAYSIAKUALA LUMPUR.KUALA LUMPUR.KUALA LUMPUR.KUALA LUMPUR.
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