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What is an Industrial Court?
An Industrial Court is a court or an arbitration tribunal that is specifically set up to determine, arbitrate and resolve matters involving employer-employee relations such as and not limited to:
- Determine whether an employee is unlawfully dismissed;
- Recognises and register collective agreements that was agreed upon between employers and employees; or
- Arbitrating trade disputes between employer and employees.
Who presides in the Industrial Court?
While a civil court is presided over by a single judge or a panel of judges, the Court in this scenario is presided by a president and two panel of persons who represent the employers and employees respectively. In this regard:
- The president is appointed by the Yang di-Pertuan Agong and must have been in practice as a lawyer for at least 7 years before he can be appointed as a president.
- The panel of persons representing the employers or employees is appointed by the Minister of Human Resources and each panel consists of 6 experience members of the respective panel.
- If they are more than one division of the Court, the Yang di-Pertuan Agong may appoint a Chairman to preside over that particular division of the Court which has the same power and function as the president of the Court.
- The panel that hears, arbitrate, and determines a matter consists of either the president or the chairman and one member from each of the respective panels who is selected by the president of the Court.
Who can represent a party in the Industrial Court?
Party Representative
Trade union Officer or employee of the trade union.
Employer Personally; orDuly authorized employee; or Officer or employee of a trade union of employers, provided that he is a member of the trade union.
Employee Personally; or Officer or employee of a trade union of employees, provided that he is a member of the trade union.
It must be noted that parties can be represented by a lawyer or any official from an organization that is not a trade union. However, a party must first obtain permission from the president or chairman of the Court before he is allowed to be represented by a lawyer or official.
What are the powers of the Industrial Court?
The Court’s powers include but are not limited to :
Ordering any person to appear before the Court and to give evidence on oath or compel the production of books, papers, and documents to aid with the determination and arbitration of a proceeding;
Determining the matter without the presence of a party if the party fails to appear before the court after the party has been served with a notice to appear;
Making an award in relation to a trade dispute or unlawful dismissal cases. Such an award can be (and is usually) in the form of monetary compensation or in the form of reinstatement or reemployment of the employee, if and only if the bridge between the employer and employee has not been burned to the ground; Vary the terms of the award or the collective agreements that have been agreed upon by the parties to the agreement;
or On the application of a party to the proceedings, refer the matter to the High Court as a question of law, subject to its discretion and whether it fulfills the requirements under the law.
What is the effect of Non-Compliance of the Industrial Court Award?
The decision of the Court is final and conclusive and cannot be challenged in any other civil court. A party who is bound by the award regardless of whether it is for an award or collective agreement may file a complaint in writing with the court against the party that refuses to comply with the award.
The court will then direct the non-complying party to comply with the award, order the non-complying party to compensate or rectify the situation, or vary or set aside the award if there are special circumstances to do so. Failure to comply with the direction of the court in such a situation could result in a party being liable for a fine not exceeding RM2,000.00 or subject to imprisonment not exceeding 1 year or both and a further fine of RM500.00 per day until the party complies with the direction of the court.