Judgment

Abdul Kadir Sulaiman, JCA

(delivered the majority judgment of the court)

1. Before the High Court the appellant applied for an order of certiorari to quash the decision of the first respondent making an order under s 20(3) of the Industrial Relations Act 1967 ("the Act") referring the dispute between the appellant and the second, third and fourth respondents, (the affected respondents), to the fifth respondent for an award on the ground that the first respondent had acted outside his jurisdiction or without any jurisdiction. The application of the appellant was dismissed by the High Court with costs. The appellant is dissatisfied with the said decision of the High Court. Hence this appeal to us.

2. On March 13, 2003 we heard the appeal and at the end of it by a majority decision (Abdul Aziz Mohamad JCA, dissenting) we dismissed the appeal. We now provide the reasons for such dismissal.

3. By s 20(3) of the Act the first respondent is vested with the discretion to refer or to refuse the reference of representations made by a workman under subsection (1) to the fifth respondent for an award, upon receiving the notification of the director general that the latter is satisfied that there is no likelihood of the representations being settled. Hashim Yeop Sani CJ (Malaya) (as he then was) in Minister of Labour, Malaysia v Lie Seng Fatt [1990] 2 MLJ 9 at p 12 said:

   So long as he exercises the discretion without improper motive, the exercise of discretion must not be interfered with by the court, unless he had misdirected himself in law or had taken into account irrelevant matters or had not taken into consideration relevant matters or that his decision militates against the object of the statute. Otherwise he had a complete discretion to refuse to refer a complaint which is clearly frivolous or vexatious ....

4. Pursuant to the aforesaid subsection, the first respondent's discretion would be exercised in favour of referring such representations to the fifth respondent only "if he thinks fit" to do so. Otherwise, he has every reason not to do so. In the words of the learned judge of the High Court in the present case:

   In the event that the Minister decided not to refer the dispute to the Industrial Court, the worker or employee would be left without any other recourse concerning his grievances against the employer.

5. Speaking on the discretionary power of the Minister under s 20(3) of the Act, Gopal Sri Ram JCA in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 3 AMR 3181; [1996] 1 MLJ 481 has this to say at p 3229 (AMR); p 513 (MLJ):

   Put simply, the first question which the Minister ought to ask himself is whether the way in which he proposes to exercise his discretion will have the effect of preventing or settling the particular dispute; for that is what the Act is primarily aimed at. However, as I have explained just a moment ago, this approach to the exercise of discretion is only a very general guide because a rigid adherence to it may result in every case being referred to the Industrial Court. That is certainly not what Parliament intended is manifested by its conferment upon the Minister of a discretion whether to refer, or not to refer, a representation to the Industrial Court. The second question that the Minister must ask himself is whether, objectively speaking, the representations made under s 20(1) are frivolous or vexatious. If they are, then he may well be justified in refusing a reference. Whether they are or are not depends upon the facts of each case .... A court may, upon an objective assessment of the facts and material that was placed before the Minister, fairly come to the conclusion that the representation is, or is not frivolous or vexatious and hence merits reference to the Industrial Court for an award.

6. In conclusion, the learned JCA said at p 3237 (AMR); p 519 (MLJ):

   To summarize, when a question arises as to whether the Minister has correctly exercised his discretion under s 20(3) of the Act, it is the solemn duty of a court to undertake a meticulous examination of the facts that were made available to the Minister. If the examination reveals that the representations made under s 20(1) are neither perverse, frivolous nor vexatious, a decision not to refer is liable to be quashed by an order of certiorari. Before proceeding further, there is one other authority which I consider to be of assistance. It is Bombay Union of Journalists v State of Bombay [1964] 1 LLJ 351, where Gajendragadkar J made the following observation (at p 354 of the report): It is true that if the dispute in question raises questions of law, the appropriate government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of facts, the appropriate government cannot purport to reach final conclusions for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under s 10(1) read with s 12(5) or not. lf the claim made is patently frivolous, or is clearly belated, the appropriate government may refuse to make a reference. Likewise, if the impact of the claim on the general relation between the employer and the employees in the region is likely to be adverse, the appropriate government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination on the merits cannot be said to be foreign to the enquiry which the appropriate government is entitled to make in dealing with a dispute under s 10(1) of the Act. It follows from these decisions that the Minister must bear in the forefront of his mind that the Act has established a special tribunal to adjudicate upon a dispute arising from representations made under s 20(1) of the Act, and that it is therefore no part of his function to arrive at a concluded view upon the merits of the dispute. His role is limited to ascertaining whether, on the facts and material placed before him, the representations raise serious questions of facts or of law calling for adjudication. And, as I have already said, his determination upon the question one way or the other is not conclusive.

7. Thus the issue here is whether in deciding to refer the representations of the affected respondents to the Fifth respondent for an award, the first respondent has found it fit to do so in the sense that those representations are not frivolous and vexatious.

8. In coming to the conclusion that the first respondent has acted within his discretion to refer the representations of the three affected respondents to the fifth respondent for an award, the learned judge has this to say in his judgment at p 24 of the record of appeal in encl (21A):

   Based on the facts of the application before me I am satisfied that the decision of the Minister to refer the dispute to the Industrial Court was correct. The representations made by the respondents No 2, 3 & 4 cannot be considered to be vexatious and frivolous. There is serious issue that need to be tried by calling witnesses which issue cannot be properly determined by the Minister based purely on the report of the director general. The serious issue that requires to be determined by the Industrial Court is the relationship between the applicant company and Esso Malaysia Bhd and other Esso Companies in Malaysia. The actual relationship between the applicant and the Esso companies can only be determined if all the relevant documents such as the memorandum and articles of association of each of the companies and also collective agreements between the union and the companies are produced and the provisions properly argued. This can only be done by calling at least a representative of the applicant to give evidence and be subjected to cross-examination by the respondents. The respondents must also be given the opportunities to bring in rebuttal evidence. This is a serious issue because it has bearing on whether respondents No 2, 3 & 4 can be relocated in any of the other Esso companies in Malaysia. As can be seen from the affidavits produced by both parties there exist disputing claims in respect of such relationship. Exhibit LAL-4 as seen by the Minister, can give rise to such relationship whereby respondents No 2, 3 & 4 may be able to be relocated into the other Esso companies on Malaysia.

9. Finding of the existence of a serious issue to be resolved upon consideration of the facts presented to him pursuant to the notification of the director general of unlikelihood of the representations being settled, it is fitting of the first respondent to refer the representations to the fifth respondent for an award. On our part in this appeal, having gone through the records we agree with the learned judge that there is indeed a serious issue which could only be resolved by the fifth respondent. Hence, in the proper exercise of the powers given to the first respondent, there is nothing left for him but to refer such representations to the fifth respondent for an award, which he did.

10. From the evidence of the first respondent as contained in his affidavit in reply to this application of the appellant for certiorari, he considered all the available evidence placed before him in deciding to exercise his discretion in favour of making a reference to the fifth respondent for an award. He considered the content of the documents exhibited to his affidavit as "LAL-1", "LAL-2", "LAL-3", "LAL-4" and "LAL-5" respectively. The first three documents concern the terms of employment of the three affected respondents. There it was mentioned that since the appellant carries "on business throughout Malaysia and have other affiliates of the company, it is expected that you will be willing to work at any location or affiliate to which you may be assigned". In fact exh "LAL-4" provides avenue for the three affected respondents to be absorbed by the other affiliates of the appellant but instead they were being retrenched.

11. Learned counsel for the appellant in his written submission says that the learned judge had erred in law when referring to a passage in the judgment which is:

    On the other hand, by deciding to refer to the Industrial Court, the employer would not be in any way prejudiced to defend its decision. The employer would be completely free to assert that its action against the employee was lawful before the Industrial Court. Therefore, in the light of the above circumstances, I am of the view that the burden on the part of the Minister deciding to refer the dispute to the Industrial Court is very much less that deciding not to refer. For as long as he feels that there is a serious issue of law or issue of facts and law that requires to be determined then he is obliged to decide to refer the matter to the Industrial Court.

12. This is so because either way the Minister acts under s 20(3) of the Act, it involves the exercise of his power. In our view, by such statement by the judge, he has not erred to the extent that this appeal ought to be allowed on that ground. This is because, the learned judge by so saying, was merely making a comparison on the onerous burden placed upon the Minister when called upon to exercise his discretion under the subsection. The learned judge was commenting on the various decided cases referred to him by both parties in their submissions before him on the certiorari application. This is what he says:

    On a perusal of the decisions of the cases mentioned above I have observed that the court was particularly concerned with cases where the Minister had decided not to refer the dispute to the Industrial Court. This is clearly shown in the case of Hong Leong Equipment Sdn Bhd v Liew Fook Chuan, where YA Gopal Sri Ram JCA said:- Thus, when a question arises as to whether the Minister has correctly exercised his discretion under s 20(3) of the Act, it is the duty of a court to undertake a meticulous examination of the facts that were made available to the Minister. If the examination reveals that the representations under s 20(1) are neither frivolous nor vexatious a decision not to refer is liable to be quashed by certiorari. As I have said earlier, the court would be more concerned and would take meticulous examination of the facts if and when the Minister decided not to refer the dispute to the Industrial Court. No mention of such meticulous examination of the facts would be made if the Minister decided to refer the dispute to the Industrial Court. In my view there is valid reason for the court to react in such manner. In the event that the Minister decided not to refer the dispute to the Industrial Court, the worker or employee would be left without any other recourse concerning his grievances against the employer. That would virtually close the employee's claim against the employer. Therefore to arrive at that decision it is of utmost importance that the Minister must have given his fullest consideration of all the relevant facts available to him bearing in mind that a refusal to refer would deprive the employee of any future redress concerning his grievances, thus defeating the very purpose of Parliament enacting the Industrial Relations Act 1967. On the other hand ....

13. We do not think that by such expression, the learned judge is saying that the Minister would be properly exercising his discretion under s 20(3) by not having to take meticulous examination of the facts at all when he feels like referring a representation to the Industrial Court. Unless it is clear on the face of it that a representation notified to him is of a frivolous or vexatious nature, the Minister would have to examine the facts so as to enable him to decide one way or another on the fate of the representation. In the matter before us now, we agree with the learned judge that the first respondent had properly exercised his discretion to refer the representations to the fifth respondent for an award.

14. It is also the submission of learned counsel that, undeniably the appellant has affiliates in Malaysia but for all intents and purpose they are separate legal entities and as such has no control over the affiliates to absorb the three affected respondents on account of the shift of the operation of the appellant from the South Port to the West Port on a common user basis. That being the legal position, its surprising to note from "LAL-4" of the intent of the appellant. Hence the submission has no merit.

15. Learned counsel also questions the authenticity of exh "LAL-4" being unilaterally prepared for the affected respondents without the knowledge of the appellant. But the fact remains that it was in the possession of the first respondent when making the decision to refer their representations to the fifth respondent. How could the said exhibit be in his possession? It must have come from the record of the director general in the process of reconciliation pursuant to s 20(2) of the Act prior to the notification made by him to the first respondent that there was no likelihood of the representations being settled. The matter contained in the said exhibit would surely be one of the topics brought for discussion by both parties before the director general in the reconciliation proceedings before him.

16. It transpired that prior to the making of the representation under s 20(1) of the Act, each of the affected respondents had been paid retrenchment benefits by the appellant. As such, learned counsel submits that it acts as an estoppel against the affected respondents in relation to the representations. This argument, in our view, lacks merit as well because in the first place it is a legal issue as to whether an estoppel operates in industrial cases of this nature. This issue is not for the first respondent to make a decision being an administrative body as opposed to the fifth respondent being a judicial body created by the Act to decide on a legal issue such as this. In any event, this matter was never placed before the first respondent for his consideration for the purpose of him making his decision under s 20(3) of the Act. In Marlin Rajiman v MAA Services Sdn Bhd [1994] 2 AMR 1215; [1994] 2 MLJ 404 the respondent retrenched the appellants who later acknowledged by letter, the receipt of the retrenchment payments. They claimed that they did so under protest. They then made a representation to the director general under s 20(1) of the Act. The matter was notified to the Minister who referred the dispute to the Industrial Court. At the hearing before the Industrial Court, a preliminary objection was raised that they should be estopped from bringing the matter because they had already received their retrenchment payments. The Industrial Court dismissed their claim based on the preliminary objection. They then applied for certiorari to quash the award. The High Court decided that the Industrial Court committed an error going to jurisdiction because estoppel did not, under s 30(5) of the Act apply to industrial adjudication. The High Court confirmed the dismissal of the claim of the appellants. On appeal to the then Supreme Court, the appeal was allowed. Delivering the grounds of judgment of the court, Eusoff Chin SCJ (as he then was) said at p 1218 (AMR); p 406 (MLJ):

    The Industrial Court's award stated that on the preliminary objection alone, the appellants' claim should be dismissed. The learned High Court judge when considering an application for certiorari to quash the award of the Industrial Court correctly decided that the Industrial Court committed an error going to jurisdiction because estoppel does not, under s 30(5) of the Industrial Relations Act 1967, apply to industrial adjudication. The learned judge, however, having scrutinized the Industrial Court's award, stated that the Industrial Court had in its award dealt with the merits of the case as well, and that was because the parties before the Industrial Court had argued on the issue whether the termination of the employment of the appellants was in fact retrenchment. The learned judge found that because the Industrial Court had dealt with the merits of the case, he confirmed the dismissal of the appellant's claim by the Industrial Court.

17. It is, therefore, clear from the authority just cited that in industrial matters such as this, that estoppel does not apply to industrial adjudication in the light of s 30(5) of the Act. Hence, this submission again lacks merit.

18. My learned brother Mokhtar Sidin JCA has read this judgment in draft and stated that he concurred with the reasoning and the conclusion.

19. In the circumstances, we have no alternative but to dismiss the appeal with costs and that the appeal deposit to be credited to the account of taxed costs.

    Abdul Aziz Mohamad, JCA

    (dissenting)

20. On November 27, 1997 the appellant company issued letters to the second, third and fourth respondents ("the three workmen") giving them notice that their positions with the appellant had been made redundant with effect from January 1, 1998 and that therefore their services would no longer be required after December 31, 1997. The reason the appellant gave for the redundancy was that because the Port Kelang authority had directed them to relocate their terminal at South Port in Port Kelang, where the three workmen were engaged, to West Port in Pulau Lumut (now Pulau Indah), they would no longer be operating a terminal at Port Kelang. In their letter the appellant said:

    As you know we have made efforts to find you an alternative position within the organization but to no avail. It is for this reason, you have to be retrenched from the organisation.

21. On December 13, 1997 the director general for Industrial Relations ("the DG") received representations in writing from the three workmen. After taking steps to arrive at a settlement, the DG notified the Minister under s 20(2) of the Industrial Relations Act 1967 that he was satisfied that there was no likelihood of the representations been settled. The Minister decided under s 20(3) to refer the representations to the Industrial Court for an award.

22. The appellant applied to the High Court for an order of certiorari to quash the decision of the Minister. The High Court dismissed the application. The learned judge was satisfied that the Minister had made a proper decision to refer the representations to the Industrial Court.

23. The written representations of the three workmen were not before the High Court or this court. In view of the provisions of s 20(1), however, they must have contended that they had been dismissed without just cause or excuse and have sought reinstatement in their former employment. But because the written representations were not in evidence, there was no evidence of the actual reasons given by the three workmen in their written representations for contending that they had been dismissed without just cause or excuse.

24. The learned judge approached the appellant's application on the basis that "the court was particularly concerned with cases where the Minister had decided not to refer the dispute to the Industrial Court". He said, generally, that that was what he observed on a perusal of the cases cited by both sides to him, but in particular he said that what he observed was clearly shown in a passage by Gopal Sri Ram JCA in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 3 AMR 3181; [1996] 1 MLJ 481. The passage that was quoted was holding (4) in the headnote. I shall, however, quote the actual words of Gopal Sri Ram JCA at p 3237 (AMR); p 519B (MLJ):

    To summarize, when a question arises as to whether the Minister has correctly exercised his discretion under s 20(3) of the Act, it is the solemn duty of a court to undertake a meticulous examination of the facts that were made available to the Minister. If the examination reveals that the representations made under s 20(1) are neither perverse, frivolous nor vexatious; a decision not to refer is liable to be quashed by an order of certiorari.

    After quoting holding (4), the learned judge went on to say:

    As I have said earlier, the court would be more concerned and would take meticulous examination of the facts if and when the Minister decided not to refer the dispute to the Industrial Court. No mention of such meticulous examination of the facts would be made if the Minister decided to refer the dispute to the Industrial Court.

25. The judge obviously read the passage to mean that a meticulous examination of the facts that were available to the Minister is required of the court only when the Minister decided not to refer representations to the Industrial Court, and is not required where, as in this case, the Minister decided to refer representations to the Industrial Court. I thought that that was an incorrect reading of the passage and that therefore the learned judge had taken the wrong approach to the application. The first sentence of the passage applies whenever a question arises whether the Minister has correctly exercised his discretion under s 20(3), that is, his discretion to refer or not to refer. The court has to undertake a meticulous examination of the facts. The purpose of the meticulous examination is to see whether the representations of the workman are perverse, frivolous or vexatious. Some consequence must arise from the result of the meticulous examination, depending on whether it reveals that the representations are perverse, frivolous or vexatious or it reveals that they are not. The second sentence of the passage speaks only of the consequence from a revelation that the representations are neither perverse, frivolous nor vexatious in a case of a decision not to refer, probably because that case was a case of such a decision. The decision is then liable to be quashed. But the second sentence does not mean that in the case of a decision to refer, a meticulous examination of the facts is not required. The requirement, as I said, is in the first sentence. And the meticulous examination may reveal that the representations are perverse, frivolous or vexatious in a case of a decision to refer. The result must be that the decision to refer is also liable to be quashed.

26. I was of the view, based on the passage cited by the learned judge, that he ought to have undertaken a meticulous examination of the facts available to the Minister in this case to determine whether the representations of the three workmen were or were not perverse, frivolous or vexatious. Although at pp 11 and 15 of his grounds of judgment, when he said that he was satisfied that the decision of the Minister was correct and proper, he said that his satisfaction was based "on the facts of the application" before him and on the documents that had been made available to the Minister, the contents of the grounds of judgment were not demonstrative of a meticulous examination of the facts having been undertaken. The judge merely said that the representations could not be considered frivolous or vexatious because there was a serious issue to be determined by the Industrial Court as to the relationship between the appellant company and the Esso companies in Malaysia, that there were "disputing" claims as to the relationship, and that the Minister viewed an exhibit, exh LAL-4, as capable of showing the existence of such a relationship between the appellant company and the Esso companies in Malaysia as would enable the three workmen to be relocated in any of the Esso companies in Malaysia. I shall have something to say about exh EAL-4 later.

27. In support of their application to the High Court, the appellants had exhibited several documents that they had not presented for the purpose of a settlement by the DG under s 20(2) and therefore had not been within the Minister's knowledge when he made his decision under s 20 (3). But a meticulous examination of only the documents that were available to the Minister, which the Minister averred he did take into consideration, would have revealed the following facts about, firstly, the relationship between the appellant company and the Esso companies in Malaysia and, secondly, the events leading to the giving to the three workmen of the notices of retrenchment that I mentioned at the outset.

28. As to the relationship, according to exhs GHT-8 and GHT-11 the Esso companies in Malaysia comprise Esso Production Malaysia Inc, Esso Malaysia Bhd ("EMB") and Esso Borneo Sdn Bhd but do not include the appellant company, the appellant company is a wholly-owned subsidiary of Exxon Chemical Eastern Incorporated, a company incorporated in the United States of America, and there is no reporting relationship between the appellant company and the Esso companies. Exhibit GHT-8 is an official Esso publication. Exhibit GHT-11 comprises information officially forwarded by the appellants by their letter dated July 13, 1998 to the Industrial Relations Department to show that Esso and the appellant company "are two separate legal entities and managed differently worldwide". Since it relates to a point that I shall deal with later, I think that I should quote, from the information supplied, the following bit of information concerning a common collective agreement.

    ECMSB and EMB have a similar agreement with NUPCIW. It was mutually agreed in early 1980 that because ECMSB is a very small company with only 18 employees, it could not afford the resources to negotiate individually with NUPCIW for a separate Collective Agreement. NUPCIW, ECMSB and EMB then agreed that the terms and conditions of the EMB-NUPCIW Collective Agreement would also apply to the agreement between ECMSB and NUPCIW. Prior to the present Collective Agreement, ECMSB had a separate agreement with NUPCIW. The common Collective Agreement does not in any way affect the way in which EMB and ECMSB are managed. Each is managed separately from the other and there is no reporting relationship between the two companies.

29. In that bit of information, ECMSB is the appellant company and NUPCIW is the National Union of Petroleum and Chemical Industry Workers ("the union") of which the three workmen were members.

30. As to the events leading to the notices of retrenchment, the documents available to the Minister should have revealed to him the following.

31. On November 4, 1991, the Port Kelang Authority ("the authority") gave written notice (GHT-2) to the appellant to move the appellant's terminal from South Port in Port Kelang to West Port in Pulau Lumut (now Pulau Indah) by January 1, 1994, the date when West Port was expected to be ready and to start operating. The reason given for the relocation was the policy of the Selangor Government that all petrochemical industrialists be relocated in Pulau Lumut.

32. Although the authority had made an offer of land to the appellant for their operation in West Port, the authority had taken "the strong view that the terminal facility at West Port should be managed on a 'common-user' basis", This would have been apparent from the authority's letter to the appellant dated August 27, 1993 (GHT-3), almost two years later, by which the authority requested the appellant to therefore consider "either teaming up with the common-user operator at West Port or lease the facilities developed by this operator".

33. On May 9, 1994, after the original deadline of January 1, 1994, the authority informed the appellant (GHT-4) that they had not yet been able to get any party to operate on a common-user basis at West Port and therefore the appellant was allowed to continue to operate at South Port.

34. On May 15, 1997 there was a briefing given by the appellant's management to the union at which the union was briefed as to the events leading to the impending closure of the appellant's terminal in South Port. According to the minutes (GHT-13), the following happened at the briefing. The management informed the union that as it was not cost effective for the appellants to set up a new terminal at West Port, the appellant would be leasing "tankages" from a multi-user terminal, whose operator would be handling all operational matters related to the running of the terminal, with the result that the three workmen would be redundant. The management further informed the union that they had briefed the workmen and that they had discussed with them issues that included the questions of their redeployment, of their retrenchment benefits and of the possibility of employment with the operator of the multi-user terminal. As to redeployment, the management explained that they had approached EMB for possible redeployment, but had been officially informed that EMB could not accommodate the three workmen, and that the appellant and EMB being separate entities that reported to different managements, the appellant could not force EMB to accept the three workmen. As to employment by the operator of the multi-user terminal, the management explained that they had approached the operator to assess their willingness to employ the three workmen, but the operator had not given any commitment.

35. The union informed the management that the three workmen's first preference was to continue employment in "the Esso family" but, failing that, the union requested the management to consider additional compensation. The management's response was that the "base case" retrenchment benefits would be according to the collective agreement and that they could not give an assurance of additional benefits but would review the request with the regional management.

36. As to the date of closure of the appellant's terminal, the management said that they expected all major operations would cease by end of October 1997.

37. On May 20, 1997 the appellant issued to the chairman of the union a notice (GHT-14) that was said to be given "consistent with" article 70 (redundancy) of the collective agreement between the appellant and the union. It said that following the direction of the authority, the appellant's terminal would cease operations at South Port and that their operations would be moved to a common-user terminal to be operated by a third party at West Port. The move was expected to be completed by end of October 1997. The notice said that the three workmen would "be surplus to need in the common user terminal, which are manned by workers employed by the owners of the common user terminal".

38. On October 20, 1997 a meeting was held at which the union and the appellant's management reached an agreement. The matters agreed upon were summarized in a letter dated December 18, 1997 from the appellant to the union (GHT-16), headed ECMSB PORT KELANG TERMINAL CLOSURE - AGREEMENT WITH UNION. Among the matters agreed were that as there were no alternative suitable positions to which to re-deploy the three workmen, the appellant had no option but to retrench them with effect from December 31, 1997; that retrenchment benefits would be in accordance with article 70 (redundancy) of the collective agreement (GHT-18); that the appellant would send out a letter by end of November or early December notifying the three workmen of their retrenchment. The letter ended with an expression of appreciation and gratitude to the union for its co-operation "in resolving the issue".

39. On November 27, 1997 the appellant issued to the three workmen the retrenchment letters that I mentioned at the outset. It is exh GHT-17. I need only add that the reason for the redundancy given in the letters was as "advised in our earlier meetings and discussions with you and your union". The letters also said that the workmen would be paid redundancy benefits in accordance with the collective agreement. On December 29 and 30, 1997 the appellant sent to the three workmen a computation of the amounts due to them as a result of their ceasing to be employees of the appellant from January 1, 1998.

40. The events that I have related, which are evidenced by documents available to the Minister, show that the relocation of the appellant's terminal to West Port was a matter beyond their control, that because the appellant's requirements at West Port were to be supplied by the common-user operator the services of the three workmen for the purposes of the appellant's operations at West Port became redundant, that the appellant had endeavoured to find other positions for them but no position was available, that the appellant and the Esso companies were separate legal entities under separate managements and therefore the Esso companies could not be compelled to absorb the three workmen, and that all that was accepted by the union and, through the union, by the three workmen in the agreement reached on October 20, 1997. It was a clear-cut case of a bona fide retrenchment, which a meticulous examination of the documents available to the Minister would have revealed to the judge. Since the judge took into consideration what the Minister said in his affidavit that was before the judge, I proceed now to set out what the Minister said.

41. The Minister stated several things from which he concluded in paragraph 18 of his affidavit that there were issues of law and fact to be determined, and that therefore the workmen's representations (the nature of which was not stated) were not frivolous and vexatious. The things that the Minister stated were in paragraphs 11, 12, 13, 14, 15, 16 and 17.

42. In paragraph 11 the Minister said that the DG had reported to him that the three workmen had informed him, the DG, that they had not been informed that there were no vacant positions in the Esso companies in Malaysia and had alleged that the appellant had failed to take the initiative to relocate them to other positions in the appellant company or the Esso companies. As to being informed of the non-existence of vacancies in the Esso companies, the Minister would have seen from exh GHT-13 that on May 15, 1997 the union was informed that EMB could nor accommodate the three workmen. The union being informed, the workmen would have been informed through the union. Exhibit GHT-13 being official minutes of a meeting, the Minister would have had no reason, and no reason was suggested by anyone, for doubting the truth of what was recorded in them. As to initiative to relocate the workmen in the Esso companies, the Minister would have seen from exh GHT-13 that the appellant had approached EMB for possible redeployment. The Minister further would have seen from exhs GHT-8 and GHT-11 that the appellant company was a separate legal entity from the Esso companies and would not have been in a position to foist the three workmen on them. As to employment in another position with the appellant company, it would have depended on the existence of vacant positions to which the three workmen could have been suitably relocated consistently with the needs of the appellant, and if the workmen wished to contend that there was an issue as to that, they had to say it and show something in support of it that could provide a reason for thinking that the issue ought to be determined by the Industrial Court, but it was not sufficient to merely complain that the appellant had failed to relocate them in other positions. Had the Minister, and the judge, considered what according to the DG the three workmen had stated and alleged, as stated in paragraph 11, after a meticulous existence of the documents available to the Minister, they would have seen that the statement and allegation were frivolous.

43. In paragraphs 12 and 13, the Minister stated that in the letters of appointment of the three workmen the appellant had stated that they carried on business throughout Malaysia and that the three workmen were expected to be willing to work in any part of Malaysia. That, however, was merely a caveat to reserve to the appellant the right to relocate the workmen anywhere should the need arise. It was not a guarantee or a representation for their benefit that a position would always be available for them in some part of Malaysia.

44. In paragraph 17 the Minister stated that he had been informed by the DG that the collective agreement showed that there was some relationship between the appellant and EMB. But if the Minister had read the information given by the appellant in exh GHT-8 that I have quoted about the appellant sharing the same collective agreement with EMB, he would have seen the reason for it and that it was not such a relationship as would enable the appellant to foist the three workmen on EMB. The Minister would have seen no reason to reject the quoted explanation. The Minster further stated in paragraph 17 that the existence of the relationship was supported by the fact that in the meeting between the appellant's management and the union on May 15, 1997 and in another meeting, one Mr. Bon Sian Son, an officer from EMB, participated as one of the three representatives of the management. It will be recalled that at that meeting the management explained that the appellant and EMB were separate entities reporting to separate managements and therefore the appellant could not force EMB to accept the three workmen. Had the Minister given a thought to the matter, he would have considered that if the management had intended to give an untrue explanation they would not have included in their team an Esso man whose participation in the team could provide cause for suspicion that the information was not true, and that there must be some other explanation for Mr. Bon's being part of the management team than that, contrary to the explanation given, there was such a relationship between the appellant and EMB as would have enabled the appellant to make EMB take on the three workmen. And before the judge there was such an explanation, in paragraph 24 of the appellant's affidavit in reply to the Minister's affidavit. The explanation was that Mr. Bon was the industrial relations officer of EMB and his presence at that meeting and other meetings was pursuant to an agreement whereby the appellant bought industrial relations services from EMB.

45. l have jumped paragraphs 14, 15 and 16 of the Minister's affidavit because these were the paragraphs that referred to exh LAL-4 that I mentioned before and I feel that it would be convenient to deal with them last because before dealing with what the Minister said in those paragraphs I have something to say about that exhibit.

46. The Minister introduced that exhibit in paragraph 14. He described it as a statement of the union. He introduced it with the words "I have studied" the statement. The statement was headed "Background to Esso Chem Lay Off and was not dated. It was not the minutes of any meeting. It was not from any official publication. It was not signed by anybody. It contained five paragraphs of scraps of information and a final paragraph stating that the appellants should make an effort to absorb the three workmen "in Esso Tasek Plant or in Esso Refinery Port Dickson". The appellant, in paragraph 14A of their affidavit in reply, said this through their managing director about the exhibit:

    I state that it is within my personal knowledge that this document was never at any time forwarded to the Company and as such it was never within the Company's knowledge. Nevertheless, with the benefit of sighting it at this late stage, I verily state that exhibit "LAL-4", a unilateral statement left unchecked for its veracity, is full of inconsistencies and inaccurate.

47. The Minister's affidavit, which was exhibited as LAL-4, was dated December 23, 1998. According to paragraph 4 of the Minister's affidavit, it was on August 17, 1998 that the DG notified the Minister under s 20(2) of the unlikelihood of the representations being settled. I inferred from the quoted statement in the said paragraph 14A of the appellant's affidavit, particularly from the mention of sighting of the exhibit "at this late stage", that it was only from the Minister's affidavit that the appellant came to know of the exhibit and that therefore it had not been available to the Minister when the DG reported to him on August 17, 1998. There had been no reply to the appellant's affidavit to explain when and how the exhibit came to be made available to the Minister so as to falsify the inference that it came to the Minister otherwise than in the course of the efforts at a settlement under s 20(2).

48. I need not state what the appellant stated in their affidavit to be the inconsistencies and inaccuracies in the exhibit because staling it is not necessary for dealing with the matters that the Minister actually stated in his affidavit about the exhibit.

49. In paragraph 14 the Minister said that the statement, that is exh LAL-4, showed [translation] "absorption of workers and closed plants". That was the only material thing that he said in that paragraph. He did not say how the information operated on his mind. He was obviously referring to paragraph 3 of the statement which set out three instances of closure of EMB plants where the affected workers were absorbed in other places. If the Minister had said that those instances showed that the three workmen in this case might have been absorbed in the Esso companies he would have been in error because the instances were instances of relocation within the Esso companies and not instances of employees of the appellant company, which according to reliable material before him was not an Esso company, being relocated in an Esso company.

50. In paragraph 15 the Minister referred to a statement in paragraph 4 of exh LAL-4 and a statement in the appellant's letter to the union dated December 18, 1997, already mentioned, summarizing the agreement reached between the appellant's management and the union. The statement in paragraph 4 of LAL-4 was this:

    ECM at meeting with union on 29/12/97 informed that they had no obligation to absorb the 3 ECM employees in other affiliates.

51. ECM was the appellant company and December 29, 1997 was also the date on which the appellant gave to the three workmen statements of the amounts due to them upon retrenchment. The statement in the appellants' said letter, which was in paragraph 1, was this:

    As there were no alternative suitable positions to re-deploy the three (3) employees, the company had no other options but to retrench them with effect from December 31, 1997.

52. The Minister, however, while seeming to imply in paragraph 15 that the two statements were inconsistent, did not say in that paragraph what to him the inconsistency was and what it meant to him. Having no obligation to absorb the workmen was not inconsistent with making efforts all the same to absorb them.

53. Paragraph 16 of the Minister's affidavit had to do with the letter dated December 18, 1997, already mentioned, from the appellant to the union minuting the agreement reached on October 20, 1997 between the appellant's management and the union. That letter had been exhibited by the appellant (exh GHT-16) in support of their averment in paragraph 18 of their affidavit in support of their application that "it was at this meeting that the issues of redundancy were finalised with the [union]". In his paragraph 16 the Minister said that exh LAL-4 showed otherwise. There was actually nothing in that exhibit that ought to make the Minister doubt the genuineness of the letter dated December 18, 1997 and the truth of the matters minuted in it. What the Minister meant as being shown by the exhibit was nothing more than that after and despite the agreement with the union on October 20, 1997 the three workmen refused to let the matter rest, a fact which the Minister would have recognised from the mere fact of the three workmen making representations under s 20(1) without even having to be shown it through exh LAL-4, a fact which of itself could not render the representations or the presumed dissatisfaction behind them as something that was neither perverse, frivolous nor vexatious.

54. Those then were the matters from which the Minister said he found that there were questions of law and fact to be decided. Had the Minister given careful thought to those matters in the light of the documents available, he would have seen, as I have attempted to show, that there was nothing in them. The Minister, therefore, in arriving at his decision to refer the three workmen's representations to the Industrial Court, had taken into account irrelevant considerations, thereby failing to take into account the proper considerations that should have weighed on his mind.

55. For that reason I was of the view that his decision ought to have been quashed and that the appeal ought to be allowed.

Cases

Minister of Labour, Malaysia v Lie Seng Fatt [1990] 2 MLJ 9; Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 3 AMR 3181; [1996] 1 MLJ 481; Marlin Rajiman v MAA Services Sdn Bhd [1994] 2 AMR 1215; [1994] 2 MLJ 404

Legislations

Industrial Relations Act 1967: s.20, s.30

Representations

Edward Saw and Andrew Saw (Ng Yook Woon, Andrew TC Saw & Co) for appellant

Amarjeet Singh, SFC (AG's Chambers) for respondents

Notes:-

This decision is also reported at [2004] 2 AMR 8