Taiping Oil Industries Sdn Bhd

- vs -

National Union of Plantation Workers

Judgment

Hashim Yeop A Sani J

1. The applicant is asking for an order of certiorari to quash the decision of the Industrial Court handed down on 3 April 1979 contained in award (exh P8) attached to the affidavit supporting the motion.

2. In the award it is clearly set out that at the commencement of the hearing of the reference under s 26(2) of the Industrial Relations Act, 1967 the Industrial Court found it necessary to hear further evidence to establish the nature of the employment of Mr. Gomez with the applicant company after objection was raised by the other party on the locus standi of Mr. Gomez.

3. At the end of the hearing on this point the Industrial Court came to the conclusion that Mr. Gomez was not a bona fide and permanent employee of the applicant company and therefore had no locus standi in these proceedings. This was the decision sought to be challenged.

4. The applicant gave six grounds on which relief is sought. In my view all the grounds relate primarily to the merits of the case except ground 3 which stated that the “Industrial Court exceeded its jurisdiction in questioning the locus standi of Mr. AB Gomez”. This ground raises the question of jurisdiction.

5. But first, who can represent a party under s 27 of the Industrial Relations Act before its repeal and substitution by Act A484 with effect from 30 May 1980? Section 27 then read as follows:—

   27.	(1)	A party to any trade dispute may be represented, at the proceedings before the court, by any official of a trade union, or of such organisation of employers or workmen in Malaysia as may be approved by the Minister or, with the permission of the President, by a legal practitioner.
   	(2)	A party to any reference to the court, under s 20(3), may be represented, at the proceedings before the court, by any official of a trade union, or of such organisation of employers or workmen in Malaysia as may be approved by the Minister or, with the permission of the President, by a legal practitioner.

6. The arguments of both counsel on this point may be restated briefly as follows. Because of the word “may” appearing in s 27(1) it was submitted on behalf of the applicant that it did not preclude others (i.e. other than the three categories of people specified in the subsection) to represent the party. The first respondent, however, argued that the word “may” only connoted that there was an option or an alternative for the party before the Industrial Court to appear either in person or through one of their representatives. But if it decided to hear and represent the case through a representative then such a representative must be confined to one of the three categories described in that subsection. It follows therefore from this argument that all those falling outside the three categories would have no locus standi.

7. According to the respondent Mr. Gomez was such a case.

8. Let us analyse s 27(1). In my view what it says is simply that a party to any trade dispute may be represented before the Industrial Court by —

   1. any official of a trade union; or

   2. any official of such organisation of employers or workmen in Malaysia as may be approved by the Minister; or

   3. with the permission of the President, a legal practitioner.

   My reading of that subsection is that it is a restrictive provision for by its very language the type of people who can represent a party to a trade dispute in the Industrial Court is specified. It can be seen that in categories A and B only an “official” can represent a party. The word “official” connoted the person concerned held an office, a duty or a position. However this category of officials is not exhaustive in so far as the question of right of representation is concerned. In category C it is not every legal practitioner who can appear as of right but only those with permission of the President.

9. Counsel for the applicant relies heavily on the corresponding Indian provision that is s 36 of the Indian Industrial Disputes Act, 1947. In Printers (Mysore) Pte Ltd v Labour Court Bangalore 1960 Mysore 44 the Division Bench of the Mysore High Court held that that provision is not exhaustive but is only permissive, considering that sub-ss (1) and (2) of that section speak respectively of a workman and an employer being “entitled to be represented”. The argument in the Indian Courts were apparently that when the law lays down that a workman or an employer would be “entitled to be represented” in a particular manner it would be difficult to hold that the right of the workman or employer to be represented in a proceeding must be restricted to that manner only.

10. But in my view our s 27 is differently phrased and should therefore be looked at and construed within the four corners of our Act. Before the amendment by Act A484 the word “party” was defined with reference to a trade dispute to include a trade union of employers representing an employer who is a party to the dispute or a trade union of workmen representing workmen who are parties to a dispute. It would seem to me that the ambit of both s 27(1) and definition of the word “party” was extended by the amendment made by Act A484. For all these reasons I am of the view that s 27(1) of the Industrial Relations Act as then worded was restrictive and not permissive.

11. That leads us to the next question whether the Industrial Court was acting without or in excess of jurisdiction when it entertained the question of locus standi of Mr. Gomez at the commencement of the proceeding. In my opinion the question whether any person has locus standi before any court is a question of procedure for that court. The Industrial Court cannot be said to be acting outside or in excess of jurisdiction when it wanted to satisfy itself as to the capacity of Mr. Gomez to appear before it. I am not prepared to say that by doing so the Industrial Court had “travelled outside the reference” and therefore had proceeded to adjudicate on matters not referred to it. As clearly shown in the award it was a preliminary question and the ruling was a ruling made upon a preliminary objection.

12. In India s 36 of the Indian Trade Disputes Act, 1947 has been held to lay down rules of procedure only and non-compliance with the provisions of that section may amount to irregularity but it cannot vitiate the proceedings or award — see Industrial Disputes Act, 1947 (India) page 73.

13. Section 28 of our Industrial Relations Act provides that the President of the Industrial Court may regulate the procedure and proceedings of the court as he thinks fit and with the approval of the Minister may make rules governing such procedure and proceedings.

14. Section 29 of the Act confers powers on the Industrial Court to act in matters relating to procedure and para (g) of s 29 provides that the Industrial Court may in relation to a trade dispute before it “generally direct and do all such things as are necessary or expedient for the expeditious determination of the trade dispute or the reference to it under s 20(3).” These are clear indications, to my mind, that the question of locus standi of a person is a matter of procedure and perfectly within the competence of the Industrial Court to determine at any stage of the proceeding and its decision on such matters cannot be said to be a decision made without or in excess of jurisdiction.

15. Finally, the applicant also complained that the Industrial Court had violated the rules of natural justice in that it came to its conclusion on its own volition, and in the absence of the parties when it considered the preliminary ruling in Industrial Court Case No 148 of 1977 in which the same AB Gomez was involved. I do not think this allegation is correct at all as it is clearly set out in the award (exh P8) that the Industrial Court came to its decision after examining the various documents submitted by Mr. Gomez himself. In coming to its conclusion the Industrial Court also took note of the observations of the presiding Chairman in the Industrial Court Case No 148 of 1977. Since the preliminary ruling in Industrial Court Case No 148 of 1977 was a public document and was related to the same question the Industrial Court in this case was perfectly entitled to look at it.

16. The Industrial Court has made its finding and it is trite law now that where the Industrial Court has decided on a question and while doing so it has not committed any errors affecting jurisdiction it was as much entitled to decide that question wrongly as it was to decide it rightly. In proceedings of this nature therefore the court is not required to go into the merits of the award and the duty of the court is only to find if the decision challenged was made without or in excess of jurisdiction — see Rex v Northumberland Compensation Appeal Tribunal [1951] 1 All ER 268. Certiorari will not issue as a cloak of appeal in disguise.

17. The application is therefore dismissed with costs.

Cases

Printers (Mysore) Pte Ltd v Labour Bangalore AIR [1960] Mysore 44; R v Northumberland Compensation Appeal Tribunal [1951] 1 All ER 268

Representations

K Chandran for the applicant.

DP Xavier for the respondent.