(Speech by the Parliamentary Leader, DAP Secretary-General and Member of Parliament for Petaling, Lim Kit Siang, in the Dewan Rakyat on the Industrial Relations Amendment Bill 1980 on April 4, 1980)
What is most offensive about the amendments to the Trade Union Ordinance and the Industrial Relations Act is the way the Government went about amending these labour laws.
As these labour laws intimately affect workers and trade unions a government which respects trade unions and workers’ role in national development would have fully and intimately involved trade unions in every stage of the review of the labour laws.
This however is not the case. The government, from their internal recesses, which is completely inaccessible to trade unions but open to the influences and approaches of employers and management representatives, finalise amendment proposals and present them to the labour movement virtually in the form of an ultimatum, on a take-it-or-leave-it basis.
So long as the Government behaves so abominably in its relations with the trade unions, and refuses to involve the trade union movement at every stage of deliberation and formulation of policy and laws affecting workers, then so long must the Government stand convicted of being inherently anti-labour and unsympathetic to the legitimate aspirations of the working class.
The tendency of the Government in labour laws has been to concentrate ever-increasing powers in the hands of government officials, whether the Labour Minister himself, or the Registrar of Trade Unions or Director-General of Industrial Relations – with a minimum of check on the exercise of these powers. This have often worked to the disadvantage of the workers.
For instance, one of the most vexing problems in the field of industrial relations is the problem of recognition of trade unions by employers for purposes of collective bargaining.
Originally, disputes relating to recognition matters came under the jurisdiction of the Industrial Tribunal and later the Industrial Court, but the 1969 amendments to the Industrial Relations Act took away the jurisdiction from the Industrial Court and assigned it to the Minister. It is an awful and sorry tale how the Minister of Labour had handled recognition disputes.
For instance, in the case of the Assunta Hospital Senior Staff Association, a trade union registered under the Trade Unions Ordinance, this union had been waiting for nearly four years for the Minister of Labour to decide on the recognition issue although the Ministry of Labour officials had years ago completed all checks on the union membership.
Thus, under the law, employers are required to accord or refuse recognition of a trade union within 21 days after the service of claim of recognition by a trade union. In the event of refusal of recognition by the employer, the matter is referred to the Minister of Labour, who can then sit on the matter for four years doing nothing!
It is now proposed to amend Section 9 of the Industrial Relation Act, which governs recognition claims and disputes, to refer such disputes to the Director General in the first instance, and for its reference to the Minister if the Director-General could not resolve the matter.
This amendment does not have the virtue of expediting resolution of recognition issues, but by intervening another step, will probably make such of disputes take a longer time before any decision – to the detriment of workers and unions!
The failure to take a decision after four years, as in the Assunta Hospital Senior Staff Association case, is an abuse of power. The Minister of Labour and his officials are clearly conscious of this, and hence the attempt to protect themselves from judicial review for their unlawful acts.
The government had proposed to make a decision of the Minister on recognition matters, like other decisions of the Minister in other fields, completely beyond challenge or review in the court of law, regardless as to whether it is unlawful or improper.
Hence this terrible provision in the amendment bill:
“A decision of the Minister under sub-section (5) shall be final and conclusive, and no such decision shall be challenged, appealed against, reviewed, quashed, or called in question in any court and shall not be subject to certiorari, prohibition, mandamus or injunction (whether interim, interlocutory of final) in any court on any account, and no court shall have jurisdiction to entertain any question, on any ground, regarding the validity or propriety of any such decision, or of the continued operation of any such decision, or otherwise in any manner relating to any such decision.”
For the Minister of Labour to claim yesterday that it-was not the intention of the Government that improper and unlawful acts of the executive branch of government should enjoy immunity from correction and be placed beyond the reach of the inherent jurisdiction of our Courts of Law, is nothing but a gross deception, as anyone reading the above proposal to oust the court’s jurisdiction will agree. That this provision is being amended merely to state that the Minister’s decision shall be final and conclusive goes to show that the Ministry had originally tried a coup-de-tat against the courts! The very fact that government Ministers have seriously tried to completely, oust the jurisdiction of the courts to make even their unlawful acts unquestionable in the courts must be a cause of grave concern, although this attempt has been abandoned. This must be condemned unreservedly, so that it would not surface in any other form or any other although it is arguable whether such a tightly-drafted law in future-‘ouster’ clause could in fact protect blatantly unlawful executive acts.
Before I leave the subject of recognition claims, I want to stress that the proper way and forum to resolve recognition claims fairly is to restore to the Industrial Court its original jurisdiction with a procedure for expeditious hearing and award on recognition claims.
The amendment of Section 8 of the Act: so as to enable complaints of contravention of Sections 4, 5, or 7 of the Act to be made in the first instance to the Director General before referring it to the Minister if he is unable to resolve the complaint himself, is purposeless with the new Section 8A, which undermines Section 4, and in particular Subsection 2, aimed at protecting workers from harassment by employers.
New Section 8A reads:
“Nothing in this Act shall be construed as preventing an employer from conveying to his workmen, in such manner as he may deem appropriate, any information on any matter pertaining to any collective bargaining or trade dispute involving such workmen and the trade union acting for them.”
This undermines Section 4(2) of the Act which reads:
“No trade union of workmen and no trade union of employers shall interfere with each other in the establishment, functioning or administration of that trade union.”
New Section 8A will provide legal justification for employers to go behind the back of trade unions to interfere with the functioning of trade union’s conduct of negotiations and collective bargaining, and will be productive of a lot of employer-trade union.”
This amendment is designed to help employers, and illustrates how one-sided are many of the labour law amendments before this House today, and earns the epithet of being anti-labour.
New Section 33A which makes provision for the Industrial Court to refer to the High Court a question of law, and limits the appeal to the High Court, requires deeper consideration. At present, a point of law could be taken all the way to the Federal Court and Privy Council.
The Industrial Court is given the discretion to decide whether to refer to the High Court a question of law –
- which arose in the course of the proceedings;
- the determination of which by the Court has affected the award;
- which, in the opinion of the Court, is of sufficient importance to merit such reference; and
- the determination of which by the Court, raises, in the opinion of the Court, sufficient doubt to merit such reference.
New Section 33B seeks to make apart from New Section 33A, all awards decision and orders of the Industrial Court, including the decision of the Court whether to grant or not to grant an application under Section 33(A) non-justiciable. This is most objectionable in giving to the Industrial Court the power to decide whether to allow their decisions or awards to be tested and challenged in the High Court.
This New Sections 33A and 33B have been introduced at a time when the organised labour’s confidence in the Industrial Court President, Mr. Matthews Abraham, had been greatly shaken by his impropriety and clear breaches of the General Orders.
I had in the budget meeting of Parliament last December brought to the attention of this House and the country the several cases where Mr. Abraham had personally heard where he would very likely bring his private interests into conflict with his public duty, which will be a breach of Section 3(c) of the Public Officers (Conduct and Discipline) (General Orders, Chapter D) Regulations 1969. In these cases, Mr. Abraham had taken loans from several banks and was repeatedly in default in payment, and while in this situation of pecuniary embarrassment, heard and decided on cases involving these banks.
Apart from breaching Section 3(d) of the General Orders, Mr.Abraham had also breached four other General Orders:
They are firstly, Section 3(d), which reads:
“An officer shall not conduct himself in such a manner as he knows, or as can reasonably be expected to know, that such conduct is likely to cause a reasonable suspicion in the minds of the public that:-
- he has allowed his private interests to come into conflict with his public duties and thereby impair his usefulness as a public officer; or
- he has used his public position for his private advantage.”
Secondly, he has breached Section 3(e), which reads:
“An officer shall not conduct himself in such manner as to bring the public service into disrepute or to bring discredit thereto.”
Thirdly, he has breached Section 9 of the General Orders which provides that
“No officer may borrow either as principal or as surety from, or in any manner place himself under a pecuniary obligation to, a person (whether in the Public Service of the Federation or of the State or otherwise), being a person –
(c) with whom the officer has or is likely to have official dealings.”
Fourthly, he has breached Section 10(2) of the General Orders which provides that serious pecuniary embarrassment from whatever cause will be regarded as necessarily impairing the efficiency of an officer and rendering him liable to disciplinary action. Section 10(1) defined serious pecuniary embarrassment” to mean the state of an officer’s indebtedness which, having regard to the amount of debts incurred by him, has actually cause serious financial hardship to him; and the General Orders went on to define that “if the aggregate of his unsecured debts and liabilities at any given time exceeds the sum of three times his monthly emoluments”, this constitute “serious pecuniary embarrassment.”
Although the Deputy Labour Minister, Datuk Pathmanaban, defended Mr. Matthews Abraham in Parliament, a great number of trade unions had cabled to the Prime Minister expressing their lack of confidence in the Industrial Court President, and expressing their decision not to allow any of their cases to be heard by Mr. Abraham.
What is pertinent is that there had been no attempt to deny 4 allegations I made in this House, or even to challenge me to repeat what said outside the Chambers to afford Mr. Abraham the opportunity to clear his own name should he feel that he had been slandered.
Mr. Abraham had since then been taken off from virtually all cases he had originally scheduled to hear, including part-heard cases, and he is now confined to the duties of an elevated Registrar doing purely administrative court work.
This is itself admission on the part of the Labour Ministry and the Industrial Court President of the veracity of my allegations. But the trade union movement and the Malaysian people want to know why the Industrial Court President still continues as President despite these clear breaches of the General Orders. This has not only greatly added to the case load of the other Industrial Court Chairman, but undermined public confidence in the industrial court system.
To restore trade union and worker confidence in the Industrial Court system, it is imperative that a new Industrial Court President be appointed in Mr. Matthews Abraham’s place – unless the Government wants to have a President of the Industrial Court usurping the Court Registrar’s work for the next two years!
I welcome two amendments to Section 30 in the form of new Sub-section 5A, which would enable the Court, in making its award, to take into consideration any agreement or code relating to employment practices between organisations representative of employers and employees respectively where such agreement or code had been approved by the Minister. The other is the new Sub-section 7 which provides that the retrospective date of an award for the reinstatement of a workman may be earlier than six months from the date on which the dispute was referred to the Court.
There should have been a third amendment to provide that an award or collective agreement should continue to be in force until a new award had been made even after the expiration of the period specified in the old award.
This is because wily managements are now resorting to the deplorable practice of withdrawing benefits contained in awards or collective agreements after their expiry pending re-negotiation or a new award, and this clearly is unfair and inequitable.