INDUSTRIAL COURT OF MALAYSIA CASE NO.

1(14)/1-341/09 BETWEEN THE NATIONAL UNION OF EMPLOYEES IN THE ENGINEERING INDUSTRY (PM) KINTA BRANCH AND THE ENGINEERING & MACHINERY INDUSTRY EMPLOYERS' ASSOCIATION (PM) PERAK BRANCH

AWARD NO : 120 OF 2010

Coram :

Y.A. PUAN SUSILA SITHAMPARAM MR. J. GANESAN MURTY

PRESIDENT EMPLOYEES PANEL

EN. KAMARUDZAMAN BIN MOHD. KASBY EMPLOYERS PANEL Venue : Industrial Court Kuala Lumpur. : : 21 July 2009 22 January 2010

Date of filing of Form S Date of Mention and oral submissions Representation

Mr. P. Punasami Industrial Relations Officer for and on behalf the Union. Mr. H.B. Chua Messrs Ong & Partners counsel for the respondent.

AWARD

The National Union of Employees in the Engineering Industry (PM) Kinta Branch (hereinafter referred to as the union) prayed for an order of noncompliance against the Engineering and Machinery Industry Employers' Association (PM) Perak Branch (hereinafter referred to as the respondent) in respect of Article 17, clause (b)(2) and clause (c)(2) of the Collective Agreement dated 17 May 2005 between the parties, Cognizance number 160/2005 (hereinafter referred to as the said collective agreement).

The trade dispute arose when Yoonsteel (Malaysia) Sdn Bhd (hereinafter referred to as the company) which was a member of the respondent did not give its workmen an annual increment of their wages on 1 October 2008. In the previous years it had given an annual increment of workmen on the 1st of October. wages to all its

The representative for the union submitted that the trade dispute arose when the company stopped the annual increments of its workmen on 1 October 2008 when the said collective agreement expired. There were ongoing negotiations for a new collective agreement and the respondent had agreed that its members continue to give their workmen an annual increment whilst

the negotiations were being conducted.

The company was one of twenty

members of the respondent. Two other members of the respondent had also refused to pay its workmen an annual increment. He submitted that there was a provision for the continuity of the said collective agreement until a new collective agreement had been concluded vide Article 3 of the said collective agreement.

Counsel for the respondent submitted that the company was not obliged to give an annual increment to its general workers under the terms of the said collective agreement.

There are three categories of workmen which are referred to in the said collective agreement namely skilled workers, semi-skilled workers and general workers. The said collective agreement only provides that the skilled workers and semi-skilled workers shall get an annual increment of RM1.10 per day. The said collective agreement does not provide for an annual increment to be given to its general workers.

Article 17 clause (b) read: Clause (b) The wages structure of semi-skilled employees shall be as follows :(1) All new semi-skilled employees shall be 3

paid not less than RM18.00 (Ringgit EIGTHTEEN) for per day of work done. (2) Any annual increment of all semi-skilled employees shall be made in accordance to the merit of his performance, but with a minimum of RM1.10 (ONE RINGGIT TEN SEN) until reaching maximum rate of RM22.00..

Article 17 clause (c) read: Clause (c) The wages structure of skilled employees shall be as follows :(1) All new skilled employees shall be paid not less than RM25.00 (RINGGIT TWENTY FIVE) for per day of work done. (2) All employees under this category shall be entitled to an annual increment of

minimum of RM1.10 (ONE RINGGIT TEN SEN) for per day of work done..

There were three witnesses who testified on behalf of the union namely UW1, UW1 and UW3. In their witness statements, they admitted that they 4

were employed by the company as general labourers. They contended that their annual increments were stopped by the company on 1 October 2008. Prior to that they had received an annual increment of RM1.10 per day on the 1st of October of each year until it was stopped on 1 October 2008. They were members of the union whilst UW1 was its Assistant Secretary.

UW1 testified that he was employed by the company on 5 April 2004. In 2007, his wages was RM28 per day. His job function was repairing ladles. When he was given the night shift, he was given an additional allowance of RM28 per day. On 12 November 2009, he was given the morning shift and he was no longer entitled to the additional allowance of RM28 per day which he had received when he was in the night shift vide U-1. When he protested to the reduction in his total wages, he was given an increment of RM3 per day. His current wages is RM 31 per day.

UW2 was employed by the company on 1 April 2005. His job function was manufacturing moulds. In 2007, his wages was RM 28 per day. . His current wages is RM 28 per day. UW3 was employed by the company on 16

April 2004. His job function was pressing. In 2007, his wages was RM23.80 per day. His current wages is RM23.80 per day.

RW1, the Human Resources Officer of the company testified on behalf of the respondent. He stated that the workmen who were employed by the company were either general workers or semi-skilled workers. It did not employ any skilled workers. He tendered the list of workmen who were employed by the company vide respondent's bundle of documents marked as ROB.

It is crystal clear that the three witnesses who testified for the company are general workers and are not entitled to any annual increment under the terms of the said collective agreement. The court found that the respondent had not breached any article in the said collective agreement.

It has not been proved that the respondent had agreed that the workmen who were employed by its members should receive their annual increment from their employers which were members of the respondent. If such as an assurance has been given by the respondent to the union, the company which is a member of the respondent should honour that commitment.

The action by the company to stop the annual increment to its general workers/labourers whilst negotiations for a new collective agreement is ongoing is not conducive for industrial harmony. The change in the shift duty of UW1 who is the Assistant Secretary of the union which resulted in the reduction of his wages is also not conducive for industrial harmony. 6

The court found that the respondent has not breached the said collective agreement. In the circumstances, the application was dismissed.

HANDED DOWN AND DATED THIS 27TH JANUARY 2010

( SUSILA SITHAMPARAM ) PRESIDENT INDUSTRIAL COURT OF MALAYSIA.