PART VI

AWARDS

Form of award
37. An award shall be framed in such a manner as best to express the decision of the Court and to avoid unnecessary technicalities.

Operation of award
38. An award shall not derogate from any right or privilege which an employee has under the provisions of any written law and any term of an award shall, to the extent to which it would so derogate, be null and void.

Commencement and continuance of award
39. —(1) An award shall have effect from the date of the award unless all parties to the trade dispute who appear or are represented before the Court otherwise agree or the Court otherwise directs.

(2) An award shall, subject to this Act, continue in force for a period to be specified in the award not being more than 3 years from the date upon which the award comes into force or, except in the case of an interim award, less than 2 years from that date.

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(3) Where some or all of the persons and trade unions bound by an award, by an agreement registered under section 25, agree that the award or the award as varied by the agreement shall continue in force for a period not being less than 2 years or more than 3 years after the date on which it would otherwise cease to be in force, the award or the award as varied shall as between the parties to the agreement continue in force for such period.

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(4) A Court may, whether or not an award has ceased to be in force, on application by a person or trade union bound by the award, order that the award, or the award as varied by the order, shall continue in force for such period, not being less than 2 years or more than 3 years, after the date on which it would otherwise cease to be in force, as is specified in the order.

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(5) Where an application has been made under subsection (4) and a notice under section 18 has been served either before or after such application —

(a) the proceedings under subsection (4) shall be suspended until the parties concerned have had the opportunity of negotiating and reaching agreement on the proposals made under section 18; and

(b) in the event of failure to reach agreement within 2 months of the date of service of the invitation to negotiate served under section 18, both parties shall notify the Registrar that no agreement has been reached.

(6) On notification under subsection (5) (b), the application under subsection (4) shall be deemed to be withdrawn and the Court shall proceed to determine the dispute as if a joint application under section 31 (a) had been made.

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On whom award binding
40. —(1) An award determining a trade dispute shall be binding on —

(a) all parties to the trade dispute who appeared or were represented before the Court;

(b) all parties to the trade dispute who were summoned or notified, either personally or as prescribed, to appear as being parties to the trade dispute;

(c) all trade unions and persons who, having been notified either personally or as prescribed, of the trade dispute and of the fact that they were alleged to be parties to the trade dispute, did not, before the conclusion of the hearing of the trade dispute, satisfy the Court that they were not parties to the trade dispute;

(d) any successor to, or any transferee, assignee or transmittee of, the undertaking of an employer who was a party to the trade dispute or of an employer bound by the award, including any corporation which has acquired or taken over the undertaking of such an employer;

(e) any successor to a trade union which was a party to a trade dispute;

(f) all trade unions and persons upon whom the award is declared to be binding by order made by the Minister under section 41; and

(g) all members of a trade union bound by the award.

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(2) Where an employer bound by an award has ceased to carry on an undertaking on any premises and another person commences to carry on an undertaking of the same kind on the same premises, that person shall, for the purpose of this section, be deemed to be a successor to the undertaking of the employer bound by the award.

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Minister may extend operation of award
41. —(1) The Minister may, by writing under his hand, request a Court to inquire and report to him —

(a) whether it is desirable in the public interest that the operation of an award be extended so that it shall be binding on any person or trade union or any class or description of persons or of trade unions not already bound by the award, either with or without modifications; and

(b) if so, upon what person or trade union or classes or descriptions of persons or of trade unions and, where applicable, with what modifications.

(2) Where a request is made to a Court under subsection (1), the Court shall inquire into and report to the Minister upon the questions set out in the request.

(3) The Court shall not report that it is desirable that the operation of an award be extended so as to be binding on any person or trade union or any class or description of persons or of trade unions unless it has —

(a) caused to be published in the Gazette and in such other publications (if any) as it thinks fit a notification addressed to that person or trade union or that class or description of persons or of trade unions stating the questions into which the Court has been requested to inquire and specifying a time and place at which the Court will hear trade unions and persons interested and desiring to be heard; and

(b) heard all interested trade unions and persons appearing or represented before it

(4) Where the Court reports that in its opinion it is desirable that the operation of an award should be extended, there shall be included in the report a statement of the terms of a proposed order appropriate to give effect to the opinion of the Court.

(5) The Minister may, if he considers it desirable to do so, make an order in the terms proposed by the Court.

(6) An order made by the Minister under this section shall be published in the Gazette and subject to subsection (7) shall have effect as if it were an award.

(7) The Minister may at any time by notification in the Gazette revoke an order made under this section.

Contents of award
42. In making an award in relation to a trade dispute, a Court —

(a) shall not be restricted to the specific relief claimed by the parties or to the demands made by the parties in the course of the trade dispute but may include in the award any matter or thing which it thinks expedient for the purpose of settling the trade dispute or of preventing further trade disputes and may in fixing wages, salaries, allowances or other remuneration give effect to its decision by prescribing time rates, piecework rates, salary scales, bonus payments, severance pay, or retirement allowances or by such other prescription as it considers appropriate; and

(b) may include provisions requiring an employer bound by the award to keep records relating to employees entitled to the benefit of the award and prescribing the form of such records and the information to be recorded.

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Award to provide for referee
43. —(1) A Court shall, unless it is of the opinion that it would be inappropriate to do so, include in every award a provision for the settlement of disputes between persons and trade unions bound by the award while the award is in force arising out of the operation of the award including provision for the reference of those disputes to a referee.

(2) The referee mentioned in subsection (1) shall be a person to be chosen in a manner provided by the award from among the persons referred to in subsection (3) and the decision of the referee shall have effect as if it were a term of the award.

(3) The Minister shall appoint persons whom he considers suitable as referees and the names of such persons shall be published from time to time in the Gazette and those referees shall be eligible for reappointment.

(4) The appointment of referees shall be liable to be revoked at any time by the Minister but they shall, unless their appointment is so revoked or they resign in the meantime, hold office for a term of 2 years.

(5) The decision of the referee under subsection (1) shall be given within 3 weeks after the completion of the hearing of the trade dispute or matter unless the President otherwise directs.

(6) An appeal shall lie from the decision of the referee to the Court and the decision of the Court on such appeal shall be final and conclusive.

(7) An appeal under subsection (6) shall be made in the prescribed manner within 14 days from the date of the decision of the referee.

Interpretation of award
44. —(1) A Court may, upon application made by a trade union or person bound by an award, give an interpretation of the award.

(2) An interpretation given by a Court shall be final and conclusive and shall be binding on all trade unions and persons bound by the award who have been given an opportunity of being heard by the Court.

Setting aside and variation of award
45. —(1) Subject to subsections (2) and (3), a Court may, upon application by any person or trade union bound by an award, by order vary or set aside any of the terms of an award and shall vary any of the terms of an award if it considers it desirable to do so for the purpose of removing ambiguity or uncertainty.

(2) During the period for which an award is in force, a Court shall not, except for the purpose of removing ambiguity or uncertainty, vary or set aside any of the terms of an award except where the President certifies that by reason of exceptional circumstances it is desirable to do so.

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(3) No award of a Court determining a trade dispute shall be varied or set aside except for the purpose of removing ambiguity or uncertainty.

(4) Where an application for an order to vary or set aside any of the terms of an award has been made, under subsection (1), by any person or trade union bound by an award with the prior agreement of the other party affected by the application, the powers of the Court under this section shall be exercisable by the Court constituted by the President alone.

Variation of collective agreement to conform with award
46. Upon application made to a Court by a party to a collective agreement, the Court may order that the collective agreement be varied so that it may be in conformity with the terms of any award made after the commencement of the collective agreement.

Award to be final
47. —(1) Subject to the provisions of this Act, an award shall be final and conclusive.

(2) No award or decision or order of a Court or the President or a referee shall be challenged, appealed against, reviewed, quashed, or called in question in any court and shall not be subject to any Quashing Order, Prohibiting Order, Mandatory Order or injunction in any court on any account.

Award to be available at office of Registrar
48. —(1) Every award and every order varying an award or affecting the operation of an award shall be deposited with and registered by the Registrar.

(2) The Registrar shall cause copies to be made of every award and of every such order in Malay, English, Chinese and Tamil and copies so made shall be forwarded to the Commissioner and shall be open to inspection at the office of the Registrar.

(3) A person bound by an award or a person authorised by an employer or a trade union bound by an award shall upon application to the Registrar be allowed a reasonable opportunity of comparing a copy of an award or order with the original.

Evidence of award
49. An office copy of an award or order of a Court certified to be true under the hand of the Registrar shall be received in all courts as evidence of the award or order without proof of the signature of the Registrar.

Exhibition of award
50. —(1) An employer bound by an award shall cause true copies of the award and of all orders varying the award, or true copies of the award as varied from time to time, in Malay, English, Chinese and Tamil, to be exhibited and kept exhibited —

(a) at or near the entrance to any premises in or upon which employees bound by the award are employed by him; and

(b) at such other place to which employees employed by him have access as may be specified in the award,

in such a position as to be conspicuous to and easily read by them.

(2) An employer who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction by a Magistrate’s Court to a fine not exceeding $1,000 or to imprisonment for a term not exceeding 6 months or to both.

Contracts contrary to award
51. An employer or a person acting as an agent for an employer who makes a contract or agreement for the employment of an employee on terms and conditions less favourable to the employee than the terms and conditions of an award binding on the employer and employee shall be guilty of an offence and shall be liable on conviction by a District Court to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 12 months or to both.

Penalties for breach of award
52. —(1) Any trade union or person bound by an award who has committed any breach or non-observance of any term of an award shall be guilty of an offence and shall be liable on conviction by a Magistrate’s Court to a fine not exceeding —

(a) in the case of a trade union or an employer, $1,000;

(b) in the case of an officer of a trade union, $500; and

(c) in any other case, $100.

(2) Where in any proceedings against an employer under this section it appears to the Magistrate’s Court that an employee employed by that employer has not been paid an amount which he is entitled to be paid by way of wages or otherwise in accordance with an award, the Court may —

(a) order that the employer shall pay to the employee the amount due to him either in a lump sum or by instalments; and

(b) fix the date or dates on which the lump sum or instalments shall be paid.

(3) Where an amount or instalment ordered to be paid under subsection (2) is not paid on the date fixed by the order, the amount or so much thereof as then remains unpaid shall immediately be recoverable as if it were a fine and the amount so recovered shall be paid to the employee entitled under the order.

Recovery of wages under award
53. An employee bound by an award may recover in any court of competent jurisdiction any amount which he is entitled to be paid by way of wages or otherwise in accordance with the award.

Commissioner’s power to inquire into complaints
54. —(1) The Commissioner may —

(a) inquire into and decide any dispute between an employee and an employer bound by an award as to the employee’s entitlement to any payment by way of wages or otherwise in accordance with the award; and

(b) make an order in the prescribed form for the payment by either party of such sum of money as he considers just without limitation of the amount thereof.

(2) The provisions of the Employment Act (Cap. 91) relating to appeals from decisions and orders of the Commissioner under Part XV of that Act and the mode of procedure for the making and hearing of claims under that Part and the joining of claims shall apply to decisions, orders and claims made under this section.

(3) No fees shall be charged by the Commissioner in respect of processes issued by him under this section.

(4) All orders made by the Commissioner shall, notwithstanding that the same may in respect of the amount or value be in excess of its ordinary jurisdiction, be enforced by a District Court in the same manner as a judgment of that Court and all necessary processes may be served by that Court on behalf of the Commissioner.

(5) No sale of immovable property shall for the purposes of such enforcement be ordered except by the High Court.

(6) If any person complains to the Commissioner that an order made under subsection (1) has not been complied with —

(a) the Commissioner shall take such action as is appropriate for the enforcement of the order; and

(b) no court fees or deposits shall be chargeable in the first instance in respect of the enforcement of the order but the same shall be paid by the person against whom the order is enforced.

(7) Where —

(a) any person complains to the Minister, the Parliamentary Secretary to the Minister or to the Commissioner that a trade union or person bound by an award has committed a breach or non-observance of any term of an award;

(b) the Minister, the Parliamentary Secretary to the Minister or the Commissioner has reason to believe that such a breach or non-observance has occurred; or

(c) the Minister, the Parliamentary Secretary to the Minister or the Commissioner wishes to inquire into any matter for which provision is made by an award or any dispute as to such matter,

the Minister, the Parliamentary Secretary to the Minister or the Commissioner may summon any other person who he has reason to believe can give information respecting the matter.

(8) The person summoned under subsection (7) shall be legally bound to attend at the time and place specified in the summons and to answer truthfully all questions which the Minister, the Parliamentary Secretary to the Minister or the Commissioner may put to him.

(9) Any person who in any way wilfully obstructs the service of or obedience to such summons, and any person summoned who neglects to attend as required by such summons, and any person who commits in respect of any such inquiry or complaint any offence described in Chapter X of the Penal Code (Cap. 224) shall be punished as provided in that Chapter.

(10) If, upon inquiry under subsection (7), the Commissioner is informed by the Minister or by the Parliamentary Secretary to the Minister or is of the opinion that a breach or non-observance of any term of an award has been committed, he shall have the same powers to institute proceedings as he has under Part XV of the Employment Act (Cap. 91) upon inquiry under that Part and the provisions of that Act relating to proceedings instituted by him under that Act shall apply to and in relation to proceedings instituted by him under this subsection.

Inspection
55. —(1) An inspecting officer may —

(a) enter without previous notice at any hour of the day or night all places of employment where he has reason to believe that an employee entitled to the benefit of an award is employed and inspect any work, material, machinery, appliance or article therein; and

(b) make such inquiries as he may think fit relative to the observance or non-observance of the provisions of this Act and of awards and report to the Commissioner thereon.

(2) On the occasion of an inspection, an inspecting officer shall —

(a) show his credentials if requested to do so; and

(b) notify the employer or his representative of his presence unless he considers that such a notification may be prejudicial to the performance of his duties.

(3) In the course of an inspection, an inspecting officer may —

(a) put questions concerning an employee whom he believes to be entitled to the benefit of an award to the employee or his employer or any other person whom he considers it desirable to question and require such person to answer such questions; and

(b) require the employer to produce before him any book, document or other record which he is required by an award to keep or which relate to an employee entitled to the benefit of an award.

(4) An inspecting officer who otherwise than in the performance of his duties reveals any manufacturing or commercial secret which may at any time come to his knowledge in the course of his duties shall be guilty of an offence.

(5) A person who —

(a) hinders or obstructs an inspecting officer in the exercise of the powers conferred by this section;

(b) omits to answer any question which an inspecting officer requires him to answer;

(c) makes to an inspecting officer a statement either orally or in writing which is false or misleading in any particular; or

(d) fails to produce any book, document or record which he is required by an inspecting officer to produce,

shall be guilty of an offence and shall be liable on conviction by a Magistrate’s Court to a fine not exceeding $500 or to imprisonment for a term not exceeding 6 months or to both.

Powers of Court
56. A Court shall have power —

(a) to order compliance with an award proved to have been broken or not observed; and

(b) to enjoin a trade union or person from committing or continuing a contravention of any provision of this Act or a breach or non-observance of an award.

Contempt of court
57. —(1) A Court shall have the same power to punish as contempt of court a failure to comply with an order of the Court made under section 56 as is possessed by the High Court in respect of a failure to comply with an order of the High Court.

(2) The maximum penalty which a Court is empowered to impose under this section shall be —

(a) where the contempt was committed by a trade union, a fine of $4,000;

(b) where the contempt was committed by an employer or an officer of a trade union, a fine of $2,000 or imprisonment for one year or both; or

(c) in any other case, a fine of $500 and, in default of payment of the fine, imprisonment for 6 months.

(3) A Court shall have power to punish an act or omission as a contempt of the Court although a penalty is provided in respect of that act or omission under some other provision of this Act or under any other written law.

(4) For the purposes of enforcing the payment of any fine imposed or giving effect to any order of imprisonment, the President shall have the powers of a Judge of the High Court.

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(5) Where a Court punishes as contempt a failure by a person to comply with an order of the Court, that person shall, during a period of 2 years from the date on which the punishment is imposed, or such lesser period as the Court may determine, be ineligible to be nominated for election as an officer of a trade union or a branch of a trade union or a federation of trade unions or to act as such an officer.

(6) A person who acts as an officer of a trade union, or a branch of a trade union or a federation of trade unions while he is ineligible by reason of subsection (5) shall be guilty of an offence and shall be liable on conviction by a District Court —

(a) to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 12 months or to both; and

(b) for a second or subsequent offence to imprisonment for a term not less than 6 months and not exceeding 3 years.

Suspension or cancellation of award
58. —(1) If it appears to a Court that a number of members of a trade union sufficiently large to form a substantial part of its membership refuse to accept employment in accordance with an award, the Court may, subject to such conditions as it thinks fit, by order cancel or suspend for such period as it thinks fit all or any of the terms of the award so far as the award applies to or is in favour of the trade union or its members.

(2) The suspension or cancellation of the award may be limited to specified persons or classes of persons or to a specified branch of the trade union or to specified localities.

(3) During the period of suspension of an award, a person affected as a present or past member of the trade union by the suspension shall not be entitled to the benefit of any other award.

Exercise of jurisdiction under certain sections
59. —(1) The powers of a Court under sections 25, 35, 39 (4), 41, 43, 44, 56, 57, 58 and 82 shall be exercisable by the Court constituted by the President alone.

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(2) An application to a Court for an order under section 56, 57 or 58 may be made by any trade union or person interested or by the Commissioner, the Registrar or the Attorney-General.