INDUSTRIAL COURT OF MALAYSIA

CASE NO: 22(23)/2-336/14

BETWEEN

KESATUAN PEKERJA-PEKERJA BANK PERTANIAN

MALAYSIA BERHAD NEGERI SARAWAK

AND
BANK PERTANIAN MALAYSIA BERHAD

AWARD NO: 777 OF 2017

CORAM: Y.A. DATO’ MARY SHAKILA G. AZARIAH - CHAIRMAN

MR. CHONG JAN KIM - EMPLOYEES' PANEL
MR. SIA CHIK FOO - EMPLOYERS' PANEL
VENUE : Industrial Court, Kuala Lumpur
DATE OF : 17 April 2014
REFERENCE
DATES OF MENTION : 24 June 2014, 23 July 2014,
26 August 2014, 29 September 2014,
28 October 2014, 18 December 2014,
6 July 2015 and 29 September 2015
DATES OF HEARING : 28 April 2016 and 13 June 2016

DATES OF UNION'S
WRITTEN SUBMISSION: 21 July 2016 and 30 September 2016
DATE OF
RESPONDENT/BANK'S
WRITTEN SUBMISSION: 15 September 2016 and 14 October 2016
REPRESENTATION : Mr. Andrew Lo Kian Nyan of MTUC Sarawak,
Representative for Union.
Mr. Abdullah bin Abdul Karim of MEF,
Representative for Respondent/Bank.
REFERENCES:
This is a dispute under Section 26(2) of the Industrial Relations
Act 1967 (“the Act”) between Kesatuan Pekerja-Pekerja Bank
Pertanian Malaysia Berhad Negeri Sarawak (hereinafter referred to
as “the Union”) and Bank Pertanian Malaysia Berhad (hereinafter
referred to as “the Respondent/Bank”).

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 AWARD

The dispute has been referred to this Court by the

Honourable Minister of Human Resources under 26(2) of the

Industrial Relations Art 1967. This dispute is between Kesatuan

Pekerja-Pekerja Bank Pertanian Malaysia Berhad Negeri Sarawak

(“the Union”) and Bank Pertanian Malaysia Berhad (“the

Respondent/Bank”).

Brief Facts

The matter before this Court is a trade dispute between

Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad

Negeri Sarawak (the “Union”), a trade union of employees and

Bank Pertanian Malaysia Berhad (the “Respondent/Bank”). The

said trade dispute is in relation to the terms and conditions of

employment to be incorporated into the 1 st Collective Agreement

(the “CA”) for the period 1 st January to 31 December 2015. The

Respondent/Bank forwarded its proposal for the CA to the Union

on 27 July 2013 which proposal is exactly the same as the

Collective Agreement that the Respondent/Bank signed with the

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respective unions in Peninsular Malaysia and Sabah. Except for

14 articles that were disputed as at the date of Hearing the Union

was agreeable to the Respondent/Bank's proposal. The Union

also proposed certain amendments/deletions/additions to these

articles together with 4 new Articles. It is contended by the

Respondent/Bank that the CA should follow the Sabah Collective

Agreement. During Case Management the Union agreed to

another 3 of the Respondent/Bank's proposed Articles and agreed

to drop 2 of the 4 new Article that it proposed. Hence this means

that there are 11 Articles in dispute and 2 new Articles that have

been proposed to be inserted into the said CA.

Both parties led evidence in Court during the Hearing

through their witnesses on the Disputed and New Articles

proposed by the Union. The Court has carefully considered all

the arguments put forward by both the Union and the

Respondent/Bank before coming to a conclusion on the disputed

articles of the said CA. The Respondent/Bank has its operations

in the 3 regions of Peninsular Malaysia, Sabah and Sarawak and

have to date concluded the Collective Agreements with Peninsular

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Malaysia and Sabah. However the Sarawak Union that is the

Union in this case have failed to conclude theirs with the

Respondent/Bank. What must be noted is that the

Respondent/Bank proposes that the said CA should be identical

to the Collective Agreement that it has already signed with

Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad,

Sabah for the period 1 January 2013 to 31 December 2015. It is

their contention that the object is to bring uniformity on regional

basis.

Evidence

(1) Disputed Article 1: Scope

The Union's witness, CLW was the President of the Union.

He testified that the Union was granted recognition under section

13 of the Industrial Relations Act 1967 to represent non-

executive employees employed by the Respondent/Bank in

Sarawak. This excluded the managerial, executive, confidential

and security categories of employees. It was his evidence that the

CA should include and be applicable to all employees in Grades

C1, C2, N1 and N2. The Respondent/Bank's witness RW however

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testified that its IT employees should be excluded from the

coverage of the said CA as they are privy to confidential

information of the Bank. RW however did not adduce any

evidence to support his testimony or to support his averments.

As such it remains bare. It is RW's evidence that all

communication including business emails from managerial level

to the lower ranking employee working in the IT Department

would have access to the said emails which the

Respondent/Bank considers to be privilege communication and

should not be accessed by third parties. RW testified that

employees at the IT Department would be privy to these emails

and through them the Union would come to know about it. It is

his evidence that as such employees of the IT Department of the

Respondent/Bank should be precluded from membership of the

Union so that the confidential information remains the domain of

the Management. When cross-examined by the Union's

representative RW agreed that the CA should cover all staff except

those prohibited by section 9 of the Industrial Relations Act 1967.

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 Having heard and perused the evidence of the Union's

witness and that of RW on this Article in dispute the Court now

draws reference to section 9 of the Industrial Relations Act 1967.

Section 9 prohibits any trade union of workmen where the

majority of whose membership consists of workmen who are

employed in managerial capacity, executive capacity, confidential

capacity or security capacity from seeking recognition. I would

rule accordingly that is that the scope of the CA should comply

with section 9 of the said Act and therefore to exclude employees

employed in confidential capacity. And, it is for the

Respondent/Bank to prove that the employees that is those

working in its IT Department or the like, which it wishes to

exclude from the scope of the said CA are employed in a

confidential capacity. No evidence has been tendered in support

of what the Respondent/Bank contends in Court and the Court

cannot be expected to take judicial notice that employees of the IT

Department of the Respondent/Bank are employed in such

confidential capacity. As such on the evidence before it the Court

rules that the Scope of the CA that is Article 1 should strictly

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comply with section 9 to exclude employees proven to be

employed by the Respondent/Bank in confidential capacity.

It must be pointed out that the Respondent/Bank in their

written submission does not list Article 1 relating to the scope of

coverage of the said CA as a disputed Article and has not

submitted on it. It is however noted that it is proposed by the

Respondent/Bank that those in managerial capacity, executive

capacity and confidential capacity be excluded from the scope of

the CA. The Respondent/Bank go on to exclude as employees

employed in confidential capacity as those in Human Resources,

Legal and Secretarial, Finance, Compliance, Internal Audit,

Information System Management, President/Chief Executive

Officer, Personal Assistants, Security and Contract Workers. This

is as per the exhibits that the Respondent/Bank has filed. This is

contested by the Union save for them agreeing to the

Respondent/Bank's proposal to exclude Secretaries and Personal

Assistants and those employed in security in compliance with the

Industrial Relations Act 1967. The Court agrees with the Union

that apart from their averments the Respondent/Bank has not

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submitted or tendered evidence to show why they say that the

employees of the other departments listed by them ought to be

excluded from the CA as they would be performing roles that are

confidential and therefore to be excluded. On the evidence and

facts before it the Court rules that the CA should cover all non-

executives of the Respondent/Bank that fall within the N1 & N2

and C1 and C2 categories. As for contractual workers section 9

of the Act does not preclude their membership with the Union

and therefore the Court rules that the CA should cover them.

(2) Disputed Article 3: Julat Gaji/Salary Structure

The Union proposed that the maximum salary for Kerani

Kanan should be as reflected at page 11 of their Bundle of

Documents marked as “UBOD-1” for Kerani, Pentadbir Am Kanan

and Pentadbir Am RM6,000. No evidence was led by UW on this

proposal but it is submitted that it is the industry practise and

consistent with the Court Awards since 1981 that the basic salary

that is rate for the job be the same for all 3 regions. The Union's

representative cites the case of Sarawak Bank Employees Union

v. Sarawak Commercial Banks Association (Award No. 178 of

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1981) where it was stated that the majority of the Bank

employees in the 3 regions work for the same employers and

perform the same functions. Therefore the principle of rate for

the job should apply to all 3 regions. As far as I know the

position remains the same today. Having said that the Union in

their submission go on to accede to adopt the Respondent/Bank's

proposed Salary as per the Sabah Collective Agreement so that

there is uniformity for salary. The Union submits also that this is

agreed to if I understand them correctly, provided that the Court

awards Sarawak Allowance at the same rates as those paid by the

Government and all Commercial Banks in Sarawak and this must

be included in the CA. This is rather out of place as what in

essence the Union is doing is to hold the Court to ransom that is

to say that if the Court does not agree to give the Sarawak

Allowance proposed by the Union then they will not agree to the

salary proposed by the Respondent/Bank. Any decisions and

rulings by the Court on any disputed articles of a Collective

Agreement will have to be reasoned out and arrived at in

accordance with principles of law and practices. The Court

cannot be dictated to by the Union as to what the Court should

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do. The Union either agrees or disagrees with the proposed

Salary of the Respondent/Bank. It cannot say that it will only

agree provided the Court agrees to give Sarawak allowances in the

quantum that it is claiming. The Union's bargaining should be

with the Respondent/Bank and not the Court.

The Union's justification for higher maximum salaries was

premised on the increase of price of goods in Sarawak in

comparison with Sabah and Peninsula Malaysia. No evidence

was tendered in support of its contention.

In determining this issue as to the salary structure the

Court is required to also consider and does consider the financial

implication and the effect of its Award on the industry practise

and the cost of living for the period covered by this CA. In

considering any revision in the wage system or wage structure it

is well settled principle that justice should be done to the

interests not only of the workers but also of the employer. On the

side of the worker the object of constituting a wage structure

would be to ensure that he obtains a fair wage for his labour. On

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the side of the employer his capacity to bear the burden of a new

wage structure is a primary consideration bearing in mind inter

alia, that it is right that he should be allowed a fair allocation

from the profits to reserves and depreciation and a fair return for

his capital. Since the Union submits and agrees that there

should be uniformity in salaries with that of Sabah the Court

rules that the proposed salary structure of the Respondent/Bank

should prevail in all fairness for this CA. The Court's ruling is

premised also on the fact that generally when fixing wages in an

establishment or concern one of the relevant factors to be kept in

mind is the wages wages paid in other comparable

establishments or concerns in the region. Hence the maximum

salary for Kerani Kanan shall be RM4,800, for Kerani RM3,900,

for Pentadbir Am Kanan RM3,200 and for Pentadbir Am

RM2,700.

(3) Salary Adjustments

It is not disputed as testified by RW that some of the

employees that is members of the Union had signed the Terms

and Conditions of Service that was preferred by the

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Respondent/Bank that is in August 2013. These employees have

had their salary revised which has built into it the Regional

Allowance that the Union claims as a separate Article to be

incorporated into the CA and paid to new employees. In fact the

Respondent/Bank's refusal to agree to this new Article that is

Regional Allowance payment is for this reason. They submit that

Regional Allowance was initial paid to by the Respondent/Bank

when they were under the Government arm and paid to

employees who joined the Respondent/Bank during this period of

time and the Respondent/Bank continues to pay Regional

Allowance to a few employees especially Union members in

Sarawak who refused to accept the Terms and Conditions of

Service preferred by the Respondent/Bank.

It is submitted by the Respondent/Bank that the salary of

those who accepted the Terms and Conditions of Service in 2013

have had their salaries 6½% higher from what was enjoyed by the

employees at that time. The Respondent/Bank therefore feels

that it would be unfair/inappropriate for the Respondent/Bank to

carry out another salary adjustment within a span of 2 years.

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 The Court is reminded that to a large extent in general rates

and wages to be considered are rates and wages prevailing in

comparable concerns in the same industry in the same region

and not concerns in the same industry which are in different

regions or concerns in the same region which are in different

industries or concerns which though they are in the same

industry are not proper for comparison by reason of their being

too large and their having a much bigger capital. In Malayan

Banking Berhad v. Association of Maybank Officers (1988) 2

ILR 350 it was held that the Court has to follow the general

principles of wage fixation it has established over the years. It

cannot throw overboard these principles.

In deciding this issue the Court finds that the Union's

request that the employees under the CA who did not sign the

said Terms and Conditions of Service in August 2013 should not

lose out on having their salaries revised. Otherwise it would

create a state of affairs and discrepancy within the

Respondent/Bank itself that is much to be desired. Then again

the Court agrees with the Respondent/Bank that it cannot be

required to adjust the salaries of all employees within a span of 2

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years. The Court takes into consideration that the

Respondent/Bank is under the Ministry of Finance and subjected

to its policies. It is not a Bank like other commercial banks

operating in Malaysia. Nevertheless the Court rules that to bring

harmony amongst the employees of the Respondent/Bank

the Union's submission amidst the non-challenge to it by the

Respondent/Bank is accepted in that the employees covered by

the CA and who had not accepted the Terms and Conditions of

Service in 2013 shall be paid an amount by way of salary revision

in accordance with the said Terms and Conditions of Service of

2013.

(4) Disputed Article 4: Annual Increments

The Union submits that it has dropped its earlier proposal of

10% with a minimum of RM300 per month as this is not

justifiable. The Union submits that it is now agreeable to an

annual increment that is based on performance and is

commended for the stand taken. The Union however submits

that the Respondent/Bank should not be given an unfettered

discretion in deciding on the increment and therefore the Union

rejects the Respondent/Bank's demand for unfettered discretion

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in regards to this. The Union proposes that there should be

criteria and guidelines and safeguards put in place in the CA

which would be in line with modern and transparent Human

Resources Management, in line with national aspirations the Act

itself and Ministry of Human Resources Guidelines on

productivity link wages system. As such the Union submits that

the Court adopts the relevant article that is Article 11 of the

Collective Agreement that was signed with AmBank. It is

submitted by the Respondent/Bank that the annual increment is

paid by the Respondent/Bank based on the percentage of the

salary received by the employee and also his performance.

What is being proposed by the Respondent/Bank is that this

Article to be incorporated into the said CA should mirror the

article that is enshrined in the CA that has already been signed

between them and the Kesatuan Pekerja-Pekerja Bank Pertanian

Malaysia Berhad, Sabah for the period 1 January 2013 to 31

December 2015. This is to give uniformity to the all Collective

Agreements that the Respondent/Bank would have signed with

the 3 regions.

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 Having perused their submissions respectively and taking

note of the fact that the Respondent/Bank proposal is that the

said CA mirror the same clauses that is enshrined in the

Collective Agreement that has been signed between the Kesatuan

Pekerja-Pekerja Bank Pertanian Malaysia Berhad, Sabah and

itself for the period covering 1 January 2013 to 31 December

2015 and itself the Court is of the view that there is merits in the

submissions of the Respondent/Bank in that the Article 4 to be

incorporated into the CA should mirror the same clause as that to

be found in the Collective Agreement that has already been signed

with Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad,

Sabah. The Union has not convinced the Court that their CA

should be any less different as the the employees perform the

same job scope. The Court rejects the said Union's proposal to

follow the article that is to be found in the AmBank Collective

Agreement for the Court is reminded that annual increment

granted to employees is not intended to absorb inflation or rises

in the cost of living; rather it represents the added value of the

employee in terms of skill and experience, to the employer

[Association of Bank Officers, Peninsular Malaysia v. Malayan

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Commercial Banks Association (1981) 1 ILR 136]. Moreover

the nature of the AmBank's business and size differs from that of

the Respondent/Bank. They cannot be compared.

In making its award the Court has regards to public

interest, the financial implications and the effect of the Award on

the economy of the country and industry concerned and also to

the probable effect in related or similar industries. As stated in

the case of Malayan Agriculture Producers' Association v.

National Union of Plantation Workers (Industrial Court)

(Award No. 8/1968 in I. C. Cases No. 7 and 9 of 1967) where it

was stated that:

“In considering any revision of a wage system or wage

structure it is well settled that justice should be done to

the interest of not only of the workers but also of the

employers. On the side of the worker the object of

constituting a wage structure should be to ensure that

he obtains a wage for his labour. On the side of the

employer his consideration bearing in mind inter alia

that it is right that he should be allowed a fair

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allocation from profits to reserves and depreciation and

a fair return for his capital;

A fair wage has been stated to be a mean between the

minimum or subsistence wage and the living wage. It is

a wage which could be enhanced in gradual stages

towards the progressive realisation of the ideal of a

living wage that is to say a wage sufficient to provide

not only the absolute essentials of food, shelter and

clothing but also for insurance against old age and

misfortunes and for a condition of frugal comfort;

Any decision as to the stage or level at which the fair

wage ought to be is dependent inter alia upon:

(a) the productivity of labour employed by the industry;

(b) comparable wages in comparable concerns in the

same regions; and

(c) the present capacity of the industry to pay and its

prospects in the near future.

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 In the case of Arab-Malaysian Development Berhad

(Award No. 45/87) the Court held that:

“Over the years the Industrial Court including its

predecessors the Industrial Arbitration Tribunal has in

deciding on the question of wage increases generally

taken into account the following factors:

(a) wages and salaries in comparable

establishments in the same region;

(b) and rise in the cost of living since the existing

wages and salaries were last revised;

(c) the financial capacity of the employer to pay the

increases; and

(d) the legitimate desire of the employer to make a

reasonable profit. If the financial position of an

employer is after it has been ascertained weak

the plea of financial incapacity to bear the

burden of a new wage structure or fixation of an

increased wage on an incremental scale cannot

be ignored as it would not be right to compel the

employer to bear the burden of the new wage

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 structure or an increase in wages on an

incremental scale out of capital, for such a

situation is likely to lead to closure of business

which is more detrimental to the employees

themselves...”.

On the question whether wages should be increased it is

necessary, as it was held in Malayan Agricultural Producers'

Association v. National Union of Plantation Workers (supra) to

decide in the first instance whether the prevailing wage rates

require to be increased. If for instance the wage rates were fixed

many years ago and and there has been a material rise in the cost

of living a prima facie case exists. A prima facie case for an

increase also exists as the Industrial Court held in the said case if

the rates paid are lower than the rates paid in comparable

concerns in the same region. And, even if a prima case case has

been made out it would be necessary before any increase has

been decided upon to be satisfied that the financial capacity of

the employer is such as to be able to bear the burden of the

increased wage.

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 Whether in good times or bad times the criteria for an

upward pay revision/wage increase is even if there is prima facie

justification that the cost of living has gone up since the last

revision and that wages and salaries prevailing in comparable

establishments are higher the financial capacity of the Company

to pay and not the economic slow down because firstly in good

times some companies do use money and cannot afford to pay

and secondly in bad times some make millions of dollars in profit

and can despite the general downturn of the economy afford an

upward salary adjustment subject of course to the increase in the

Consumer Price Index and the principle of rates for the job.

The Court also takes into consideration section 30(4) of the

Industrial Relations Act 1967 that is on the probable effect of

the Court's Award on the economy of the country and the relevant

industry. So taking into account the principal factors the Court

needs to consider as well and the submissions of the Union and

the Respondent/Bank in particular that they propose that the

Union should agree to adopt the same Articles as those found in

the Collective Agreement that it has already signed with

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Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad,

Sabah for the period 1 January 2013 to 31 December 2015, the

Court rules that the CA adopts the same article 4 in verbiage as

that enshrined in the Collective Agreement signed with the

Kesatuan Pekerja-Pekerja Bank Pertanian Malaysia Berhad

Sabah. This has already been put into implementation in Sabah

and its effects on the economy of Sabah and the relevant industry

amongst other things is easily ascertained. This means that

Respondent/Bank shall grant the same salary to the Sarawak

Union members as they did to the Sabah employees. This will

bring harmony and uniformity throughout the 3 Regions.

(5) Article 5 – Annual Bonus

It was the testimony of the Union's witness, UW, that the

Respondent/Bank is asking for absolute discretion to pay bonus

meant that the members cannot complain if they do not pay. He

testified that the Union is in agreement that the payment of

bonus should be based on the performance of the

Respondent/Bank and member but that there must be

transparency in the measures adopted by the Respondent/Bank

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in making such payment and that the employee should have a

right to raise grievances. It was his evidence when cross-

examined that the bonus paid out by the Respondent/Bank was

far better than what the Union was asking in the current CA.

RW testified that the Respondent/Bank's policy is to give

priority to the performance of the employee in deciding the

payment of bonus, increment and promotion. He further testified

that the Respondent/Bank has the discretion in deciding whether

to give increment as its business fluctuates and is sometimes

good and sometimes not as it follows global trend.

As held in the case of Kesatuan Kebangsaan Pekerja-

Pekerja Perdagangan v. Kumpulan O'Connors (M) Sdn. Bhd.

(2012) 1 ILR bonus is a form of gratuitous payment of a

discretionary nature. It is therefore not accorded as of right. Its

quantum and payment is linked to profits and the productivity.

The Union submits that it is prepared to move into a performance

Bonus system to be incorporated into the CA but the

Respondent/Bank cannot have absolute discretion on it. The

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Union proposes that the Court adopts the industry practise as

per the Sarawak Commercial Bank Association Collective

Agreement a copy of which has been annexed to their Bundle of

Documents, UBOD. The Union also submits that the Court also

adopts an information sharing clause into the article on

performance bonus. It is stated in the Sabah's Collective

Agreement (which the Respondent/Bank submits should be

adopted whole scale for this CA) the payment of bonus will be the

right of the Respondent/Bank and will depend on the time it is

declared. It states that bonus shall be paid to the members

annually and based on their performance unless the payment of

it has been postponed or held back. Having decided that Article 4

on salary should be the same as in the Sabah Collective

Agreement the Court holds that this Article on bonus should also

follow the Sabah Collective Agreement.

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(6) Article 10 – Promotion

It was the testimony of UW that the Union wanted clear and

transparent guidelines and procedure to prevent cronyism and

unfair treatment. The Respondent/Bank's witness, RW, testified

that promotion was based on the worker's performance which

shall be assessed during a face to face meeting with the worker

and his superior. He testified that there was no need for any

guidelines as the worker would have the opportunity to vent his

views and his interests and expectations during such meetings.

RW further testified that promotion is the Respondent/Bank's

prerogative and the criteria employed by the Respondent/Bank

for this task may change with the needs of the Bank. He

emphasised that this is management prerogative.

The Court agrees with the Respondent/Bank that it is

management's prerogative whether to promote a worker or not.

The Court has perused the like Article on Promotion enshrined in

the Collective Agreement with the Sabah Union. It is the Court's

view that it is very general and devoid of any procedure and

transparency. In Award 27 of 1972 Perak River Hydro-

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Electric Power Co. Ltd. v. Perak Hydro's Employees Union the

Court inter alia held that promotion should be on a justifiable

manner meaning promotion affected in accordance with a

procedure calculated to eliminate the practice of nepotism or

farvouritism. Such a procedure could be by way of

advertisement, interviews and selection based on merit, ability,

qualification and length of service. There should therefore be

guidelines and criteria on promotion. Having perused the facts

and submissions of both parties the Court finds justification in

what is proposed by the Union as opposed to the

Respondent/Bank. Hence the Court adopts the the clauses that

is (i) to (vi) proposed by the Union to be incorporated into the said

CA with the amendment that (vi) be amended to read as follows:

“Upon promotion to a higher position including a grade

immediately above the present the employee's salary

shall be adjusted to reflect an increase which shall be

determined by the Bank”.

( 26 ) 22(23)/2-336/14
(7) Article 25 - Overtime/Elaun Lebih Masa

The Union's submission is that if the employees are required

to perform overtime work their overtime payments shall be paid in

accordance with their salaries. This the Union submits is the

same in the other banks in Sarawak. It is the Respondent/

Bank's submission that for employees whose salaries are more

than RM2,000, the salary use for the computation of overtime

payment be capped at RM2,000, as in the existing practice.

In accordance with the Labour Ordinance of Sarawak,

Employment (Exemption) Order 2005, which came into operation

on 1 October 2005, all non-manual, executive and managerial

employees whose wages are between RM2,001 and RM2,500

covered under paragraph 1 of the schedule to the ordinance shall

not be eligible to claim overtime payment. On the other hand all

manual workers irrespective of the wages will be eligible for

overtime payment without any capping. The latter category of

workers shall be paid overtime according to their wages. This is

the Court's ruling. Both Union and Respondent/Bank are

required to follow the said Sarawak Labour Ordinance,

Employment (Exemption) Order 2005.

( 27 ) 22(23)/2-336/14
(8) Article 36 – Cashier Allowance

The Union submits that the teller allowance has not been

revised since 1996 as such they propose that it be increased to

RM120 a month from RM80 and for Relief Teller from RM50 to

RM5 daily to a maximum RM100 a month. The Union submits

that Bank Islam pays RM306 per month.

The Court has perused Article 26 on this clause enshrined

in the Collective Agreement with the Sabah Union and finds that

its fair and reasonable. The Court finds for the sake of parity and

equal rate for payment this verbiage should be adopted for the CA

in Sarawak. The Union has not told the Court why should it be

any less different for the Sarawak Union members employed by

the Respondent/Bank.

(9) Article 37 – Elaun Penilaian Rahnu

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 It is the Union's submission that this allowance had not

been renewed since 1992. The Union seeks an increase of it from

RM150 to RM250 a month and for relief from RM80 to RM100 a

month. The Respondent/Bank proposes to maintain the current

payment of RM150 for “Penilai Ar-Rahnu” and RM80 for “Penilai

Ganti” per month. The Respondent/Bank submits that this is

the same as for the like workers of the Respondent/Bank in

Sabah and Peninsula Malaysia. It is the considered view of the

Court that again to maintain the balance and adhering to the

principle of rate for pay the Court rules that there should be no

increase in it and agrees with the Respondent/Bank that the

figures should be maintained.

(10) Article 46 - Retrenchment Benefits/Faedah

Pengurangan Pekerja

Having perused the submissions by the Union and the

Respondent/Bank on this Article as retrenchment payments are

governed by the Sarawak Labour Ordinance (SLO) that is for

those workers that fall within the scope of the said SLO the Court

agrees with the Union that it is best left out of the CA because

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those covered by the SLO will still have to be paid the benefits

upon retrenchment.

(11) Article 35 - Funeral Expenses/Pembayaran Bantuan

Pengebumian

The Union's basis for proposing that this should be

increased is based on the fact that the it has not been revised at

all. The Union makes comparison with the average payouts by

Life Insurance Policies but it must be noted that this is hardly a

comparison as the policy holders pay premiums for it under the

life policies. Here the Respondent/Bank pays it as a gesture of

goodwill where the workmen are not required at all to contribute

periodically towards such payments. So the Court finds it hard to

accept the Union's proposal here and accepts the

Respondent/Bank's proposal that it should be maintained at

RM1,000.

(12) Article 28 - Regional Allowance/Elaun Wilayah

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 The Union proposes that its members be paid a monthly

Sarawak Allowance at the rates paid by the government as

Regional Allowance in Sarawak at the rate that is currently

prevailing. The Union submits that is should be paid to the new

employees as the older employees have this allowance

incorporated into their salaries. It is also the submission of the

Union that this is a legacy issue and that they will address it at

the next Collective Agreement. The Respondent/Bank proposes

that it will pay only for 12 months for an employee transferred

from Peninsular to East Malaysia. The Court notes that the UW.1

had testified that the Respondent/Bank had stopped paying the

said allowance since 2013.

Having considered the facts and evidence and submissions

of the parties the Court rules that the verbiage of the article 28

found in the Collective Agreement with the Sabah Union shall

apply to this CA as well and that its verbiage be incorporated into

the CA with the Union. This would be equitable eventuality.

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New Articles Proposed By The Union

(1) Supervisor's Allowance/Elaun Penyelia

The Union submits that this new article should be

incorporated into the CA as it in line with the Government's policy

of encouraging Malaysian workers to acquire higher skills and to

strive for career advancement. It is its submission that it will

benefit the Respondent/Bank in achieving greater efficiency and

cost effectiveness on the job training and is a trend in any

Collective Agreements across most industries.

The Court is however not convinced by the the Union's

arguments and therefore rejects the Union's proposal for the

inclusion of this additional article in the CA.

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(2) Housing Subsidy

Again it is the submission of the Union that this should be

paid to the new employees or where the housing subsidy has not

been incorporated into their salaries. The Court in line with

section 30(4) of the IRA 1967 rules against the insertion of such a

clause and finds no justification in the Union's submissions for

its insertion.

Conclusion

Section 30(4) IRA 1967 requires that:

“In making its Award in respect of trade dispute the

Court shall have regard to public interest, the financial

implications and the effect of the Award on the economy

of the country and on the industry concerned and also

to the probable effect in related or similar industry”.

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 The Court in making its rulings and findings as regards the

disputed articles of the CA is governed by this provision and the

arguments and evidence of the parties. Section 30(5) IRA 1967

further states that the Court shall have regard to equity, good

conscience and substantial merits of the case without regard to

technicalities and legal form in arriving at its decision. Hence the

findings on the disputed Articles have been arrived at bearing in

mind the principles of equity and good conscience.

Having determined all the disputed Articles and taking into

consideration the Agreed Items annexed herewith as the First

Schedule the Court now makes its Award in terms of this Award

and the First Schedule (which forms part of this Award) and in

terms of the paragraphs herein before stated as to the disputed

Articles of this CA.

HANDED DOWN AND DATED THIS 29 DAY OF MAY 2017

Signed

( DATO’ MARY SHAKILA G. AZARIAH )

CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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