INDUSTRIAL COURT OF MALAYSIA

CASE NO: 24(13)(22)(13)(3)/2-231/15

BETWEEN

KESATUAN PEKERJA-PEKERJA CANON OPTO (MALAYSIA) SDN.BHD.

AND

CANON OPTO (MALAYSIA) SDN. BHD.

AWARD NO: 1285 OF 2018

BEFORE : Y.A. TUAN P. IRUTHAYARAJ D. PAPPUSAMY

CHAIRMAN

Easfari a/p Veloosamy - Employee's Panel

Mohd Zubir Balber bin Abdullah - Employer's Panel

VENUE : Industrial Court Malaysia, Kuala Lumpur

DATE OF REFERENCE : 26.03.2015.

DATES OF MENTION : 30.04.2015, 08.06.2015, 09.07.2015, 28.07.2015,

03.09.2015, 08.10.2015, 09.10.2015, 30.11.2015,
03.12.2015, 24.02.2016, 01.06.2016, 14.07.2016,
21.07.2016, 17.08.2016, 20.10.2016, 22.11.2016,
02.12.2016, 25.01.2017, 15.05.2017, 13.06.2017,
12.07.2017, 27.09.2017, 09.10.2017, 17.11.2017,
23.02.2018, 05.03.2018, 21.03.2018, 23.05.2018,
25.05.2018, 31.05.2018.

DATES OF HEARING : 22.03.2018, 30.03.2018.

REPRESENTATION : A. Sivananthan from Malaysian Trades Union Congress

(MTUC), representing the Union.

Abdullah bin Abdul Karim from Malaysian Employers

Federation (MEF), representing the Company.
REFERENCE:

This is a Ministerial reference made under s. 26(2) of the Industrial Relations Act 1967

(Act 177) (“the Act”) dated 26.03.2015 arising out of the trade dispute between

Kesatuan Pekerja-Pekarja Canon Opto (Malaysia) Sdn. Bhd. (“the Union”) and

Canon Opto (Malaysia) Sdn. Bhd. (“the Company”).

AWARD

THE TRADE DISPUTE

1. At the commencement of the hearing on 22.03.2018, the Representative for the

Union informed the Court that the parties to the trade dispute have agreed and resolved

all the articles for the 2nd Collective Agreement for the period 01.05.2013 to 30.04.2016

(the said period). However, the union stated that the issue that needs to be determined

by this Court is on the Union’s new proposal of a ‘Lump Sum payment of RM1,000.00

(“the proposed Lump Sum payment”) to be paid by the Company to the Union for the

said period. However, the Company was not in agreement with the Union’s stand on its

proposed Lump Sum payment to be paid by the Company to the Union.

2. It is noted that during the hearing, the request for the proposed Lump Sum

payment was made by the Union in open Court after having informed the Court that all

the Articles for 2nd Collective Agreement for the said period had been agreed by the

parties in this case.

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COMPANY’S EVIDENCE

3. During the hearing Company had adduced the following:

(i) Documentary evidence such as the Director’s Report and Audited

Financial Statements for 31.12.2012, 31.12.2013, 31.12.2014,

31.12.2015 and 31.12.2016 to show its financial standing (collectively

marked as COB 8);

(ii) Non-Executive Salary Scheme (COB 6) and Non-Executive Overtime

Record for the Year 2013, 2014, 2015 and 2016 (collectively marked as

COB 7);

(iii) A copy of the Award Kesatuan Eksekutif Canon Opto (Malaysia) Sdn.

Bhd. v. Canon Opto (Malaysia) Sdn. Bhd. [2017] 4 ILR 477.

(iv) The Company has also produced two (2) of its witnesses to rebut the

Union’s unpleaded case of its request for the proposed one lump sum

payment to be paid by the Company for the said period of the 2nd

Collective Agreement, namely, Encik Amir Rashid bin Mohd Talha who

is the General Manager for Human Resources and General Affairs

Division (COW-1) and Ms. Foo Mui Lan who is the Assistant General

Manager of the Company Account Department (COW-2) as well as their

respective witness statements (COWS-1) and (COWS-2) and their oral

evidence at the hearing.

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UNION’S EVIDENCE

4. The Union did not file any Bundle of Documents neither did they produce any

witnesses in support of their case. Furthermore, they did not adduce any single

documentary evidence to support their claim. This is fatal to the Union’s claim as they

had not in the first place pleaded the proposed one lump sum payment as one of the

disputed articles in their Statement of Case to be determined by the Court.

EVALUATION

5. The first question to be asked is did the Union plead the proposed ‘Lump

Sum payment of RM1,000.00 as a material fact and its justification with material

particulars in its Statement of Case?

6. It is our finding that the proposed Lump Sum payment by the Union was not

pleaded as a disputed article in its Statement of Case. If the Union had considered that

the proposed Lump Sum payment was a material fact it ought to have pleaded it with

justified material particulars such as factors relating to public interest, financial

implications and the effect of the award on the economy of the country and on the

industry concerned as well as the probable effect in related or similar industries (“the

said factors”). If the Union had done this, the Company would have had the opportunity

to state its stand on these said factors in its Statement in Reply. Besides this, the Union

had in its written submission at pages 1 and 3 stated as follows:

At page 1, the Union described the “Lump Sum Payment as Ex-gratia payment to

the workers for the period 1.5.2013 to 30.4.2016.”

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At page 3, the Union further stated as follows:

“3.4 The Union’s basis for the lump sum payment is because the period of

the said Collective Agreement is for the period 1.5.2013 to 30.4.2016 which

is as a matter of fact regarded as “spent period”. Thus if the Union pursue

with the 5% (five percent) adjustment in the salary as at 1.5.2013 will lead to

serious financial repercussion for the Company coupled with the

snowballing effect of statutory contribution such as EPF and Sosco.

3.5 Bearing this in mind, the Union to prevent such a situation on the said

salary and other ensuing payment, thus it is appropriate that the lump sum

payment be given instead to the 1,700 (one thousand seven hundred

workers) costing RM1.7 million for the duration of 3 years. So for every

year the cost is around RM570,000 x 3 years is equal to around RM1.7

million.

3.6 Refer COB-2, that is the Award no. 1324/2017 dated 20.9.2017 on the

Collective Agreement between Kesatuan Eksekutif Canon Opto (Malaysia)

Sdn Bhd and Canon Opto (Malaysia) Sdn Bhd, it is ample clear that the

Union requested for the Salary Adjustment which is not in this case before

the Honourable Court. In this case, the Union seeking Lump Sum Payment.

Hence COB-2 is not applicable in this case.”

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7. The Company on the other had in its written submission at page 3 stated as

follows;

“f) One lump sum payment was not mention /proposed in the Union

proposal it was only raised in the open Court during the last negotiation

when both parties had agreed to conclude the second CA;”

8. In our view the proposed Lump Sum payment was a mere request in open Court

by the Union at the commencement of hearing which the Court is not bound to consider

as it is not a pleaded item in the Union’s Statement of Case. Furthermore, the Union

also did not file its Rejoinder to the Company’s Statement In Reply.

9. At this stage it is very important to state the importance of pleadings in industrial

cases. In a recent High Court case of Universiti Islam Antarabangsa Malaysia v. Nik

Roskiman Abdul Samad & Anor [2016] 4 ILR 1 His Lordship Azizul Azmi Adnan JC at

page 6 stated:

“[16] … The Industrial Court is bound by the four corners of the parties’

pleadings, and cannot consider any evidence relating to any fact that has not

been made an issue by virtue of the pleadings. It appears that this is the case

even though the evidence may have been admitted without objection, and

even if the point had been fully ventilated in arguments.

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[17] The authority for this principle is Ranjit Kaur S Gopal Singh v. Hotel

Excelsior (M) Sdn Bhd [2010] 3 CLJ 310. At the Court of Appeal, Low Hop Bing

JCA stated the following:

[19] Our analysis of the judgment in Superintendent of Lands & Survey (4th

Div) & Anor v. Hamit bin Matusin & Ors shows that it was not

concerned with the construction of s. 30(5) and r. 9. Instead, it revolves

around the procedure generally applicable to ordinary civil litigation. It

does not relate to the specialised domain of industrial jurisprudence.

[20] With particular reference to industrial jurisprudence, there are two

weighty authorities, of the (then) apex court, which reflect the second

school of thought, and at variance with the approach adopted in

National Union of Plantation Workers. The first is R Rama Chandran,

where the Industrial Court did not consider the issues raised in the

parties’ pleadings. At p 178b-d (MLJ); p 162b-e (CLJ), Eusoff Chin CJ

(Malaya) (as he then was) set out the relevant principle as follows:

It is trite law that a party is bound by its pleadings. The

Industrial Court must scrutinise the pleadings and identify the

issues, take evidence, hear the parties’ arguments and finally

pronounce its judgment having strict regards to the issues. It

is true that the Industrial Court is not bound by all the

technicalities of a civil court but it must follow the same

general pattern. The object of pleadings is to determine what

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 are the issues and to narrow the area of conflict. The Industrial

Court cannot ignore the pleadings and treat them as mere

pedantry or formalism, because if it does so, it may lose sight

of the issues, admit evidence irrelevant to the issues or reject

evidence relevant to the issues and come to the wrong

conclusion. The Industrial Court must all times keep itself alert

to the issues and attend to matters it is bound to consider.

[21] The second authority was established by another coram of the (then)

Supreme Court in Kumpulan Perangsang Selangor Bhd, which

followed the principle propounded in R Rama Chandran. There, the

Industrial Court had acted on a ground which was not advanced in the

pleaded case. The award by the Industrial Court was quashed: per

Gopal Sri Ram JCA (now FCJ) speaking for the (then) Supreme Court

at p 801F-H.

[22] The existence of the two different schools of thought makes it

imperative for us to indicate our choice for the better view. With

respect, we subscribe to and agree with the principle propounded in

the second school of thought which sets out the correct judicial

approach relating to the specialised domain of industrial jurisprudence.

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 [18] The correctness of this decision was affirmed by the Federal

Court.” [Emphasis is added]

10. Based on the above-mentioned principles of pleading, this Court would firstly, be

committing an error of law by considering and making a determination on the Union’s

proposed Lump Sum payment of RM1,000.00 when in the first place the Union had

failed to plead this material fact together with the said factors in its Statement of Case.

Secondly, it would also be an error of law to even consider the evidence relating to the

Lump Sum payment when the said material fact with its justified material particulars

together with its financial impact had not been pleaded at all by the Union. If these

factors had been laid out clearly in the Union’s Statement of Case, the Company would

have been able to provide their responses adequately in their Statement in Reply.

APPLICATION OF SECTION 30(4) OF THE INDUSTRIAL RELATIONS ACT 1967

11. A further important factor to be considered by the Industrial Court when

determining a trade dispute is the requirement to strictly comply with the provisions of s.

30(4) of the Industrial Relations Act 1967.

12. In a recent Court of Appeal case of Paper and Paper Products Manufacturing

Employees’ Union v. Tri- Wall (Malaysia) Sdn. Bhd. (Civil Appeal No: W-02-429-02-

2012) [2015] 2 ILR 254 made it clear that “Section 30(4) of the Act is a statutory

safeguard which the Industrial Court is obliged to have regard to in making the

award relating to a trade dispute. The mere statement of compliance with s. 30(4)

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of the Act was insufficient to satisfy the requirements of the provision. Further, in

making an award in respect of a trade dispute the Industrial Court is obliged by

law to have regard to (i) the public interest; (ii) the financial implications and the

effect of the award on the economy of the country and on the industry concerned;

and (iii) the probable effect in related or similar industries.”

13. The Union had besides failing to plead the material fact of its proposed lump sum

payment as one of its disputed articles in its Statement of Case it also failed to provide

sufficient particulars relating to the said factors which will enable the Company to

adequately respond to the Unions’ claim in its Statement in Reply.

CONCLUSION

14. In conclusion, the Court in handing down the Award is unanimous in its decision

having taken into account the totality of the submission of both parties and bearing in

mind s. 30(5) of the Industrial Relations Act 1967 to equity, good conscience and

substantial merits of the case with regard to technicalities and legal form.

15. This Court in making its decision has been guided by the principles in s. 30(4) of

the Industrial Relations Act 1967 having regard to the public interest, the financial

implications and the effect of the Award on the economy of the country and on the

industry concerned as well as the probable effect in related or similar industries.

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16. After having applied the above principles of law to the facts of the instant case,

the Panel is of the unanimous decision that the Union’s claim on its proposed Lump

Sum Payment by the Company to its workers is extraneous to the pleadings and

therefore it is without basis. Accordingly the said Union’s claim for the proposed Lump

Sum payment is hereby disallowed.

17. The agreed articles dated 30.05.2018 between the Union and the Company for

the period 01.05.2013 to 30.04.2016 is annexed to this Award and marked as Appendix

“1” which shall form an integral part of this Award.

HANDED DOWN AND DATED THIS 06th DAY OF JUNE 2018

-signed-

(Y.A. TUAN P. IRUTHAYARAJ D. PAPPUSAMY)

CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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