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It is reported (in the New Straits Times on 28/5/04) that the Human Resources Ministry may be drawing up "new guidelines to refer some cases to the civil court in a move to reduce backlog in the industrial court". The cases contemplated appear to be those involving employees earning more than RM5,000.00 per month.

The Bar Council is perturbed to note that once again there is a suggestion that the civil court system be used in some way to try to resolve the problems of the industrial court.

The ultimate goals, of clearing backlog and providing security of tenure for chairmen of industrial court, are commendable and worthy of support. However, some of the methods repeatedly suggested for the attainment of these goals are a cause for concern. In particular, a "merger" or overlapping of the civil court system and the industrial court system will not bring about a workable solution; for the following reasons:-

(a) The Industrial Court is created by statute, with specific powers to act to resolve industrial relations disputes that concern critical livelihood issues. The Industrial Court is required to act without regard to technicalities. It has, among other things, power to order reinstatement of an employee, which is in effect specific performance of an employment contract.

(b) On the other hand, the civil court system, which has been developed for a different and broader spectrum of purposes, functions by reference to rather different legal principles. For instance, the remedy of reinstatement is not available, and the rules of evidence are much more technical in nature.

(c) The two systems are thus distinct and separate, and should be kept that way. The strength of the Industrial Court lies in the informal and equitable manner in which livelihood issues ought to be quickly resolved. In other comparable jurisdictions, the industrial court system is kept apart from the civil court system. Additionally, what some of these jurisdictions have adopted is an Employment Appeal Tribunal system which ensures that challenges to Awards of the industrial court are dealt with within an Industrial Court Appeal system, rather than by the civil courts (as is presently the case in Malaysia).

The Bar Council supports the suggestion to appoint more industrial court chairmen to help reduce and eliminate backlog. The issue of security of tenure can be resolved by granting them fixed term contracts (up to an appropriate age).

The suggestion of mediation is also a welcome move; save and except that mediation in any given case must not be carried out by the same Chairman who will eventually hear the case if mediation fails. This is crucial under the principles of natural justice.

Reforms are indeed necessary, and the Bar Council has been calling for the same. However, reforms must be carefully thought out and planned, after consultation with all relevant bodies. At a recent meeting, the Bar Council was encouraged to have received the assurance of the Minister that such consultations will take place. The Bar Council looks forward to rendering its assistance in this regard.

Dated 8^th June 2004

Hj Kuthubul Zaman Bukhari
Chairman
Bar Council