Recent Changes to Section 33C of the Industrial Relations Act 1967

The amendments to the Industrial Relations Act 1967 (IRA) took effect earlier this year. One of the changes includes a new section 33C to provide for an appeal on an Industrial Court Award to the High Court. Let's see the amendments and the process below.

The amendments

Before the amendments, the IRA did not have any method of challenging an Industrial Court award. Contrarily, Section 33B(1) had an ouster clause saying that an Industrial Court award should not be challenged, appealed against, reviewed, quashed or called in question in any court. 

Despite it, the Courts have consistently held that an Industrial Court award cannot escape the High Court's judicial interference and supervision by way of judicial review. Do note that this section has been removed after the amendments. 

Section 33C is the latest amendment to the IRA.

Now, the procedure to challenge an Industrial Court award is by way of appeal to the High Court following the new Section 33C. According to this Section, employers should also be aware that the effect of the amended Section 33B: no Industrial Court award for a worker's reemployment or reinstatement shall be subject to any stay of proceedings by any court.

This amendment means that the employer will need to reemploy the worker in its organisation while the dispute is appealed further.

The changes

The new Section 33C introduces changes to the challenge of an Industrial Court award on the procedures and principles aspects:

1. The High Court's intervention

The High Court has broader jurisdiction and power in an appeal to hear the matter on its merits through rehearing instead of a judicial review application. 

The High Court exclusively plays a supervisory role with restricted jurisdiction to review the substance of the Industrial Court's decision inn a judicial review application. The High Court cannot review the evidence and substitute the Industrial Court's finding with its view.

But, the High Court exercising appellate jurisdiction can reassess the evidence and form its analysis. The High Court will be more willing to interfere with the Industrial Court's findings of fact based on inferences taken from other proved facts; or where there is no question of a witness' credibility. 

There are broader grounds and scope to challenge an Industrial Court award in an appeal. But, in a judicial review application, the High Court can nullify the award only if the Industrial Court commits an error of law on 1 of the 4 grounds: 

• illegality, 
• irrationality, 
• proportionality, and 
• procedural impropriety.

The High Court is not restricted to limited grounds of error of law. It can reverse an Industrial Court award if its decision is wrong because of the lack of judicial appreciation of evidence by the Industrial Court, causing an error of law and fact. 

2. Fresh evidence at the appeal hearing

Different from a judicial review application, the High Court hearing an appeal can admit fresh evidence as per Civil Procedure if the judge is satisfied that: 

1. at the Industrial Court hearing, the evidence was not available to the party who seeks to use it or that reasonable diligence would not have made it available.

2. If the fresh evidence is valid, it would have had or would have been likely to have a determining influence upon the Industrial Court's decision. 

3. No more need for leave of Court

An appeal to the High Court in opposition to an Industrial Court award no longer requires the leave requirement. 

The aggrieved party will only need to file a notice appeal within 14 days from the Industrial Court award's date of receipt. The other party can file a cross-appeal notice within 14 days from the date of service on him of the record of appeal. 

But, one will require leave from the Appeal Court to appeal against the High Court's decision if the value or amount of the subject matter of claim (not including interest) is less than RM250,000. The burden is on the applicant to show: 

• A prima facie case of error, or
• The question is one of general principle decided for the first time, or
• The question is of importance upon which further argument and the Court's decision would benefit the public.

The latest amendments have simplified many of the procedures of the IRA.

4. Appeal Court is the highest appellate Court for Industrial Court matters

Based on the latest amendment, the Industrial Court award will be considered a decision from Sessions Court for appeal purposes. Therefore, the Appeal Court is the highest forum to dispute an Industrial Court award. 

Now that the number of challenges of the Industrial Court is decreased from three to two, the whole industrial relations adjudication process would become more convenient and cost-saving. 

5. Shorter term to file an appeal

Section 33C states that one must file an appeal within 14 days from the Industrial Court award's date of receipt. Before this, the duration was three months. Hence, the party would have a shorter time to think about filing an appeal against the Industrial Court award. 

The introduction of a new appeal process allows parties greater latitude to challenge the Industrial Court award's decision promptly.

However, it stays unchanged that the Industrial Court is a forum where a case is decided according to equity and good conscience. It is not burdened with technicalities that are applied in the Court of Law. 

Source: Gan Partnership

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