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INDUSTRIAL COURT OF MALAYSIA

CASE NO : 1/1–772/18

BETWEEN
MOHD. SHAFIQ HELMI BIN SOHARI

AND

NEXT LOGISTICS SDN. BHD.

AWARD NO : 1298 OF 2018

CORAM : YA TUAN EDDIE YEO SOON CHYE - PRESIDENT


EN. MOHD. EFFENDY BIN ABDUL GHANI - EMPLOYEES' PANEL
PN. HEZLINA BINTI HASHIM - EMPLOYERS' PANEL

VENUE : Industrial Court Malaysia, Kuala Lumpur.

FILING OF FORM S : 05.03.2018

DATE OF MENTION : 17.04.2018.

DATE OF HEARING : 04.06.2018.

REPRESENTATION : Noorshazlia Binti Razali of Messrs Hafiz Zubir & Co.;


Counsel for the Complainant.

Mohd. Suharin Bin Sulaiman Siew (Aimi Farhana Binti


Mohd. Yusof) of Messrs Aimi Farhana & Partners;
Counsel for the Respondent.

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AWARD

[1] The complaint of non-compliance in Forms S filed pursuant to s. 56 (1) of the

Industrial Relations Act 1967 & Rule 24 A of the Industrial Court Rules 1967 filed on 5

March 2018 in the matter of Industrial Court Case No. 3/4-937/15 (Award No. 1774 of

2017 dated 8 December 2017) between Mohd. Shafiq Bin Sohari v. Next Logistics

Sdn. Bhd.

[2] The complaint lodged by the Complainant in relation of the following provision in

paragraph 44 of the said Award has not been complied as follows:

“that the total sum of RM 53,400.00 shall be paid by the Company to the Claimant
through his solicitors Messrs Hafiz Zubir & Co. within 40 days from the date of the
above-mentioned Award dated 8 December 2017.”

Complainant's submissions

[3] The Statement of Case was filed on 3 May 2018 and states the Award No. 1774 of

2018 (reported in [2018] 1 ILR 155) dated 8 December 2018 allowing the Claimant's claim

and the said Award was served on the Respondent's solicitors Messrs Aimi Farhana &

Partners on 13 December 2018.

[4] The Complainant prays for an order of non-compliance against the Company under

s. 56 (2) (a) (i) IRA. The Complainant's counsel submits that the Company has yet to

comply with the Award. Counsel urged the Court to order compliance of the said Award

by the Respondent.

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Respondent's submissions

[9] The Respondent's counsel submitted that the Company does not have the intention

to disobey or ignore the Award. The application for judicial review filed in the Kuala

Lumpur High Court No. WA-25-69-03/2018 is now fixed for hearing on 29 August 2018.

The Respondent requested for the payment of the said sum to be put on hold pending

disposal of the application for judicial review. The interim stay granted by the High Court

expired on 3 May 2018. According to the Respondent, the award sum is substantial

wherein it would be impractical and would caused unnecessary inconvenience in terms of

cost and time for the Company to recover it from the Claimant should the Respondent's

application for judicial review is allowed.

The Law

[10] The Industrial Court in the case of Kesatuan Pekerja-pekerja Perkilangan

Perusahaan Makanan v. Gold Coin Specialities Sdn. Bhd. [2017] 2 ILR 260 at p.

262 referred to the case of Holiday Inn, Kuala Lumpur v. National Union of Hotel,

Bar and Restaurant Workers [1988] 1 CLJ 133 in relation the application of section 56

of the Industrial Relations Act 1967, where the Supreme Court decided as follows:

“Now, section 56 is concerned with the enforcement in a summary manner


of an award made by the Industrial Court or of a collective agreement
which has been taken cognisance of by the court under section 17 after a
complaint has been lodged as to its non-compliance. The non-compliance of
a term of the award or collective agreement must exist as an antecedent fact
before the Industrial Court can exercise its power contained in subsection (2)
thereof. It is therefore, a condition precedent to the exercise of those powers
that there should be in existence a breach or non-observance of a term of
the award or collective agreement. There must be satisfactorilyestablished by
the complainant.”

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[11] In the case of Dragon & Phoenix Berhad v. Kesatuan Pekerja-pekerja

Perusahaan Membuat Tekstil & Pakaian Pulau Pinang & Anor. [1990] 2 ILR 515 at

p. 616, the Supreme Court decided as follows:

“In a complaint of non-compliance with any term of a collective agreement


or award under section 56 of the Industrial Court should, as a general rule,
look at the terms of the contract by confining itself to within the four walls of
the collective agreement or award and decide whether the term has or has
not been complied with. It is purely enforcement function.”

Decision

[12] In respect of “Non-compliance with award” section 56 of the IRA reads as

follows:

“(1) Any complaint that any term of any award … by the Court has not been
complied with may be lodged with the Court in writing by … any person
bound by such award..

(2) The Court may, upon receipt of the complaint,-

(a) make an order directing any party -

(i) to comply with any term of the award ...”

[13] The Court is of the unanimous view that the terms of the Award has not been

complied and without reasonable grounds the Respondent failed to pay the Complainant

the sum of RM53,400.00 less statutory deductions if any within 30 days from the date of

the said Award. The Respondent failed to produce any documents to show that his

financial status in order for the Court to assess the Company's ability to pay the award

sum.

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[14] The application for judicial review by the Respondent shall not operate as a stay of

execution. The Federal Court in the case of Kosma Palm Oil Mill Sdn. Bhd. v.

Koperasi Serbausaha Makmur Bhd. [2004] 1 MLJ 257 at p. 263, 264 held as follows:

“[7] An appeal shall not operate as a stay of execution unless the court so
orders. Accordingly, as Brown J said in Serangoon Garden Estate Ltd. v. Ang
Keng [1953] MLJ 116 while commenting on the discretion to grant a stay:

But it is a clear principle that the Court will not deprive a successful
party of the fruits of his litigation until an appeal is determined, unless
the unsuccessful party can show special circumstances to justify it.

[10] His Lordship (in the case of Alexander v. Cambridge Credit Corp Ltd
[1985] ACLR 42) then said at p. 610:

… the paramount consideration governing an application for a stay of


execution is that the appeal to this court, if successful, should not be
rendered nugatory. If upon balancing all the relevant factors, this
court comes to the conclusion that an appeal would be rendered
nugatory without the grant of a stay or other interim preservation
order, then it should normally direct a stay or grant other appropriate
relief that has the effect of maintaining the status quo.

[15] Based on the reasons adumbrated above and upon hearing submissions from both

the Complainant's and the Respondent's counsels, the Court unanimously makes an order

pursuant to s. 56 (2) (a) (i) IRA 1967 directing the Respondent to pay the Complainant

through his solicitors Messrs Hafiz Zubir & Co. the sum of RM53,400.00 less statutory

deductions forthwith.

HANDED DOWN AND DATED THIS 6TH JUNE 2018

~signed~

( EDDIE YEO SOON CHYE )


PRESIDENT
INDUSTRIAL COURT MALAYSIA

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