History Of Labour Court
By I.R. Price - former Commissioner of Labour.
1. As far
as can be ascertained from reference to old legislation, the special
provisions of the law giving labourers the right to go to a 'Labour
Court' first appeared in Malaya in the Perak Enactment No. 24 of 1899.
It is believed that there is reference to a 'Labour Court' in an older
Enactment, but no copy of this can now be traced. These 'Labour Courts'
in Malaya were originally created for the purpose of inquiring into
complaints made by Chinese labourers, particularly those employed on
tin mines. These special provisions were repeated in the F.M.S. Labour
Enactments of 1904, 1910 and 1923 and continued, in a practically unchanged
form, to give only Chinese labourers this special right. However, in
1925 an amendment gave non- Chinese the right to join Chinese labourers
in their complaints against their employers in the 'Labour Court',
provided that these non-Chinese were employed on the same place of
employment on which not less than 20 Chinese labourers were employed.
The position then remained unchanged until 1949 when the section was
made equally applicable to labourers of all races. 2. These
'Labour Courts' constitute a most unusual arrangement and are peculiar
to Malaya. Certain other countries do have 'Labour Courts' but the
Presiding Officers in them are proper Magistrates. It would appear
that the legislature in 1899 considered that cases involving claims
by Chinese labourers against their employers should be dealt with by
senior civil servants (Administrative Officers of the Malayan Civil
Service) who had made a special study of Chinese language and customs
and who had passed the normal law examinations required of all Administrative
Officers. These Officers, with their special knowledge, heard such
claims and issued such Orders as they deemed just. Apparently, the
legislature did not want these claims to be heard strictly according
to Western Court procedure. If it had, then obviously it would have
instructed that they be heard in the Court of a Magistrate. 3. However,
the machinery of the Sessions Court has always been used to enforce
the Orders made in the 'Labour Court'. Therefore the legislature considered
it necessary to sketch in the law a brief and simple procedure, so
that the President would be in a position to understand what his Court
had to enforce 4. Over
the years the procedure followed in the 'Labour Court' has come more
and more in line with normal Court procedure. One of the reasons for
this was that when appeals were heard from time to time by Judges of
the High Court, they made comments on the procedure used. 5. Although
the term 'Labour Court' is used in this Guide and has been commonly
used in the Department and outside, such tribunals are not Courts of
Justice. This was recently reiterated by Mr. Justice Hill in the High
Court at Alor Star in Kedah Civil Appeal No. 1/57. It should, however,
be remembered that the Commissioner sitting in such tribunals is exercising
judicial functions. 6. As mentioned
in para. 1, the protection of the 'Labour Court' was extended to all
races of labour in 1949. With the enormous increase in the number of
labourers then brought under this Section of the law, the Depart- ment
of Labour had to expand considerably, but at the same time the number
of officers of the Malayan Civil Service serving in it began to decrease.
As a result of the Malayanisation of the Civil Service the Commissioner
for Labour was the only officer of the Malayan Civil Service still
serving in the Department at the end of 1959. This meant that 'executive'
departmental Malayan officers, that is to say Junior Assistant Commissioners
(previously called Labour Officers) and Assistant Commissioners for
Labour, were required to hear labour cases. These officers, being Malayans
and by virtue of their work as Labour Officers, have a considerable
knowledge of general labour customs and of the special customs of their
own race, although they may not know a great deal about the customs
of other races. However, except for Chinese workers in tin mining,
the building industry and logging, old customs are dying out and therefore
a special knowledge of them is by no means as essential as it used
to be. 7. From
1946 to the end of 1959, 23,535 labour cases were heard. From 1946
to 1948, 5 appeals were heard but the results are not on record. From
1949 to 1958, 18 cases went to appeal and in every single one of these,
the decision of the Presiding Officer was upheld. In 1959, however,
there was a marked increase in the number of appeals and in that year
out of 13 appeals heard, 7 cases went against the decisions of the
Commissioner. 8. Ideally,
only Division I officers should be authorised to hear labour cases;
except very minor ones. However, the volume of work does not permit
this limitation and from time to time departmental instructions have
been issued altering the limits up to which certains grades of officers
may hear labour cases. (See Employment Ordinance Instruction No. 30).
It is the aim of the Department, when staffing arrangements permit,
that no officer who has not completed 5 years service and "who has
not passed his 2nd Departmental Examination (part of which contains
a paper covering questions on the Penal Code, Criminal Procedure Code,
Evidence Ordinance and Subordinate Court Rules), shall be permitted
to hear any labour cases. 9. The main
justification for now giving Commissioners power to hear and decide
claims under Section 69 of the Employment Ordinance is that both labourers
and employers can thereby obtain a speedy decision regarding any matters
about which claims may be lodged, without cost to either party and
without recourse to the more formal Courts of Justice where the pro-
cedure is more involved and delays are often unavoidable. 10. Although
Commissioners may hear these claims in a manner and atmosphere less
formal than in the Courts of Justice, they are not entitled to break
the elementary rules of judicial procedure. These rules are made to
ensure that both parties obtain a fair hearing and that all the relevant
evidence is recorded in an orderly fashion. Commissioners must realise
that cases heard under this Section may be brought before the Supreme
Court on appeal and that the first thing the Appellate Judge looks
for is a breach of these elementary rules of judicial behaviour. It
is imperative that the record shows that the rules have been kept.
Commissioners must remember that the Appellate Judge sees only the
record and the findings He must not be left to guess what happened,
or what was in the Commissioner's mind. 11. The
Commissioner hearing the case must be absolutely impartial. He should
assist both parties and favour none, and he must ensure that he obtains
all the relevant facts. (See also paragraphs 77-78). The onus is clearly
upon him to do so and if he does not, then he has failed the parties
to the dispute. 12. The
Commissioner must remember that he has power to call witnesses of his
own accord. Often it is necessary to exercise this power to ensure
that justice is done. In such cases both the complainant and defendant
must be allowed to cross-examine. Unlike a Court of Justice the parties
are seldom represented by counsel. Therefore, the position of the Commissioner
is different from that of a Magistrate, who, in a civil suit, is not
concerned if one party fails to produce evidence in support of his
claim or defence. Not only are parties seldom represented by counsel
but in 1958 in an Appeal Case in Alor Star, Mr. Justice Hill said, "In
the great majority of cases it is no doubt undesirable for an advocate
to appear, but there may well be the occasional instance where the
appearance of an advocate could be of considerable assistance to all
concerned ..." (See (14A) in Lab. FM. 437/50). In addition, the Solicitor-General
has ruled that by an analogy Mr. Justice Hill's comments apply equally
to Trade Unionists wishing to represent parties in the Labour Court. 13. As
it is unusual for the parties to be represented by counsel, the Commissioner
must ensure that HE obtains ALL the relevant facts upon which to base
a just decision.
