(R,Jayabalan) Upon completion of the nine months pupillage period, the pupil files his petition to obtain an order from the High Court admitting him as advocate and solicitor of the High Court of Malaya. This is referred to as ‘the Long Call’. The petition is filed with supporting affidavits and served on the interested parties such as the Bar Council, State Bar and the Attorney General’s Chambers. The petition is then fixed for hearing before the High Court Judge in the presence of the interested parties. A solicitor appears on behalf of the petitioner/pupil and moves the petition. He is known as ‘the Mover’. He submits on the merits of the petition, convinces the Court on the suitability of the petitioner and prays for the petition to be allowed. The interested parties then state whether they have any objections to the petition. Usually none although there have been occasions when objections were raised, such as when the petitioner had failed to meet the requirements. The judge then considers the petition, and if satisfied, issues the order admitting the petitioner as advocate and solicitor of the High Court of Malaya. This is the ‘call to the Bar’ order. Hence, the whole process is a formal court proceeding similar to any other court proceedings. The respect, formality and solemnity accorded to open court proceedings before the High Court equally applies to the Long Call proceedings. Nothing less. The Mover. The Master cannot be the Mover. Why? He is an interested party since the petitioner was his pupil. He is put in ’embarrassed’ or a ‘conflict of interest’ position by virtue of his proximity to the petitioner. This is just like any other situations where solicitors are prohibited from appearing for a party or in matters where they could be put in a conflicted position. Any other solicitor maybe called upon to be the Mover and appear for the petitioner. Who appoints the Mover? This is the Master’s responsibility, not that of the pupil. There have been instances where pupils frantically call lawyers in town to be the Mover. I too have received such calls. When queried the pupils say that the Master had asked them to find a Mover. This really shouldn’t be happening. It is the Master’s responsibility to secure a Mover. A Master who declines to do this, for whatever reasons, should take a hard look at himself. There are also rumours of lawyers who are regular Movers and charges a fee. They have become the go-to lawyers for pupils desperate for a Mover. This really shouldn’t be so. Moving a call is an honour and a service to the Bar. It is not to be done for a fee.  The Speech. The Mover’s speech is not a ‘speech’ at all. Far from it. It is in effect a submission on the merits of the petition. The Mover submits on the background of the petitioner, that the petitioner has met the requirements and worthy of being a member of the legal profession. Sadly however, this submission has now often become a ‘thanksgiving speech’ on behalf of the petitioner to all and sundry. I have seen ‘speeches’ with endless gratitude and thanks galore to family members, friends, teachers, girlfriend/ boyfriend, court staff, office staff, even land office staff, and primary school teachers. However, very little is said about the lessons learnt during the pupillage and the aspiration for the future in the profession, much less an expression of commitment to adhere and uphold the values and ideals of the profession. Such ‘thanksgiving speeches’ often become a cringe moment in court. And I always wondered why the Mover is allowing this to happen. Whilst expression of gratitude to immediate family members, the Master and his associates who guided the pupil, the law faculty teachers and maybe even close friends are understandable, any ‘thanksgiving’ beyond that is really questionable and unnecessary. Such extraneous ‘thanksgiving speeches’ takes away the solemnity and significance of the proceedings. They should be reserved to be done elsewhere, but not in Court. Hence the Master and especially the Mover should scrutinize the ‘speech’ more carefully to ensure it fits the proceedings instead of mouthing the script written by the pupil. After all, on record, it is the Mover’s words. (On this, dear old Fahri Azzat seems to have the penchant, not to mention tenacity (!), to write very good Mover’s ‘speech’. He is also generous enough to share them on his social media. His speeches serve as a good guide for pupil and Movers. Look up on them!). Moving on. The Order. Following the submission by the Mover, the Bar and AGC representatives state their position, and if no objections, the Judge issues the Order, thus admits the pupil to the Bar. The Robing. Then comes the highlight for every pupil, more accurately ex-pupil by now. After issuing the order, the Judge, at the behest of the Mover, invites the Master to step forward to ‘robe’ the ex-pupil. The Master steps forward, mostly beaming with pride, and helps his ex-pupil to put on the brand new robe/gown, congratulates him and wishes him well at the Bar. At that moment, turn around, and very often you will see parents, equally beaming with pride, some moved to tears seeing their prodigy standing there in the well of the court, in full regalia as the latest member of the honourable profession. The ‘robing’ is to be done by the Master or in his absence, a member of the Bar with atleast seven years in practice. The Bar Council ruling is clear on this. Parents or family members cannot do the robing. There have been instances of the Court inviting the parents or family members to do the ‘robing’. This, whilst certainly done with good intentions, however, is not right. The ruling also makes sense as a new member should be welcomed and received by a member of that profession, not by a non-member. So Masters must make every effort to attend

(R.Jayabalan – Principal, Messrs R. Jayabalan) Stamp duty is a form of tax imposed on various types of legal documents or instruments in Malaysia pursuant to the Stamp Act 1949 essentially to generate revenue for the government.                Sec 52 of the Act states that no instruments chargeable with duty shall be admitted in evidence or acted upon unless such instrument is duly stamped. Sec 2 of the Act defines an instrument “duly stamped” as amongst others an instrument that bears an adhesive or impressed stamp of not less than the proper amount of initial duty and that such stamp has been affixed in accordance with the law.  Sec 47 of the Act requires the stamping of the instrument to be done within 30 days from its execution.                 Does this mean that an instrument or agreement that was not stamped in accordance with the provisions of the Stamp Act 1949 becomes unenforceable in law and the contractual obligations under such agreement no longer binding on the parties? This issue arose in Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors [1982] 1 MLJ 198, the appellant had filed a claim based on a letter of guarantee that was stamped late outside the 30 days period and the late stamping penalty had not been paid. The Sessions Court held that as the late stamping penalty had not been paid, the letter of guarantee was not “duly stamped” under sec 52, hence not  admissible in evidence and not valid. The claim was consequently dismissed.  On appeal, the High Court Judge Hashim Yeop Sani J agreed with the Sessions Court findings and dismissed the appeal. The appellant appealed to the Federal Court. The Federal Court examined sec 52 of the Act and held that the prohibition of   admissibility of an instrument on account of not being duly stamped is not an absolute prohibition but conditional upon payment of a duty or a penalty, if any, under sec 43 and 47. It was held that the guarantee could be admitted in evidence in accordance with proviso (a) to sec 52 (1) on payment of a penalty of RM25 under sec 47 of the Act.  This would be in consonant with the objective of the Act to impose and collect taxes on legal and commercial documents by compelling those documents to be stamped on pain of being inadmissible. As such, it was held that the proper recourse for the court under sec 51 when facing an unstamped document is to impound the document and to admit them under proviso (a) to sec 52(1) on payment of stamp duty or penalty, if any. Following that the appeal was allowed, judgment was entered against the respondent  with further order that the letter of guarantee is to be impounded and the appellant to pay the penalty RM25 to the Registrar who will send the sum together with the letter of guarantee to the Collector of Stamp Duty for stamping and the stamping in accordance with sec 53 is to be done before the order is drawn.   The same issue came up again before the Supreme Court in  American Express International Banking Corporation v Tan Loon Swan [1992] 1 MLJ 727 in a similar claim but in this case the loan agreement and the letter of guarantee had not been stamped at all.  The plaintiff applied for summary judgment. In order to raise triable issues, the defendant contended that the documents had not been stamped and not admissible in evidence. The Supreme Court followed Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors and held that in such situation, it is the responsibility of the court under sec 51 to impound the unstamped document and to admit them under proviso (a) to sec 52(1) on payment of stamp duty or penalty, if any. It was further held that the court and counsel appearing before it is under an obligation to draw the court’s attention to its powers under sec 51 and sec 52(1) including its proviso. In short, the non-stamping of the documents concerned does not provide a triable issue.       The issue again came up before the Federal Court  in Liputan Simfoni Sdn Bhd v. Pembangunan Orkid Desa Sdn Bhd [2019] 1 CLJ 183. This time it was concerning a Sale and Purchase Agreement that was not  stamped in accordance with the additional consideration under the agreement. It was contended by the plaintiff that the SPA was void ab initio and tainted with illegality pursuant to sec 24(b) of the Contracts Act 1950. The Court rejected the contention  and held amongst others that: “[125] ….. The compliance with the Stamp Act 1949 and the Real Property Gains Tax 1976 are not the prerequisite for the second SPA to be enforceable. There is no prohibition under the two Acts to preclude the first defendant from acquiring rights to the subject land. The Stamp Act 1949 provides a penalty for breach of its provisions. Similarly, under the Real Property Gains Tax Act 1976 there are penalties for breach of its provision. In addition, it is provided that tax due and payable may be recovered by the Government by civil proceeding as a debt to the Government. The object of the two Acts is to raise revenue. There is therefore no sufficient nexus such as would satisfy the test laid down in Curragh Investment Ltd. The first defendant’s infringement of the two Acts therefore did not prevent it from suing on the contract which is legal.” This position was reaffirmed recently in Nulink Solutions Sdn Bhd v. Mitti Power Cables Sdn Bhd & Ors [2022] 1 LNS 2116. It was contended by the defendants that the agreement therein was void as it was not stamped by referring to sec. 52 (1) of the Stamp Act 1949. The learned Judge rejected the contention and held that the agreement is clearly valid despite the non-stamping, the rights, and obligations of the parties under the agreement

The Employment Act 1955 has been subjected to amendments that will introduce major changes to the operations of the workforce in the country  through the Employment (Amendment) Act 2022 that was gazetted on 10.5.2022. Amongst the key changes Maternity leave – increased to 98 days from 60 days. A pregnant employee may not be terminated except  on grounds of wilful breach of the conditions of service,  misconduct or if the employer is no longer in business. Paternity leave – husbands will be entitled to 7 days of paid leave for every birth beginning from the day of the birth,  regardless of the number of spouses and up to 5 births.   Sexual harassment notice  – employers to display a prominent notice at workplace to educate employees about sexual harassment at workplace. Reduced maximum weekly working hours – the maximum working hours in a week is reduced to 45 hours from 48. Working hours in excess of the 45 hours will be subject to overtime rates. Sick leave and hospitalization leave  – the total sick leaves available to an employee is now treated as distinct and separate from the 60 days hospitalization leave. Flexible working arrangement  – employees may apply for flexible work arrangements that may include change in the work schedule, working days or work location. Employers may approve or reject the application and if rejected, written reasons must be given. Apprenticeship contract – the duration of such contract is limited to 24 months with minimum duration of 6 months. Currently, such contract is defined for a period not less than 2 years. Enforcement of the amendments By way of gazette notification, the Minister of Human Resources has appointed 1.9.2022 as the date on which the amendments to the Act will take effect.   On 15.8.2022, the Employment (Amendment of First Schedule) Order 2022 that sets out the scope of application of the changes to the Employment Act 1955 was gazetted with the changes set to come into force also on 1.9.2022. Currently, the provisions of the Employment Act 1955 applies only to employees with monthly earnings of  RM2,000 and below unless otherwise stated in the Act and to certain classes of employees as listed in paragraph 2 of the 1st Schedule to the Act regardless of their monthly earnings.  For employees outside the scope of the Act, they will be bound by the terms as agreed in their contract of employment with the employer.      Following the Order that was gazetted on 15.8.2022, the Act now applies to all employees. This because the definition of “employee”  has been amended to any person who has entered into a contract of service. There is no longer any limit to the application of the Act. The minimum standard of employment guaranteed under the Act will apply to all employees, as opposed to only those earning less than RM2,000  currently.    The Order however has set out some limit on application of the benefits under the amended Act. Employees earning more than RM4,000 a month are excluded from the statutory benefits under sec. 60(3), 60A(3), 60C(2A), 60D(3), 60D(4) and 60J that covers overtime payment for extra hours or for working on rest days or public holidays or to the termination, lay-off and retirement benefits. In general, those earning more than RM4,000 a month will not be entitled to these benefits. Messrs R. Jayabalan

A Lawyers Newest Resolution Legal productivity is being slammed by a toxic work culture according to a recent survey from across the pond. This may come as no surprise to legal workers here in the United States, as the relentless pressure of law practice often creates a toxic culture in law departments. In many cases, this comes from the management level with toxic bosses and “pie-duckers” rampant in some companies. What can be done? Ref0rm is needed, but the legal profession is not known for embracing change, and when it does, it often comes glacially rather than when needed to ameliorate the real problems at hand.

According to 250 In-House Attorneys, This is a Must Have Legal productivity is being slammed by a toxic work culture according to a recent survey from across the pond. This may come as no surprise to legal workers here in the United States, as the relentless pressure of law practice often creates a toxic culture in law departments. In many cases, this comes from the management level with toxic bosses and “pie-duckers” rampant in some companies. What can be done? Ref0rm is needed, but the legal profession is not known for embracing change, and when it does, it often comes glacially rather than when needed to ameliorate the real problems at hand.

According to 250 In-House Attorneys, This is a Must Have Legal productivity is being slammed by a toxic work culture according to a recent survey from across the pond. This may come as no surprise to legal workers here in the United States, as the relentless pressure of law practice often creates a toxic culture in law departments. In many cases, this comes from the management level with toxic bosses and “pie-duckers” rampant in some companies. What can be done? Ref0rm is needed, but the legal profession is not known for embracing change, and when it does, it often comes glacially rather than when needed to ameliorate the real problems at hand.

(Messrs R. Jayabalan) The Federal Court had held in   Ang Ming Lee & Ors v.  Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan [2020] 1 CLJ 162  that reg. 11(3) of the Regulations  that empowered the Controller of Housing to  vary, amend or modify the terms of the prescribed contracts of sale in the Act was ultra vires the Act and that such powers may only be exercised by the Minister personally. The Federal Court decision was given on 26.11.2019. Hot on the heels of that decision was the issue of whether the Federal Court decision would apply  against the Controller’s approvals that were given before the decision. The prevailing view was that as the Federal Court did not issue an order of prospectivity of the decision, the general rule of retrospectivity of court decisions would apply i.e  a court decision is always applied retrospectively unless there is a specific order that the decision is to be binding only on the instant case and as against future cases. This was the approach also applied by the Federal Court in Semenyih Jaya Sdn Bhd   v.  Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561 when holding that s. 40D of the Land Acquisition Act 1960 was  ultra vires   the Constitution and further ordered that the decision was to have prospective effect only. After Ang Ming Lee,  this issue of retrospectivity of Ang Ming Lee  had been consistently raised in similar claims. The purchasers invariably argued that the decision has retrospective effect whereas the developers argued that to hold Ang Ming Lee to have retrospective effect would be grossly unfair to the developers as the Controller’s approval had been obtained at a time when the law was still deemed as valid and the developers should not be penalised due to the changes in law following the Federal Court decision. The High Courts were not moved and have almost consistently held that Ang Ming Lee  to have retrospective effect as there was no order of prospectivity issued. As this was a recurring issue with wide implications and of general public interest, there was hope and expectation for a decision from the Court of  Appeal or Federal Court to bring an end to this issue. We acted for a purchaser whose agreement in Schedule H also involved Controller’s approval that was given before the decision in Ang Ming Lee; the approval was in fact given even before the agreement was executed. The purchaser had sought rescission of the agreement and refund of the monies paid and for expenses incurred. It was also contended that the agreement was null and void for being in breach of the Act from its inception. The purchaser had relied on Ang Ming Lee  and the principles of retrospectivity of decision. The developer took the contrary position and sought to distinguish Ang Ming Lee on the grounds that here, the approval was given before the agreement, unlike in Ang Ming Lee and relied on the doctrine of severability to save the agreement from being held null and void.  The High Court held that Ang Ming Lee has retrospectivity effect and the Controller’s approval here given on 20.5.2015  was not valid. The agreement was also held as null and void and rescission was allowed. The decision may be seen at [2020] 6 AMR 346. The developer filed appeal to the Court of Appeal and raised similar contentions. The appeal was unanimously dismissed on 5.4.2021. The developer then filed application for leave to appeal to the Federal Court. The questions proposed also included an invitation to revisit Ang Ming Lee  and to clarify the position on whether the decision was to be applied retrospectively and the Court to consider the implications of such retrospectivity to the construction industry. The application for leave was recently dismissed. It is also worthy to note that two of the judges who heard the application for leave was also in the Federal Court coram that delivered the decision in Ang Ming Lee. From this it appears quite clearly that  Ang Ming Lee  is indeed to be applied retrospectively and that there should not be any doubt on this anymore. It also makes common sense that a law that is found to be  illegal should be deemed illegal at all times since its inception. The retrospective application also serves the social objective of the Act to protect house buyers  – all buyers at all times!   Messrs R. Jayabalan

(R. Jayabalan) A key question when drafting a claimant’s statement of case before the Industrial Court is on the relief to be sought. Very often, by the time the  claimant’s representation for unfair dismissal was referred by the minister  to the Industrial Court, the claimant would have gained new employment elsewhere and going back was no longer an attractive option. Question then arises as to whether he should still ask for reinstatement or to seek compensation. Often lawyers have to advise the claimants to ask for reinstatement in the hope that the Court would hold that there was no longer industrial harmony between the claimant and the ex-employer and compensation would be appropriate in lieu of reinstatement. This conundrum came about due to the diverging views on the implication  to the claim  if the claimant no longer wishes to go back. Sec. 20(1) of the Industrial Relations Act  1967 states that a workman when lodging representation may make representations “to be reinstated”. Sec. 30 gave jurisdiction to the Court to order “reinstatement”.  Following these express provisions for reinstatement as the remedy, conflicting views have developed.   On one side, cases have  held that if the claimant failed to plead reinstatement or if in the course of the trial  changes his mind about going back and prefers compensation, the Court ceases to have jurisdiction and the claim cannot be heard anymore.  This view was led by the High Court decision in Holiday Inn, Kuching  v  Elizabeth Lee Chai Sok [1992] 2 CLJ (Rep) 521. On the other side is the view that the claimant’s desire on reinstatement does not affect the Court’s jurisdiction. This because the Court derives its jurisdiction from the reference made by the minister under sec 20(3) of the Act and does not hinge on the claimant’s desire for reinstatement. Once the minister’s reference was made, the Court gains jurisdiction and  must decide on the claim. The claim cannot be abandoned. This view was led by the High Court decision in The Borneo Post Sdn Bhd  v  Margaret Wong [2001] 8 CLJ 758. The conflicting views and the resulting state of uncertainty have caused claimants to be prudent by asking for reinstatement and maintaining this desire  at the trial, especially in cross-examination – even when in truth, the claimants do not desire to go back. A facile plea was unfortunately (and regrettably) made necessary in order to preserve the claim. This conundrum is now resolved. The Court of Appeal recently in Sanbos (M) Sdn Bhd  v  Gan Soon Huat  [2021] 3 AMR 833 clarified the issue and upheld the second view as the correct position. It was held that the Industrial Court was seized with the jurisdiction to hear the dispute once the minister made the reference under sec. 20(3). It is the minister’s reference that invested the  Court  with the jurisdiction and not the claimant’s desire for reinstatement. The  Court does not cease jurisdiction merely because reinstatement was not pleaded or no longer desired. However, when making the initial representation to the Director General under sec. 20(1)  the claimant must  still ask to be reinstated  as that is a specific requirement under the Act. Once the dispute  is referred to the Court by the minister there is no longer specific requirement in the Act for the claimant to plead reinstatement. The Industrial Court Rules 1967 too did not impose an obligation to plead reinstatement. Hence, even if the claimant changes his mind and no longer desires reinstatement at the hearing, the Court still has the jurisdiction to proceed with the hearing as under sec. 30(6) the Court has very wide discretion in awarding reliefs and is not restricted to the specific relief claimed by the claimant. With this wide discretion, the Court  may still award monetary relief even if reinstatement was not asked for.  The Court cannot question its own jurisdiction simply because the relief of reinstatement was not asked for. The Borneo Post Sdn Bhd  v  Margaret Wong  was held as representing the correct view. This is indeed a welcome decision from the Court of Appeal and one that has been waited for long by Industrial Court practitioners.  The decision is  consistent with the objective of the Industrial Relations  Act 1967 as a social legislation whose paramount objective is to protect the interest of the employees  and also in line with the mandate given to the Industrial Court in sec. 30(5) to act in accordance with equity, good conscience and substantial merit of the case without regard to technicalities and legal form. Following this decision, the path is now clear for claimants and a facile plea for reinstatement is no longer necessitated.  Messrs R. Jayabalan

Siapakah “pekerja”? “Pekerja” adalah orang yang memasuki kontrak pekerjaan dengan seorang majikan dengan  upah tidak melebihi RM2,000 sebulan. “Upah” adalah gaji pokok tidak termasuk komisen, elaun, bonus atau bayaran lebih masa. “Pekerja” juga adalah orang yang tidak kira upah bulanannya dan melakukan kerja kasar seperti tukang atau perantis; mengendalikan kenderaan pengangkutan penumpang atau barangan untuk perniagaan; menyeliakan pekerja kasar dengan majikan yang sama; atau bekerja di sebuah kapal yang berdaftar di Malaysia selain dari pegawai bertauliah atau bersijil; dan pekerja domestik[1].    2. Apakah yang perlu segera dilakukan oleh pekerja selepas dihentikan kerja? Pekerja tersebut mesti membuat aduan kepada Pejabat Tenaga Kerja terdekat dalam tempoh 60 hari selepas dimaklumkan (secara lisan atau bertulis) pemberhentian kerjanya untuk membolehkan siasatan dijalankan[2]. 3. Bagaimana dengan pekerja yang menerima upah melebihi RM2,000? Walaupun Akta Pekerja 1955 terpakai sepenuhnya terhadap pekerja yang menerima upah tidak melebihi RM2,000 sahaja, pekerja dengan upah melebihi RM2,000 tetapi tidak melebihi RM5,000 sebulan  masih boleh membuat aduan kepada Pejabat Tenaga Kerja untuk menyiasat pertikaian mengenai upah atau bayaran tunai lain dibawah kontrak pekerjaannya. Peruntukan Akta mengenai kuasa Ketua Pengarah Buruh  untuk menyiasat aduan pekerja (Bah XV) dan prosedur siasatan (Bah XVI) masih terpakai untuk pekerja sedemikian tetapi peruntukan lain Akta tersebut tidak akan terpakai[3]. Hak lain pekerja sedemikian  adalah masih dilindungi di bawah Akta Perhubungan Perusahaan 1967 dan undang-undang kontrak lazim.      4. Bagaimana Ketua Pengarah Buruh menjalankan siasatannya? Ketua Pengarah akan mengambil aduan bertulis daripada pekerja dan tuntutannya. Selepas meneliti aduan tersebut Pengarah akan memaklumkan majikan mengenai tuntutan itu. Kemudian,  pada tarikh perbicaraan yang ditetapkan, Pengarah akan mengambil keterangan bersumpah pekerja, majikan dan saksi masing masing. Keterangan mereka akan diperiksa melalui pemeriksaan soalbalas dan rujukan kepada dokumen-dokumen seperti surat perlantikan kerja, surat pemberhentian kerja, nota siasatan dalaman dan sebagainya[4]. Selepas itu Ketua Pengarah akan memberikan keputusannya dalam bentuk perintah bertulis. 5. Sekiranya tuntutan pekerja dibenarkan, apakah perintah yang akan diberikan oleh Ketua Pengarah Buruh? Sekiranya Ketua Pengarah memutuskan bahawa penamatan kerja tersebut tidak mengikut terma-terma di surat perlantikan kerja dan/atau tidak mematuhi Akta Kerja 1955, beliau boleh mengeluarkan perintah untuk majikan membayar gantirugi dalam bentuk gaji ganti notis penamatan kerja, faedah penamatan kerja mengikut tempoh pekerjaan, gaji ganti cuti tahunan dan baki gaji (jika ada)[5]. 6. Bagaimana jika majikan tidak  membayar gantirugi yang telah diperintahkan? Majikan akan diperintahkan membayar gantirugi tersebut dalam tempoh  14 hari. Jika majikan masih tidak membayar gantirugi tersebut selepas 30 hari, faedah pada kadar 8% setahun akan dikenakan dari hari ke 31 sehingga penyelesaian penuh[6]. Kemungkiran pihak majikan mematuhi perintah tersebut adalah satu kesalahan yang boleh dihukum dengan denda tidak melebihi RM10,000 dan juga denda tidak melebihi RM100 sehari sepanjang perjalanan kesalahan tersebut[7] . Pekerja juga boleh memohon kepada Ketua Pengarah untuk perintah tersebut didaftarkan sebagai perintah Mahkamah Sesyen atau Mahkamah Majistret untuk membolehkan pekerja melaksanakan perintah tersebut sebagai satu penghakiman mahkamah[8]. 7. Bagaimana jika pekerja atau majikan tidak berpuashati dengan perintah Ketua  Pengarah Buruh tersebut? Mana-mana pihak yang tidak berpuashati dengan perintah tersebut boleh merayu kepada Mahkamah Tinggi terhadap perintah tersebut dan rayuan tersebut  mesti difailkan dalam tempoh 14 hari daripada tarikh perintah tersebut[9]. 8. Semua rujukan di atas nampaknya adalah kepada Ketua Pengarah Buruh, jadi apakah yang dimaksudkan sebagai “Mahkamah Buruh”? Akta Kerja 1955 tidak merujuk kepada atau mengandungi terma  “Mahkamah Buruh”. “Mahkamah Buruh” hanyalah satu nama atau panggilan tidak rasmi yang merujuk kepada perbicaraan yang dijalankan oleh Ketua Pengarah Buruh tersebut. R. Jayabalan [1] Sek 2 dan  Jadual Pertama dibawah Akta Kerja 1955 [2] Sek 69(3) [3] Sek 69(B) [4] Sek 70 [5] Sek 12, 13, 60J dan Peraturan  Kerja (Faedah Penamatan dan Pemberhentian Kerja    Sementara) 1980 [6] Sek 69(3A) [7] Sek 69(4) [8] Sek 75 [9] Sek 77

The Act was amended in early 2020 and gazetted on 20th February 2020. The operation of the amendments were however made subject to the Minister of Human Resources appointing the effective date. The Minister has now decided that most of the amendments will be effective from 1.1.2021. Here we highlight some of the key changes made to Part VI and VII of the Act in respect of the representation for unfair dismissal under sec. 20 and the powers of the Industrial Court when hearing the dispute and in issuing the Award : 1. Sec. 20 (2) and (3) – upon receiving the representation from the workman and when the reconciliation attempt has failed the Director General now must refer the representation directly  to  the Industrial Court. The DG no longer required to notify the Minister . Previously only the Minister may refer the representation to the Court. The Minister is no longer involved. The DG now has a duty to refer the unresolved representation to the Court.2. Sec. 29(da) – the Court to proceed to hear the dispute   even if there is a dispute on the date of dismissal of the workman. Previously when there is a dispute on the date and it was shown that the date of dismissal was not the date in the representation, the Court ceases to hear the dispute. Now, the Court may continue to hear and even determine the date of dismissal.3. Sec. 29(ea) – Court can continue to hear the dispute even if the workman had died during the proceedings. Previously the Court ceases to hear the dispute when the workman dies.4. Sec. 30(1A) – the Award is to carry interest at 8% p.a or lesser rate from the date of the Award till satisfaction. The Court also  has the powers to determine any other date for the commencement of the interest on the application of the aggrieved party upon receipt of the Award.5. Sec. 30(6B) – For the deceased workman, the award for backwages and compensation may be awarded to the next-of-kin of the deceased.6. Sec. 33A – the procedure of reference to High Court on question of law is now abolished.7. Sec 33B – no stay of proceedings may be ordered against the award for reinstatement. This is a new provision. 8. Sec 33C – a party dissatisfied with the award may appeal to the High Court within 14 days of receipt of the award and the appeal will follow like an appeal from the Sessions Court. This is the main highlight of the amendments here. This has effectively removed the need to apply for judicial review to challenge the Award. All in all, the amendments above are of good value to employees and their family and the whole process of resolving the representation effectively and expediently. There are also other amendments made to other parts of the Act – do check out those amendments as well. R.JAYABALAN