The Industrial Court of Malaysia recently dismissed the complaint of non-compliance of a Collective Agreement clause brought about by The Union of Beverage Industry Workers against the Carlsberg company in The Union of Beverage Industry Workers v Carlsberg Brewery Malaysia Berhad & Carlsberg Marketing Sdn Bhd [Award No: 1073 of 2009] which was just decided on 4 September 2009.
The complainant lodged a complaint under S.56(1) of the Industrial Relations Act 1967 that the respondent failed to comply with, inter alia, Article 12 of the Collective Agreement Cog. No. 015/2008 for the period commencing 1 January 2004 to 31 December 2006 by refusing to pay overtime to its Marketing and Supply Chain employees based on the 40-hour work week stipulated by the said Article 12 thereof.
The impasse faced by both parties regarding Article 12 was as a result of the complainant wanting a reduction in the number of working hours from 45 to 40 while the respondent was agreeable upon condition that the complainant accept a provision for multitasking, of which the complainant was against, claiming that they will then be compelled to perform jobs outside their own job scope.
Pending the outcome of the reference of this dispute at the Industrial Court, the respondent paid overtime based on the 45-hour week. On 25 September 2007 the Industrial Court approved of the respondent's proposed new clause providing for multitasking. The respondent implemented the new 40-hour work work from 16 October 2007 and with effect from this date the employees were paid overtime based on this 40-hour work week.
The complainants argued that since the award had ordered the effective date for payment of arrears to be from 1 November 2004, the respondent should pay overtime based on the new 40-hour work week with effect from even date.
The respondents countered that pending the decision of the Industrial Court, the old work week and overtime system continued to subsist. The respondents further contend that should the Court be of the view that any term in the Collective Agreement lacks clarity then the Court is vested with the power under S.56(2) of the Industrial Relations Act to vary such term.
The Court was of the view that the 40 hour work week cannot have retrospective effect, just like the multitasking provision. The employees were contractually bound up to the time of the award to perform their duties based on the old Collective Agreement which provides for the 45-hour work week and thus to be paid overtime based on the same.
The Court opined that the question of variation in this case was irrelevant.
The Court accordingly dismissed the complaint.