Jupmi @ Jupini Bin Siding & 976 Others vs Sabah Forest Industries (MJLR 2009b8) David Wong,17/7/2009,SS
[K16-01-2009-I]
Jurisdiction:
MALAYSIA
IN THE HIGH COURT IN SABAH & SARAWAK
AT KOTA KINABALU
Parties:
Appellant: Jupmi @ Jupini Bin Siding
& 976 Others
Respondent: Sabah Forest Industries Sdn. Bhd.
File Number:
K16-01- 2009-I
Issues:
Whether the Labour Officer was correct in declining
jurisdiction to hear the complaints of the Appellants?
What is the legal effect of sec 132 of Labour
Ordinance?
Hearing Dates:
24 June 2009
Date of Decision:
17 July 2009
Judge:
HONOURABLE JUSTICE DAVID WONG DAK
WAH
Representation:
For Appellants: Rakhbir Singh with Christina Liew
Messrs. C J Liew & Co.
Kota Kinabalu, Sabah
For Respondent: Norbett Yapp with Celestina Stuel
Galid
Messrs. Jayasuriya Kah & Co.
Kota Kinabalu, Sabah
[K16-01-2009-I]
2
GROUNDS OF DECISION
This is an appeal against the decision of the Deputy Director of Labour,
Sabah given on 15th April 2009 under Section 7A of the Labour Ordinance.
The decision stems from complaints lodged by the Appellants 5 against the
Respondent to the Deputy Director over arrears of salary payments due to
them by reason of the salary increments of the period commencing from
1996 to 2007.
10 The Deputy Director dismissed the complaints on the ground that he had no
jurisdiction to hear them which related to matters arising prior to 2nd October
2005. His ground is premised on Section 7A of the Ordinance which came
into force on 2nd October 2005 by virtue of the Labour Ordinance Sabah
(Amendment) Act 2005 (“Act A 1238) and confers power to the Deputy
15 Director to adjudicate the employees’ complaints. The Deputy Director was
of the view that Section 7A does not give him power to entertain Appellants’
complaints which had accrued from 1996 (which is prior to the date Section
7A takes effect) unless those complaints were lodged within six months from
2nd October 2005 as provided for in Section 132 of the Labour Ordinance.
20 The only issue thus before me is this:
“What is correct interpretation of section 132 of the Ordinance?”
[K16-01-2009-I]
3
Section 132 reads as follows:
“Any contract of service lawfully entered into between any employer and any
employee and any license issued under section 118 valid and in force before the
date of coming into force of this Ordinance shall, if it is still legally binding upon
the parties, continue to be in force after such date and, subject 5 to the express
provisions contained in such contract or license, the parties thereto shall be
subject and entitled to the benefit of the provisions of this Ordinance within six
months from the date of coming into operation of this section”
10 It is the contention of the Respondent’s counsel that the word ‘Ordinance’ in
Section 132 refers to Act 1238 which came into effect on 2nd October 2004
and not the Ordinance itself which came into effect on 1955. In interpreting
any statute the court is duty bound to look at the words used in the
provisions and give them their natural meaning unless of course there exists
15 ambiguity or its literal interpretation leads to absurdity. So the question
which I need to ask myself is whether there is any ambiguity in Section 132.
In my view there is not. It must be remembered that the Ordinance was
never repealed and what Act 1238 did was to amend the Ordinance by
inserting a new Chapter 11A. In another words, the Ordinance as it was
20 originally enacted remains intact save for the amendment made by Act 1238.
This being the case I concur with counsel for the Appellants who submits
that Section 132 deals with contracts entered into before this Ordinance
which came into effect in 1955 and claims under those contracts must be
[K16-01-2009-I]
4
made within six months from 2nd October 2004. The Appellants’ contracts
are not those contracts; hence section 132 does not apply in the present case.
Furthermore established practice of statutory interpretation insists that
whenever existing statutory rights are being detrimentally 5 affected by new
legislation unambiguous language must be employed by Parliament to take
away those rights. No such words are found in Section 132.
As for the Deputy Director’s ruling on the application of the Limitation
10 Ordinance to the Appellants’ claims, I am not quite sure why he bothered to
deliberate on the issue as he had ruled that he had no jurisdiction to consider
the Appellants’ claims. In the circumstances I find that this ruling is of no
consequence and hence making it unnecessary for me to express my view on
the merit of the Deputy Director’s ruling.
15
For reasons stated above I allow this appeal with costs to be taxed to the
Appellants. Accordingly I direct the Deputy Director to exercise the power
given to him in Section 7A of the Ordinance.
20 (Y.A TUAN DAVID WONG DAK WAH)
Judge
Notice: This copy of the Court's Reasons for Judgment is subject to
formal revision.
Jurisdiction:
MALAYSIA
IN THE HIGH COURT IN SABAH & SARAWAK
AT KOTA KINABALU
Parties:
Appellant: Jupmi @ Jupini Bin Siding
& 976 Others
Respondent: Sabah Forest Industries Sdn. Bhd.
File Number:
K16-01- 2009-I
Issues:
Whether the Labour Officer was correct in declining
jurisdiction to hear the complaints of the Appellants?
What is the legal effect of sec 132 of Labour
Ordinance?
Hearing Dates:
24 June 2009
Date of Decision:
17 July 2009
Judge:
HONOURABLE JUSTICE DAVID WONG DAK
WAH
Representation:
For Appellants: Rakhbir Singh with Christina Liew
Messrs. C J Liew & Co.
Kota Kinabalu, Sabah
For Respondent: Norbett Yapp with Celestina Stuel
Galid
Messrs. Jayasuriya Kah & Co.
Kota Kinabalu, Sabah
[K16-01-2009-I]
2
GROUNDS OF DECISION
This is an appeal against the decision of the Deputy Director of Labour,
Sabah given on 15th April 2009 under Section 7A of the Labour Ordinance.
The decision stems from complaints lodged by the Appellants 5 against the
Respondent to the Deputy Director over arrears of salary payments due to
them by reason of the salary increments of the period commencing from
1996 to 2007.
10 The Deputy Director dismissed the complaints on the ground that he had no
jurisdiction to hear them which related to matters arising prior to 2nd October
2005. His ground is premised on Section 7A of the Ordinance which came
into force on 2nd October 2005 by virtue of the Labour Ordinance Sabah
(Amendment) Act 2005 (“Act A 1238) and confers power to the Deputy
15 Director to adjudicate the employees’ complaints. The Deputy Director was
of the view that Section 7A does not give him power to entertain Appellants’
complaints which had accrued from 1996 (which is prior to the date Section
7A takes effect) unless those complaints were lodged within six months from
2nd October 2005 as provided for in Section 132 of the Labour Ordinance.
20 The only issue thus before me is this:
“What is correct interpretation of section 132 of the Ordinance?”
[K16-01-2009-I]
3
Section 132 reads as follows:
“Any contract of service lawfully entered into between any employer and any
employee and any license issued under section 118 valid and in force before the
date of coming into force of this Ordinance shall, if it is still legally binding upon
the parties, continue to be in force after such date and, subject 5 to the express
provisions contained in such contract or license, the parties thereto shall be
subject and entitled to the benefit of the provisions of this Ordinance within six
months from the date of coming into operation of this section”
10 It is the contention of the Respondent’s counsel that the word ‘Ordinance’ in
Section 132 refers to Act 1238 which came into effect on 2nd October 2004
and not the Ordinance itself which came into effect on 1955. In interpreting
any statute the court is duty bound to look at the words used in the
provisions and give them their natural meaning unless of course there exists
15 ambiguity or its literal interpretation leads to absurdity. So the question
which I need to ask myself is whether there is any ambiguity in Section 132.
In my view there is not. It must be remembered that the Ordinance was
never repealed and what Act 1238 did was to amend the Ordinance by
inserting a new Chapter 11A. In another words, the Ordinance as it was
20 originally enacted remains intact save for the amendment made by Act 1238.
This being the case I concur with counsel for the Appellants who submits
that Section 132 deals with contracts entered into before this Ordinance
which came into effect in 1955 and claims under those contracts must be
[K16-01-2009-I]
4
made within six months from 2nd October 2004. The Appellants’ contracts
are not those contracts; hence section 132 does not apply in the present case.
Furthermore established practice of statutory interpretation insists that
whenever existing statutory rights are being detrimentally 5 affected by new
legislation unambiguous language must be employed by Parliament to take
away those rights. No such words are found in Section 132.
As for the Deputy Director’s ruling on the application of the Limitation
10 Ordinance to the Appellants’ claims, I am not quite sure why he bothered to
deliberate on the issue as he had ruled that he had no jurisdiction to consider
the Appellants’ claims. In the circumstances I find that this ruling is of no
consequence and hence making it unnecessary for me to express my view on
the merit of the Deputy Director’s ruling.
15
For reasons stated above I allow this appeal with costs to be taxed to the
Appellants. Accordingly I direct the Deputy Director to exercise the power
given to him in Section 7A of the Ordinance.
20 (Y.A TUAN DAVID WONG DAK WAH)
Judge
Notice: This copy of the Court's Reasons for Judgment is subject to
formal revision.
