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.