Jurisdictional Theory in the Melting Pot
![handle is hein.journals/sjls22 and id is 291 raw text is: 22 Mal. L.R.
NOTES OF CASES
JURISDICTIONAL THEORY IN THE MELTING POT
South East Asia Fire Bricks Sdn. Bhd. v Non-Metallic Mineral
Products Manufacturing Employees Union and Others'
The recent decision of the Judicial Committee of the Privy
Council on appeal from the Federal Court of Malaysia in South-East
Asia Fire Bricks is the latest in a confusing series of cases concerning
a fundamental problem of administrative law namely the effect of
ouster clauses on judicial review of the decisions of inferior tribunals.
The litigation arose out of a decision of the Industrial Court, but the
decision is of little immediate importance in the area of labour law
in Malaysia because the relevant statutory provisions have recently
been amended so as to provide an avenue of appeal from the Industrial
Court to the High Court on a point of law 2 Thus the Board's
decision that section 29(3)(a) of the Industrial Relations Act 1967
was effective to exclude the jurisdiction of the High Court to quash
a decision of the Industrial Court by certiorari on the ground of an
error of law except where the error goes to jurisdiction, was in effect
abrogated in advance by the recent amendment. That the decision
has wider implications - in the writer's opinion unfortunate ones -
is the burden of this note.
The case came before the Board in the following manner. On
4th February 1974 the respondent union called out on strike its
members who were employees of the appellant company 3 The com-
pany issued notices to the employees on 5th February informing them
that unless they returned to work within 48 hours their services would
be deemed to be terminated. On 12th February the Minister for
Labour and Manpower referred the dispute to the Industrial Court.
On 16th February the strikers attempted to return to work but were
locked out. They argued before the Industrial Court that the lockout
was illegal because the dispute had been referred to the Industrial
Court. On 8th August the Industrial Court made an award in their
favour, and ordered the company to take them back, as from 16th
February on the same terms and conditions as before. The appellants
applied to the High Court for certiorari to quash the Industrial Court's
decision for an error of law on the face of the record. The High
Court granted the application and quashed the award of the Industrial
Court.4 The union appealed to the Federal Court, which held that
1 [1980] 2 All E.R. 689.
2 See now the new s. 33A of the Act. Also in view of the Board's decision
the important question whether there was an error of law by the Industrial
Court did not fall for consideration.
3 The other respondents were employees who went on strike but were not
members of the union.
4 [1975] 2 M.L.J. 250.](ViewImageLocal?handle=hein.journals/sjls22&div=34&collection=journals&method=preview&ext=.png&size=3)
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Jurisdictional Theory in the Melting Pot
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