New amendments to the Industrial Relations Act 1967 (" IRA 1967 ") came into force with the new year , heralding significant changes to employment-related litigation, especially at the higher levels of court.
Although the amendments were initially passed in early 2020, the subsequent change in government and looming pandemic had left the effective date of the changes an open and unanswered question until late last year.
Notably, while the amendments as passed included significant reforms to trade union-related matters, only certain provisions have entered into force with the new year, and these relate primarily to how industrial relations cases (and unfair dismissal cases in particular) are litigated at the Industrial Court and above.
These amendments are not retrospective, and will only apply to cases which have been filed from 2021 onwards. Most relevantly, these amendments comprise of the following:
Under the previous scheme of the IRA 1967 , any claim of recognition by a trade union or representation of unfair dismissal by a workman had to be notified to the Minister of Human Resources, who had the discretion to decide whether recognition should be accorded or refer the representation of unfair dismissal to the Industrial Court for adjudication.
Moving forward, claims of recognition will not be decided by the Minister, but rather directly by the Director-General of Industrial Relations upon completing the necessary enquiries and conducting a secret ballot of all eligible workmen.
Likewise, representations on unfair dismissals will no longer be subject to Ministerial discretion, and will be directly referred to the Industrial Court in the event reconciliation fails at the Industrial Relations Department.
In real terms, this amendment removes a long-standing bottleneck in industrial relations adjudication; given that the Ministerial reference was oftentimes a formality and could itself become the subject matter for protracted litigation, this change streamlines the litigation process and helps to ensure cases are brought to the Industrial Court more quickly.
Under the old regime, prevailing case law had held that the date of dismissal (as contained in the Ministerial reference) was a central facet to the viability of a claim of unfair dismissal, meaning that a challenge to the stated dismissal date would go to the root of the Industrial Court's jurisdiction and could render a claim void or vulnerable to challenge via judicial review proceedings. Moreover, it had been held that a workman's unfair dismissal claims were personal to him, and abated immediately upon his death irrespective of merits.
Now, however, any dispute as to the date of dismissal falls within the scope of the Industrial Court's power to determine in the course of hearing the claim, and the claims can proceed even where the workman has passed prior to the determination of his claim (and ).
