Written Advocacy Tip: Break it down

Legislation is not an easy read, even for lawyers and judges. Sometimes I feel it is made difficult out of thoughtlessness, habit or a policy to make the law inaccessible to the general public; which applies at a given moment depends on my mood and whether the teh tarik is still hot. Laws are meant to apply to everyone, so like day follows night, it should follow that laws should be framed in a way that is understood by everyone. But as with most things in life, it is does not strictly follow logic’s beat.

Even when the words are clear, ambiguities arise because humans just see things differently from each other. We cannot help it. We all see things from our unique little parcel of the world. We have different brains, different life journeys and experiences, different education, different friends that all lead to a way of looking at the world. And yet we share these same things – brains, life journeys, experiences, etc., that lead us to a shared way of looking at the world. But even in a shared version of the world there will be differences.

Ultimately, the law’s demands for clarity, precedent and stability means that only one of those differences can be recognized as legitimate. This is where the courts come in and are needed to interpret, decide and pronounce some finality on that difference. And because there are courts, so there be lawyers to persuade the court which interpretation best fits the purpose of legislation and justice, which incidentally happens to benefit their client.

To make it easy for myself to understand a provision I break it down into discrete words and phrases that have a function and list them out vertically. It gives me like an X-ray of the scrutinized provision. I use section 47(1) of the Employees Provident Fund Act 1991 (‘the Act’) as an example because I applied it in my submission in the case of Funk David Paul v Asian General Asset Berhad [2013] 1 LNS 1327, CA, which I would like to think to good effect.

In that case, there was a contest on the interpretation of the word ‘wages’ and ‘remuneration’. I quote the whole provision as follows:

Notwithstanding any contract to the contrary, the employer shall not be entitled to deduct or otherwise recover from the wages or remuneration of the employee, the employer’s contribution, from the employee.

Section 47(1) of the Employees Provident Fund Act 1991

This became an issue because my client’s employer deducted the EPF contributions against the retirement gratuity due to him under his employment contract with the employer. We contended the provision the employer relied on to deduct the retirement gratuity was illegal and void because it contravened section 47(1).

The Act defined wages but not remuneration. So what did ‘remuneration’ encompass? This required a consideration of the words ‘wages’ and ‘remuneration’ which were defined under section 2 of the Act which reads as follows:

“wages” means all remuneration in money, due to an employee under his contract of service or apprenticeship whether agreed to be paid monthly, weekly, daily or otherwise and includes any bonus, commission or allowance payable by the employer to the employee whether such bonus, commission or allowance is payable under his contract of service, apprenticeship or otherwise, but does not include:

(c) gratuity;

(d) retirement benefit;

Section 2 of the Employees Provident Fund Act 1991

I limit myself to just those provisions as they are the only ones relevant. To make the provision more comprehensible and show that wages did not include a retirement gratuity (notwithstanding the provisions in (c) and (d) of the definition), I broke down the definition of wages in the following manner for the court:

all remuneration

in money,

under his contract of service

or apprenticeship

whether agreed to be paid

monthly, weekly, daily or otherwise

and includes

any bonus, commission or allowance

payable by the employer to the employee

whether such bonus, commission or allowance

is payable

under his contract of service, apprenticeship or otherwise,

but does not include:

Setting out the phrase this way made it easier to understand. It allowed me to isolate each component of the provision and gave a topography of the provision. In doing so, I could show very easily that wages was confined to whatever money paid for the work actually done. ‘Remuneration’, therefore, as a matter of necessity must include all those matters that were excluded from wages contained in paragraphs (a) to (g) of the definition.

We won the case. The eventual Federal Court appeal was dismissed.

If you are having difficulty understanding a statutory provision or any passage or text, that you do not understand, break it down. X-ray it. I think it has wide application for difficult passages. I find it easier to appreciate and absorb when I take it apart and rearrange it that way. The Judge may too, and that’s the most important bit.

Leave a Comment