|
High Court
Of Malaya |
|
Association of Bank Officers, Peninsular Malaysia
- vs -
The
Director General of Trade Unions
|
|
Coram
KC VOHRAH J |
24 July 2004 |
Judgment
Raus
Sharif, J
-
There are two separate
applications for an order of certiorari to quash the decision of
the Ketua Pengarah Kesatuan Sekerja Malaysia (the first
respondent) dated December 27, 1999, in registering the Kesatuan
Pegawai-Pegawai Bumiputra Commerce Bhd (Kepak Bumiputra) (the
second respondent) to represent all workmen of Bumiputra
Commerce Bank Bhd (BCB). In R1-25-15-2000 the applicant is
Kesatuan Kakitangan Eksekutif Bumiputra-Commerce Bank Bhd (BOCESU)
while in Rl-25-10-2000, the applicant is Persatuan
Pegawai-Pegawai Bank Semenanjung Malaysia (ABOM). By the
agreement of all parties, the two applications were heard
jointly.
-
Briefly, the relevant
facts leading to the two applications are as follows.
-
In 1999, Bank
Bumiputra Malaysia Bhd (BBMB) underwent a merger exercise with
another bank known as Bank of Commerce Malaysia Bhd (BOC). Under
the merger, the conventional banking assets of BBMB were
transferred to BOC and BBMB took over the Islamic banking assets
of BOC. The ultimate result of this merger was that BBMB
conducted solely Islamic banking whereas BOC conducted
conventional banking business. Subsequent to the merger
exercise, BBMB was renamed as Bank Muamalat Malaysia Bhd (Bank
Muamalat) and BOC was renamed as Bumiputra Commerce Bank Bhd (BCB).
-
Prior to the
completion of the said merger, BOC made offers of continued
employment to the employees of BBMB. A sizable number of BBMB's
employees accepted the offer and subsequently became the
employees of BCB. In BOC, there were two recognised unions i.e.
BOCESU an in-house union which represented officers in Grades 35
and 36 and ABOM, a national union which represented officers in
Grade 34. However in BBMB there was only one union representing
all officers in Grades 34 to 39 and the union was known as
Kesatuan Pegawai-Pegawai Bank Bumiputra Malaysia Bhd or
KEPAK-BBMB.
-
With the merger, the
former employees of BBMB who were now employees of BCB, wanted
to maintain their "kepak identity" and decided to form an in
house union and applied to the first respondent for a new union
to be registered in BCB. The first respondent accepted the
application and registered a new in house union in BCB. The
union is the second respondent. The applicants are not happy
with the registration of the second respondent. Hence, the
applications by the applicants.
-
It is the applicants'
contention that the first respondent in registering and
permitting the second respondent to represent all employees of
BCB except those in management, confidential and security
positions had committed an error of law and acted in excess or
without jurisdiction in that the first respondent:
-
had failed to
consider or take into account and there are already in
existence two other trade union viz; — "BOCESU and ABOM"
which were already representing the employees whom the
second respondent intended to represent;
-
had failed to
consider or take into account that except those in
management, confidential and security positions, the second
respondent's scope of membership overlaps with BOCESU's and
ABOM's scope of membership;
-
had failed to give
an opportunity to the applicants to be heard at the time or
before the registration of the second respondent; and
-
had failed to act
in accordance with the provisions of ss 12(2), 15(2) and
26(1A) of the Trade Union Act 1959 (TUA).
-
The first respondent,
in defence of his decision to register the second respondent
made the following averments in this affidavit dated February
26, 2004:
-
This case is
unique and arise from the merger of BOC and BBMB to become
BCB. During the merger, there is no single union to look
after the interest of all the officers in BCB. Hence the
registration of the second defendant is to protect the
interest of all the officers in BCB.
-
The merger raises
the question of 2 unions that existed before the merger,
namely BOCESU and KEPAK BBMB. Because of the refusal of the
parties to merge and in order to reach a settlement, the
second respondent was registered. It is more reasonable and
effective to have all members under one union since it will
be more effective to affair the object of the union, that
is, to protect the interest of all the officers in BCB.
-
The decision to
register the second respondent is to ensure that the
interest of all the officers is protected under one union.
The scope of BOCESU and ABOM is for different grades,
whereas the scope of the second respondent will cover all
the grades of officers in BCB.
-
It is submitted by the
learned senior federal counsel that the first respondent has
considered the interest of all the officers in BCB before
registering the second respondent. According to her, the
registration of the second respondent is consistent to s
12(3)(a) of the TUA.
-
The second respondent
in opposing the applications raised two preliminary issues
namely:
-
Both the
applicants have not availed themselves of the remedies
available to them under the said Act; and
-
Both the
applicants have no locus to make the applications.
PRELIMINARY ISSUES
(i) Applicants have
not availed themselves of the
remedies under the
Act
-
The second
respondent's entire submission on this issue is premised on the
underlying assumption that the applicants have not exhausted its
remedies under s 15(2) or s 71A of the TUA and hence, this court
has no jurisdiction to entertain the applicants' applications.
With respect, I am of the view that the second respondent's
underlying assumption is incorrect.
-
Section 15(2) of the
TUA provides as follows:
|
(2) |
Where two
or more registered trade unions exist in a
particular establishment, trade, occupation or
industry, as the case may be, the Director General
may, if he is satisfied that it is in the interest
of the workmen in that establishment, trade,
occupation or industry to do so-
|
(a) |
cancel the certificate of registration
of the trade union or trade unions other
than the trade union which has the
largest number of workmen in the said
establishment, trade, occupation or
industry as its members; or |
|
(b) |
issues an order requiring the trade
union or trade unions other than the
trade union which has the largest number
of workmen in the said trade,
occupation, industry or place of
employment as its members to remove from
the membership register those members as
are employed in that establishment,
trade, occupation or industry and
thereafter the trade union or trade
unions so ordered shall not enroll as
members workmen in that establishment,
trade) occupation or industry, except
with permission in writing of the
Director General; an order under this
paragraph shall have full force and
effect notwithstanding any provision of
rules of the trade union concerned. |
|
I am of the opinion
that s 13(2) provides no avenue for the applicants to apply to
quash the first respondent's certificate of registration made in
respect of the second respondent. To me, s 13(2) relates to a
situation where it is the first respondent who initiates certain
steps or gives notice to the affected trade union regarding a
cancellation of its certificate of registration or ordering the
said trade union to remove members from its membership register.
Clearly, there is no remedy available to the applicants under s
15(2) of the TUA.
-
In respect of s 71A of
the TUA, the thrust of learned counsel for the second appellant
contention is that ABOM did not appeal against the decision of
the first respondent, while BOCESU did appeal to the Minister
and the appeal is still pending. Thus, it is submitted for the
second respondent that since the second respondent's second
preliminary objection is that the applicant have no locus
standi to challenge the decision of the first respondent
because the applicants "have no legal interest in the matter".
To me, this is a non-issue.
-
This is because the
court had granted leave to the applicants to apply for judicial
review and thus the issue of the applicants' locus standi
in the matter was clearly established. Moreover, from the facts
of this case, the application clearly have a legal interest in
the matter. The applicants at the material time statue creates a
right and gives a specific remedy, the applicants must resort to
chat remedy before resorting to the courts.
-
Section 71 A of the
TUA as they are relevant to these applications provides as
follows:
|
(1) |
Any person
who is dissatisfied with any opinion, order,
declaration, refusal, cancellation, withdrawal,
direction or decision, as the case may be, given,
made or effected by the Director General under any
of the following provisions:
|
(a) |
section 2(2); |
|
(b) |
section 12; |
|
(c) |
section 13(2)(b) or section 15(4)
|
may,
within thirty days from the date of the opinion,
order, declaration, refusal, cancellation,
withdrawal, direction or decision of the Director
General, appeal against the same to the Minister, in
such manner as may be prescribed by regulation. |
-
There is no dispute in
this case that ABOM did not appeal against the decision of the
first respondent. However BOCESU did appeal to the Minister. But
the appeal before the Minister is still pending. The question
is, does this preclude the applicants from making these
applications. With respect, I do not think so. The section used
the word "may" and not the word "shall" and as such I am of the
view the applicants do not have to pursue the remedy under the
Act before proceeding with these applications. In any event in
public law even where there is a statutory appeal procedure
available to the applicants, the applicants are not precluded
from resorting to judicial review on the ground of excess of
jurisdiction, or cases involving the exercise of power by public
authorities. (See Lai Cheng Cheong v Sowaratnam [1983] 2
MLJ 113, Kesatuan Sekerja Pembuatan Barangan Galian Bukan
Logam v Director General of Trade Unions [1990] 2 MLJ 231
and Majlis Perbandaran Pulau Pinang v Syarikat
Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan
[1999] 3 AMR 3529; [1999] 3 MLJ 1).
(ii) Locus
standi
-
The second
respondent's second preliminary objection is that the applicants
have no locus standi to challenge the decision of the
first respondent because the applicants "have no legal interest
in the matter". To me, this is a non-issue. This is because the
court had granted leave to the applicants to apply for judicial
review and thus the issue of the applicants' locus standi
in the matter was clearly established. Moreover, from the facts
of this case, the applicants clearly have a legal interest in
the matter. The applicants at the material time were
representing certain categories of officers of BCB. Registering
the second respondent and opening the membership of the second
respondent to all officers of BCB, will clearly effect the
position of the applicants. Surely, they have a legal interest
and locus standi to challenge the registration of the
second respondent in BCB.
-
Thus I find that there
is no merit in the preliminary issues raised by the second
respondent.
MAIN ISSUES
-
It is not disputed
that the first respondent has wide discretion as to whether he
should or should not register the second respondent. Surely, if
the respondent has acted within the provisions of the TUA and
has acted bona fide and considered relevant matters
without abusing his powers then that discretion cannot be
reviewed by judicial review proceedings. But this is not the
situation in this case. To me, the first respondent has not
properly exercised his statutory discretion under s 12(2) of the
TUA. This is because the first respondent failed to consider the
fact that the scope of the second respondent's membership was
overlapping with the scope of membership of the applicants. This
overlapping factor should have put the first respondent on guard
because of s 12(2) which states:-
|
The
Director General may refuse to register a trade
union in respect of a particular establishment,
trade, occupation or industry if he is satisfied
that there is in existence a trade union
representing the workmen in that particular
establishment, trade, occupation or industry and it
is not in the interest of the workmen concerned that
there be another trade union in respect thereof. |
-
The first respondent
in his reasons stated that he registered the second respondent
in order to protect the interest of all workmen of BCB and to
bring them under one umbrella. But to me, what the first
respondent did was the opposite and contrary to s 12(2) of the
TUA which discourages multiplicity of unions within the same
industry or trade or establishment or occupation. By allowing
the second respondent to be registered, the first respondent has
failed to realise that his action will cause industrial unrest
in the establishment. This is because the existing unions i.e.
ABOM and BOCESU have been accorded recognition by BCB. They are
already representing the employees in Grades 34-36 in BCB.
Allowing the second respondent to represent same grades in the
same occupation, i.e. Grade 34-36 officers, in not proper and
just exercise of discretion. In fact the first respondent by
registering the second respondent has created a rift between the
unions and employees of BCB and also employer of BCB. From the
affidavit supporting the application in R2-25-15-2001, there has
been allegation that the second respondent's office bearers have
interfered with the affairs of ABOM and BOCESU by coercing and
intimidating the employees of BCB as well and seeking them to
join the second respondent. Thus, the first respondent's
decision has clearly caused mistrust and disunity amongst the
officers of the three unions.
-
The principles and the
points of law that arise in this case falls fairly and squarely
within the principles and points of law decided by the Supreme
Court in Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia
v Minister of Labour, Malaysia [1989] 1 MLJ 30. This case
adequately illustrates how a Minister, by misdirecting himself
on a point of law, has wrongly exercised his statutory
discretion.
-
In that case the
Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia was a
registered trade union which received recognition from many
commercial banks including Maybank Bhd. In October 1986, the
Director General registered another bank union known as
Association of Maybank Officers to cater for the existing
officers in Maybank. Later, Maybank, accorded recognition to the
Association of Maybank Officers and withdrew its recognition to
the Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia. The
question that had to be decided by the court was whether the
Director General had exercised his discretion under s 12(2) of
the TUA properly when the Director General stated that he
registered the Association of Maybank Officers because he was
satisfied that it in the interest of the officers in the Maybank
Bhd to register association of Maybank officers as a trade
union. The Supreme Court held that the registration of the
association was null and void and went on to say:
|
The
registrar did not state that he had also taken into
consideration the interest of other workmen in
similar occupation as the officer in the bank. It
should be noted that sub-section (2) requires that
the interest of the workmen in the particular
occupation should be considered, not just the
interest of the officers in the employment of the
bank. Therefore it is clear that the registrar had
failed to correctly take into account the provision
of sub-section (2). In our judgment the registration
of the association as a trade union was a nullity
because the registrar had failed to take into
consideration the interest of the workmen in the
particular occupation, which he was required by the
law to take into consideration, and he had no power
to register the association as a trade union without
considering their interest. Similarly the decision
of the Minister on appeal to confirm the
registration was a nullity because it cannot be said
that all matters required by law to be taken into
consideration had in fact been taken into
consideration by him. |
-
Similarly, in the
present case the first respondent has said that he registered
the second respondent because he was satisfied that the
registration of the second respondent was in the interest of all
the workmen in BCB. But the first respondent has however failed
to state in his reasons that he had taken into the consideration
the interest of the workmen in Grades 34—36 in the employment of
BCB who are within BOCESU's and ABOM's scope of representation
when he decided to register the second respondent. This clearly
shows that the first respondent has failed to take into
consideration the interest of the workmen in the particular
occupation i.e. Grades 34 — 36 in BCB as stated in Maybank case
above. This was a relevant consideration which the first
respondent failed to consider.
-
The first respondent
in his affidavit has also stated he registered the second
respondent in the interest of all parties and wanted to bring
the unions under one umbrella. I am of the view that if that was
the reason, then BOCESU and ABOM being the interested parties
should have been consulted and given the right to be heard
because the registration of the second respondent would have
direct impact and repercussions on the scope of BOCESU and ABOM.
The question of whether a union should be given an opportunity
to be heard by the Director-General was ventilated in
Kesatuan Sekerja Pembuatan Barangan Galian Bukan Logam v
Director General of Trade Union [1990] 3 MLJ 231. In that
case, whilst the recognition issue of the applicant union was
pending for determination, the Director General registered the
fourth defendant union. The employers (second and third
defendants) accorded the fourth defendant recognition but
withdrew its recognition to the applicant union. The issue that
arose was whether the applicant union should have been given an
opportunity of being heard before the Director General
registered the fourth defendant. Edgar Joseph Jr J invoked the
concept of legitimate expectation of being heard in favor of the
applicant union when he said:
|
applying
the principle to the fact disclosed in the statement
of claim, I am satisfied that it was certainly
arguable that the plaintiff could invoke the concept
of legitimate expectation of being afforded an
opportunity of making representations before the
first defendant proceeds to register the fourth
defendant as a trade union .... |
-
In the present case
the first respondent has not given the applicants an opportunity
of being heard before the registration of the second respondent.
Surely, there was a reasonable expectation that the first
respondent would call on BOCESU and ABOM to give their views and
their representations before the registration of the second
respondent, which would be representing employees in Grade 34 to
36 who are within the scope of membership. A reasonable person
similarly circumstanced would have anticipated that trouble
would brew between the unions because the registration of the
second respondent would cause dissatisfaction among the
employees of BCB, especially Grades 34 to 36 and the existing
unions in BCB. It is for that reason that the first respondent
should have afforded the BOCESU and ABOM an opportunity to be
heard before the registration of the second respondent.
-
In conclusion, I am of
the opinion that this a fit case where this court ought to
exercise its judicial review powers. Accordingly, I allowed both
applications with costs.
Cases
Kesatuan Sekerja Pembuatan
Barangan Galian Bukan Logam v Director General of Trade Union [1990]
2 MLJ 231, HC; Lai Cheng Cheong v Sowaratnam [1983] 2 MLJ 113, FC;
Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama
Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 AMR 3 529;
[1999] 3 MLJ 1, FC; Persatuan Pegawai-Pegawai Bank Semenanjung
Malaysia v Minister of Labour, Malaysia [1989] 1 MLJ 30, SC
Legislations
Trade Unions Act 1959:
s.2(2), s.12, s.15, s.26(1A), s.71A
Representations
LG Seah (Lobo &
Associates)
Azizah Nawawi, SFC (AG's
Chambers) for first respondent
P Kuppusamy and VK Raj (P
Kuppusamy & Co) for second respondent
Notes:-
This decision is also
reported at [2004] 6 AMR 334 |
