The Industrial Court has jurisdiction over trade disputes referred by the Minister, and immunity under s 22(1) of TUA does not apply to such disputes.

Wan Ahmad Farid Wan Salleh J:

The Factual Background

[1] The applicant is the National Union of Bank Employees. It is a trade union for Customer Service Bankers, Special Clerical and Non­Clerical bank employees and duly registered under s 12 of the Trade Unions Act 1959 (" TUA ").

[2] A trade dispute was filed by HSBC Bank Malaysia Berhad, the 2nd respondent, under s 18 of the Industrial Relations Act 1967 (" IRA "). Under s 18(1)(b) of the , where a trade dispute exists, that dispute, if otherwise not resolved, may be reported to the Director General of Industrial Relations ("Director General").

[3] The dispute was subsequently referred to the Industrial Court by the Minister of Human Resources ("the Minister") under s 26(2) of the IRA .

[4] The complaints by the 2nd respondent Bank in relation to the applicant's industrial activities are as follows:

4.1. Publishing various postings, statements, remarks and/or comments that were disparaging, disrespectful, derogatory, and/or defamatory in nature against the 2nd respondent Bank on its/their website and/or social media accounts.

4.2. Raising a complaint to the "UK National Contact Point for the OECD Guidelines for Multinational Enterprises" against the 2nd respondent Bank, alleging violations of the OECD Guidelines by the 2nd respondent.

4.3. Raising a complaint to the Labour Department of Semenanjung Malaysia on the alleged unfair labour practices by the 2nd respondent.

[5] Pursuant to the reference, the 2nd respondent Bank then prepared the Statement of Case and sought the following reliefs for the Industrial Court to:

(a) Order the applicant to cease and desist from; and

(b) Strike down; the alleged derogatory and defamatory media posting.

At The Industrial Court

[6] The applicant was of the view that the reliefs sought by the respondent Bank are in the nature of injunctions to prohibit and order the applicant Union to cease and desist from the social media postings that were purportedly derogatory and defamatory.

[7] The applicant then filed a notice of application under s 29(fa) of the IRA to strike off the respondent Bank's action at the Industrial Court. Under the sub-section, the Industrial Court has the power to order a case to be struck off or reinstated.

[8] The application to strike off in Enel 22A was anchored on s 22(1) of TUA . It provides as follows:

A suit against a registered trade union or against any members or officers thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union shall not be entertained by any Court.

On 1 September 2022, the application to strike off was dismissed by the Industrial Court.

[9] The grounds of the decision of the Industrial Court can be summarised as follows:

9.1 The Industrial Court was of the view that a dispute between the parties was on the implementation or application of any clause in a Collective Agreement will "clearly be a trade dispute". The learned Chairman of the Industrial Court cited the judgment of the Supreme Court in Dunlop Industries Employees Union v. Dunlop Malaysia Industries & Anor, [1987] 2 MLJ 81; [1987] CLJ 86 SC. The Supreme Court held that s 56(2) of the IRA clearly empowered the Industrial Court to make an award dealing with the complaint in respect to any non­compliance with the Collective Agreement.

9.2 Once the Minister of Human Resources ("the Minister") refers a trade dispute under s 26(2) of the IRA and the reference was not set aside or quashed by the High Court, the Industrial Court is therefore seized with the power and jurisdiction to hear the trade dispute between the parties and determine the issues before it. In Kathiravelu Ganesan & Anor v. Kojasa Holdings Bhd, [1997] 2 MLJ 685 SC, the same situation arose when the Minister referred a trade dispute to the Industrial Court. The Supreme Court held that in all cases where a party to a trade dispute intends to question the thresh