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2018 MarsdenLR 229
COURT OF APPEAL PUTRAJAYA
ALLIANCE BANK MALAYSIA BERHAD – Appellant
Versus
MENTERI SUMBER MANUSIA & ORS – Respondent
[Civil Appeal No: W-01(A)-268-07-2016]
The court upheld the executive's decision on employee classifications under the IRA, emphasizing that judicial review does not equate to an appeal.
Headnote:This judgment addresses the appellant's appeal against the High Court's dismissal of its application for judicial review, noting the relevant provisions of the Industrial Relations Act 1967 (IRA). The court found that the Minister's determination regarding employee classifications was lawful and justified based on thorough investigations under sections 9(1A), 9(1B), and 9(1D) of the IRA. The court confirmed that the judicial review proceedings did not present sufficient basis for overturning the Minister's decision, affirming the High Court’s findings. Ultimately, the appeal was dismissed.
| Table of Content |
|---|
| 1. conclusion on the dismissal of the appellant's appeal. (Para 1) |
| 2. promotion leading to change in union representation. (Para 2 , 3 , 4) |
| 3. the promotion and employee classification of clerical staff. (Para 5) |
| 4. dispute over union representation and complaints to minister. (Para 6 , 7 , 8) |
| 5. minister's decision based on dgir findings. (Para 10 , 11 , 12) |
| 6. challenge to the judicial review process and evidence requirements. (Para 14 , 30) |
| 7. arguments against minister's decision and need for evidence. (Para 15 , 28 , 29) |
| 8. judicial review principles regarding executive discretion. (Para 18 , 20 , 23) |
| 9. court's findings on compliance with the law. (Para 21 , 22 , 24) |
| 10. affidavit transparency and decision-making compliance. (Para 25 , 27) |
[1] Having heard arguments by both sides, we dismissed the appellant's appeal with costs. We found no reason to interfere with the decision of the High Court dismissing the appellant's application for judicial review to quash the decision of the 1st respondent ("the Minister"). Our decision was unanimous and these are our grounds for dismissing the appeal.
[2] The salient facts are as follows. Sometime in 2012, the appellant, a licensed bank under the Financial Services Act 2012 and a member of the Malayan Commerce Banks' Association, rolled out a promotion exercise in Peninsular Malaysia whereby its clerical and special grade clerks were given the opportunity to apply for the position of Customer Service Executive ("CSE"), which was categorised under the B1A Grade of employees.
[3] At the end of the promotion exercise, a total of 205 clerks accepted their promotions to the position of CSE, which meant they were now employed in the managerial, executive, confidential or security capacities. Their designations were also changed from clerks to junior officers with enhanced roles as reflected in their new job descriptions.
[4] Being employed in these capacities meant that they ceased to be members of the 4th respondent, the National Union of Bank Employees ("NUBE"), which represents the appellant's employees under the category of clerical, nonclerical and special grade staff.
[5] In their new positions as CSEs, the promoted clerks became eligible for membership of the Association of Bank Officers, Peninsular Malaysia ("ABOM") and that consequently they came within the scope of ABOM's representation and no longer within the scope of NUBE's representation.
[6] This was the trigger that led to the conflict between the appellant and NUBE, with ABOM waiting on the sidelines with keen interest on the outcome of the dispute. Thus, from NUBE's point of view, the promotion of these clerks to the position of CSEs has the following consequences:
(1) as the position of CSE is categorised under the B1A Grade of employees, the CSEs could no longer be represented by NUBE as they fall within the scope of ABOM's representation; and
(2) as a trade union of employees, the size of NUBE's membership is essential in order to carry out its functions.
[7] NUBE later discovered that the CSEs continued to undertake tasks (such as teller work) that were similar to those that they undertook prior to their promotions to the position of CSEs, with only an increased sales function. NUBE saw this as a form of union-busting tactic by the appellant Bank as it altered the designation of its staff from clerks to CSEs disguised as a promotion, with the aim of excluding these employees from being members of NUBE.
[8] NUBE referred its discovery to the 2nd respondent ("the DGIR") vide letter of complaint dated 29 May 2013 in accordance with s 9(1 A) of the Industrial Relations Act 1967 ("the IRA ").
[9] Pursuant to s 9(1B) of the IRA , the DGIR carried out an investigation into the appellant's branches in Selangor, Kuala Lumpur, Johor and Penang to determine whether the CSEs were employed in the managerial, executive, confidential or security capacities.
[10] The DGIR's investigation confirmed that the CSEs were not in fact emp
