AWARD

Franklin Goonting:-

[1] This trade dispute concerns the proposed terms of a Collective Agreement for the period 1 January 2003 to 31 December 2005. As named in the ministerial reference the union/applicant is Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan(NUCW) while the respondent is Bumiputra Commerce Factorlease Berhad.

[2] On 30 August 2007 NUCW filed an application to join the National Union of Bank Employees (NUBE) and CIMB Bank Berhad (CIMB) as parties to the dispute. The court understands this to mean that NUCW wants itself to be substituted by NUBE and the respondent to be substituted by CIMB. It is an extraordinary application in that it seeks a replacement of parties on both sides of the contention ie. the contender and the defender, by outsiders. When asked by the court whether there was any precedent for it, Mr. Chandra, counsel for NUCW, candidly replied in the negative, adding that he was trying to cover new ground.

[3] Supportive and opposing affidavits, and written submissions were filed and the court and its panel heard further oral submissions on 30 July 2008 and it now gives its ruling. The facts wherever referred to herein are gleaned from the said affidavits.

Antecedents

[4] The previous period, that is, 1 January 2000 to 31 December 2002 is covered by Collective Agreement Cog. 233/2001 between NUCW and Bumiputra - Commerce Factoring Berhad (hereinafter called "BCFB" (not the respondent, be it noted).

[5] BCFB and Bumiputra-Commerce Leasing Berhad (hereinafter called "BCLB") were wholly owned subsidiaries of the then Bumiputra - Commerce Bank Berhad (BCBB, now CIMB).

[6] BCFB had 53 staff, of whom 19 clerical and non-clerical staff were members of NUCW. Its 34 officers were not unionized. The said 19 clerical and non-clerical staff came under CA Cog. 233/2001 aforesaid.

[7] BCLB had 38 staff ie. 26 officers and 12 clerical and non-clerical staff, all not unionized.

[8] In early 2004 these two subsidiaries merged upon terms that BCLB would purchase the assets and liabilities of BCFB which would then become dormant. All its employees including the said 19 unionized staff accepted employment by BCLB on an employment package which was no less favourable than what they were getting from BCFB. With effect from 15 June 2004 BCLB changed its name to Bumiputra-Commerce Factorlease Berhad, that is, the respondent herein.

[9] By a Vesting Order dated 28 September 2004 the business of BCFB was transferred to the respondent as a going concern under section 50 of the Banking and Financial Institutions Act 1989 .

[10] By letter dated 15 March 2006, all the employees of the respondent were offered direct employment by BCBB and/or its subsidiaries commencing from 1 April 2006. In response to this offer, 16 of the 19 former unionized staff of BCFB were absorbed into the service of BCBB whilst the remaining 3 staff were absorbed by two (2) of BCBB's subsidiaries, namely, Semerak Services Sdn Bhd and EPIC - 1 Sdn Bhd. The result: There are no more members of NUCW left in the employment of BCFB or the respondent .

[11] The said staff of the respondent who joined BCBB then became subjected to the terms and conditions of employment contained in the Collective Agreement between Malayan Commercial Bank's Association (MCBA) and NUBE ie. CA Cog. 73/2001. It must be emphasised that the terms and conditions of CA Cog. 233/2001 were similar in almost all respects to the terms and conditions of CA Cog. 73/2001.

[12] With effect from 7 September 2006 BCBB changed its name to CIMB.

The dispute

[13] In October 2003 NUCW served a notice on BCFB to commence negotiations for a new collective agreement for the period 1 January 2003 to 31 December 2005 to replace the expired CA Cog. 233/2001.

[14] In view of the said merger, BCFB did not commence negotiation with NUCW, which then referred the matter as a trade dispute to the Director of Industrial Relations. Following an initial meeting at the Industrial Relations Department NUCW submitted a proposal fo