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2021 MarsdenLR 3838
COURT OF APPEAL PUTRAJAYA
KESATUAN PEKERJA-PEKERJA KERETAPI TANAH MELAYU BERHAD – Appellant
Versus
MENTERI SUMBER MANUSIA & ORS – Respondent
[Civil Appeal No: W-01(A)-526-08/2018]
Recognition of trade unions requires adherence to natural justice principles, necessitating consultation with existing unions to avoid overlapping representations and protect workers' rights.
Headnote:(A) Trade Unions Act, 1959 – Industrial Relations Act 1967 – Section 9 – Judicial Review – Appeal of a trade union challenging the recognition accorded to another union without consultation – The LHCJ's dismissal of the JR application was found flawed for breach of natural justice principles requiring consultation and a right to be heard for affected parties (Paras 12-94).
(B) Natural Justice – An existing trade union must be consulted before recognition of a competing union is granted as per established principles, ensuring representation and voice in matters affecting their rights (Paras 12, 53, 91).
(C) Legitimate Expectation – The principle mandates that parties who may be adversely affected by a decision have the right to be heard (Paras 59-70, 94).
Facts of the case: The appellant is a longstanding trade union representing KTMB employees challenging the recognition of a new union (4th respondent), arguing procedural flaws and violation of natural justice (Paras 16-12).
Findings of Court: The LHCJ's view was overturned as the decision-making lacked consultation with the appellant, breaching principles of natural justice (Paras 12, 73-94).
Issues: The critical issues included whether the LHCJ erred in stating there was no requirement for consultation or a right to be heard in recognition matters (Paras 54, 70).
Ratio Decidendi: The court emphasized the necessity of consulting existing unions to prevent overlap in representation and promote industrial harmony (Paras 12, 19).
Result: Appeal allowed; LHCJ's decision quashed (Paras 12-95).
JUDGMENT
Introduction
[1] This is an appeal by the appellant against the decision of the Learned High Court Judge ("LHCJ") given on 25 July 2018 which dismissed the appellant's application for Judicial Review ("JR") for an order of certiorari to quash the decision of the 1st respondent and other reliefs.
Background Facts
[2] The appellant is a trade union of employees in Keretapi Tanah Melayu Berhad ("KTMB") established and registered under the Trade Unions Act, 1959 (" TUA 1959") on 30 January 1961.
[3] The 1st respondent is the Minister of Human Resources who is empowered under s 9(5) of the Industrial Relations Act 1967 (" IRA 1967") to decide whether or not a claim for recognition of a trade union ought to be accorded.
[4] The 2nd respondent is the Director-General of the Industrial Relations Department, who is empowered by the IRA 1967 to have general direction, control and supervision of all matters relating to industrial relations.
[5] The 3rd respondent is the Director-General of Trade Unions, who is empowered by the TUA 1959 to have general direction, control and supervision of all matters relating to trade unions in Malaysia.
[6] The 4th respondent is a national trade union registered by the 3rd respondent under the TUA 1959 on 18 September 2015. The 4th respondent represents all non-executive train drivers in the country.
[7] Vide a letter dated 18 October 2016, the 4th respondent sought recognition from KTMB in respect of representing the train drivers only. KTMB did not respond to the 4th respondent's application for recognition. Therefore, vide a letter dated 11 November 2016, the 4th respondent lodged a complaint with the 2nd respondent that KTMB did not respond to its application for recognition.
[8] On 8 December 2016, the claim was referred by the 4th respondent to the 2nd respondent.
[9] On 15 May 2017 and 16 May 2017, a secret ballot was carried out and the results of the secret ballot revealed that 85.58% of the train drivers in KTMB had become members of the 4th respondent.
[10] Vide a letter dated 12 July 2017, the 1st respondent had accorded recognition to the 4th respondent with effect from 18 October 2016.
[11] The appellant filed an application for JR and sought the following reliefs:
(1) An order of certiorari to quash the 1st respondent's decision dated 5 July 2017 that the 4th respondent be accorded recognition ("The Impugned Decision") to represent all train drivers except those employed in a management, executive, confidential or security capacity;
(2) A declaration that the Impugned Decision made by the 1st to 3rd respondents are a breach of the Federal Constitution and principles of natural justice and as a result, unconstitutional and void;
(3) An order of prohibition to prevent the 1st to 3rd respondents from making any subsequent decisions to register and/or to recognise a trade union which has a membership that is overlapping/identical with the scope of the appellant's existing membership;
(4) In the alternative to (3), an order of prohibition to prevent the 1st to 3rd respondents or with one or more of them from making any subsequent decisions to register and/or to recognise a trade union which has a membership that is overlapping/identical with the scope of the appellant's existing membership without furnishing the appellant with the reasons and according the appellant's a right to be heard; and
(5) Costs.
[12] On 25 July 2018, the Learned High Court Judge ("LHCJ") dismissed the appellant's application for JR.
Findings Of The High Court
[13] The LHCJ held that there is nothing in s 9 of the IRA 1967 that requires the 3rd respondent to consult another union before according recognition, unlike the case of the registration of trade unions. Unlike s 12 of the TUA 1959, s 9 of the 1967 makes no reference to any other trade union. This is further fortified by reference to r 7(1) of the Industrial Regulations 2009. As such, there is no legal requirement for the 1st to the 3rd respondents to co
