The court upheld that a failure to consult existing trade unions before registering a new in-house union contravenes statutory requirements under the Trade Unions Act 1959, making such decisions potentially void.

[1] The appellant's (a national based union) appeal against the decision of the learned High Court Judge who refused an application for judicial review in respect of a decision of the 1st respondent in allowing the 2nd respondent to be registered as in-house 'establishment' union pursuant to s 12 of the Trade Unions Act 1959 ( TUA 1959) came up for hearing on 2 July 2014 and upon hearing the submission we reserved judgment. My learned brothers Abdul Wahab Patail JCA and Linton Albert JCA have read the judgment and approved the same. This is our judgment.

Brief Facts

[2] The learned counsel for the 2nd respondent has set out the facts. It will save much judicial time by repeating the same. The brief facts inter alia read as follows:

(a) the applicant is a trade union registered pursuant to s 12 of the TUA 1959, representing non-executive employees in the entire banking industry, including Malayan Banking Berhad (Maybank) since 1958. The applicant has been concluding collective agreements with the Malaysian Commercial Employees Association which bind inter alia, Maybank and its non-executive employees.

(b) pursuant to the decision, the 2nd respondent was registered as a trade union to represent Maybank non-executive employees on 3 January 2011.

(c) by letter dated 28 January 2011, the applicant filed an appeal pursuant to s 71A of the TUA 1959 with the 1st respondent to cancel the registration of the 2nd respondent.

(d) on 8 February 2011, without a response or decision on the appeal, the applicant filed the JR application herein to challenge and quash the decision for inter alia the following reasons:

(i) The 1st respondent failed to afford the applicant an opportunity to be heard before proceeding to register the 2nd respondent as a trade union; and

(ii) The 1st respondent failed to take into account the scope of the 2nd respondent's membership which overlapped and/or is identical with the scope of membership of the applicant and that the applicant's members who are employed with Maybank are enjoying the terms and benefits of the 16th Collective Agreement entered into between the applicant and Malaysian Commercial Employees Association.

[3] The learned counsel for the 2nd respondent says:

(a) pursuant to s 12(2) of the TUA 1959, there is no impediment in law to the co-existence of an in-house union and a national union representing the same category of employees;

(b) in point of fact, there existed another in-house union within Maybank representing its executive officers who were, at the material time, a category of employees falling under the umbrella of representation of the Association of Bank Officers, Peninsular Malaysia, a national trade union for executive officers in the banking industry; and

(c) it is in the best interest of the non-executive employees of Maybank that the 2nd respondent be registered in furtherance of its employees' right of association guaranteed by the Federal Constitution and their legitimate right to elect to be represented by a union of their choice.

(d) The 2nd respondent after close of submission had also brought to our attention, the Court of Appeal's decision in Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia (ABOM) v. Ketua Pengarah Kesatuan Sekerja, Malaysia, [2014] 5 CLJ 562 (which relied on Robin's case and Nordin's case), and submitted as follows:

"Mahkamah Rayuan telah menyatakan bahawa s 12(1) tidak mewajibkan Ketua Pengarah Kesatuan Sekerja untuk memberi hak pendengaran kepada kesatuan sekerja pada tahap nasional di dalam kes itu sebelum mendaftarkan suatu kesatuan sekerja dalaman syarikat disitu."

We will deal with this issue in greater detail below.

[4] It is of interest to note that the learned counsel for the 2nd respondent says as follows:

"What i