:

Preliminary

These were two appeals (heard together for convenience) by the Minister of Human Resources (the Minister) and the National Union of Bank Employees (NUBE), respectively, from the decision of the Court of Appeal, allowing the appeal of the Association of Bank Officers, Peninsular Malaysia (ABOM), from the decision of the High Court, refusing an application for an order of certiorari to quash the decision of the Minister made under s 9(5) of the Industrial Relations Act 1967 (the Act) that certain employees of Perwira Affin Bank (the Bank) who were tellers and receptionists and who had been upgraded/promoted to the status of internal officers (the relevant officers) had not thereby become officers employed in an executive capacity within the meaning of s 9(1) of the Act.

In this judgment, all references to sections, unless the context otherwise requires, are to sections of the Act.

The Proceedings in the High Court

In the High Court, the applicants were, of course, ABOM whilst the Minister, the Bank and NUBE, were the first, second and third respondents, respectively.

Broadly stated, the grounds upon which ABOM relied to impugn the decision of the Minister by way of certiorari were, that in arriving at his decision aforesaid, he acted irrationally, and illegally and in excess of jurisdiction, in that he had refused or failed to take into account certain relevant considerations of Fact and Law to which we shall refer later.

A separate ground relied upon by ABOM was that there being no dispute as between the Bank and ABOM regarding the question whether or not the relevant officers were executive officers, the Director General of Industrial Relations (the Director General) had no jurisdiction to entertain the purported reference under s 9(1A) or to notify the Minister under s 9(4C), and by the same token, the Minister himself had no threshold jurisdiction to embark upon a consideration of the purported notification, and consequently, to give a decision thereon pursuant to s 9(5).

In the event, none of the contentions of Counsel for ABOM prevailed; the learned Judge in the High Court holding that the Minister had the necessary threshold jurisdiction to consider the notification from the Director General and his decision was not flawed by mala fides, Wednesbury unreasonableness or breach of the rules of natural justice. The application was accordingly dismissed with costs.

The Proceedings in the Court of Appeal

From that decision of the High Court, ABOM appealed to the Court of Appeal on a number of grounds but at the end of the day, the only ground which commended itself to the Court of Appeal was that relating to the threshold jurisdiction of the Minister, that is to say, that there being no dispute as between the Bank and its workers as to whether any of them were employed in a managerial, executive, confidential or security capacity, recourse to s 9(1A) was precluded. The reasoning of the Court of Appeal appears sufficiently from the following passages in its judgment ( [1997] 3 MLJ 277 at p 280):

From the above provisions [(s 9(1A)], it seems clear that in order

for any party mentioned therein to have recourse to s 9(1A) the

condition precedent is that a dispute had arisen as to whether any

workman or workmen are employed in a managerial, executive,

confidential or security capacity. From our perusal of the records,

there was no evidence of any such dispute. The dispute envisaged in

that section must necessarily be between the employees and the bank.

What seems to be in dispute here is between two trade unions, the

appellant and the third respondent [with] each claiming to have a

superior right to represent the internal officers.

We stress again that no dispute had arisen between the second

respondent and those of its employees that were affected by the

upgrading /promotion exercise and, as such [there