Failure to consult all affected parties renders the registration of a trade union invalid under the Trade Unions Act.

The Parties

[1] The appellant is an in-house union of Malayan Banking Berhad (MBB) which was registered by the Ketua Pengarah Kesatuan Sekerja, the second respondent, (hereinafter referred to as the DG) on 3 January 2011 pursuant to s 12 of the Trade Unions Act 1959 ( TUA 1959). The first respondent (hereinafter referred to as NUBE) is a national union representing non-executive employees in the banking industry including MBB.

Background Facts

[2] On 3 January 2011, the DG registered the appellant as a trade union to represent MBB's non-executive employees. By a letter dated 28 January 2011, NUBE filed an appeal to the DG pursuant to s 71A of TUA 1959 to cancel the registration of the appellant. Failing to get any response or decision on the appeal, NUBE filed an application for judicial review on 8 February 2011 to challenge and quash the decision of the DG for inter alia the following reasons:

(i) that the DG failed to afford NUBE an opportunity to be heard before proceeding to register the appellant as a trade union; and

(ii) the DG failed to take into account the scope of the appellant's membership which overlapped and/or is identical with the scope of membership of NUBE who are employed with MBB and enjoying the terms and benefits of the 16th collective agreement entered into between NUBE and Malaysian Commercial Banks Association.

[3] On 7 November 2013 the High Court dismissed NUBE's application for judicial review on the grounds that s 12(2) of TUA 1959 gave the DG a wide discretion whether or not to allow the registration and that the same provision also does not provide for or require consultation before any decision to register is made. The High Court held that the DG was correct in arriving at his decision to register the appellant.

Decision Of The High Court

[4] In dismissing NUBE's application for judicial review, the learned High Court Judge concluded that the issue before the Court rests mainly, if not solely, on the application of s 12(2) of TUA 1959. At paras 18 and 19 of the judgment, the learned High Court Judge found:

[18] Further it is also my opinion that s 12(2) of Act 262 gives upon the 1st respondent wide discretion to allow or not to allow registration of a union. The use the word "may" in the subsection is testimony to this as opposed to the word "shall" used in its subsection (3). Refer to the Court of Appeal's decision in Ma Boon Lan v. UOB Kay Hian Pte Ltd (previously known as Kay Hian Pte Ltd) and Another Appeal, [2013] 4 MLJ 848.

[19] Further, Act 262 does not provide or require any consultation before the 1st respondent can exercise his power to register. There is also nothing in the Act which prohibits the 1st respondent from registering the 2nd respondent as an in-house union. In fact, I do not see any overlapping in the scope of membership of the applicant with the 2nd respondent. The 2nd respondent is merely an in-house union representing non-executive employees of MBB whereas the applicant is an industry based union representing non-executive employe