The court upheld the inclusion of seasonal employees for union membership verification effective for trade union recognition under the Industrial Relations Act, affirming judicial review principles against unreasonable administrative decisions.

Suraya Othman JC (now J):

INTRODUCTION

[1]This is an application by the applicant (Holiday Villages of Malaysia Sdn Bhd) for judicial review for an order of certiorari to quash the decision [2008] 6 MLJ 302 at 310 of the first respondent (Menteri Sumber Malaysia) made on 1 June 1998 under s 9(5) of the Industrial Relations Act 1967 (Act 177) (‘IR Act’) ordering the applicant to accord recognition to the second respondent (Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar dan Restoran Semenanjung Malaysia) as a trade union representing all employees of the applicant excluding those in the managerial, executive, confidential and security capacity.

FACTS AND BACKGROUND

[2]Briefly, the facts of the case are as follows:

(1)The applicant is a company incorporated in Malaysia and owns and operates an integrated holiday village complex known as Club Mediterranean Cherating Resort Village.

(2)The second respondent is a trade union of workmen registered under the Trade Unions Act 1959 (‘TU Act’).

(3)The applicant employed two categories of employees, permanent and seasonal employees. The seasonal employees are, according to the applicant, employed for a maximum period of about 10 months from February to November and whose employment will cease when the resort closed for business during the period commonly known as the ‘monsoon period’ affecting the east coast of West Malaysia (late November to January). The seasonal employees may or may not be employed thereafter, depending on various factors including whether the employees wish to be re-employed by the applicant.

(4)On 10 September 1997, the second respondent claimed recognition in Form A from the applicant, to represent all the employees other than those in the managerial, executive, confidential and security capacity with effect from 10 September 1997.

(5)Since there was no feedback from the applicant, the second respondent by a letter dated 10 October 1997, informed the Director General of the Industrial Relations (‘DGIR’) about the claim of recognition and requested that action be taken under s 9(4) of the IR Act.

(6)By a letter dated 25 October 1997, the Industrial Relations Department (‘IRD’) requested the applicant to submit a list of their employees as at 10 September 1997 excluding those who are employed in the managerial, executive, confidential and security capacity in Form B. Meanwhile, the second respondent was also requested to submit a list of the applicant’s employees who were their members in Form C.

(7)By a letter dated 7 November 1997, the second respondent made a complaint to the IRD that the applicant has refused to continue to employ about 80 employees as from 6 November 1997 without giving them any letter to the effect.

(8)On 16 December 1997, the applicant informed the DGIR by a letter that the contract of employment of many of their employees had come to an end around the period between 2 November 1997–8 November 1997 and as at 16 December 1997, 86.5% of their employees has ended their contract and only 13.5% of their employees still continue with their employment. In view thereof, the applicant requested the DGIR to carry out a membership verification in deciding whether to accord recognition to the second respondent. The applicant also submitted Form B with the list of their employees, permanent and seasonal as at the relevant date ie 10 September 1997 (see encl 1A, exh ‘A-3’ of the applicant’s affidavit).

(9)By a letter dated 3 January 1998, the second respondent submitted Form C together with the list of its members names.

(10)On 26 January 1998, the Trade Union’s Department (‘TUD’) informed the applicant and the second respond