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1996 MarsdenLR 244
HIGH COURT MALAYA, PENANG
VINCENT NG KIM KHOAY, J
NONMETALLIC MINERAL PRODUCT MANUFACTURING UNION – Appellant
Versus
KETUA PENGARAH KESATUAN SEKERJA MALAYSIA & ANOR – Respondent
ORIGINATING MOTION NO: 25-22-95
The Director General of Industrial Relations is the sole authority for determining union recognition, while the Director General of Trade Unions serves only as a verifier of membership competence. Conflating these functions or failing to provide a reasoned basis for decisions constitutes a jurisdictional error subject to judicial review.
Headnote:(A) Industrial Relations Act 1967 - Sections 9(1), 9(2), 9(3), 9(4A), 9(4B)(b) - Trade Unions Act 1959 - Section 26(3) - Industrial Relations Regulations 1980 - Regulation 4(1)(c) - Certification of recognition - Statutory roles of the Director General of Industrial Relations (DGIR) and the Director General of Trade Unions (DGTU) - Distinction between competency to represent and recognition of trade union - Judicial review of administrative decision.
(B) Judicial Review - Nature of - Concerned not with the decision itself but the decision-making process - Courts intervene to ensure powers are exercised lawfully, in accordance with fair procedure, and reasonably - Error of law committed by public decision-making body is excess of jurisdiction.
(C) Statutory Interpretation - Respective roles of authorities - DGIR is the primary decision-making authority for recognition - DGTU acts as a verifier and reporter regarding membership competence - DGTU lacks authority to decide on recognition status - Failure to distinguish these roles constitutes jurisdictional error.
(D) Procedural Fairness - Duty to provide reasons - Although specific statutes may not mandate reasons, the record must manifest the basis for a decision - Decision arrived at with no evidence or which is unreasonable is susceptible to judicial setting aside.
Facts of the case:
A trade union sought recognition to represent employees at a manufacturing facility. The employer contested this by filing an application under the industrial relations legislation to verify membership status. The concerned administrative authorities failed to conduct the required membership verification and instead issued conflicting and unsupported declarations regarding the union’s competency to represent the workers. The union sought an order of certiorari and mandamus, alleging that the DGTU had exceeded his authority and the DGIR had failed to exercise his duty to resolve the matter of recognition.
Findings of Court:
The court found that the DGTU had exceeded his jurisdiction by effectively making a determination on recognition rather than merely reporting on membership competence. The DGIR failed to perform his statutory duty to resolve the matter, acting merely as a conduit for the DGTU's decision. The record lacked evidence of the requisite membership check, rendering the administrative decision arbitrary and procedurally flawed.
Issues: The main issues were: (i) whether the DGTU is empowered to decide on the recognition of a trade union; (ii) the respective statutory roles of the DGIR and DGTU; and (iii) whether the administrative authorities acted within their jurisdiction when refusing recognition without a proper membership verification process.
Ratio Decidendi: The court ruled that the statutory functions distinguish between membership verification (DGTU) and recognition determination (DGIR). The DGTU functions solely as a reporter on the competence of the union based on membership records. Misconstruing these roles and failing to conduct the necessary inquiry constitutes a jurisdictional error. Administrative bodies must act rationally and provide a basis for their decisions to satisfy procedural fairness.
Result: Certiorari issued to quash the DGTU's decision; mandamus issued to direct the proper exercise of statutory duties; costs awarded to the applicant.
JUDGMENT
Vincent Ng Kim Khoay J:
This was a Notice of Motion (encl. 11) filed by the applicant union, Non- Metallic Mineral Products Manufacturing Employees Union, in which they had sought the following reliefs: (i) for a writ of certiorari to be issued to remove to this Court for the purpose of quashing the decision of the first respondent, the Director General of Trade Unions (DGTU), dated 19 December 1994 which states that the applicant is not competent to represent the employees of Syarikat Dawson Enterprise Sdn. Bhd. (the company); (ii) for an order of mandamus to direct the second respondent, the Director General for Industrial Relations (DGIR) to resolve the application by the applicant for recognition by directing the DGTU to specifically take the required action under reg. 4(1)(c) of the Industrial Relations Regulations 1980 (lRR); (iii) for consequential directions; and (iv) for costs. The background of the case is as follows.
The applicant is a registered union and its membership is open to all employees in companies and other commercial concerns engaged in the manufacture of non-metallic mineral products.
Rule 3 of the applicant's Rules and Constitution states that membership of the union shall be open to all employees other than those employed in the managerial, executive, confidential and security capacities.
Dawson Enterprise Sdn. Bhd. runs a factory at Lot 267, Jalan Perusahaan 6, Kawasan Perindustrian Prai and the workers in this factory are engaged in the production of spun piles which are non-metallic mineral products.
In December 1992, the applicant served on the company, pursuant to s. 9(2) of the Industrial Relations Act 1967 (IRA), a claim for recognition of the union as eligible to represent the workmen employed in the company. In response to this application the company made an application to the DGIR under s. 9(3)(c) of the IRA, the crux of which provision reads "to ascertain whether the workmen in respect of whom recognition is being sought are members of the trade union of workmen concerned." which is couched in strikingly similar terms to reg. 4(1)(c) of the IRR. The said letter dated 21 December 1992 is reproduced follows:
- DAWSON ENTERPRISE SDN. BHD
Registered
Received
Our Ref: PRAI/KESATUAN/92(2) Date: 21st Disember, 1992
Setiausaha Kesatuan Sekerja Pembuatan Barangan Galian Bukan-Logam (NMMPMEU) 99-A Jalan SS 14/l Subang Jaya 47500 Petaling Jaya Selangor Darul Ehsan
Sir
Re: Claim For Recognition
Your letter dated 4th December 1992 on the above refers.
We wish to inform you that we have made an application to the Director-General of Industrial Relations under s. 9(3)(c) of the Industrial Relations Act, 1967.
We will revert to you when we hear from the Director-General.
Thank you.
Yours faithfully,
Dawson Enterprise Sdn. Bhd.
sgd. Authorised Signatory
c.c. 1. Ketua Pengarah Jabatan Perhubungan Perusahaan (HQ) 2. Tuan Ketua Pengarah Jabatan Hal Ehwal Kesatuan Sekerja (HQ) 50542 KUALA LUMPUR 3. Tuan Pengarah Jabatan Perhubungan Perusahaan P. Pinang 10300 PULAU PINANG
SB/nk
For reasons that will be explained later, it is important to note that the company had stated in the letter of 21 December 1992 that they had made the application under s. 9(3)(c) of the IRA which, in turn, is governed by s. 9(1).
Then, at the request of the DGIR the applicant sent a list of members it recruited, and the DGIR by a letter dated 15 February 1993 requested the DGTU to do two things, namely:
(i) to make a decision on the competence of the applicant to represent the workers of the company under s. 9(4B)(b) of the IRA; and
(ii) to carry out a membership check under reg. 4(1)(c) of the Industrial Relations Regulations 1980 (the IRR).
Responding to that request, by a letter of 18 May 1993, the Deputy DGTU decided that the applicant was not competent to represent the workers of the company. This decision of the Deputy DGTU became the subject matter of an application by the appl
