JUDGMENT

Varghese George JCA:

[1] The two appeals before us arose from separate judicial review proceedings filed at the High Court by the same Applicant (the Appellant here) against the same Respondents.The parties had agreed there that the outcome of application No R1-25-507-2010 would bind application No R1-25-111-2011 and accordingly a single decision had been issued by the learned review judge.

[2] Civil Appeal No W-01-44-02/2013 was in respect of the decision in R1-25-507-2010 while Civil Appeal No W-01-19-01/2013 arose from the decision in R-25-111-2011.Counsel for the parties at the outset informed us that the parties had similarly agreed amongst themselves that the outcome of Civil Appeal No W-01-19-01/2013 would follow our decision in Civil Appeal No: W-01-44-02/2013.However, having considered the material before us and the submissions of Counsel, we were of the view that the appeals merited separate assessment, not with standing that they had been heard together, both at the High Court and by us.

Background

[3] On 30 September 2008 the 2nd Respondent (also known as Association of Bank Officers Peninsular Malaysia and hereafter referred as ABOM) submitted to the Appellant (hereafter referred as 'the Bank') a 'claim for recognitions' under s 9(2) of the Industrial Relations Act, 1967 (IR Act).

[4] The class of workmen in respect of whom ABOM sought recognition to represent was specifically identified by ABOM as those in - 'Executive Scale E'.

[5] On 22 October 2008 ABOM informed the Director General of Industrial Relations (hereafter DGIR) that the Bank had refused to accord recognition as sought.

[6] Thereupon the DGIR pursuant to reg 4(1)(a) of the Industrial Relations Regulations 1980 requested the Bank by letter of 17 March 2009 to submit a list of the workmen "in respect of whom the claim for recognition (is) made."

[7] The Bank in response, by letter of 14 April 2009 submitted to DGIR Borang B which listed out the particulars of their employees in Grade/Scale E and there was a total number of 211 employees identified by name in that Grade/Scale.

The Bank also requested the DGIR to carry out a membership check vis a vis ABOM's right to represent the said employees (GRADE/Scale E) by way of secret ballot.

[8] The DGIR wrote on 30 November 2009 to the Director General of Trade Union (hereafter DGTU) to do the needful to decide on the competency of ABOM to represent the class of employees in respect of whom recognition was being sought by ABOM (s 9(4B)(6) of IR Act).

[9] As it transpired however, the Bank agreed that ABOM was competent to represent employees in Grade E since previously ABOM had represented the same category of employees in the predecessor employer, AmBank Berhad.

The pertinent part of the Bank's letter of 11 January 2010 to DGIR in this respect was as follows:

"Untuk pengetahuan pihak tuan, tuntutan pengiktirafan oleh pihak kesatuan melalui Borang A adalah hanya untuk Executive Scale E sahaja. Sebenarnya, sebelum ini ABOM pernah mewakili pegawai scale E (Pegawai Gred yang terendah sekali dalam kategori Executive) dalam AmBank Berhad ...

Bank tidak mempunyai sebarang halangan untuk ABOM mewakili gred yang sama di AmBank (M) Berhad dan telah memohon Jabatan Perhubungan Perusahaan untuk mengendalikan satu Undi Sulit (Secret Ballot) di bawah Kaedah 62."

[10] The DGIR then convened a meeting to discuss the mechanics/protocols related to the carrying out of the 'secret ballot' to determine whether a majority of that class of employees were in favour of ABOM representing them. This meeting was held on 2 June 2010 and the agreements reached were set out in a 'Surat Persetujuan' of the same date executed by representatives of ABOM, the Bank and DGIR.

[11] The Surat Persetujuan at Lampiran A1 of that document listed out the employees in Grade E amongst whom the secret ballot was to be carried out (in number 210) and at the foot of the list it was expressly stated:

"Kami dengan ini bersetuju dengan senarai