Ingress Precision Sdn Bhd Menteri Sumber Manusia Malaysia & 2 Lagi

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA (BAHAGIAN KUASA-KUASA KHAS) PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO: WA-25-90-02/2020 Dalam perkara suatu permohonan untuk kebenaran / perintah-perintah certiorari berkenaan keputusan Menteri Sumber Manusia Malaysia bertarikh 7.11.2019 yang diterima oleh Pemohon pada 26.11.2019; Dan Dalam perkara mengenai seksyen 9 Akta Perhubungan Perusahaan 1967; Dan Dalam perkara berkenaan Aturan 53 Kaedah-Kaedah Mahkamah 2012. Antara Ingress Precision Sdn Bhd ... Pemohon Dan 1. Menteri Sumber Manusia Malaysia 2. Ketua Pengarah, Jabatan Perhubungan Perusahaan 3. | Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan Alat-Alat Pengangkutan dan Sekutu ... Responden- Responden Page 1 of 12 Judgment Introduction 1. The Applicant filed an application for judicial review proceedings (Enclosure 8) under Order 53 of the Rules of Court 2012 (ROC). The Applicant is seeking the following reliefs:- Bahawa kebenaran diberi kepada Pemohon supaya memohon satu Perintah Certiorari untuk memindahkan ke Mahkamah Yang Mulia ini bagi tujuan membatalkan seluruh keputusan Menteri Sumber Manusia (First Respondent) melalui Borang F yang dikeluarkan di bawah Peraturan Perhubungan Perusahaan 2009 bertarikh 7.11.2019 yang diterima oleh pihak Pemohon pada 26.11.2019; Suatu perintah bahawa semua prosiding selanjutnya untuk menguatkuasakan atau melaksanakan keputusan Responden Pertama dalam melalui Borang F_ bertarikh 7.11.2019 digantungkan sementara menunggu keputusan muktamad Mahkamah Yang Mulia ini atas permohonan substantive ini; Relif yang selanjutnya atau selainnya yang sebagaimana Mahkamah Yang Mulia ini anggap berpatutan dan sesuai; dan Kos permohonan ini adalah kos dalam klausa. The Applicant’s judicial review application is for an order of certiorari to quash the decision of the First Respondent in Form F dated 7.11.2019 in according recognition to the Third Respondent. 2. 2.1 2.2 2.3 2.4 3. 4. After the Hearing, | allowed the Applicant’s application (Enclosure 8). The grounds for my decision appear below. Page 2 of 12 Salient Facts 5. | The background facts of this case are largely undisputed and can be summarised as follows:- 5.1 5.2 5.3 5.4 5.5 The Third Respondent (the Union) had summitted to the Applicant a claim for recognition through Form A dated 23.7.2018 under section 9 (2) of the Industrial Relations Act 1967 (Act 177) to represent all employees except those in the excluded categories i.e. managerial, executive, confidential or security. The claim for recognition was submitted to the Applicant on 24.7.2018. [Exh. R3-1] The Applicant failed to accord recognition to the Union and the Union submitted a complaint on the matter to the Second Respondent, the Director General of Industrial Relations (DGIR) through a letter dated 17.8.2018. [Exh. R3-2] The DGIR is empowered to take such steps or make such enquiries to ascertain the competence of the trade union concerned. For the purpose of carrying out his functions, the DGIR may under section 9 (4B) (b) of the Act, refer to the Director General of Trade Unions (DGTU) for him to ascertain the competence of the trade union of workmen concerned to represent the workmen in respect of whom recognition is sought to be accorded, and the performance of duties and functions by the DGTU shall be deemed to be a performance of his duties and functions under the law related to the registration of trade unions. The DGIR by letter dated 26.9.2018 sought the DGTU to ascertain the competency of the Union in accordance with the provisions under section 9 (4B) (b) of Act 177 and for the DGTU to submit the findings of the investigation of the competency to the DGIR. [Exh. R3-3] The Applicant was also required to prepare and submit documents and information as listed in the letter to complete the DGTU’s report. On 19.10.2018, officers from the DGTU’s office (JHEKS) met with the Applicant at the Applicant's premises for the purpose of investigation of the claim of recognition submitted by the Union. Page 3 of 12 -5.6 The results of the investigation conducted by JHEKS found that the Union was competent to represent the employees in the Applicant. The DGTU had submitted his findings to the DGIR. The DGIR by letter dated 20.12.2018 [Exh. R3-4] addressed to the Applicant stated among others that: a) d) The results of the investigation conducted by the DGTU found that the Union was competent to represent the employees in the Applicant; In exercising the powers under Regulation 6 (b), Industrial Relations Regulations 2009, the Applicant was directed to submit to the DGIR a listing of all employees on the date of recognition claim (23.7.2018) excluding employees in management, executive, confidential or security positions accompanied by two copies of Form B to be completed and to be returned to the DGIR within 14 days from receipt of the letter; Despite several reminders from the DGIR, the Applicant had yet to submit the Form B [Exh. R3-5, Exh. R3-6, Exh. R3-7]. It was only after the DGIR served notice to initiate legal action did the Applicant comply with the directive of the DGIR. On 8.8.2019, the Applicant submitted the Form B to the 24 Respondent. [Applicant’s Exh. IPSB-7] The Union was informed by letters dated 10.9.2019 from the Industrial Relations Department (JPP) Seremban, Negeri Sembilan which was also addressed to the Applicant informing that a secret ballot to determine the percentage of membership of the Union will be conducted and both parties were requested to be present to discuss the matter. Initially, the date of the meeting was set for 13.9.2019 but was postponed to 17.9.2019 and finally took place on 19.9.2019; On 19.9.2019 the Applicant, the Union together with the officers of the Industrial Relations Department agreed to the list of employees eligible to vote and had signed Appendix A1 [Exh. R3-8]. The Applicant together with the Union had also signed a Memorandum of Page 4 of 12 Agreement on the conditions for the secret ballot to be conducted; f) The office of the DGIR submitted Form C [Sub regulation 9 (3)] Notice of Secret Balloting which stipulated that the secret ballot would be conducted on 15.10.2019 at the Applicant’s Canteen from 12 noon to 8.00 pm; g) The secret ballot was conducted on the appointed date 15.10.2019 and consequently it was determined that 62.12% of the employees employed by the Applicant were members of the Union on the date of the recognition claim i.e. 23.7.2018. The result was announced on the same day 15.10.2019 without any objection from the Applicant; h) Accordingly, the First Respondent decided that the Applicant accord recognition to the Union. The decision of the First Respondent in Form F dated 7.11.2019 was communicated to the Applicant and copied to the Union by letter dated 19.11.2019 from the DGIR. [Exh. R3-9]; i) The Applicant, dissatisfied with the First Respondent's decision, has filed this application to this Honourable Court to quash the First Respondent's decision. The Applicant’s ground for the judicial review 6. The Applicant's application herein is based on the following grounds:- 6.1. The First Respondent in his decision to grant recognition to the Union has failed and/or refused to consider material and relevant facts before formulating his decision; 6.2 The decision by the First Respondent failed to consider the principles of natural justice, in particular when the First Respondent did not even consider the objections raised by the Applicant pursuant to the letter dated 4.11.2020 in granting recognition to the Union; Page 5 of 12 6.3. The decision of the First Respondent failed to take into account the meritorious issues raised by the Applicant prior to arriving at his decision. The decision of the Court 10. 11. Having fully and carefully considered both parties’ case and the issues raised in the written submissions, | am of the view that there is only one issue to be decided by this court i.e. whether the First Respondent's decision-making process to direct the Applicant to accord recognition to the Union is correct. It is to be noted that on 4.11.2019, the Applicant issued a formal letter of appeal to the First Respondent requesting to not accord recognition to the Union due to the purported provocation, manipulation and/or disturbance committed by the Union and/or the Union representatives prior to the Secret Ballot. The letter was also copied to the First Respondent’s Ministry and the then Director General of Trade Union Affairs (see Exhibit IPSB-11 of the Affidavit in Support). Upon the Applicant being made known of the decision of the First Respondent vide the letter from the Second Respondent dated 19.11.2019 in according the recognition to the Union, the Applicant was perplexed to have found out that neither the First Respondent nor the Second Respondent even considered the Applicant's objections and/or appeal set forth in the letter dated 4.11.2019 in coming to such decision. Upon perusal of the said letter dated 4.11.2019, I find that the objections and issues raised by the Applicant in the aforesaid letter contain substantial and meritorious allegations which to my mind, the First Respondent and/or the Second Respondent ought to investigate prior to arriving at the decision of granting the recognition on 7.11.2019. However, the First and/or Second Respondent has failed and/or refused to investigate the objections and issues raised by the Applicant in the letter dated 4.11.2019. Page 6 of 12 12. 13. 14. 15. Since the objections and issues were raised in the said letter, it is my view that it is the obligation of the First and/or Second Respondent to investigate and consider the complaints brought by the Applicant before according any recognition. More so, when the issue was raised at an earlier stage prior to the First Respondent’s decision to accord recognition. The Court of Appeal in the case of RHB Bank Bhd v. YB Menteri Sumber Manusia Malaysia & Anor [2017] 5 MLRA 587; [2018] 7 CLJ 570; [2017] 6 MLJ 239; [2018] 3 ILR 193 had said:- (b) | The questions posed may appear to be valid questions of law but such questions must be seen to be an abuse of process when these questions were not put before the administrative decision was taken and more so when the appellant had all the opportunity to deal with the provisions of law and object to it at the earliest opportunity. Support for the proposition is found in a number of cases, to name a few are as follows: (ii) When it relates to recognition under s. 9 of the IRA, the court has been firm to adhere io the strict jurisprudence advocated in the Civil Service Union’s case. That is to say, for the purpose of the instant case, whatever information needed to be furnished, it ought to have been furnished by the relevant parties when the opportunity was given so and very importantly in the instant case by the appellant. Subsequent complaint to the court to accuse the DGIR or the Minister for not taking into consideration the relevant facts according to law will not be entertained.....” (emphasis added) Therefore, based on the above, | view that such issues and objections raised by the Applicant should be enquired and investigated by the First Respondent and/or the Second Respondent prior to according the recognition to the Union. The issues raised by the Applicant indeed fall under the ambit of section 7 of Act 177 and thus, | am of the opinion that prior to according any recognition, the First Respondent and/or Second Respondent, by virtue of section 9 of Act 177 are obligated and should have carried out such investigations. Page 7 of 12 16. 17. 18. 19. 20. 21. 22. 23. Further, | find the spirit of section 9 of Act 177 underlines the obligation of the First Respondent and/or Second Respondent prior to coming into the conclusion on whether recognition should be accorded or not, to conduct investigation not just on the scope of competency of the trade union as well as on the matters of capacity of the workmen (membership) but also on any other relevant issues which may otherwise render the recognition invalid. Having perused the First and Second Respondent's Affidavits on this issue, | find that their averment clearly shows their dereliction of their duties as public servants to even consider and investigate the complaint made by the Applicant. The letter dated 4.11.2019 was sent to the First Respondent even before the First Respondent delivers his decision on 7.11.2019 to accord the recognition and yet it was stated by the First and Second Respondent as an afterthought without even considering the merit of the complaint. To me, the excuse given by the First and Second Respondent that the reason for dismissing was due to the fact that Applicant did not follow the “proper channel” in addressing the objection in line with subsection 9(4) and 9(5) of the Act. 177, cannot be accepted. This is because being the Minister at the material time, the First Respondent holds the final say on whether to accord the recognition or not and the First Respondent possesses authoritative power to investigate the objection raised by the Applicant. | am of the view that the First and Second Respondent cannot hide behind the provision of the law to justify his reasoning in dismissing the Applicant’s objection as stated in the 4.11.2019 letter. Therefore, | view that the First and Second Respondent had acted unreasonable in rejecting the objections raised by the Applicant in the letter dated 4.11.2019. In the case of Malaysia Airlines Bhd v. Menteri Sumber Manusia Malaysia & Ors [2020] 6 MLRA 107; [2020] 9 CLJ 743, the Court of Appeal held that: Page 8 of 12 24. 25. “[52] We are of the considered opinion that both MAB and the union have a [53] duty to assist the DGIR in his investigation. For that purpose, they have their respective duties to give any relevant information and documents that are required for the investigation, bearing in mind that the findings of the DGIR are very pertinent and important to both parties. In RHB Bank Bhd v. YB Menteri Sumber Manusia Malaysia & Anor [2018] 7 CLJ 570; [2017] 6 MLJ 239, the Court of Appeal held that all information should be furnished by the complainant at the earliest given opportunity and not after the impugned decision has already been communicated. The court held as follows: (b) | When it relates to recognition under S. 9 of the IRA, the court has been firm to adhere to the strict jurisprudence advocated in the Civil Service Union’s case. That is to say, for the purpose of the instant case, whatever information needed to be furnished, it ought to have been furnished by the relevant parties when the opportunity was given so and very importantly in the instant case by the appellant. Subsequent complaint to the court to accuse the DGIR or the Minister for not taking into consideration the relevant facts according to law will not be entertained ... From the affidavits affirmed by the DGIR and the Minister, they have averred that all the information and document provided by MAB and the union during the meetings were considered by the DGIR in his investigation.....” (emphasis added) The above case had clearly shown that the Court of Appeal had underlined the example in which the DGIR and/or the First Respondent had considered all the relevant issues prior to according the recognition. Further, the Court of Appeal in the case of Minister of Human Resources Malaysia v. Diamet Klang (Malaysia) Sdn Bhd & Another Appeal [2013] MLRAU 477; [2015] 2 AMR 659; [2015] 6 CLJ 181 held:- ‘[21]...We observe from the records that the company had vehemently protested against the Union representing its employees. In the company’s letter to the Minister dated 18 June 2010 (exh. DKMSB32 in affidavit sokongan Toshiyuki Nagashima affirmed on 6 July 2010 — p. 283 rekod rayuan Jilid 3/4 Bahagian C), after the Minister's decision to accord recognition to the Union was communicated to the company, the latter had requested for the Minister to review the decision stating inter alia the following ground at para. 1 of the letter......... Page 9 of 12 26. [22] However the concern and complaint by the company was apparently explained by the Union in their much earlier letter to DGTU dated 23 March 2009 (exh. R2-3 in affidavit by Gopal Krishnan a/l Nadesan affirmed for the Union on 18 November 2010 p. 328 appeal record Jilid 4/4 Bahagian C) giving information sought by the DGTU in the course of conducting the enquiries to ascertain the competency of the union to represent the company’s employees. In the letter, the Union addressed DGTU on the scope of reg. 3(1) of the Union’s regulations or Constitution and stated that the word ‘part’ found in reg. 3(1) means, under the Union’s Constitution, ‘alat-alat pengganti kereta’. In one of the paragraphs of the same letter, the union had stated that the products of the company consist of automobiles and motorcycles engines transmission parts, shock absorbers parts etc which come within the meaning of ‘parts’ under the Union’s Constitution............ [23] We have no reason to doubt that the matters raised in the company’s letter and the Union’s letter quoted above had been considered and _ included in the report by DGTU to the Minister and the Minister had addressed his mind to them before making his decision. .....” Based on the above cases cited, it is my view that all the information should be furnished by the complainant at the earliest given opportunity and not after the impugned decision has already been communicated. Coming back to the fact in the present case, the Applicant had furnished the complaint vide letter dated 4.11.2019 to the First and Second Respondent to consider and/or investigate the said complaint whereas the decision was made on 7.11.2019. Conclusion 27. 28. Based on the reasons given above, | am of the view that the decision of the First Respondent is tainted with errors of law, irrationality and unreasonableness which warrants the curial intervention of this court. As such, the Applicant’s application for judicial review (Enclosure 8) is allowed with costs of RM2,000.00 to be paid by the First and Second Respondent to the Applicant without the allocator fee and Page 10 of 12 the Third Respondent (Union) to pay costs of RM3,000.00 to the Applicant subject to the allocator fee. Dated: 0] April 2022 Doo NN Ahmad Kamal bin Md. Shahid Judge High Court Kuala Lumpur Page 11 of 12 Counsel For the Applicant: En. Mohd Saiful Hadi bin Dowlad Rahuman (En. Ahmad Imran bin Mohd Azlan with him) Tetuan Ainul Azam & Co, Peguambela dan Peguamcara, Suite 6.0IC, 6" Floor, South Block, The Ampwalk, 218, Jalan Ampang, 50450 Kuala Lumpur. For the First and Second Respondents: Puan Aisyaf Falina Abdullah Peguam Kanan Persekutuan, (Cik Adiba Iman, Peguam Persekutuan with her) Jabatan Peguam Negara, Cawangan Wilayah Persekutuan, Unit Guaman, Tingkat 5, Wisma Chase Perdana, Off Jalan Semantan, 50512 Kuala Lumpur. (Ruj. Tuan: PN/WKL/KE/1 7/13/20) For the Third Respondent: En. Chandra Segaran Tetuan Prem & Chandra Peguambela dan Peguamcara, 103, (1% Floor), Lorong Maarof, Bangsar Park, 59000 Kuala Lumpur. (Ruj. Tuan: JR/INUTEAW (47)/974/0820) Page 12 of 12