Adabi Consumer Industries Sdn. Bhd. v 1. ) Ketua Pengarah Perhubungan Perusahaan, Malaysia (BA-25-54-07/2022)

1.

KESATUAN PEKERJA-PEKERJA PERKILANGAN PERUSAHAAN MAKANAN …RESPONDEN-RESPONDEN 26/07/2023 11:21:27 Kand. 38 JUDGMENT [1] This is an application for judicial review by the applicant, Adabi Consumer Industries Sdn Bhd, to quash the decision of the first respondent pertaining to the results of a secret ballot. [2] The applicant sought, among others, the following reliefs:

An order of certiorari to quash and set aside the decision of the first respondent/Ketua Pengarah Perhubungan Perusahaan (KPPP) in Form F dated 8.4.2022 that was communicated to the applicant through a letter which was received by the applicant on 20.4.2022.

(ii) An order that all further proceedings to enforce or implement the first respondent’s decision through Form F dated 8.4.2022 be stayed until the hearing and disposal of the leave application and substantive application for judicial review. Grounds for this application [3] The applicant had submitted the following grounds for this application for judicial review: “(i) that the first respondent/Ketua Pengarah Perhubungan Perusahaan, Malaysia (KPPP) has failed to take sufficient steps to ensure the secret ballot process held on 14.12.2021 was conducted fairly;

(ii) that the first respondent/KPPP failed to conduct the secret ballot in languages that are understood by the foreign workers of the applicant who are from Bangladesh, Nepal, Pakistan and Myanmar.” Factual Background [4] The facts of this application as gleaned from the submission of parties are as follows. [5] The applicant is a private company incorporated in Malaysia and the applicant’s business is manufacturing food products including sauces and spices. [6] Through a letter dated 27.1.2021, the second respondent submitted a Notice of Claim for Recognition (“Form A”) dated 27.1.2021 to the applicant to claim recognition in respect of the employees who are employed by the applicant, except for those who work in management, executive, confidential or security positions. [7] The applicant vide a letter dated 8.2.2021 informed the second respondent that the applicant was not agreeable to grant recognition to the second respondent at the time due to the Coronavirus (Covid- 19) Pandemic situation that struck the country at the time. Further, the applicant was still in the red zone area. [8] Through a letter dated 22.3.2021, the department of the Trade Union Affairs informed that the claim for recognition from the second respondent has been referred by the Director General of the Industrial Relations to determine the second respondent’s eligibility to represent the employees of the applicant. Hence, a visit to the applicant’s premises was held on 26.3.2021 to investigate the applicant’s business/service activities. [9] Vide a letter dated 21.5.2021, the first respondent informed the applicant that the Industrial Relations Department intended to conduct a membership check to resolve the claim for recognition. The applicant was therefore required to submit the details of all relevant employees for whom the claim for recognition was applied for and who were employed by the applicant as at the date of the claim for recognition in Form B. [10] The applicant had submitted to the first respondent Form B dated 11.6.2021 together with a list of the names of relevant employees for whom the claim for recognition had been applied for and who were employed by the applicant. [11] A discussion was held on 17.11.2021 where the applicant, the first respondent and the second respondent agreed on the list of employees who were eligible to vote. The parties also agreed to remove 35 names from the list of names in the previous Appendix A1 and the latest number of employees who were eligible to vote were 574 employees. On the same day, the applicant and second respondent signed a Memorandum of Agreement regarding the conditions of the secret ballot to be held. [12] Based on Appendix A1 dated 17.11.2021 which is the list of employees who were eligible to vote, there were a total number of 574 employees consisting of local employees and foreign workers from Bangladesh, Nepal, Pakistan and Myanmar. [13] The office of the first respondent then submitted Form C, Notice of Secrot Ballot which stated that the secret ballot would be conducted on 14.12.2021 at the applicant’s premise, Bilik Sri Manis, Level M from 9 am to 5 pm. [14] The secret ballot was conducted on the aforementioned date i.e 14.12.2021. After the secret ballot was conducted, the first respondent announced that 72.65% of the applicant’s employees were member of the second respondent. The results were announced on the same day. [15] Form F was then issued by the first respondent, whereby the applicant was ordered to accord recognition to the second respondent. The first respondent’s decision in Form F dated 8.4.2022 was informed to the applicant through a letter dated 12.4.2022 and the letter was received by the applicant on 20.4.2022. The Law [16] Prior to considering and analyzing this application, it would be prudent for this court to be reflect on the legal principles relating to judicial review. [17] Order 53 Rules of Court 2012 provides for the procedures for an application for judicial review. [18] The grounds for judicial review are illegality, irrationality, procedural impropriety and proportionality. These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [19] In a judicial review, the test applicable is the objective test as was held by the Federal Court in the case of Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541; [2014] 4 MLJ 765, as follows: “(1) (per Arifin Zakaria Chief Justice) It is trite that the test applicable in judicial review now is the objective test. In considering whether the Court of Appeal had applied the correct test, it is pertinent to consider the whole body of the judgments of the judges of the Court of Appeal and not by merely looking at the terms used in the judgments. The courts will give great weight to the views of the Executive on matters of national security. The Court of Appeal had applied the objective test in arriving at its decision. Had it applied the subjective test, it would not be necessary for it to consider the substance of the first respondent's decision.” [Emphasis added] [20] This court alluded to the cases of Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors [2008] 6 CLJ 473 and Tenaga Nasional Bhd v. Ong See Teong & Anor [2010] 2 CLJ

Founded on the abovementioned principles, this court will proceed to consider the application for judicial review before this court. Analysis and Findings [21] The grounds of this application is the first respondent’s failure to take steps to ensure the secret ballot was fairly conducted. The second ground is that there was a failure to ensure secret ballot conducted in a language understood by the workers. [22] The provision in relation to this application for judicial review is section 9 of the Industrial Relations Act 1967. Section 9 of the Industrial Relations Act 1967 reads:

“Claim for recognition

No trade union of workmen the majority of whose membership consists of workmen who are not employed in any of the following capacities that is to say—

managerial capacity;

executive capacity;

confidential capacity; or

security capacity, may seek recognition or serve an invitation under section 13 in respect of workmen employed in any of the above-mentioned capacities.

Any dispute arising at any time, whether before or after recognition has been accorded, as to whether any workman or workmen are employed in a managerial, executive, confidential or security capacity may be referred to the Director General by a trade union of workmen or by an employer or by a trade union of employers.

The Director General, upon receipt of a reference under subsection (1A), may take such steps or make such enquiries as he may consider necessary or expedient to resolve the matter.

Where the matter is not resolved under subsection (1B) the Director General shall notify the Minister.

Upon receipt of the notification under subsection (1C), the Minister shall give his decision as to whether any workman or workmen are employed in a managerial, executive, confidential or security capacity and communicate in writing the decision to the trade union of workmen, to the employer and to the trade union of employers concerned.

Subject to subsection (1), a trade union of workmen may serve on an employer or on a trade union of employers in writing in the prescribed form a claim for recognition in respect of the workmen or any class of workmen employed by such employer or by the members of such trade union of employers.

An employer or a trade union of employers upon whom a claim for recognition has been served shall, within twenty-one days after the service of the claim—

accord recognition; or

if recognition is not accorded, notify the trade union of

(Deleted by Act A1322).

Upon according recognition to the trade union of workmen concerned under paragraph (3)(a), the employer or the trade union of employers concerned shall notify the Director General.

Where the trade union of workmen concerned receives a notification under paragraph (3)(b), or where the employer or trade union of employers concerned fails to comply with subsection (3), the trade union of workmen may, within fourteen days—

of the receipt of the notification; or

after the twenty-one day period in subsection (3) has lapsed, report the matter in writing to the Director General, failing which the claim for recognition shall be deemed to have been withdrawn.

Upon receipt of a report under subsection (4), the Director General may take such steps or make such enquiries to ascertain—

the competence of the trade union of workmen concerned to represent any workmen or class of workmen in respect of whom the recognition is sought to be accorded; and

by way of secret ballot, the percentage of the workmen or class of workmen, in respect of whom recognition is being sought, who are members of the trade union of workmen making the claim.

For the purpose of carrying out his functions under subsection (1b) or (4a) the Director General—

shall have the power to require the trade union of workmen, the employer, or the trade union of employers concerned to furnish such information as he may consider necessary or relevant within the period specified in the requirement;

may refer to the Director General of Trade Unions for him to ascertain the competence of the trade union of workmen concerned to represent any workmen or class of workmen in respect of whom recognition is sought to be accorded, and the performance of duties and functions by the Director General of Trade Unions under this paragraph shall be deemed to be a performance of his duties and functions under the written law relating to the registration of trade unions; and

may enter any place of employment where any workmen in respect of whom a claim for recognition is sought to be accorded are being employed to examine any records or documents or to conduct secret ballot.

Upon ascertaining the matter under subsection (4A), the Director General shall notify the Minister.

Upon receipt of a notification under subsection (4C) the Minister shall give his decision thereon; where the Minister decides that recognition is to be accorded, such recognition shall be deemed to be accorded by the employer or trade union of employers concerned, as the case may be, as from such date as the Minister may specify.

A decision of the Minister under subsection (1D) or (5) shall be final and shall not be questioned in any court.” [23] From a reading of section 9 of the Industrial Relations Act 1967, it is plain that the respondent is empowered to conduct a secret ballot. [24] The applicant contended that the first respondent had failed to ensure secret ballot was conducted fairly. In relation to the process of the secret ballot, this is governed by the Peraturan-peraturan Perhubungan Perusahaan 2009. In relation to the process of conducting a secret ballot, this is specifically provided for in regulations 6 to 13 of the Peraturan-Peraturan Perhubungan Perusahaan 2009. [25] Pursuant to regulations 6 to 13 of the Peraturan-Peraturan Perhubungan Perusahaan 2009, the first respondent had written to the Jabatan Hal Ehwal Kesatuan Sekerja Malaysia on 23.2.2021 and 26.4.2021 to inquire the eligibility of the union. [Exhibit KJ-2 Enclosure 17] [26] Vide a letter dated 7.5.2021 [Exhibit KJ-3 Enclosure 17], the Jabatan Hal Ehwal Kesatuan Sekerja Malaysia informed their view/opinion that the activities of the applicant fell within the ambit of the membership of the second respondent. [27] Subsequently, the first respondent vide letter dated 21.5.2021 [Exhibit NSA-4, Enclosure 3] wrote to the applicant’s managing director requesting for the details of all the workers on 27.1.2021, excluding the workers in management, executive, confidential or security. A copy of Form B was enclosed in the letter for the applicant to complete. [28] A reply was received on 11.6.2021. On 17.11.2021, a meeting and/or discussion was held among the applicant, the first respondent and the second respondent to confirm the list of workers which were qualified to vote. [29] This was followed by the signing of a Memorandum of Understanding for Secret Balloting between the applicant and the second respondent. Amongst the items agreed upon were the 35 names to be excluded. This resulted in the total number of employees who were eligible to vote as 574 employees. [30] The first respondent had served Form C the Notice for Secret Ballot dated 17.11. 2021 to determine the secret balloting to be conducted on 14.12.2021 at the applicant’s premises. [31] Founded on the facts as stated in the preceding paragraphs, it appears to this court that the first respondent had complied with all the legal and regulatory requirements in conducting a secret ballot. This court is therefore satisfied there is no procedural impropriety or illegality in the process leading up to the secret ballot. [32] The applicant contended that during the secret balloting process, some of the applicant’s foreign workers had voted on the instructions of the officers of the applicant which favoured the second respondent. However, the applicant had failed to furnish or disclose to this court any details as to who were this alleged officers who had directed to influenced the foreign workers to vote in favour of the second respondent. As there is no evidence before this court to substantiate this claim made by the applicant, this court is of the considered view this contention cannot stand. [33] The applicant submitted that the workers were voting based on the direction or influence of a person who is inclined to the second respondent. There is however, nothing before this court to suggest the person who had allegedly done this. There is no evidence of this allegation by the application before this court. [34] The applicant also raised the issue of Exhibit NSA-11 of Enclosure 6 which is a document with the signatures of the workers. This document was dated 16.11.2022, that is almost a year from the date of the secret ballot on 14.12.2021. The results of the secret ballot was announce on the day of voting that is 14.12.2021. Hence, the existence of this document dated 16.11.2022 after 11 months of the secret ballot day, raises some questions as to timing of the issues raised. The facts of this case before this court show that there was no objection or complaints by the applicant or the second respondent on the day of the secret balloting. [35] The applicant further argued that the foreign workers could not question the first respondent’s officers as the foreign workers did not know what they were voting for. Therefore, it was argued that the foreign workers could not object or complain about the secret ballot. [36] Before this court, the facts disclose that representatives of both the applicant and the second respondent were present during the secret balloting process. The presence of the applicant’s representative during the process of secret balloting is not denied by the applicant. [37] Moreover, this court takes cognizance that there was a period of about one month from Form C dated 17.11.2021 to the date of secret balloting on 14.12.2021 which gave the applicant and the second respondent sufficient time to explain to the workers about the purpose of the secret ballot. [38] During the secret ballot process, the facts disclose that there were representatives of the applicant and the second respondent present. Therefore, this court is perplexed as to why any issues were not raised then but only 11 months later. [39] The facts of this case further demonstrate to this court that the secret balloting process was carried out in accordance with the provisions of the law. This court is satisfied there is no procedural non-compliance, illegality, irrationality or procedural impropriety in the decision of the first respondent on 14.12.2021. [40] The second ground is that there was a failure to ensure secret ballot conducted in a language understood by the workers. [41] It was contended by the applicant that there was a failure to ensure secret ballot conducted in a language understood by the workers (Bangladesh, Pakistan, Myanmar and Nepal). In respect of this argument, the workers of the applicant may be from foreign countries such as Bangladesh, Pakistan, Myanmar and Nepal. Nonetheless for these workers to be able to work in Malaysia with the applicant, these foreign workers must have reasonable level of comprehension and articulation of Bahasa Malaysia. This, in the view of this court, would enable the foreign workers to carry out their respective tasks and duties. [42] The applicant’s contention that the secret ballot should have been conducted in a language understood by the workers (Bangladesh, Pakistan, Myanmar and Nepal). The question that comes to this court’s mind is, how then did the applicant communicate with all these foreign workers in the applicant’s employment. In the view of this court, the fact that the workers have been working in Malaysia would suggest a level of comprehension of the Bahasa Malaysia. [43] Moreover, a perusal of the provisions demonstrates that there is no legal requirement for the secret ballot to be conducted in a language understood by the workers. This court further takes notice that there was no objection to the secret ballot being conducted in Bahasa Malaysia on the day of the voting on 14.12.2021. [44] For these reasons, this court is satisfied in relation to the use of Bahasa Malaysia in the secret balloting process, there is no illegality, irrationality or procedural impropriety in the decision of the first respondent on 14.12.2021. Conclusion [45] For the abovementioned reasons, this court dismisses this application for judicial review with no order as to costs. Date: 26 July 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The Applicant: Loh Qiao Wen Tetuan Zul Rafique & Partners Advocates & Solicitors D3-3-8, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 Kuala Lumpur +6 03 6209 8228 zrp@zulrafique.com.my For the Respondents: Noerazlim binti Saidil Kamar Penasihat Undang-Undang, Bahagian Guaman, Tingkat 4, Podium Utara, Bangunan Sultan Salahuddin Abdul Aziz Shah, 40512 Shah Alam, Selangor. noerazlim@agc.gov.my