Kesatuan Kebangsaan Pekerja-Pekerja Bank Semenanjung Malaysia v 1. ) Malayan Commercial Bank'S Association (WA-25-110-04/2017)

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MAHKAMAH PERUSAHAAN MALAYSIA … RESPONDEN-RESPONDEN Grounds of Decision Azizah Nawawi, J: Application [1] This is an application filed by the Applicant (“Union”) to quash the Award No. 147 of 2017 dated 18.1.2017 (the “Award”) issued by the 3rd Respondent (the “Industrial Court”). The other prayer is for an order of Mandamus directing the case to be heard before another 3 Chairman of the Industrial Court and to call the relevant witnesses concerned. [2] Having considered the application and the submission of the parties, this court had dismissed the application with no order as to costs. The Salient Facts [3] This application arises from the transfer of three (3) employees of the 1st and 2nd Respondent (“Bank”) vide a letter dated 1.10.2015. The transfer was deferred vide letter dated 28.12.2015 when the parties tried to resolve the matters. [4] Since the matter was not resolved, the Bank issued letters dated 14.4.2016 to the said employees to the effect that their transfer would take effect on 18.7.2016. [5] The employees reported for duty at the Bank’s headquarters in Kuala Lumpur on 19.7.2016 under protest. When there were no positions available when they reported for duty, the employees were offered with alternative positions. The employees declined the offer and the Bank then proceeded to retrench them vide letters dated 12.8.2016. [6] The employees have lodged representations to the Minister under section 20 of the Industrial Relations Act 1967 in respect of their termination. 4 [7] The Union then filed an application for the interpretation of the Collective Agreement Cognizance No. 243/2015 dated 30.11.2015 (“CA dated 30.11.2015”). [8] The Union’s application was dismissed by the Industrial Court, hence the Union filed this application to quash the Award. The Findings of the Court [9] The Federal Court in Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 has set out the function of the Court in an application for Judicial Review and the correct test to be applied in reviewing findings of fact made by the Industrial Court, to be as follows: “[15] …… Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality" which permits the courts to scrutinize the decision not only for process but 5 also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds. [16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts' liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Peransang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625, again held that the reviewing court may scrutinize a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the 6 reviewing judge might not have come to the same conclusion. [18] The Court of Appeal has in a number of cases held that where finding of facts by the Industrial Court are based on the credibility of witnesses, those findings should not be reviewed (see William Jacks & Co (M) Sdn Bhd v. S Balasingam [1997] 3 CLJ 235, National Union of Plantation Workers v. Kumpulan Jerai Sdn Bhd (Rengam) [2001] 1 CLJ 681, Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9, Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong & Another [2001] 3 CLJ 9. However, there are exceptions to this restrictive principle where:

reliance upon an erroneous factual conclusion may itself offend against the principle of legality and rationality, or

there is no evidence to support the conclusion reached. (See Swedish Motor Assemblies Sdn Bhd v. Hj. Md Ison Baba [1998] 3 CLJ 288 ]. [19] It is clear from the above authorities that the scope and ambit of Rama Chandran had been clearly explained and clarified. Decided cases cited above have also clearly established that where the facts 7 do not support the conclusion arrived at by the Industrial Court, or where the findings of the Industrial Court had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into consideration, such findings are always amendable to judicial review”. (emphasis added) [10] The Union’s application to the Industrial Court was made pursuant to section 33 (1) of the IRA 1967, which reads: “33. Interpretation and variation of awards and agreements

If any question arises as to the interpretation of any award or collective agreement taken cognizance of by the Court, the Minister may refer the question, or any party bound by the award or agreement may apply, to the Court for a decision on the question.”

preliminary issue [11] However, before the Industrial Court the Union had raised a preliminary issue, that the Union be allowed to bring in oral and documentary evidence to be adduced during the hearing. 8 [12] The Union’s application was rejected by the Industrial Court, which made the following finding: “[11] …. Therefore, an application under section 33 should be heard by the Court as the name indicates, that by way of an application and nothing more. It follows therefore that pleadings which will lead to evidence being adduced are not necessary in a section 33 application. The Court is of the opinion that the “opportunity to be heard” means that parties are to be heard in the manner an application is normally heard. It is by way of arguments and submission in court, supported by bundles of documents and authorities, if required. Consequently, the court would have the benefit of hearing the respective views of the parties/representatives so they have been afforded the opportunity to be heard.” [13] The Union takes the position the interpretation of a collective agreement is to ascertain the intention of the parties, and therefore rule 22 read with rule 14(2) of the Industrial Court Rules 1967 (“1967 Rules”) applies, which requires the parties to state their case and adduce the evidence. Therefore, the Union submits that the Industrial Court had acted irrationally when she denied the Union’s application to adduce oral and documentary evidence. 9 [14] However, I am of the considered opinion that the Union may only adduce their evidence if they have filed their Statement of case, setting out the facts and/or arguments relied on in their application. [15] In the present case, the Union did not file any Statement of Case as required under rule 9 of the 1967 Rules. Therefore, it is not open to the Union to adduce any evidence, as to do so would amount to adducing evidence on unpleaded case. Added to that, to permit them to adduce evidence would also amount to a breach of natural justice to the Bank, and consequently would put the Bank at a disadvantage. [16] But more importantly, the Supreme Court in Malayan Agricultural Producers Association v. National Union of Plantation Workers [1992] 1 CLJ Rep 207, has held that in an application for an interpretation under section 33(1) of the IRA 1967, it is a condition precedent that there should be no dispute as to the facts. The Supreme Court held that: “A reference by the Minister under s. 33(1) is different from say, a reference of a trade dispute under s. where the Minister need only identify the parties to the dispute and state a dispute exists between them with regard to the conclusion of a collective agreement, or the dismissal of certain employees, without going into details. In such cases, the Industrial Court is granted very wide powers to determine the real dispute between the parties and may even include matters not specifically claimed by 10 the parties: s. 30(7). A s. 33(1) reference on the other hand has to be precise so that on its face, the Industrial Court will know exactly the question it has to answer. The facts which give rise to the question have to be stated but must not be disputed. In the process of answering the question, the Industrial Court will have the benefit of hearing the respective views of the parties bound by the award or collective agreement: s. 33(3). The Industrial Court should decline to exercise jurisdiction under this section if it is made to determine disputed questions of fact, so as to ensure that trade disputes are not short-circuited to it in the guise of interpretation questions.” (emphasis added) [17] In the present case, the Union merely sought for an interpretation of Articles 15(2), 15(3) and 16 of the CA dated 30.11.2015. The Union did not state the underlying undisputed facts upon which the application for interpretation is made. Therefore, the Union’s application without the undisputed facts is not proper in the first place. As such, I am of the considered opinion that the Industrial Court did not made an error in rejecting the Union’s application to adduce evidence and documents.

(ii) interpretation of Article 15(2) & (3) 11 [18] The Union’s application is for the interpretation of Article 15(2)(3) of the CA dated 30.11.2015, which reads: “Article 15

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Where it is necessary to transfer any employee to another city or town, other than with the consent of such employee, such transfer will not be carries out without the Bank giving sympathetic consideration to cases where undue hardship will be caused: PROVIDED THAT where the Bank is satisfied that undue hardship will be caused, then the transfer of the employee concerned shall not be carried out without the employee being given a reasonable period of time to organize his affairs. The period of time allowed in such cases shall not exceed three (3) months from the date of first notification of the transfer.

The transfer of an employee or where consent is withheld shall not adversely affect the employee’s promotion prospect.” 12 [19] In its application, the Union applied to interpret the aforesaid provisions in the following manner: “i. That any instruction to any members of NUBE emanating any member bank of MCBA, pertaining to transfer from one city to another or town as provided under Article 15(2), cannot be done without the written consent of the employee concerned, in the light of the provision of Article 15(3). And the question for the Court’s determination is as follows:- i. Can a member bank of MCBA, impose transfer order on its employee from one city to another, or to a town in another state, without the consent of the employee concerned, when Article 15(2) and 15(3) are read together?” [20] In a unanimous decision, the Industrial Court made the following finding on the above issue: “[28] Just as art. 15(1) is clear and unambiguous when it comes to the transfer of employees within the same city or town, art. 15(2) of the CA recognizes the bank’s prerogative to transfer its employee to another city or town. It further provides that where the transfer is without the consent of the employee, such transfer would not be 13 carried out without giving sympathetic consideration to cases where undue hardship will be caused. The proviso to art. 15(2) goes on to expressly provide that if the Bank is satisfied that undue hardship will be caused, the employee will be given a reasonable period of not more than three (3) months to organize his affairs before the transfer is carried out. Article 15(3) goes on to stipulate that the transfer, or where consent was withheld, will not affect the employees’ promotion. [29] What is lucid from the provision of art. 15(2) and 15(3) of the CA is that the Bank has the right to transfer the employee, and no consent of the employee is required before the employee proceeds on transfer, save for the employee being given a time of up the three (3) months before he is to comply with the transfer order. The court is unable to appreciate how a transfer emanating from the bank would require the written consent of the employee concerned, the crux of the matter which the union has asked of this court to interpret into art. 15(2) read with art. 15(3).” (emphasis added) [21] I am of the considered opinion that the above interpretation by the Industrial Court is correct as it is premised on an established principle of law that an employer has the prerogative to transfer its employees as long as the same is done within the perimeters of the law. In 14 Ladang Holyrood v. Ayasamy Manikam & Ors [2004] 2 CLJ 697, the Court of Appeal held as follows: “This right to transfer is not without restriction. In Assembly Services Sdn Bhd/UMW Engineering Sdn Bhd & UMW Holdings Sdn. Bhd. and Motor Assemblers Supervisory Staff Union (Award 136 of 1985) the court observed: A company has the right to transfer its employees within its organisation, provided that such transfer does not entail a change to the detriment of an employee in regard to his terms of employment. It is well-established in industrial law that the right to transfer an employee from one department to another, or from one part of an establishment to another, or from one branch to another, or from one company to another within the organisation, is the prerogative of the management and the Industrial Court will ordinarily not interfere. But if the transfer is actuated with improper motive, it will attract the jurisdiction of the court. The power to transfer is thus subject (according to Ghaiye's Misconduct in Employment) to the following well-recognised restrictions: 15

there is nothing to the contrary in the terms of employment;

the management has acted bona fide and in the interest of its business;

the management is not actuated by any indirect motive or any kind of mala fide.

the transfer is not made for the purpose of harassing and victimizing the workman; and

the transfer does not involve a change in the conditions of service. Whether a transfer entails a change to the detriment of an employee in regard to his terms of employment, or whether the transfer is bona fide is a question of fact for the court to determine.” (emphasis added)

(iii) interpretation of Article 16 [22] Article 16 of the CA dated 30.11.2015 governs the issue of an employee’s promotion, and it reads: “(1) Suitable Non-Clerical employees may be eligible for consideration for promotion to General Clerical vacancies if the employees have the necessary experience and/or qualification. 16

(2)(a) General Clerical employees may be considered for promotion to Special Grade Clerical, when a vacancy exists in a senior post of responsibility.

(b)For promotion to Special Grade, the Bank may impose a probationary period of not less than three

months but shall not exceed four (4) months. The Bank shall, as soon as thereafter, notify in writing to the employee that he is being confirmed. In absence of such notice, the employee shall be deemed to be confirmed. In the event the employee is not confirmed in the Special Grade Post, he shall be reverted to his former position and salary as if he was not promoted.

The determination of such posts, their responsibilities, the allocations of duties and the selection of employees for promotion shall be at the discretion of the Bank.

The Bank shall inform the employees by notification posted on the Notice Boards in the Bank’s offices of any vacancy in grade immediately above that of the employees.

Notwithstanding the provisions of this Article, the Bank may recruit from outside sources at its sole discretion, having complied with Clause (4) above. 17

Upon promotion to a higher position, including a grade immediately above, the present employee’s salary shall be adjusted by an increase of not less than 10% of his existing basic salary.” [23] In the application for interpretation, the Union sought to interpret Articles 15 and 16 together in the following manner: “i) That a member Bank of MCBA cannot promote employees without their consent, especially when the offer of promotion, is made on the pretext of a lateral transfer order. And the question for the Court’s determination is as follows:- i) Whether the employer can promote workers without the employee’s consent, especially after the said employees has been instructed to transfer without change in his functions, from his original place of work to another city, or town in another state, and after the employee reported to work under protest, when Articles 15 and 16 are read together? ii) Whether, after an employee reports to work under protest pursuant to a transfer order to a different city, or a town in another state, as per the circumstances identified above, is an employee bound to accept a new offer of employment to a 18 different position, without having regards to the requirements of experience and/or qualifications as specified under Article 16(1) of the Collective Agreement?” [24] With regards to the interpretation of Article 16, the Industrial Court made the following finding: “[33] …. The Court is of the opinion that the Union has completely misconceived Article 16 of the Collective Agreement which merely deals with the exercise of the Bank’s right to promote its employees and to consider suitable employees for promotion. Thus, it is clearly independent and separate from the issue of transfer of an employee under Article 15. In this respect, the court is unable to agree with the Union’s application to interpret paragraph B(i) “That a member Bank of MCBA cannot promote employees without their consent, especially when the offer of promotion, is made on the pretext of a lateral transfer order.” (emphasis added) [25] I am of the considered opinion that the above interpretation by the Industrial Court on Article 16 is correct, as Article 16 is different from Article 15, which is on transfer. Article 16 deals with the Bank’s right to promote its employees and to consider the suitable employees for 19 promotion. As the subject matter of Article 15 is distinct from Article 16, it is totally erroneous for the Union to read them together. Conclusion [26] Premised on the reasons enumerated above, I am of the considered opinion that the Industrial Court had acted within its jurisdiction and it cannot be said that it has committed an error in the Award. The application is hereby dismissed with no order as to costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 8th January 2019 For the Applicant : V.K Raj bersama Ravindra Murugavell Messrs P.Kuppusamy & Co Selangor Darul Ehsan For the 1st & 2nd Respondents : En. N.Sivabalah bersama Nadia Abu Bakar Messrs Shearn Delamore & Co Kuala Lumpur 20 Cases referred:

Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8

Malayan Agricultural Producers Association v. National Union of Plantation Workers [1992] 1 CLJ Rep 207.

Ladang Holyrood v. Ayasamy Manikam & Ors [2004] 2 CLJ 697.