Nearly 500 members of the National Union of Bank Employees (NUBE) picketed HSBC Bank Malaysia Bhd’s Perak office in May 2022, waving banners and expressing displeasure with the bank’s alleged hypocrisy and dishonesty in handling union members’ complaints filed with the bank since 2019. Union members from the B40 and M40 factions have complained to the bank’s management for the previous three years, and the administration has reportedly ignored their complaints and ignored their rights and interests.
Generally speaking, trade unions have a negative reputation amongst employers. Some believe this is because unions tend to be excessive in their demands and for taking a militant stance during negotiations for collective agreements as well as with their grievances. Therefore, employers often use covert strategies to thwart the activities of trade unions.
Undoubtedly the law acknowledges the employer’s right to take disciplinary action (including dismissal) against union members for proper cause. However, the cases below highlights that this right has to be balanced against the protection afforded to union members under the Industrial Relations Act 1967 (“IRA 1967”), Trade Union Act 1959 (“TUA 1959”) and the Employment Act 1955 (“EA 1955”).
Case: Kesatuan Sekerja Industri Elektronik Wilayah Barat Semenanjung Malaysia v Renesas Semiconductor KL Sdn Bhd (2016)
Facts: Wan Noorulazhar, an employee of Renesas Semiconductor KL Sdn Bhd (“Company”), was chosen as the pro-tem president for the registration of Kesatuan Sekerja Industri Elektronik Wilayah Barat Semenanjung Malaysia (“Union”). The Company, in a letter dated 8 February 2010, declined to recognise the Union. A complaint of “union busting” was filed under Section 8 of the IRA 1967, since the Company had taken measures to prevent the establishment of the Union. These include:
- A representative of the company approached Noorulazhar and offered him the position of president of the in-house union if he leaves the Union;
- Multiple personnel of the company informed Noorulazhar of the possibility of being dismissed by the company;
- The company’s human resources department was keeping a tight eye on Noorulazhar while he was kept in “cold storage” and given assignments below his pay grade;
- A Company rep encouraging one of Noorulazhar’s colleagues to distance himself from the activist and his union;
- The company’s officials asked Noorulazhar and other employees to discourage the union from pursuing recognition;
- Persecution of active Union members, including Noorulazhar, by non-payment or decreased payment of incentives; and
- The company dismissed Noorulazhar on 26 August 2011.
Award: The Court found that the Company had made the following violations:
- Interfering with, restraining or coercing a workman in the exercise of his rights to form, or assist in forming, and join a trade union and participate in its lawful activities.
- Supporting any trade union of workmen by financial or other means with the object of placing the union under its control or influence.
- Dismissing or threatening to dismiss a workman, or injuring or threatening to injure him in his employment, or altering his position to his prejudice, on the ground that the workman is or proposes or seeks to become a member of a trade union or participates in the promotion, formation or activities of a trade union.
We will look at another case law next week for further understanding.