The Union had lodged a complaint about these 'union busting' actions of Renesas, which was finally referred by the Minister to the Industrial Court on 18/3/2013 - and about THREE(3) years later, the Industrial Court made an Award in favour of the Union dated 8/3/2016. The award is as found below.
Wan Noorulazhar's wrongful dismissal case is still pending before the Industrial Court > and it has now been about 4 years and 7 months. He is claiming reinstatement - but since the law was amended, his entitlement to backwages will be no more than 24 months... previously, the law was more just, and if the court determines that a worker has been wrongfully dismissed, the entitlement to backwages will be from the date of wrongful dismissal until the date of the court order/reinstatement, which was just. Now, DELAY by the Minister and the Court prejudices the worker...
For workers and Unions, justice delayed is justice denied...
The Union is victorious ... but what happens now? Will the workers who have been discriminated against be justly compensated? Will they be promoted to the position or 'pay-scale' they should be, if not for these 'union busting' actions of the Company? Will those who have been wrongfully dismissed, now be immediately reinstated?
Well, the award does not say anything about this, and a perusal of the Industrial Relations Act, suggest that the penalty is 'where no express penalty is provided, be liable to imprisonment for a term not exceeding two years or to a fine not exceeding five thousand ringgit or to both' (see section 60). If so, it is grossly UNJUST.
Who pays for the lawyers? Who pays for the cost and effort expended by the Union? Well, in Industrial Court matters, each party bears their own cost...
And, if the Company only has to pay a fine of 'RM5,000' (which is about 5 months wages for a Minimum Waged Worker in Malaysia) -where is the JUSTICE?
Are worker and trade union rights protected in Malaysia? I would say 'No' - Would employers be DETERRED? - Would workers and Unions be encouraged to use the avenues of justice - when at the end of the day, guilty employers just will have to pay a measly fine, and note fines are paid to court/government - not the Union/workers?
3 - Now, that these 'union busting' activities, clearly has delayed recognition and the enjoyment of the benefits of a Collective Bargaining Agreement by all members, this loss per member should be quantified, and given that 72.69% of the workers in this company were members of the Unions, the sum loss per member must be multiplied by the number of members...and paid immediately to the Union. [Now, in this case, the 'union busting' activities starts in March 2010, the submission of recognition was February 2010 - reasonably, one can assume that recognition would have been achieved 3 months after date of submission, and the Collective Bargaining Agreement would have been place 3 months later - if not for the companies anti-union conduct/attitude (or union busting actions), and as such, reasonably one can say that the union members would have started enjoying benefits of the CBA since August 2010 - What benefits? Maybe, reasonably we can say RM100 per month per worker...X number of Union members(72.69% of total employees) X number of months since August 2010 until date of order - to be paid to the Union by the Company... well, that would be just, would you not say?
Sadly, now all we have a 'Paper Victory' - Now, the Award does not even mention the fine, or anything else...
Now, in this Award, the court should have also dealt with the reinstatement of Wan Noorulazhar, the President of the Union - This award, clearly confirms the 'union busting' - and it is absurd to say that the 'wrongful dismissal' is not related...I am of the opinion, that the court should have dealt with the wrongful dismissal at the same time ...now, the wrongful dismissal is before a different 'Chairman' in a different court, and this is odd...and not just.
See earlier posts:-
INDUSTRIAL COURT OF MALAYSIA
CASE NO: 22/3-733/13
MR. ABDULALIM BIN ZAKARIA - EMPLOYERS' PANEL
MR. PREM KUMAR A/L APPUKUTTY - EMPLOYEES' PANEL
DATE OF : 18 March 2013 REFERENCE
DATES OFMENTION : 7 May 2013, 14 June 2013, 2 September 2013, 19 November 2013, 27 January 2014, 19 March 2014, 14 April 2014, 28 April 2014, 1 October 2014, 15 October 2014, 14 November 2014, 18 March 2015 and 8 April 2015
Mr. Edward Saw and Mr. Jerry Low of Messrs. Josephine L K Chow & Co, Counsel for Company
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This is a reference made by the Honourable Minister of Human Resources under section 8(2A) of the Industrial Relations Act 1967. The reference arose out of a complaint of Union Busting against the Company for violations of sections 4(1), 4(2), 4(3), and 5(1)(d)(i) and (ii) of the Industrial Relations Act 1967. In May 2009 the Government of Malaysia had approved the unionisation of the workmen in the electronics industry. The Director-General of Trade Unions approved the registration of the workmen in the electronics industry into 4 regions. A pro-tem committee was formed for the registration of those workmen employed in the electronics industry and Wan Noorulazhar bin Mohd. Hanafiah, an employee of the Company, was elected as its pro-tem President.
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It is contended that Wan Noorulazhar replied that employees were free to form trade unions and that employers ought not to interfere with Union activities. It is contended that Goh Kwang Whung, the Company's Plant Director issued a veiled threat to Wan Noorulazahar to concentrate on his work to safeguard his future in the Company and to allow Zulkifly Abdul Rahman to establish the in-house union. Nevertheless the Union was established and was registered as the Kesatuan Sekerja Industri Elektronik Wilayah Barat Semenanjung Malaysia on 1 December 2009 and it submitted a claim for recognition from the Company on 18 January 2010.
It is alleged that sometime in March 2010 the Company arranged for members of the Joint Consultative Committee (JCC) in the Company to be brought to Cyberview Resort & Spa to attend a seminar on the setting up of an in-house union. The said seminar was conducted by the official from the Malaysian Employers Federation.
It is alleged that sometime in May 2010 Loh Kuei Wah an officer of the Company met Wan Noorulazhar and offered him the post of President of the in-house union and to send him for a course on collective agreements and requested him to encourage other employees to join the in-house union. Wan Noorulazhar declined the said offer. It is alleged that he was told that he was at the risk of being dismissed and that the Union's claim for recognition from the Company was a futile effort. Wan Noorulazhar alleges that thereafter he was moved from his normal work and shift and placed in cold storage only to perform tasks that was below his job grade as a Chargeman and his movements were closely monitored by the Human Resource Department even by the installation of CCTV.
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Sometime in July 2010 it is alleged that Romanza bin Ramli a Shop Steward in the Union and employed as a Senior Technician in the Company was approached by Loh Kuei Wah to discuss with the other shop stewards to request that the Union withdraw its claim for recognition so as to enable the in-house union to secure recognition from the Company. It was said that Romanza bin Ramli was told that Union will never get its recognition as the Company was working closely with the IR Department.
It is the Union's contention that sometime in August 2010 Mohd. Saizol bin Othman a colleague of Wan Noorulazhar was approached by the new Manager of FMD Department and told not to associate with Wan Noorulazhar and the Union and to only join the in-house union. It is averred that sometime in January and February 2011 Loh Kuei Wah again requested Wan Noorulazhar to withdraw the Union's claim for recognition. Special incentives were paid out sometime in April 2011 to certain categories of employees but not to active shop stewards of the Union and Wan Noorulazhar. Chargemen in the Company were promoted except
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It is the contention of the Union that the Company had taken steps in contravention of sections 4(1), 4(2), 4(3) and 5(1)(d)(i) and (ii) of the Industrial Relations Act 1967 without proper cause. It prays that the Industrial Court finds that the Company has contravened these sections and orders the Company to pay Wan Noorulazhar the amount of wages lost from the date of dismissal to the date of Hearing of this reference or final date determined by this Honorable Court.
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The Company denies that it has contravened sections 4(1), 4(2), 4(3) and 5(1)(d)(i) and (ii) of the Industrial Relations Act 1967.
The Company alleges that following the announcement by the government of Malaysia approving the unionisation of the electronics industry on a regional basis the Company had formed the intention of forming an in-house union and had discussions with the Joint Consultative Committee within the Company towards that end. The Company states that at the material time the Company had no knowledge that the Union was working towards registration of its establishment and claiming recognition from the Company. It is the Company's allegations that as part of its initiative in educating employers on trade Unionism the Malaysian Employers Federation had held a briefing on 10 November 2009. It is the Company's allegation that Union's claim
for recognition vide Form A was served on the Company on 18 January 2010 and was declared null and void for non-compliance of the Industrial Relations Regulations 2009. It is its contention that a fresh claim for recognition was made by the Union on 6 September 2011. It is contended by the Company that the seminar at the Cyberview Resort & Spa was to educate members of the JCC on the Trade Union Act as a whole and not on in-house unionism. It is its contention that special incentives were paid to employees who earned it including Wan Noorulazhar. It states that it had no knowledge as to which of its employees were shop stewards of the Union and which were not. The Company denies any insinuation and allegation of victimisation against Wan Noorulazhar and states that the promotion of chargemen in the Company was dependent on whether the relevant chargemen had passed the relevant examinations and acquired the necessary qualification for promotion as a chargeman.
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Evidence, Evaluation and Findings
The Union's first witness, UW.1 was the General-Secretary of the Electronic Industry Employee's Union - Western Region Peninsular Malaysia, which is the Union in this matter. He testified that sometime thereabout May 2009 the Government of Malaysia had approved the unionisation of the workmen of the electronics industry. He testified that thereafter the DirectorGeneral of Trade Unions approved the registration of the workmen in the electronics industry into 4 regions. He testified that a protem committee for the registration of a Union of those workmen employed in the electronics industry was formed and Wan Noorulazhar bin Mohd. Hanafiah, the Company's employee, was elected as the pro-tem president.
UW.1 testified that he was informed by Wan Noorulazhar that the Company's Plant Director, Goh Kwang Whung (“Goh”) questioned him sometime in early 2009 about the activities of the Union and for him to seek advise of Zulkifli Abdul Rahman when was then the Division Manager, Human Resource General Admin Department for requirements on establishing an Union. He said that Goh requested Wan Noorulazhar not to promote the establishment of a national/regional-wide Union for the electronics industry and that the Company will very soon be promoting an establishment (in-house) union and when Wan Noorulazhar refused to do so he issued a veiled threat to him to concentrate on his work to safeguard his future in the Company. He further testified that on 12 November 2009 Loh Kuei Wah (“Loh”) met with Mohd. Nazri bin Jahuri another employee of the Company and prior to that meeting Loh had offered him to lead the in-house union that was being established by the Company as the Company had come to know of the establishment of the Union. He testified that Mohd. Nazri declined the said offer.
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It was his evidence that he was informed by Wan Noorulazhar that sometime in May 2010 Loh met him again and offered him the post of president of the in-house union and to send him for a course on collective agreements and requested him to encourage other employees to join the in-house union. He testified that when Wan Noorulazhar refused and because he did not want to cooperate with the management he was told that his future the Company was bleak and that he was at the risk of being dismissed. It was UW.1's evidence that Wan Noorulazhar was informed by his immediate superior Sundramorgan on several occasions that he had no future in the Company including promotions as the HR Department will pressure him to resign and if those efforts fail he will be dismissed for whatever reasons. It was his testimony that Wan Noorulazhar was moved from his normal work and shift and placed in cold storage only to perform task that was below his job grade as a chargeman and his movements were closely monitored by the HR Department even by the installation of CCTV.
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UW.1 further testified that sometime in April 2011 the Company paid out incentives to certain categories of the employees but not to the active shop stewards of the Union and 1 Exco Member. He said Wan Noorulazhar was paid 6% out of a maximum of 12%. He testified that Wan Noorulazhar was denied promotion and was dismissed from the Company on 26 August 2011 after a domestic inquiry found him guilty of misconduct that was without basis.
It was UW.1 testimony that in the light of the above mentioned actions the Company had violated sections 4(1), 4(2), 4(3) and 5(1)(d)(i) and (ii) of the Industrial Relations Act 1967 without proper cause and the fundamental rights of the Union which was seeking to improve working conditions for the workmen in the Company. It was his testimony that the Company exercised managerial powers in furtherance of unfair labour practice depriving the members of the Union of their freedom of association and their fundamental rights enshrined in the Federal Constitution. He said that despite several letters by the pro-tem committee of the in-house union the Director-General of Trade
Unions (DGTU) had refused to register the in-house union and the pro-tem committee of the in-house union initiated judicial review proceedings at the High Court against the decision of the DGTU to register the said in-house union and to the Court of Appeal as the High Court had dismissed their application. It was his evidence that the appeal was dismissed by the Court of Appeal as well.
UW.1 testified that on 6 September 2011 the Union sought recognition form the Company again and the Company declined to accord recognition. He said that the Union reported the matter to the Director-General of Industrial Relations and also complained that the Company had breached sections 4(1), 4(2), 4(3) and 5(1) (d)(i) and (ii) of the Industrial Relations Act 1967. He testified that pursuant to section 9 of the Industrial Relations Act 1967 a secret ballot was carried out and it showed that 72.69% of the workmen employed by the Company were members of the Union and that the Union had thus established the requirements to be accorded recognition. It was his testimony that the Company filed an application for judicial review at the High Court dissatisfied with the Minister of Human Resources order recognising the Union.
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It was his evidence when cross-examined that he had no personal knowledge of the incidents and facts he narrated in Court and that what he testified was based on what was told to him by Wan Noorulazhar and other employees of the Company.
UW.2 the Union's second witness testified that he was the president of the Union. He testified that the Union was registered on 11 February 2009 and that its Secretary–General was UW.1. It was his evidence that vide the its letter dated 16 February 2012 the Union complained about the activities of the Company which were in violation of sections 4(1), 4(2), 4(3) and 5(1)(d)(i) and (ii) of the Industrial Relations Act 1967. He testified that in early November 2009 he was asked by Goh Kwang Whung the Company's Plant Director (Goh) about the developments of the Union and had asked him to seek advise from Zulkifly Abdul Rahman (Zulkifly). He said that he was asked by Goh to not spread news about the Union among its employees as the Company intended to set up an in-house union and asked him to work with Zulkifly in the setting up of the in-house union. He said that he told Goh that it was a worker's right to form an Union and
UW.2 testified further that on 8 January 2010 he signed Form A on behalf of the Union seeking recognition of the Union from the Company. He testified that Loh vide his letter dated 8 February 2010 refused to accord recognition to the Union. He testified that in the middle of May 2010 the Company organised a seminar for employees who were members of the JCC at Cyberview Resort & Spa at Cyberjaya. He testified that the Company invited an official from Malaysian Federation of Employers to give a briefing to them on the formation of an in-house union. It was his evidence that Mohd. Ayob was one of the attendees at the said seminar together with Siti Jumiah bt. Md. Ful and Roziah bt.
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Karim who were involved in applying for the registration of the inhouse union. It was his evidence that Loh met him in may 2010 at the Factory Maintenance Department (FMD). He said that he was advised by Loh to think hard about his future in the Company and was asked to withdraw as President of the Union and to take up membership in the in-house union that was to be formed. He said that Loh offered him to be the President of the said in-house union and to send him for a course in collective agreements. He testified that he was asked to invite his friends to follow him as well. He said that he again turned down the offer and requested Loh to respect the workers' rights. UW.2 testified that he was taken aback when Loh told him that his future in the Company looked bleak and that he was at the risk of being dismissed. UW.2 further testified that Loh told him that applying for recognition of the Union was an exercise in vain and that Zulkifly was close to the officer at JPP Putrajaya.
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UW.2 testified that he was often told by his immediate supervisor, Sundramogan a/l Murugan that he had no future in the Company and that he will be harassed by the Company and will be dismissed if he himself had not resigned. He testified that his promotion was frozen whilst his colleague Muhammad Suhaimi bin Dollah who was in the grade as him was given Certificate A4 and finished his course at ILSAS Bangi later than him. He testified that he was not given specific tasks as he was given prior to him being involved in the Union. He said that he was only asked to do some odd jobs and assist the other chargemen. He said that he was no longer placed on shift duties but was told to commence normal working hours by the Company. It was his evidence that the Company installed CCTV cameras just next to his office as if they wanted to monitor his movements and to scare other employees to wanted to talk to him. He said that he was informed by Sundramorgan that the CCTV cameras was to monitor him.
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UW.2 testified further that Romanza bin Ramli a Technician in the Company and 1 of the shop stewards of the Union was visited by Loh who asked him to discuss with the Union to withdraw its claim for recognition and to replace it with the inhouse union. He said that Loh promised him that if he and the other shop stewards agreed to his request they could determine who could lead the in-house union that was to be set up. He testified that Loh informed Romanza that their Union will never get the recognition as they were working close with the JPP and that until Loh retires the Union will never get the recognition sought. It was his evidence that because Romanza did not give Loh a reply he was transferred out. He testified that Romanza was discriminated against by the Company and his movements were monitored.
It was his evidence that in July 2010 his new Department Manager/General Manager Vijendran a/l Seevaratnam met him and discussed his future in the Company with him. He testified that he was given a choice that if he continued to be active in the Union his had no future in the Company and if he choice to be a part of the in-house union his future in the Company would be bright. He said that he was asked to think about his family if he was to be dismissed.
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UW.2 testified that his colleague, Mohd. Saizol bin Othman was told by Vijendran sometime in August 2010 not to participate in the Union and to become a member of the in-house union. He said that Mohd. Saizol was told not to follow him as he had no future in the Company. It was his evidence that throughout the month of January 2011, Loh telephoned him asking him to not be active in the Union as the Union's claim for recognition will not succeed. He said that he was asked by Loh to cancel the Union's application for recognition and to give up my position in the Union and to follow the Company's decision to set up the in-house union. He said that he was ahin asked by Vijendran to cancel the Union's claim for recognition and to assist the Company set up the inhouse union. It was his evidence that in April 2011 he and other shop stewards were discriminated against by the Company when special incentive payments were paid out. It was his evidence that he was paid 6% out of a maximum of 12% whist his colleagues were paid none. He said that in July 2011 he was again discriminated against when the Company denied him a promotion when the other chargemen received theirs. It was his evidence that on 1 August 2011 Sundramorgan told him that he was to be
dismissed at anytime and therefore asked him to hand over his work. It was his testimony that he was eventually dismissed on 26 August 2011.
UW.2 testified that he was dismissed for not cooperating with the Company and failing to withdraw from the Union. He said that the Company's intention was to paralyse the Union and to threaten other members of the Union so that they too would think of leaving the Union.
It was the evidence of UW.3, Technical Assistance with the Company, that on 12 November 2009 he met Loh and rejected his earlier offer to him to become a member of the in-house union that was to be set up. He said that Loh had informed him that the Company was aware of the Unions's move to obtain recognition and the Company was intending to set up an in-house union. It was his evidence that he recorded the said conversation with his handphone but could not reproduce the same as it was done some 5 years ago and that his handphone no longer functions.
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UW.5, a senior Technician with the Company at the material time, testified that he had informed UW.2 that Loh had spoken to him in 2010 asking him to ask the Union to withdraw or cancel its claim for recognition so that the in-house union could be set up.
He testified that Loh had told him to treat this matter seriously
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The last witness of the Union, UW.6, a Technician with the Company at the material time, testified that he had informed UW.2 that in August 2010 Vijendran his supervisor had asked him not to participate in the Union and to join the in-house union instead.
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to give up his activities of the Union and join the in-house union that is sponsored by the Company.
The Company's 1st witness, COW.1, the Industrial Relations and General Administration Manager in the Human Resources and General Administration Department of the Company, testified that the Union served the Company with their claim for recognition on 6 September 2011. He testified that the accusations against the Company were baseless and denied them. He testified that the Company had good relationship with its workers and that they had in existence a JCC comprising of 6 management representative and 16 employee representative from each group of employees and shifts. It was his evidence that on 8 November 2009 he received from Siti Jumiah binti Md. Ful who was the pro-tem secretary stating the intention to establish an in-house union and asked for the Company's consent to use its address as their correspondence address. He testified that this is all he knew. He testified that he had no knowledge of the fact that Siti Jumiah challenged the DGTU's refusal to register the said in-house union and had filed
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It was his testimony that he did not know when the regional Union had submitted its application for registration. He said that he only became aware of the existence of the Regional Union when a claim for recognition was served on the Company on 18 January 2010 and that UW.2 had become its President. He testified that this claim by the Union for recognition was declared null and void by the Industrial Relations Department as it did not comply with the then newly introduced Industrial Relations Regulations 2009.
It was his evidence that the Regional Union subsequently made another claim for recognition on 6 September 2011.
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He denied that he met Mohd. Nazri bin Jahuri and that the Company did not establish the in-house union. It was his evidence that the Seminar arranged by the Company Cyberview was to educate the JCC members on the relevant laws on Trade Unionism and not on the formation of in-house union. He testified that the accusations against him that he met Wan Noorulazhar in May 2010 offering him the post of president of the in-house union was false as the post had been taken up by Zakaria bin Deraman.
He denied that he made any threats to Wan Noorulazhar as regards his future in the Company. He further denied that he met Romanza in July 2010 and asking him to request the other shop stewards to request that the Union withdrew their claim for recognition so that the in-house union could be recognised. He testified that he did not offer Romanza to lead the in-house union.
He also denied that he met Wan Noorulazhar in January 2011 asking him to withdraw the Union's claim for recognition as there was no pending claim for recognition in the first place. He testified that active shop stewards and Wan Noorulazhar were not discriminated against when incentive payments were paid out by the Company. It was his testimony that Wan Noorulazhar was in
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When he was cross-examined COW.1 testified that efforts were made in 2010 to establish an in-house union and that the Company was aware by March 2010 that the Regional Union for electronics Workmen had been established. He agreed when the names of some of the attendees at the Seminar arranged by the Company at Cyberview were members of the Pro-tem Committee of the in-house union. He denied however when it was put to him that the said seminar was arranged for them. When it was read out from the Statement In Reply and put to him by the Union's Counsel COW.1 agreed that it was the Company's intention to form the in-house union. He agreed when it was put to him that the Company refused to recognised the Union when the claim was submitted to him and that by a secret ballot carried by the Industrial Relations Department 72.69% of eligible workers from
the Company voted in farvour of the Union and the Honourable Minister directed the Company to accord recognition to it.
It was COW.1's testimony that he was seen with some of the pro-tem committee members at the Industrial Relations Department by UW.1 and agreed that he walked out quickly when he was seen. He denied leveling threats at Wan Noorulazhar or meeting him in 2010 and 2011. He denied that he told Wan Noorulazhar, Industrial Relations Officer, that he knew Kamal Pardi and that he will delay the recognition sought by the regional Union. He agreed that this Kamal Pardi was the signatory to the official letter from the Industrial Relations Department stating that the Union's claim for recognition was defective. When asked about the installation of the CCTVs in the Company he said that they were installed way before 2009 to safeguard the Company's precious metal and not to monitor Wan Noorulazhar's movements.
He testified that he was not aware that Wan Noorulazhar was overlooked for promotion. He disagreed that the Company had taken steps to bust the Union in contravention of the Federal Constitution.
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It was his evidence when cross-examined that he was not involved in the incentive pay out to UW.2. When asked he said that he had no documents before the Court to show that the named individuals who did not receive the incentive were poor performers.
COW.3 the Company's 3rd witness denied that he advised UW.2 to not tell the other employees of the Company about the formation of the Union and that at anytime the Human Resources
Department could take action against him. In cross-examination he testified that he attended the seminar at the Cyberview on 16 March 2010. It was his evidence that the seminar was about understanding Industrial Relations. He denied when it was put to him that it was also about formation of an in-house union. He maintained when cross-examined by the Union's Counsel that he did not speak to UW.2 about not talking to his colleagues about Union issues.
COW.4, the General Manager cum Department Manager of the Factory Maintenance Department (FMD) at the material time testified that he did not meet UW.2 as alleged by him and gave him a choice of continuing as the President of the Union in which case he would not have a future with the Company or assist and cooperate with the Company in the formation of the in-house union and would have then a bright future. He denied that he told UW.2 that Encik Zulkifly Abdul Rahman would guarantee his future would be bright in the Company and that these were the instructions and decision of the Management. He testified that he did not tell UW.2 to think long and hard whether he wanted to
continue his employment with the Company or not and to think about his wife and children and the consequences if he lost his job. He testified that he did not tell UW.2 that he could talk this out with Encik Zulkifly Abdul Rahman. It was his evidence that he did not meet UW.2 sometime in February 2011 to discuss Union issues or having requested UW.2 to take the win situation by canceling the registration of the Union and to go with the Company on the establishment of the in-house union. He testified that he did not tell UW.2 that if he did this the victimisation and the freezing of his promotion will cease. COW.4 testified that he did not meet UW.2 in April 2011 and denied telling him that some employees and those active in the Union will not be eligible for the special incentive given by the Company asking him again to choose whether he will follow the Company and withdraw as President of the Union and if he did so he could be given up to 12% as a special incentive.
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It was his evidence when cross-examined by the Union's Counsel that he could not remember meeting UW.2 in July 2010 but testified that he did not meet UW.2 with regards to his Union matters. It was his evidence that he did not receive any directive from COW.1 or Zulkifly to tell UW.2 and UW. 6 to remove themselves from the Union and to get involved in the in-house union. COW.4 maintained that he did not meet UW.2 in February 2011.
The Company's final witness, COW.5 testified that at the material time he was UW.2's supervisor. He denied that he had frequently told UW.2 that he had no future in the Company and the Company was victimising him so that he would made to resign on his own. He denied that he told UW.2 that if he did not deny
the Company would dismiss him on grounds of misconduct. He testified that he did not tell UW.2 that his promotions will be frozen by the Company nor did he verify that UW.2 did not get his promotion because he was the President of the Union. It was his testimony that he also did not tell UW.2 that he ought to be careful and that his movements were being watched through the CCTV and that he was not given specific work as the Company intended to kill his career in the Company. COW.5 testified that he did not meet UW.2 on 1 August 2011 or tell him that not to say anything to anyone but to be ready to be dismissed at anytime and that it was the decision of the Human Resources Department of the Company.
It was his evidence when cross-examined that he was aware that the regional Union was set up and that the Company was not happy with it operating within its premises. He admitted that he was aware that UW.2 was the President of the said regional Union.
He denied when it was put to him that he told UW.2 not to be involved in the said Union.
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The Court's Evaluation
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Over the years we hear and see workers being terminated and/or disciplined by reason of their involvement in Union activities. Workers are compelled to attend one-on-one sessions with supervisors where workers are often harassed because of their involvement in Union campaigns.
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It is said that a campaign against a Union is an assault on individuals and a war on truth. As such it is a war without honour. The only way to bust a Union is to lie, distort, manipulate, threaten and always, always attack. Employers adopt Union busting tactics that include coercion, intimidation and retaliation to discourage from joining Union.
Our laws are well-defined within the Industrial Relations Act 1967 (IR Act) and Trade Union Act 1959. Section 5 of the IR Act places a prohibition on employers and their Trade Unions in respect of certain acts. The section inter alia protects the termination, taking of disciplinary action or discriminating against Union members. Section 59 of the IR Act states amongst other things that an employer cannot threaten an employee's position for his involvement in a Trade Union whilst section 4 of the IR Act which shall be discussed in greater detail hereinafter prohibits the interference by the employer of a workman's rights to form and assist in the formation of and joining of a Trade Union and to participate in its lawful activities.
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No person shall interfere with, restrain or coerce a workman or an employer in the exercise of his rights to form and assist in the formation of and join a Trade Union to participate in its lawful activities.
It is trite that the burden is on the Union to prove there was interference, restraint, or coercion from the Company against the workmen's right to form and assist in the formation of and joining a Trade Union and participating in its lawful activities. The Union narrated through its witnesses a chronology of events that was put in place by the Company through its officers after the
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It is alleged that UW.2 was asked by Goh Kwang Whung sometime in 2009 not to promote the establishment of a national/regional wide Union for the electronics industry and was told to concentrate on his work to safeguard his future in the Company. Unfortunately Goh Kwang Whung did not testify on behalf of the Company. His evidence to this extent was not rebutted by the Company.
recognition so as to enable the in-house union to secure registration. COW.1 denied telling him that he could appoint anyone to be in leadership with him in the in-house union.
COW.1 also denied that he met UW.2 in January 2011 where it is alleged that he requested him to withdraw the Union's claim for recognition and saying it was easier to register an in-house union.
COW. 4 denied that he approached UW. 6 telling him that he was not to associate himself with UW.2 and the Union and to join the in-house union.
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The Union further alleges that the seminar organized by the Company at Cyberview Resort and Spa in March 2010 was in essence for the leadership of the in-house union to educate them on how to set it up. This was refuted by the Company's witness during the Hearing.
Likewise the allegations that COW.3, COW.4 and COW.5 met with UW.2 at different times and had made specific requests and representations to him about his involvement in the Union and his future in the Company are denied by them.
Hence it is the Court's finding that on the evidence before it the Company has by its activities through its troopers that is COW.1,COW.3, COW.4 and COW.5 indulged in Union-avoidance tactics violating section 4(1) of the IRA 1967. The Court is satisfied based on the evidence before it that the Company embarked on a planned course of action to stop UW.2 and the other workers testifying at the Hearing from establishing a Union already in the making. This is why they refused to grant recognition to the Union when they first submitted a claim for recognition from the Company vide Form A on 18 January 2010. The timing of the
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seminar that was held at Cyberview Resort and Spa in March 2010 leaves a lot to be said as to the motives of the Company in organising the same.
This section states that no employer amongst others shall support any Trade Union of workmen by financial or other means with the object of placing it under the control or influence of it. The Union complains that the Company has supported the formation of the in-house union in violation of this section. The Union witnesses testified that the Company organized a seminar at Cyberview Resort & Spa in March 2010 for the said JCC. The Union witnesses testified that this seminar was for the leadership of the in-house union to educate them on how to set up the inhouse union. The Union witnesses showed that some of the attendees of this seminar were members of the pro-tem committee of the in-house union to be set up. This is too much of a coincidence I must say and coupled with their averment at paragraph 6 of their Statement In Reply in that the Company had already formed that intention of forming an in-house union
following the announcement by the Government of Malaysia approving the unionisation of electronics industry on a regional basis the only inference that the Court can draw from its actions is that the Company supported the very least the formation of the inhouse union. The Union witnesses testified that these attendees at the said seminar who were the pro-tem committee members of the in-house union went on to make an application for judicial review at the High Court when the registration of the in-house union was refused by the Director-General of Trade Unions. This is the Court's findings based on the evidence before it and also being told that COW.1 was seen with the said pro-tem committee members (pro-tem committee was formed on 7 November 2009) of the in-house union at the Trade Union Office. Again it is too much of a coincidence that COW.1 is seen with these pro-tem committee members of the in-house union and his explanation that he happened to be there and was guiding them is rejected by the Court as the Court finds it to be implausible. Given the facts and evidence it would not be wrong for the Court to conclude that the COW.1 was supporting the formation of the in-house union and this is in violation of section 4(3). The word “support”
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Section 5(1)(d)(i) and (ii)
No employer or Trade Union of employers and no person actingon behalf of an employer or such Trade Union shall:
“(d) dismiss or threaten to dismiss a workman, injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice by reason
that the workman-
(2) participates in the promotion, formation or activities of a Trade Union”.
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UW.2 further testified that in February 2011 he met COW.4 who requested him to cooperate with the HR Department for a win-win situation by withdrawing the claim for recognition by the Union and that there would be no more harassment or victimization against him. All these allegations were denied by them. The evidence bear out that UW.2 was by-passed for promotion as a Chargeman in his department and the special incentive paid out to him was 6% when the maximum received by other workers were 12%. His superiors testifying at the Hearing did not go on to talk about his performance as a Chargeman in the Company. In fact the Company did not lead evidence to establish him as having been a bad performer during his stay with the Company at the
This is indeed an alteration of his position as a Chargeman to his prejudice. The Company did not deny this and offered no explanation as to why they had embarked on this course of action against UW.2. The dismissal of UW.2 that followed suit thereafter has become the subject-matter of another action pending at the Industrial Court case number 12/4-83/12 where the Company carries the burden of establishing that he (UW.2) was dismissed for a just cause or excuse. I shall therefore stay clear of passing any comments on this lest I prejudice its outcome. Suffices to say that on the evidence before it is the Court's findings that the Company has violated section 5(1)(d) in that it has carried out acts to injure or threaten to injure or alter or threaten to alter UW.2 by reason that he has been active as a President and member of the Union applying for its recognition and participating in its lawful activities.
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The Court has made its ruling in accordance with equity, good conscience and having regard to the substantial merits of the case. The Court notes that employers are lawfully bound to respect a worker's right to engage in unionism and to participate in the lawful activities of a Union. The IR Act further makes the employer morally and ethically constrained to do so. Article 8 of the Code of Conduct for Industrial Harmony dated 9 February 1975 unequivocally declares, inter alia, that employers agree not to support or encourage any unfair labour practises such as interfering with the affairs of a Trade Union and the right of workers to organize, discriminate, restrain, or coerce against any worker because of legitimate Trade Union activities and abuse authority in any form.
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* The 50 page Award have been copied and pasted, for purposes of publication in this Blog. We have tried our best to ensure that there are no errors.