Kesatuan Kebangsaan
Pekerja-Pekerja Bank & Ors V. Ketua Pengarah Kesatuan Sekerja & Ors
HIGH COURT MALAYA, KUALA
LUMPUR
ALIZATUL KHAIR OSMAN J
[ORIGINATING SUMMONS NO:
R4(R2)-24-51-2008]
10 OCTOBER 2013
LABOUR LAW: Trade Union -
Eligibility to membership - Whether a Trade Union member who has been dismissed
from Employment remains a member pending final decision on challenge against
dismissal - Industrial Relations Act 1967, s. 20 - Trade Unions Act 1959, s.
26(1A)
One Mr Solomon who was the General Secretary of the
first plaintiff was dismissed from employment together with nine other members
of the first plaintiff by CIMB Bank Berhad for unlawful picketing. Mr Solomon
and the other members concerned challenged the dismissal and a representation
was made to the Industrial Court pursuant to s. 20 of the Industrial Relations
Act 1967 ('IRA'). The representation was heard by the Industrial Court, and the
present originating summons was filed, pending the decision. According to the
Director General of Trade Unions ('DGTU'), Mr Solomon was allowed to continue
being a member of the first plaintiff and to stand for elections based on the
view that Mr Solomon remained a workman as defined under the IRA until his
representation to the Industrial Court on his dismissal was finally decided.
However, the Attorney General's Chambers held the opposite view in relation to
s. 26(1A) of the Trade Unions Act 1959 ('TUA'). Hence, the first plaintiff
applied by way of the present originating summons, inter alia, for the
following declarations, ie : (i) that a person who was a member of the
plaintiff and who had been dismissed or retrenched from employment would still
be considered and deemed to be a member of the plaintiff in the event such
dismissal or retrenchment was challenged in any proceedings in court or
representations had been made to the Director General of Industrial Relations
('DGIR') for his reinstatement to his former employment; and (ii) that the TUA
read together with the IRA did not prevent a member of the plaintiff who had
been dismissed or retrenched from employment from holding office as a member of
the executive of the plaintiff, in the event such dismissal, termination,
discharge or retrenchment was challenged in any proceedings in court or
representations had been made to the DGIR for his reinstatement to his former
employment. The sole issue for determination of the court related to the
interpretation of s. 26(1A) of the TUA in a situation where an employee had
been dismissed by an employer within a particular industry. More specifically,
the issue was whether an employee who had been dismissed by an employer within
a particular industry and whose dismissal had been challenged could continue to
be a member of the Trade Union in that industry.
Held (allowing first plaintiff's application with
costs):
(1)
Section 26(1A) of the TUA was enacted for the purpose of restricting membership
of a particular union to only persons employed in that particular type of trade
or occupation or industry and not to automatically strip members of their
membership of the union merely due to the fact that they were terminated from
their employment (notwithstanding that they were challenging their termination
by seeking reinstatement under s. 20 of the IRA). To construe it as such would
enlarge the powers of the DGTU to an unacceptable and arbitrary extent. Such a
construction would also run counter to the express intention of the Parliament
(paras 82 & 83).
(2) The
court can rely on the Hansard to assist it in the construction of a statute.
The Minister's speech when tabling the Bill to amend s. 26(1A) in the
Parliament in 1988 clearly disclosed the mischief aimed at or the legislative
intention lying behind the ambiguous or obscure words, which was to confine the
membership of the union only to persons engaged or employed in the trade,
occupation or industry in respect of which the union was registered; Chor Phaik
Har v. Farlim Properties Sdn Bhd (refd); National Union of Newspaper Workers v.
Ketua Pengarah Kesatuan Sekerja (refd) (paras 83 & 89).
(3) It
would be premature to decide whether a member of a union has lost his
membership due to a dismissal which is being challenged and where a
representation has been made unders. 20 of the IRA and the matter referred to
the Industrial Court for adjudication. This was because when an employee is
dismissed and the matter was referred to the Industrial Court under s. 20 of
the IRA, the burden is on the employer to prove that the dismissal was done
with just cause and excuse. Thus, until and unless the Industrial Court has
disposed of a representation made under s. 20 for reinstatement, another court
may not deem that the workman has forfeited his union membership (para 132).
Case(s) referred to:
All Malayan Estates Staff Union v. Rajasegaran &
Ors [2006] 4 CLJ 195 FC (refd)
Anthonyamah Anthony & Ors v. Socfin Co Bhd
[1992] 3 CLJ 1410; [1992] 2 CLJ (Rep) 75 HC; [1992] 1 ILR 297 (dist)
Blackburn v. Attorney-General [1971] 2 All ER 1380
(refd)
Chor Phaik Har v. Farlim Properties Sdn Bhd [1994] 4
CLJ 285 FC (refd)
Duport Steels Ltd v. Sirs [1980] 1 WLR 142 (refd)
Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia &
Anor [1996] 4 CLJ 687 FC (refd)
Kempas Edible Oil Sdn Bhd (Kilang Kempas Devon) v.
All Malayan Estates Staff Union (Amesu) [2006] 4 ILR 2942 IC (dist)
Malaysian Bar v. Dato' Kanagalingam Veluppillai
[2004] 4 CLJ 194 FC (refd)
National Union of Newspaper Workers v. Ketua
Pengarah Kesatuan Sekerja [2000] 4 CLJ 233 FC (refd)
National Union Of Teachers In Independent Schools,
West Malaysia v. Han Chiang High School, Penang [1989] 1 CLJ 1091; [1989] 2 CLJ
(Rep) 160 HC (refd)
Palm Oil Research And Development Board Malaysia
& Anor v. Premium Vegetable Oils Sdn Bhd [2004] 2 CLJ 265 FC (refd)
Pepper (Inspector of Taxes) v. Hart [1993] 1 All ER
42 (refd)
Perusahaan Otomobil Kedua Sdn Bhd v. Ketua Pengarah
Kesatuan Sekerja & Anor [2000] 5 CLJ 351 HC (dist)
PP v. Tan Tatt Eek & Other Appeals [2005] 1 CLJ
713 FC (refd)
R (on the application of Quintavalle) v. Secretary
of State for Health [2003] 2 All ER 113 (refd)
Re Singapore Industrial Workers Union [1964] 1 LNS
178 HC (refd)
Salomon v. Commissioners of Customs & Excise
[1967] 2 QB 116 (refd)
Seow Teck Ming & Anor v. Tan Ah Yeo & Anor
[1991] 3 CLJ 2731; [1991] 4 CLJ (Rep) 576 CA (foll)
Wong Pot Heng v. Zainal Abidin Putih & Anor
[1990] 2 CLJ 174; [1990] 1 CLJ (Rep) 312 SC (refd)
Legislation referred to:
Industrial Relations Act 1967, ss. 2, 4, 5, 7, 20,
26(2), 59
Interpretation Acts 1948 & 1967, s. 17A
Trade Unions Act 1959, ss. 2, 10(2), 12(3), 26(1A),
(1B), 29(1), 66(2)
Counsel:
For the 1st plaintiff - Ambiga Sreenevasan; M/s
Sreenevasan Young
For the 2nd plaintiff - Chandrasegaran (Pong Fook
Chuah with him); M/s Prem & Chandra
For the 3rd - 11th plaintiffs - Anand Ponnudurai;
M/s Bodipalar Ponnudurai De Silva
For the 1st defendant - AG's Chambers
For the 2nd - 11th defendants - M Eswary; M/s The
Law Firm Of M Eswary
Reported by Amutha Suppayah
JUDGMENT
Alizatul Khair Osman J:
Introduction
[1] This is an application by
way of originating summons (encl. 1) by the first plaintiff, the National Union
of Bank Employees against the first respondent, the Director General of Trade
Unions for, inter alia, the following reliefs:
(i) a declaration that a person who is a
member of the plaintiff and who has been dismissed, terminated, discharged or
retrenched from employment would still be considered and be deemed a member of
the plaintiff in the event such dismissal, termination, retrenchment is
challenged in any proceedings in court or representations have been made to the
Director General of Industrial Relations for his reinstatement to his former
employment;
(ii) a declaration that the Trade Unions
Act 1959 read together with the Industrial Relations Act 1967 do not prevent a
member of the plaintiff who has been dismissed, terminated, discharged or
retrenched from employment from holding office as a member of the executive of
the plaintiff, in the event such dismissal, termination, discharge or
retrenchment is challenged in any proceedings in court or representations have
been made to the Director General of Industrial Relations for his reinstatement
to his former employment; and
(iii) a declaration that Mr Sandagran
Solomon Joseph Pitchay who was elected as general secretary of the plaintiff on
7 August 2005 and re-elected as general secretary on 26 July 2008 was rightly
and lawfully elected as general secretary of the plaintiff.
[2] The second to 11th
defendants were added as defendants pursuant to an application to intervene and
vide order of court dated 16 December 2008.
[3] The second to 11th
defendants were members of the first plaintiff who were at the material time
employed in the industry in respect of which the first plaintiff was
registered.
[4] The second to 11th
plaintiffs were added as plaintiffs to this application pursuant to an
application to intervene and vide order of this court dated 6 January 2009 and
9 April 2009 respectively.
Background
[5] The background facts
leading to this application as set out in the first plaintiff's written
submissions and in the affidavit in support of the originating summons (encl.
2) were as follows:
Sometime towards the end of 2004, several
members of the first plaintiff filed an application to the High Court for an
order to direct the DGTU to conduct elections to resolve the ongoing internal
dispute and leadership crisis facing the first plaintiff. The High Court
dismissed the application but on appeal, the Court of Appeal, allowed the
appeal and made an order directing the DGTU to conduct elections within four
months and thereupon to announce the outcome of the elections within 24 hours
upon completion of the elections. The outcome of the elections was that Mr
Solomon won by a majority of votes for the post of Branch Committee member at
the Penang branch level and the post of general secretary at the national level
respectively.
[6] Since 8 August 2005
therefore, Mr Solomon has been holding the position of general secretary of the
first plaintiff and conducting the administration of the first plaintiff.
[7] Mr Solomon was allowed to
stand for elections and to be elected as the general secretary in 2005 by the
then DGTU even though he was dismissed from employment prior to that in 2004.
In fact, at the material time in 2005 the then DGTU also took the position that
one Encik Muhammad Fauzi bin Haji Shamsuddin who was running for the post of
president was allowed to stand for elections notwithstanding the fact that he
was also dismissed and/or terminated from employment at the material time and
was challenging the dismissal.
[8] The details relating to Mr
Solomon's dismissal and the subsequent reference to the Industrial Court were
as follows:
(i) Mr Solomon, the general secretary of
the first plaintiff was dismissed from employment together with nine other
members of the first plaintiff by CIMB Bank Berhad on 27 April 2004 for
allegedly unlawful picketing.
(ii) Mr Solomon and the other eight members
concerned challenged the dismissal and a representation was made to the
Industrial Court pursuant to s. 20 of the Industrial Relations Act, 1967
('IRA'). The representation was heard by the Industrial Court, and at the time
the OS was filed, was pending decision.
[9] According to the DGTU, Mr
Solomon was allowed to continue being a member of the first plaintiff and to
stand for elections based on the opinion of the then legal adviser (of the Ministry
of Human Resources) who was of the view that Mr Solomon remained a workman as
defined under the IRA until his representation to the Industrial Court on his
dismissal was finally decided. (see paras. 12.2.1 - 12.2.7., encl. 12).
[10] However in 2008,
following an exchange of correspondence between the DGTU's office and the first
plaintiff regarding the status of Mr Solomon (as general secretary of the first
plaintiff) arising from a query raised initially by the then President of the
Industrial Court when Mr Solomon appeared for the first plaintiff before her,
the DGTU on 1 July 2008 wrote to Mr Solomon. In the letter dated 1 July 2008,
the DGTU stated that pursuant to queries from members pertaining to the status
of the general secretary of the first plaintiffs, the DGTU referred the issue
to the Attorney General's Chambers, who gave the following interpretation of s.
26(1A) of the Trade Unions Act 1959 ("TUA"):
Subseksyen 26(1A) Akta Kesatuan Sekerja
(Akta 262) memperuntukkan bahawa seseorang yang "not employed or
engaged" in any establishment, trade, occupation or industry in respect of
which the trade union is registered" tidak boleh menjadi anggota sesebuah
kesatuan sekerja. Perkataan employed and engaged... merujuk kepada sesorang
yang masih bekerja dengan majikannya dan tidak meliputi seseorang yang telah
diberhentikan kerja walaupun pekerja tersebut telah pun memfailkan representasi
mengenai pembuangan kerjanya.
(see exh. OP-2 of the first respondent's
affidavit in reply dated 10 October 2008).
[11] The first plaintiff
viewed the interpretation as "a grave departure" from previous
practice and a drastic stance taken by the first defendant as at all material
times the first plaintiff had treated and deemed members who were dismissed as
members so long as their dismissals were being challenged. The implication from
the aforesaid interpretation, in the first plaintiff's view, was that any
member of the first plaintiff who was dismissed would automatically lose his
membership of the union and all benefits and rights that attach to his
membership. Vide letter dated 9 July 2008 to the DGTU, the first plaintiff,
after seeking legal advice disputed the interpretation of the Attorney
General's Chambers. The DGTU in its reply dated 21 July 2008 reiterated its
stand on the matter as per its earlier letter of 1 July 2008.
(see exhs. A-11 and A-22,
encl. 2 respectively).
[12] Arising out of the above
sequence of events, the first plaintiff filed these present proceedings.
[13] For completeness it
should be mentioned that sometime in April 2008, the first plaintiff's
elections at branch levels were conducted. The principal office bearers of the
first plaintiff were unanimously nominated to hold on to their respective positions
for the ensuing term of 2008-2011. The result was that all the principal
officer bearers of the first plaintiff were retained in their positions
unopposed. Thus, Mr Solomon retained his position as general secretary of the
plaintiff effectively for the term April 2008 to April 2011, when elections
were next due.
Issue
[14] Arising out of the above
facts the sole issue for determination before the court relates to the
interpretation of s. 26(1A) of the Trade Unions Act 1959 (TUA) in a situation
where an employee has been dismissed by an employer within a particular
industry. More specifically, the issue was whether an employee who has been
dismissed by an employer within a particular industry and whose dismissal has
been challenged can continue to be a member of the trade union in that
industry.
[15] Section 26(1A) of the TUA
reads as follows:
No person shall join, or be a member of, or
be accepted or retained as a member of any trade union if he is not employed or
engaged in any establishment, trade, occupation in respect of which the trade
union is registered. (emphasis added)
First Plaintiff's Submission
[16] It was the first
plaintiff's submission that s. 26(1A) of the TUA ("s. 26(1A)") did
not preclude membership of a trade union in the circumstances where an employee
has been dismissed and whose dismissal has been challenged.
[17] At the start of her
submission learned counsel for the appellant urged the court to disregard:
(a) paragraphs 13 to 17 of the second to
11th defendant's affidavit; and
(b) paragraphs 3 to 6 of the first
defendant's affidavits,
as they do not in any way
assist the court in the construction of either the TUA or the IRA nor do they
have any bearing on the construction of either legislation. Further these allegations
and complaints were strongly disputed and were nothing more than allegations
and complaints against the general secretary to the first plaintiff.
[18] Learned counsel also
reminded the court of the terms of the court's order on 16 December 2008 which
allowed the intervention of the second to 11th defendants which were as
follows:
... Adalah Diperintahkan bahawa
Pencelah-pencelah (kecuali Pencelah No. 9) diberi kebenaran untuk mencelah
dalam prosiding ini dan setelah ditambahkan sebagai Defendan 2 hingga 11 dalam
tindakan ini dengan menghadkan diri mereka kepada isu-isu, fakta-fakta dan
undang-undang yang telah dibangkitkan di dalam Saman Pemula (kandungan 1) dan
Afidavit Sokongan yang diikrarkan oleh Sandagran Solomon a/l Josepah Pitchay
pada 8 Ogos 2008 (Kandungan 2) sahaja DAN Akhirnya Diperintahkan bahawa tiada
perintah terhadap kos.
[19] Consequently the parties
ought to confine themselves only to facts which have a bearing on the
construction of s. 26(1A) and other relevant provisions in the TUA and the IRA.
[20] The first plaintiff's
contention that s. 26(1A) do not preclude members who have been dismissed and
whose dismissal is being challenged from being members of a trade union is
premised on the following proposition of law:
[21] Firstly, on the
interpretation of s. 26(1A):
(a) the interpretation of "trade
union" in the TUA read together with the definition of "workman"
under s. 2 of the TUA and under s. 2 of the IRA.
[22] The definition of
"trade union" under s. 2 of the TUA is as follows:
"trade union" or
"union" means any association or combination of workmen or employers,
being workmen whose place of work is in West Malaysia, Sabah or Sarawak, as the
case may be, or employers employing workmen in West Malaysia, Sabah or Sarawak
as the case may be:
(a) within any particular
establishment, trade, occupation or industry or within any similar trades,
occupations or industries;...
"Workman" is in turn defined as
"...any person, including an apprentice, employed by an employer under a
contract of employment to work for hire or reward and for the purposes of any
proceedings in relation to a trade dispute includes any such person who has
been dismissed, discharged or retrenched in connection with or as a consequence
of that dispute or whose dismissal, discharge or retrenchment has led to that
dispute.
Under the same section of the TUA.
(emphasis added)
[23] The same definition of
"workman" is found in s. 2 of the IRA.
(b) Rule 4.7 of the
constitution of the NUBE which reads as follows:
Any member who has been in the Union for a
period of more than six months and is retrenched from his employment for taking
an active part in any movement authorized by the National Executive Council or
Branch Committee, or for being a Branch Officer of the Union and for doing his
duty in that capacity, or for any other reason which in the opinion of the
National Executive Council, be entitled to and be given such assistance, legal,
financial and/or otherwise, as shall from time to time be determined by the
National Executive Council, having regard to the circumstances of each
individual case. In determining any such case the National Executive Council
shall be guided by the principle that any member or members so discharged from
his or their employment is or are entitled to the greatest assistance which it
is in the power of the Union to grant, whether legal, financial, moral or
otherwise with a view to his or their reinstatement or other reasonable
compensation.
[24] As this rule expressly
provides for the first plaintiff to render all such assistance as is necessary
to any "member" who is discharged from employment with a view to his
reinstatement or compensation, it therefore implicitly recognises that a person
who is discharged or terminated from employment is still a member of the trade
union concerned and is entitled to all such assistance as stated therein.
[25] In this regard learned
counsel referred to s. 66(2) of the TUA which provides that:
Nothing in this Act shall be deemed to
authorize a trade union to act contrary to, or in excess of the powers
conferred upon it by, it a rules.
[26] The rules of the trade
union ie, the constitution of NUBE in this case, having "in a sense"
been approved by the DGTU (as seen from ss. 10(2) and 12(3)) it would therefore
lend force to the plaintiff's argument that s. 26(1A) must be construed in the
manner proposed for the rules to be consistent with the TUA.
(c) The primary purpose for
the enactment of s. 26(1A) of the TUA was to limit membership of a particular
union to only persons in a particular trade or industry.
[27] Section 26(1A) was not
enacted to preclude a member who has been dismissed (and who is challenging his
dismissal) from continuing to be a member of a trade union of a particular type
of trade or occupation or industry to which the said member belonged to.
[28] Learned counsel argued
that s. 26(1A) was enacted to ensure that only persons employed in a particular
trade or industry may be members of a union in that particular trade or
industry, for example, a hotel worker can only be a member of the Hotel
Workers' Union and cannot be a member of the Newspaper Union Workers' Union.
[29] This was evident from the
speech of the Minister when tabling the Bill proposing the amendment to s.
26(1A) as recorded in the Hansard dated 12 October 1988 which is reproduced
below:
Pindaan yang dicadangkan di bawah Fasal 6
adalah bertujuan menjadikan s. 26(1A) lebih jelas dan tepat untuk memastikan
bahawa seseorang pekerja tidak boleh menganggotai atau terus menjadi ahli suatu
kesatuan jika ia tidak digaji dalam tred, pekerjaan atau industri yang ada
kaitan dengan kesatuan itu. Peruntukan yang ada sekarang kurang jelas sama ada
seseorang yang telah masuk menjadi ahli kesatuan dan kemudiannya berhenti dari
digaji dalam tred, pekerjaan atau industri berkenaan boleh mengekalkan
keahliannya. Walaubagaimanapun, seseorang yang dipilih oleh ahli-ahli kesatuan
dan digaji untuk bekerja sepenuh masa sebagai Setiausaha, Penolong Setiausaha,
Bendahari atau Penolong Bendahari Kesatuan menurut s. 29(1)(a) adalah dianggap
sebagai digaji dalam tred, pekerjaan atau industri yang berkenaan.
[30] That this was the primary
purpose for the enactment of s. 26(1A) of the TUA was reinforced by the Federal
Court decision in the case of National Union of Newspaper Workers v. Ketua
Pengarah Kesatuan Sekerja [2000] 4 CLJ 233; [2000] 3 MLJ 689. In that case
employees of two companies involved in publications namely, FPSB and STPD were
members of a union called NUPW. The companies subsequently decided not to
recognise NUPW as both the companies were no longer involved or connected with
the newspaper publishing industry. The matter was referred to the DGTU. After
due investigation, the DGTU found that both companies were no longer involved
in the newspaper publishing industry.
[31] As the NUPW's
constitution provided for membership of the union to be strictly for employees
of the newspaper publishing and subsidiary industries only the DGTU accordingly
decided that employees of both FPSB and STPD cannot be accepted or continue to
be members of NUPW.
[32] The Federal Court agreed
with the Court of Appeal that s. 26(1A) of the TUA can be applied by the DGTU
to render the entire membership of the union in FPSB and STPD not eligible and
the union incompetent to represent the entire membership of the companies.
[33] Secondly, the court
should adopt a purposive approach in interpreting the TUA as the TUA is a
"piece of social legislation that was enacted to regulate and prescribe
rules for the formation of unions and regulate the trade union movement"
with the underlying objective of promoting "social harmony between
employers and workers who form the trade union movement."
[34] The purposive approach
would require the court to interpret the provisions of the TUA such that they
are in accord with the purpose of the TUA ie, "to provide social harmony
between the employers and the employees".
[35] Counsel for the first
plaintiff submitted that the courts have consistently applied the purposive
approach in interpreting social legislation like the TUA and the IRA.
[36] The interpretation of s.
26(1A) by the DGTU on the other hand would not promote social harmony but would
instead promote "union busting".
[37] This means that employers
can successfully rid themselves of union members who are vocal and regarded as
'problematic' by terminating or discharging them and thereby removing them from
the union. Other employees too would be afraid to not only be active but also
to join a union out of fear of reprisal. This according to counsel could not be
the intention of the TUA.
[38] The first plaintiff
relied on s. 17A of the Interpretation Acts, 1948 and 1967 and the following
cases in support of their proposition:
(a) All Malayan Estates Staff Union v.
Rajasegaran & Ors [2006] 4 CLJ 195; [2006] 6 MLJ 97;
(b) Palm Oil Research And Development Board
Malaysia & Anor v. Premium Vegetable Oils Sdn Bhd [2004] 2 CLJ 265; [2005]
3 MLJ 97;
(c) R (on the application of Quintavalle)
v. Secretary of State for Health [2003] 2 All ER 113;
(d) Chor Phaik Har v. Farlim Properties Sdn
Bhd [1994] 4 CLJ 285; [1994] 3 MLJ 345; and
(e) Hoh Kiang Ngan v. Mahkamah Perusahaan
Malaysia & Anor [1996] 4 CLJ 687; [1995] 3 MLJ 369.
[39] Thirdly, it was the first
plaintiff's submission that in the case of a dismissal referred to the
Industrial Court under s. 20 of the IRA, the burden of proving that an employee
is dismissed with just cause is on the employers. If an employer fails to prove
that the dismissal was justified, the employee was deemed to have been dismissed
without just cause or excuse. Thus until and unless the Industrial Court has
disposed of a representation under s. 20 of the IRA for reinstatement, another
court may not deem that the workman has forfeited his union membership. Citing
the case of National Union Of Teachers In Independent Schools, West Malaysia v.
Han Chiang High School, Penang [1989] 1 CLJ 1091; [1989] 2 CLJ (Rep) 160;
[1989] 2 MLJ 114, as authority for this proposition, learned counsel argued
that it would be premature in the present case for this court to decide whether
a member of a union (Mr Solomon) has lost his membership due to a dismissal as
his dismissal has been challenged by way of a representation under s. 20 (of
the IRA) and the matter referred to the Industrial Court for adjudication. In
the present case Mr Solomon is seeking reinstatement to his former employment
with CIMB.
[40] Finally, learned counsel
for the plaintiff, Dato' Ambiga Sreenevasan ("Dato' Ambiga") informed
the court that the MTUC at its second general council meeting on 3 August 2008
"unanimously opposed the stand and interpretation of s. 26(1A) of the
Trade Unions Act 1959 as interpreted by the Attorney General's Chambers and
being adopted by the DGTU."
The Defendants' Submission
The First Defendant's Submission
[41] Learned Senior Federal
Counsel on behalf of the first defendant explained that apart from the query by
the then President of the Industrial Court, numerous complaints were received
by the DGTU regarding the status of officers of trade unions, who, despite
being no longer in the employment of any establishment, trade, occupation or
industry in respect of which the relevant unions were registered continued to
remain in the post of secretary-general of related trade unions.
[42] More specifically the
Attorney-General Chamber's opinion was sought following events leading to the
re-election of Mr Solomon as the secretary general. According to learned Senior
Federal Counsel, in 2005 prior to the re-election of Mr Solomon, the
Attorney-General's Chambers' legal opinion was not obtained specifically on the
issue as to whether a member who was dismissed was competent to stand for
elections and hold office in the plaintiff's unions.
(see para. 4.3, p. 3 of the
first respondent's affidavits in reply dated 10 October 2008).
[43] However the opinion
contained in the Attorney-General's Chambers' letter to the legal adviser dated
8 May 2008 (OP-2) was specifically in reply to the issue posed to it viz :
whether a person who has been dismissed and
has filed a representation under s. 20 of the Industrial Relations Act 1967
[Act 177] is competent to stand for election to be officers of the union.
[44] The first defendant's
argument as regards the issue posed before the court was that, contrary to the
submission of the first plaintiff, the clear words of s. 26(1A) and other
related provisions of the TUA do not call for a purposive interpretation to be
adopted in interpreting these provisions of the Act.
[45] Learned Senior Federal
Counsel ("SFC") quoted Mohamad Azmi, SCJ's judgment in Wong Pot Heng
v. Zainal Abidin Putih & Anor [1990] 2 CLJ 174; [1990] 1 CLJ (Rep) 312;
[1990] 1 ILR 565; [1990] 3 MTC 141; [1991] 1 MLJ 410 in which His Lordship
held:
The purposive construction of statutes was
first adopted by the House of Lords in Fothergill v. Monarch Airlines. It is a
well established principle that the purposive approach to the interpretation of
legislation only applies where any doubt arises from the terms or words
employed by the legislative. But where the words are precise and unambiguous,
then the literal and strict construction rule should apply.
[46] Reference was also made
to the Federal Court case of Malaysian Bar v. Dato' Kanagalingam Veluppillai
[2004] 4 CLJ 194 where the Federal Court cited with approval of Lord Diplock's
observation in Duport Steels Ltd v. Sirs [1980] 1 WLR 142 at p. 157 that:
where the meaning of the statutory words is
plain and unambiguous it is not for the judges to invent fancied ambiguities as
an excuse for failing to give effect the plain meaning because they themselves
consider that the consequences of doing so would be inexpedient or even unjust
or immoral...
[47] With that in mind,
learned SFC proceeded to argue as follows:
Firstly, in construing s. 26(1A) it is not
necessary to refer to the definition of "workman" under s. 2 of the
TUA as the meaning of "workman" in that section in particular the
phrase "includes any such person who has been dismissed, discharged or
retrenched..." is limited only to proceedings in relation to a "trade
dispute". "Trade Dispute" in turn is defined to mean "any
dispute between an employer and his workmen which is connected with the
employment or non-employment of the terms of employment or the conditions of
work of any such workmen." (see s. 2 of the TUA).
[48] In light of the above,
the definition of "workman" in s. 2 of the TUA is clearly not
applicable for the purposes of construing s. 26(1A).
[49] Instead, the words
"employed or engaged" in s. 26(1A) should be given its plain and
ordinary meaning. As the words are not defined in the TUA, regard must be to
the New Shorter Oxford English Dictionary in order to ascertain their ordinary
meaning of these words. According to the New Shorter Oxford English Dictionary
'employed' means "be engaged in; be at work" and 'engaged' means
"take service with or with an employer". Based on the above
definition learned SFC argued that:
... in the case of Mr J Solomon, since he
was dismissed he is not at work and not with any employer. It logically follows
that Mr J Solomon is "a person not employed or engaged in any
establishment, trade, occupation or industry" class of persons envisaged
under s. 26(1A).
[50] Pursuant to the above argument,
she came to the following conclusion:
Once a person is not employed or engaged in
any establishment, trade, occupation or industry in respect of which the trade
union is registered, the person loses his status as union member. Thus this
person is not eligible to act as officers (sic ) of the union.
[51] Learned SFC added that as
the relevant part of the definition of "workman" in the TUA is
limited to proceedings in relation to a trade dispute, the court cannot extend
the definition to include the right or entitlement to be retained as a member
of a trade union or the right or entitlement to stand for election as an
officer of a trade union.
[52] The following cases were
relied on by the SFC in support of her submission:
(a) Kempas Edible Oil Sdn Bhd (Kilang
Kempas Devon) v. All Malayan Estates Staff Union (Amesu) [2006] 4 ILR 2942;
(b) National Union of Newspaper Workers
(supra );
(c) Anthonyamah Anthony & Ors v. Socfin
& Co Bhd [1992] 3 CLJ 1410; [1992] 2 CLJ (Rep) 75; [1992] 1 ILR 297; and
(d) Perusahaan Otomobil Kedua Sdn Bhd v.
Ketua Pengarah Kesatuan Pekerja [2000] 5 CLJ 351 (Perusahaan Otomobil).
The Second To 11th Defendants'
Submission
[53] The stand of the second
to the 11th defendants as regards the issue at hand is essentially the same as
that of the first defendant.
[54] Briefly the second and
11th defendants' stand was that the direction of the DGTU which was made after
seeking the advice of the Attorney-General's Chambers was the true
interpretation of s. 26(1A) and was in accordance with the intention of
Parliament.
[55] It was their submission
that in amending s. 26(1A) Parliament had in mind that only persons employed or
engaged in any establishment, trade, occupation or industry in respect of which
the trade is registered shall join or be accepted or retained as a member of a
trade union, the emphasis being on the words employed or engaged.
[56] Learned counsel also
agreed with SFC's submission that as the wording of s. 26(1A) is clear and
unambiguous "the courts are bound to give effect to that meaning
irrespective of the consequences." For this proposition learned counsel
relied on the case of PP v. Tan Tatt Eek & Other Appeals [2005] 1 CLJ 713.
[57] Learned counsel then
referred to the definition of "trade union" in the TUA and the IRA;
the definition of "workman" and "trade dispute" in both
Acts and arrived at the following proposition:
(a) Based on the definition of "trade
dispute" (which is the same under the TUA and the IRA), the parties to a
trade dispute are the employer and his workman. A workman is defined in the TUA
as a "person including an apprentice, employed by an employer under a contract
of employment to work for hire or reward". Therefore the workman must
ordinarily be in actual employment at the time of the dispute. But when he is
already dismissed or discharged or retrenched, and this has given rise to a
dispute, he is still a workman for the purpose of that dispute.
(b) There is no mention of trade unions of
employers or workmen in the definition of trade disputes. Hence there can be a
trade dispute without unions. But when a trade union represents employers and
workmen who are actually in dispute with each other, they became parties to the
dispute. Consequently, when a person who was a member of a trade union is
dismissed and the dismissal is challenged under s. 20 of the IRA, he is a
workman for the purposes of that dispute but not for the purpose of s. 26(1A)
as alleged by the plaintiffs.
This is clear from the second part of the
definition in the TUA which reads, "and for the purposes of any
proceedings in relation to a trade dispute includes any such person who has been
dismissed, discharged or retrenched in connection with or as a consequence of
that dispute or whose dismissal, discharge or retrenchment has led to that
dispute". (emphasis added)
It is defined as such in order to give
cognisance to one of the objects of a trade union, namely para. (c)(ii) of the
definition of trade union, wherein the trade union will represent the workman
who was a member of the said union at the time of dismissal and whose dismissal
has led to a trade dispute.
(c) As regards to the second part of the
definition of "workman" in the IRA, (which is the same as that of the
definition of 'workman' under the TUA) it was defined as such in order for,
amongst others, to enable the trade unions to represent workmen who were its'
members at the time of their dismissal and whose dismissal has led to a trade
dispute; to represent the workman in a reference under s. 26 which includes
collective agreements as the definition of trade dispute also includes
"the terms of employment or the conditions of work of any such
workmen". The reason being any dismissed, retrenched or discharged,
employees, who were members of the trade union at the material time of the
duration of the collective agreement would be entitled to the monetary benefits
to be awarded under the collective agreement.
(d) It was therefore apparent from the
wording of s. 26(1A) that in order to be a member of a trade union, or be
accepted or retained as a member one should be employed or engaged in any
establishment, trade or industry. The second part of the definition of
'workman' should not be read into s. 26(1A). In fact the first part of the
definition of 'workman' should be read into the s. 26(1A) since member is not
defined in the TUA and the section uses the word 'person'. Hence, a member who
has been dismissed is no longer retained in employment, as upon dismissal his
contract of employment with the employer is severed. The only right a member
has upon being dismissed by his employer, is the right to be represented by the
trade union in the dispute that was brought about by his dismissal. For that
purpose he is a "workman" as defined under the TUA and the IRA.
(e) Rule 4.7 is a recognition of this right
as it provides for representation by a trade union of a dismissed member.
However it is not anywhere stated in the rules and constitution of the first
plaintiff that a member who has been dismissed and who challenged his dismissal
continues to be a member and to hold a position in the trade union, as alleged
by the first plaintiff. In fact r. 3 of the rules and constitution of the first
plaintiff expressly states as follows:
Rule 3 - membership
1. Membership of the Union shall be open to
all employees, whether permanent or temporary, who are employed in any
commercial bank or its subsidiary finance company in Peninsula Malaysia who are
above the age of sixteen, excluding those who are employed in a managerial,
executive, confidential or security capacity...
[58] Thus in Re Singapore
Industrial Workers Union [1964] 1 LNS 178; [1964] 30 MLJ in respect of a
similar provision in the union's rule the court held that:
... To become a member of the union, a
person must in the first place be over the age of 18, and secondly he must be
employed in any private undertaking or industry in Singapore.
[59] In light of the above,
learned counsel reiterated that the court cannot extend the prohibitory provisions
of s. 26(1A) and the present provisions of the rules and constitution of the
first plaintiff which were consonant with the said section by granting the
declarations sought by the first plaintiff as it will, according to counsel
"amount to a contravention of s. 26(1A) of the Act".
[60] On the issue of whether
the said member can continue to hold office in any trade union, counsel drew
the court's attention to the amendment to s. 26(1B) of the TUA, which was
introduced together with the amendment to s. 26(1A) in 1988. The said s. 26(1B)
reads as follows:
For the purposes of subsection (IA), any
person who is employed by a trade union as a member of its executive under
paragraph (a) of the proviso to s. 29(1) shall be deemed to be employed or engaged
in the establishment, trade, occupation or industry concerned.
[61] It was counsel's
submission that this section can never be interpreted to mean that a dismissed
member can be employed by the union as he can be deemed employed by virtue of
this section, for the following reasons:
(i) section 26(1B) must be read together
with s. 29(1) of the TUA which stipulates thus:
A registered trade union may, subject
to subsection (2) and of the rules of the such union, employ and pay a
secretary, treasurer and such other person as may be necessary for the purposes
of such union or of any federation of trade unions to which the union belongs:
Provided that no employee of such union
other than:
(a) The holder of a full-time office
as secretary, assistant secretary, treasurer or assistant treasurer who is
elected in accordance with the rules of such union;...
(b)...
shall be a member of the executive of
such union.
(emphasis added)
(ii) in order to be elected in accordance
with the rules of such union as stated in s. 29(1)(a), and nominated, the
member must be a Malaysian citizen, has attained the age of 21 years and has
been working in the bank/finance company for the last one year;
(iii) a dismissed employee who does not
have an employer cannot hold a position in a trade union. In other words, the
employment status is a pre-condition to enable one to be a member and to hold
office in a trade union; and
(iv) the deeming provision in s. 26(1B)
applies to members of the trade union, namely persons employed with an
employer, who are subsequently elected in accordance with the rules of the
union as executive.
[62] In addition counsel
referred to r. 14 of the first plaintiff's constitution and rules which
provided as follows:
1. (a) An Officer of the Union shall mean
any member of the National Executive Council, or of any Branch Committee of the
Union, but shall not include an auditor. Not less than two-thirds of the total
number of the officers of the Union, other than the general secretary, the
treasurer and the trustees, shall be persons actually engaged or employed in
the occupation, trade or industry with which the Union is connected.
(b) No person shall be elected or act as an
officer of the Union if:
(i) He is not a member of the Union; or
(ii)...
(iii)...
(iv) He has not been engaged or
employed for a period of a least one year in the occupation, trade or industry
with which the union is connect; or...
[63] It is an express
provision of the rules that a general secretary, the treasurer and trustees,
shall be persons actually engaged or employed in the occupation.
[64] The only conclusion to be
made on all the foregoing was that the intention, object and purpose is clear,
namely in order to be a member and/or to hold the position of an officer of a
trade union, employment status is a pre-condition.
[65] Finally, learned counsel
submitted the following reasons in support of their contention as to why a
dismissed or terminated member whose dismissal or termination is challenged can
never be considered to be a member of a trade union:
(a) A claim for reinstatement should be
considered as a dispute between the employer and employee and should not be
connected with the status of the employee concerned as a member of the trade
union.
(b) The employees' right to join and remain
as members of any trade unions depend on the existence of contracts of
employment and when the contract ends, the right to remain in the trade union
ends as well. As such, if such an employee is holding any position in the union
he should relinquish it.
(c) If a dismissed employee is allowed to
hold any elected position in any trade union especially in respect of the main
position of general secretary as in the first plaintiff, it will lead to abuse
of power wherein the trade union will be used for his own benefit as is
apparent from all the complaints made by the members of the first plaintiff to
DGTU.
(d) For a dispute to be referred to the
Industrial Court it will take a minimum of one to two years. For the said
dispute to be concluded and for an award to be handed down by the Industrial
Court it will take another two to five years. An example of this can be seen in
the dispute between the general secretary of the first plaintiff with his
former employer wherein the Industrial Court was yet to hand down the decision
despite the fact that he was dismissed in 2004.
(e) Furthermore, reinstatement is not the
only remedy to be awarded by the Industrial Court and the unsuccessful party
might take it up on judicial review to the High Court, appeal to the Court of
Appeal and Federal Court accordingly which might take another five years or
more.
(f) Section 26(1A) also cater for in-house
unions. In this situation, it is quite unlikely for any organisation to agree
to have a collective bargaining with the in-house union if the general
secretary of the union is an employee who was dismissed by the said
organisation.
Decision
[66] Having considered the
submissions of both the plaintiff and the defendants very carefully, I was
inclined to agree with the submission of the first plaintiff as regard the
issue posed before the court and I accordingly granted the reliefs sought by
the first plaintiff in prayer (1) and (2) of the OS, prayer (3) having been
withdrawn by Dato' Ambiga at the conclusion of the first plaintiff's
submission, with costs to be taxed and paid to the first plaintiff.
[67] I append below the
reasons for my decision:
At the outset, I would like to state that
in the course of submission before me, the Industrial Court on 27 October 2009
handed down its award. The Industrial Court found that the applicants' (ie, Mr
Solomon and the other eight members concerned) dismissal was with just cause
and excuse and dismissed the applicant's claim. The applicants proceeded to
file, on 30 November 2009, an application for judicial review to quash the said
award. Learned counsel for the first plaintiff, Dato' Ambiga informed the court
that the said award would not change the first plaintiff's submission on the
issue before the court.
[68] As regards Dato' Ambiga's
plea that the court ignore the complaints and allegations against Mr Solomon
and the first plaintiff (which were disputed), bearing in mind the terms of the
court order dated 16 December 2008 and the fact that they did not assist the
court in any way in determining the issue at hand, I was of the view that these
complaints and allegations constitute the background facts leading to the issue
before the court and in that sense they would assist the court in understanding
the context in which this issue arose. Other than that I agreed that the issue
before the court was essentially one of law, more particularly the construction
of s. 26(1A) of the TUA and other related provisions of the TUA and the IRA.
[69] As submitted by both
learned counsels for the first plaintiff and the defendants the sole issue for
the court's consideration was whether under s. 26(1A) an employee of a
particular industry who has been dismissed and whose dismissal was challenged
can continue or be retained as a member of the trade union in that industry.
[70] This issue as pointed out
earlier, arose out of the Attorney-General's Chambers' interpretation of that
section as contained in the then DGTU's letter dated 1 July 2008 to Mr Solomon
(supra ). The gist of the Attorney-General's Chambers' interpretation was that
under s. 26(1A) of the TUA a person who was not employed or engaged in any
establishment, trade, occupation or industry in respect of which the trade
union was registered was precluded from being a member of the union. The words
"employed or engaged" according to the Attorney-General's Chambers
refers to a person who was still in the employment of his employer and did not
include a person who had been dismissed from employment notwithstanding that the
dismissal was challenged under the IRA.
[71] This would mean that Mr
Solomon along with nine other members of the first plaintiff who were dismissed
by their employer CIMB Bank Berhad for (allegedly) unlawful picketing but who
had challenged the dismissal would automatically lose their membership and be
precluded from holding any position in the union. Contending that such an
interpretation would have grave consequences not only on the first plaintiff
but also other trade unions in the country, the first plaintiff strongly
disputed the interpretation of s. 26(1A) given by the Attorney-General's
Chambers. In their view, "union busting" or the practice of employers
dismissing employees who were members of trade union merely to stop them from
being members of a union could take place arising from such an interpretation.
Such a practice could cripple the trade union movement in the country.
[72] Mindful of the serious
consequences that would ensue from such an interpretation, the first plaintiff,
(joined later by the second to 10th plaintiffs) having all along treated and
deemed members who were dismissed as members so long as their dismissals were
being challenged, filed this application seeking the following declaration.
(1) a declaration that a person who is a
member of the plaintiff and who has been dismissed, terminated, discharged or
retrenched from employment would still be considered and be deemed a member of
the plaintiff in the event such dismissal, termination, retrenchment is
challenged in any proceedings in court or representations have been made to the
Director General of Industrial Relations for his reinstatement to his former
employment; and
(2) a declaration that the Trade Unions Act
1959 read together with the Industrial Relations Act 1967 do not prevent a
member of the plaintiff who has been dismissed, terminated, discharged or
retrenched from employment from holding office as a member of the executive of
the plaintiff, in the event such dismissal, termination, discharge or
retrenchment is challenged in any proceedings in court or representations have
been made to the Director General of Industrial Relations for his reinstatement
to his former employment.
[73] Section 26(1A) as stated
earlier reads as follows:
No person shall join, or be a member of, or
be accepted or retained as a member by, any trade union if he is not employed
or engaged in any establishment, trade, occupation or industry in respect of
which the trade union is registered.
(emphasis added)
[74] At first blush it would
appear that s. 26(1A) prohibits any person from being a member of or be
accepted or retained as a member by, any trade union unless he is employed or
engaged in a trade or industry of which the trade union is registered. In other
words as suggested by the defendants, and as interpreted by the
Attorney-General's Chambers the purpose of s. 26(1A) was clear and unambiguous
- it was to exclude any person from being a member or to continue to be a
member of a trade union unless he was employed or engaged in the establishment,
trade, occupation or industry of which the trade union was registered, the key
words being employed or engaged. Thus a person, such as Mr Solomon, who was
dismissed, was no longer employed or engaged in the trade or occupation of
which the first plaintiff was registered and he therefore could no longer
continue to be a member of the union (ie, the first plaintiff) let alone
continue to be an officer of the union.
[75] However upon examining s.
26(1A) I would agree with the plaintiffs that the primary purpose for the
enactment of s. 26(1A) was to restrict the eligibility of membership of a trade
union to persons engaged in the particular trade, occupation or industry in
respect of which the trade union was registered.
[76] This can be seen from the
Minister's speech when tabling the bill to amend s. 26(1A) in Parliament in
1988. In his speech, the then Minister of Labour, Mr Lee Kim Sai (as he was
then known as) stated in clear and specific terms that the purpose of the
amendment to s. 26(1A) was to "menjadikan s. 26(1A) lebih jelas dan tepat
untuk memastikan bahawa seseorang pekerja tidak boleh menjadi ahli suatu
kesatuan jika ia tidak digaji dalam tred, pekerjaan atau industri yang ada kaitan
dengan kesatuan itu."
(see the full excerpt of the
Minister's speech as extracted from the Hansard dated 12 October 1988 at p. 13
(supra )).
[77] This amendment was
thought to be necessary because s. 26(1A) in its original form did not state
with sufficient clarity whether a member who subsequently ceased to be employed
in the trade or industry of the union concerned can continue to retain his
membership in the said union.
[78] Prior to the aforesaid
amendment, s. 26(1A) read as follows:
No person shall join, or be a member of, or
be accepted or retained as a member by, in any trade, occupation or industry
which is not similar to the trade, occupation or industry in respect of which
the trade union is registered.
(emphasis added)
[79] Subsection (1A), it must
be said, was inserted in s. 26 in 1980 pursuant to the Trade Unions (Amendment)
Act 1980 (Act A483).
[80] In 1989 s. 26(1A)
underwent a further amendment with the passing of the Trade Unions (Amendment)
Act 1989 (Act A732) which added the word "establishment" after the
words "in any" in the said subsection.
[81] Thus s. 26(1A) in its
present form reads:
No person shall join, or be a member of, or
be accepted or retained as a member by, any trade union if he is not employed
or engaged in any establishment, trade, occupation or industry in respect of
which the trade union is registered. (emphasis added)
[82] Following from the above
it was therefore clear that s. 26(1A) was enacted for the purpose of
restricting membership of a particular union to only persons employed in that
particular type of trade or occupation or industry and not for the purpose contended
by the defendants (and as opined by the Attorney-General's Chambers) ie, to
automatically strip members of their membership of the union merely due to the
fact that they were terminated from their employment notwithstanding that they
were challenging their termination by seeking reinstatement under s. 20 of the
IRA. To construe it as such would, as submitted by learned counsel for the
first plaintiff, "enlarge the powers of the DGTU to an unacceptable and
arbitrary extent."
[83] Such a construction would
also run counter to the express intention of Parliament as manifested by the
Minister's speech. It has been established by the Federal Court in Chor Phaik
Har v. Farlim Properties Sdn Bhd [1994] 4 CLJ 285 that the court can rely on
the Hansard to assist it in the construction of a statute. There the Federal
Court cited with approval the landmark decision of the House of Lords in Pepper
(Inspector of Taxes) v. Hart [1993] 1 All ER 42; [1992] 3 WLR 1032 (Pepper v.
Hart ) which decided that it was permissible in certain circumstances to refer
to the reports in Hansard proceedings in either Houses of Parliament, when
construing a statute.
[84] Following the judgment in
Pepper v. Hart the Federal Court held that:
In construing a statute, a reference to
Parliamentary reports of proceeding or Hansard, as an aid to statutory
interpretation, should be permitted where the enactment is ambiguous or
obscure, or which if literally construed might lead to an absurdity provided
that the statement reported in Hansard was made by a Minister or other promoter
of a Bill.
(emphasis added)
[85] The Federal Court however
cautioned that:
Hansard was only an aid to interpretation
and could not be determinative of the issue for that would amount to
substituting the words of the Minister or promoter of the Bill for the words of
the statute.
[86] In the abovesaid case the
Federal Court found the ministerial statement reported in the Hansard to be of
no assistance to the court at all.
[87] In the present case the
court is faced with two possible construction of s. 26(1A), one as advocated by
the plaintiffs and the other as contended by the defendants based on the
interpretation given by the Attorney-General's Chambers.
[88] Learned counsel for the
second to 11th defendants had also sought the aid of the same extract of the
Hansard to support their view that in amending s. 26(1A) Parliament had
intended that only persons employed or engaged in any establishment, trade,
occupation or industry in respect of which the trade union is registered shall
join or be accepted or retained as a member of a trade union, the emphasis
being on the words 'employed' or "engaged".
[89] However having carefully
perused the Minister's speech, I found, as stated earlier, that the Minister's
speech "clearly discloses the mischief aimed at or the legislative
intention lying behind the ambiguous or obscure words" (to borrow Lord
Browne-Wilkinson's words in Pepper v. Hart ), which was to confine the
membership of the union only to persons engaged or employed in the trade,
occupation or industry in respect of which the union was registered.
[90] As pointed out by counsel
for the plaintiffs that was how the Federal Court applied s. 26(1A) as seen in
the case of National Union of Newspaper Workers (supra ). There the Federal
Court was faced with the following questions of law:
(a) whether s. 26(1A) of the TUA can be
applied by the DGTU to render the entire membership of the union in the
respondent companies not eligible and the union incompetent to represent the
entire membership?; and
(b) whether s. 26(1A) of the TUA can be
Invoked and applied to de facto derecognize a union and disunionize members
when it is admitted that nothing has changed in respect of the establishment,
trade, occupation or industry concerned?
[91] The facts giving rise to
these two questions of law has been set out earlier and were briefly as
follows:
The National Union of Newspaper Workers
(referred to as the NUPW by the Federal Court) was a trade union which was
initially recognised by FPSB and STPD (the respondent companies) as a trade union
which represented their employees. Both FPSB and STPD by similar letters dated
26 December 1992 sought a ruling from the DGTU on the issue whether the NUPW
can continue to represent their employees as they were no longer involved in
the newspaper publishing industry. On 12 November 1991, the DGTU carried out
investigations and discovered that FPSB was involved with the publication of
local text books whereas STPD was in the distribution and marketing of books,
magazines and encyclopedias with no involvement at all in the newspaper
publishing industry.
[92] Vide letter dated 25
February 1992, the DGTU decided that the employees of FPSB and STPD cannot be
accepted or continue to be, members of the NUPW as they were no longer
categorised as employees and subsidiaries as stipulated under r. 3.1 of the
NUPW's Rules and Constitution. Rule 3.1 provided that "membership" of
the Union shall be open to all employees "in the newspaper publishing and
subsidiary industries".
[93] One of the issues raised
in the High Court was the competency of the DGTU to entertain and consequently
to decide on NUPW's eligibility to represent the employees of FPSB and STPD in
accordance with s. 26(1A). Hence the two questions of law posed before the
Federal Court.
[94] The Federal Court
answered both questions in the affirmative and held that s. 26(1A) can be
applied by the DGTU to render the entire membership of the union in the
respondent companies not eligible and the union incompetent to represent the
entire membership and it can be invoked and applied to de facto derecognise a
union and disunionise members.
[95] This case therefore
illustrates the manner in which s. 26(1A) may be invoked by the DGTU, and its
application by the Federal Court was consistent with the interpretation postulated
by the first plaintiffs which was to prevent a member of a different trade,
industry or occupation from being a member of a union that was not meant for
them.
[96] The case of Kempas Edible
(supra ) referred to by the defendant in their submission may be distinguished.
In that case, there was a trade dispute concerning the non re-employment of one
M Mukunan after the retrenchment exercise whereby he was not offered
re-employment with the company despite the company having agreed that affected employees
would be accorded new employment if there were vacancies in any of the
company/group's operating units.
[97] It was held that M
Mukunan was neither a workman nor an employee of the company when the union
filed the trade dispute, nor was he employed or engaged in any establishment,
trade, occupation or industry in respect of which the trade union was
registered. Though evidence was adduced that he had been faithfully paying the
subscription fees to the union, the situation he was in after the dismissal
rendered him ineligible to be a union member by virtue of s. 26(1A). Therefore,
the union did not have the locus standi to espouse the claim of M Mukunan.
[98] Similarly with the case
of Anthonyamah Anthony & Ors (supra ) referred to by the defendants in
support of their argument in their submission, the facts can also be
distinguished. In this case, the contracts of employment of the applicants have
been terminated since they had not reported for work for more than two days.
The applicants were represented by their union (NUPW) at the trade dispute
which was subsequently referred to the Industrial Court by the Minister
pursuant to s. 26(2) of the IRA. NUPW had by a letter to the Industrial Court
dated 4 May 1987 notified the court that it could not represent the applicants
as they were not its members by virtue of a ruling made by the Registrar of
Trade Unions dated 21 August 1986. The Registrar had ruled that the applicants
ceased to be members of NUPW by their refusal to work on 2 October 1985 which amounted
to participation in an illegal strike.
[99] The third case referred
to by the defendants was Perusahaan Otomobil Kedua Sdn Bhd (supra ). Again the
facts were completely different from the instant case. There it was held that
the DGTU in making the said decision committed an error of law and thereby
exceeded his jurisdiction when he failed to take into account the relevant
consideration that the second defendant being registered as an in-house union
for the subsidiary company was thereby confined to serving the cause of the
said employees within and not those of the applicant company and its
subsidiaries.
[100] Section 26(1A)
specifically prohibits the second defendant from recruiting members or
retaining members if the said members were not employed or engaged in the
establishment in which it was registered. Rule 3 of the second defendant
clearly limited the scope of its membership to the employees in the subsidiary
company. Thus, the first defendant could not extend the scope of membership of
the second defendant in contravention of s. 26(1A) of the Act by amending r. 3
of the second defendant.
[101] Learned SFC and counsel
for the second to 11th defendants nevertheless sought to argue that the words
"if he is not employed or engaged ..." in s. 26(1A) presupposes that
a person must be employed in the particular trade or industry of which the
union is registered before he can be a member or be retained (as the case may
be) as a member of a trade union of the particular trade or industry. (emphasis
added)
[102] In their view these
words "if he is not employed or engaged" in their plain and ordinary
meaning means "be engaged in", "be at work" or "take
service with or with an employer". Hence once a person is no longer
employed or engaged in any establishment, trade, occupation or industry of
which the trade union is registered the person loses his status as a union
member. The meaning of these words according to counsel could not be extended
to include a person who has been dismissed but whose dismissal was being
challenged under s. 20 of the IRA. Nowhere, they contended does s. 26(1A)
provide for such a meaning.
[103] I was not persuaded by
the defendants' argument primarily because, as had been seen earlier, s. 26(1A)
was not enacted for the purpose of empowering the DGTU to automatically divest
a member of his membership in the union upon his dismissal or termination
notwithstanding his challenge to the dismissal or termination under s. 20 of
the IRA. At the risk of repeating myself, as evident from the Minister's speech
and illustrated by the case of National Union of Newspaper Workers s. 26(1A)
was enacted for the specific purpose of limiting the eligibility of membership
of a trade union to the workers of that particular trade or industry in respect
of which the union is registered.
[104] The defendants cannot in
my view by virtue of the words "... if he is not employed or
engaged..." construe s. 26(1A) to mean that a person who has been
dismissed or terminated can no longer be retained as a member of a trade union
notwithstanding the fact that his dismissal was being challenged under s. 20 of
the IRA.
[105] To my mind, if
parliament had intended that a workman who had been dismissed would ipso facto
lose his status as a member of the union irrespective of whether he has filed a
representation under the IRA or not, then parliament would have provided for it
explicitly as was done in the case of s. 26(1A) which sought to limit
eligibility for membership of a union representing workmen of a particular trade
or industry to workmen actually employed in that trade or industry. This was
particularly so when, as submitted by the plaintiffs, the effect of such an
interpretation would have a drastic effect on the trade union movement in the
country. On the defendant's contention that the likelihood of employers
victimising or taking action against employees for being a member or being
active in a trade union is remote as such an action would constitute an offence
under s. 59 of the IRA, as pointed out by the first plaintiff's counsel, thus
far no employer has been charged under this section.
[106] Secondly, the
interpretation proposed by the defendants would lead to an absurdity in view of
the definition of 'workman', 'trade union' and 'trade dispute' in both the TUA
and the IRA.
[107] "Trade Union"
under s. 2 of the TUA is defined as follows:
"trade union" or
"union" means any association or combination of workmen or employers,
being workmen whose place of work is in Peninsular Malaysia, Sabah or Sarawak,
as the case may be, or employers employing workmen in Peninsular Malaysia,
Sabah or Sarawak, as the case may be:
(a) within any particular
establishment, trade, occupation or industry or within any similar trades,
occupations or industries;
(b) whether temporary or permanent; and
(c) having among its objects one or
more of the following objects:
(i) the regulation of relations
between workmen and employers for the purposes of promoting good industrial
relations between workmen and employers, improving the working conditions of
workmen or enhancing their economic and social status, or increasing
productivity;
(ia) the regulation of relations
between workmen and workmen, or between employers and employers;
(ii) the representation of either
workmen or employers in trade disputes;
(iiA) the conducting of, or dealing
with, trade disputes and matters related thereto; or
(ii) the promotion or organization
or financing of strikes or lock-outs in any trade or industry or the provision
of pay or other benefits for its members during a strike or lock-out.
"Workman" under s. 2 of the TUA
means any person, including an apprentice, employed by an employer under a
contact of employment to work for hire or reward and for the purposes of any
proceedings in relation to a trade dispute includes any such person who has
been dismissed, discharged or retrenched in connection with or as a consequence
of that dispute or whose dismissal, discharge or retrenchment has led to that
dispute. (emphasis added)
[108] The same definition of
"workman" appears in s. 2 of the IRA.
[109] "Trade
dispute" in s. 2 of the TUA is defined as any dispute between an employer
and his workmen which is connected with the employment or the conditions of
work of any such workmen.
[110] The gist of the first
plaintiff's argument (and adopted by the rest of the plaintiffs) was that based
on the definition of "workman" in both the TUA and the IRA a person
who had been dismissed or discharged and who is challenging his dismissal or
discharge as in the case of Mr Solomon would continue to be a member of a union
within the meaning assigned to it under the TUA and the IRA.
[111] Learned SFC for the
first defendant and Cik Eswary for the second - 11th defendants on the other
hand, argued that, the "second component" of the definition of
workman ie,:
and for purposes of any proceedings in
relation to a trade dispute include any such person who has been dismissed,
discharged or retrenched in connection with or as a consequence of that dispute
or whose dismissal, discharge or retrenchment has lead to that dispute.
(emphasis added)
ought not to be read into s.
26(1A) as the word 'member' in that section is not defined. Both Cik Eswary and
the SFC urged the court to only consider the "first component" of the
definition of workman which reads:
any person, including an apprentice,
employed by an employer under a contract of employment to work for or hire or
reward. (emphasis added)
as this was more relevant for
the purpose of construing s. 26(1A). In their view the second component of the
definition applies only for the purposes of any proceedings in relation to a
trade dispute and therefore would not be applicable in the present context.
[112] I did not think it
possible for the court to disregard the "second component" of the
definition of "workman" as the "second component" (as it
was referred to by Cik Eswary in her submission) constitutes an essential
component of the definition of "workman" under the TUA. Cik Eswary
had argued that the second component was incorporated in the definition of 'workman'
in s. 2 of the TUA to give cognisance to one of the objects of a trade union
which is to represent the workman who was a member at the time of dismissal and
whose dismissal has led to a trade dispute. (see para. (c)(ii) of the
definition of "trade union" (supra )). The same applies to the IRA as
the definition of "workman" is identical to that in the TUA's. (see
p. 23, para. (c)).
[113] Similarly with r. 4.7 of
the Constitution of the NUBE which was relied on by the first plaintiff's
counsel to support her argument on this issue (see pp. 11 to 12 of this
judgment). The said rule was merely a recognition of the right of a dismissed
workman to be represented by a trade union in the trade dispute that was
brought about by his dismissal. In other words the second component of the
definition of workman under the TUA is to enable a dismissed member of a trade
union to be represented in a trade dispute that was brought about by his
dismissal and in the case of IRA it was also to enable the trade union to represent
a workman in a reference under s. 26.
[114] It (ie, the second
component of the definition) was not to enable a member who had been dismissed
and whose dismissal was being challenged to continue to be a member of a union
in every sense of the word including to hold a position in the union.
[115] I was unable to agree
with the defendant's argument for the following reasons:
Firstly, whether or not the "second
component" of the definition of workman is intended only for the limited
purpose as argued by counsel ie, in the case of the TUA to enable the workman
to be represented by a trade union in a trade dispute brought about by his own
dismissal and in the case of the IRA, to enable a trade union to represent a
workman in a reference under s. 26 of the IRA, is not entirely clear from a
reading of the definition of "trade union", "workman" and
"trade dispute" both in the TUA and the IRA.
[116] What is clear however is
that the "second component" of the definition of "workman"
in the TUA means that a workman who is dismissed and who is challenging his
dismissal remains, by virtue of this definition, a member of a trade union.
[117] Rule 4.7 of the
Constitution and Rules of the first plaintiff fortified by s. 66 of the TUA
reflects this position. Rule 3 and the case of Re Singapore Industrial Workers
Union (supra ) cited by learned counsel for the second to 11th defendants to
support her interpretation of s. 26(1A) relate to the minimum requirements for
membership of the union and was therefore not relevant for our purposes.
[118] Thus the defendant's
(and the AG's) contention that s. 26(1A) results in a dismissed workman
(including one who is challenging his dismissal) losing his right to membership
of a union is, as said earlier, absurd, if not untenable.
[119] Whether the aforesaid
definition of a workman means that a dismissed member (who is challenging his
dismissal) can continue to enjoy all his rights as a member including the right
to hold a position in the union is, in the absence of a clear provision stating
otherwise a matter of construction.
[120] For this purpose, as
submitted by learned counsel for the first plaintiff, a purposive approach is
necessary so that the construction of these provisions is consonant with the
purpose of the TUA. This is also in line with the current judicial trend as
held in the case of All Malayan Estates Staff Union (supra ) which I will
elaborate on later.
[121] The TUA was enacted to
regulate the formation of trade unions and the trade unions movement in the
country. This is reflected in the long title of the Act which states rather
succinctly - "An Act relating to trade unions". As submitted by Dato'
Ambiga, the TUA is a piece of social legislation with the underlying objective
of promoting social harmony between employers and workers.
[122] The speech by the then
Minister of Labour and Manpower, Dato' Richard Ho Ung Hun in Parliament when
tabling the proposed amendments to the TUA on 3 April 1980 ("the said
Bill") underlined this objective when he referred to trade unions in the
following terms:
Trade unionisma mempunyai potensi yang
besar sebagai satu kuasa bagi sosial yang mesti di pupok dan di awasi.
[123] The Minister further
stressed that:
Satu kerajaan yang berdemokrasi yang
dipilih oleh rakyat seperti kita, mestilah secara jujur mengambil langkah untuk
memimpin dan mengatur pertumbuhan trade unionisma kita. (see p. 1681 of the
Penyata Rasmi Parlimen Jilid II Bil. 13 bertarikh 3 April 1980).
[124] And again on 11 April
1980, when tabling the said Bill for a second and third reading at the same
Parliamentary session the Minister described both the TUA and the IRA as being
part of the "Undang-undang sosial Malaysia as seen below:
Rang Undang-undang ini, bersama-sama dengan
Akta Perhubungan Perusahaan (Pindaan) 1980, yang telahpun dibentangkan di Dewan
ini dan akan dibaca kali keduanya kelak dalam persidangan ini, adalah merupakan
dua buah perundangan penting yang menjadi sebahagian daripada Undang-undang
sosial Malaysia. (see p. 662 of the Penyata Rasmi Parlimen Jilid II Bil. 5
bertarikh 11 April 1980).
(emphasis added)
[125] The purposive approach
to construction of a statute is encapsulated in s. 17A of the Interpretation
Acts 1948 and 1967 which provides that:
in the interpretation of a provision of an
Act, a construction that would promote the purpose or object underlying the Act
(whether that purpose of object is expressly stated in the Act or not ) shall
be preferred to a construction - that would not promote that purpose or object.
(emphasis added)
[126] In the case of All
Malayan Estates Staff Union (supra ) the Federal Court explained at length the
nature and scope of s. 17A and held, inter alia, as follows:
The choice prescribed in s. 17A of
"... a construction that would promote the purpose or object underlying
the Act... shall be preferred to construction that would not promote that
purpose or object..." can only arise when the meaning of a statutory
provision is not plain and is ambiguous. If, therefore, the language of
provision is plain and unambiguous s. 17A will have no application as the
question of another meaning will not arise.
Thus, it is only when a provision is
capable of bearing two or more different meanings can s. 17A be resorted to in
order to determine the one that will promote the purpose or object of the
provision. Such an exercise must be undertaken without doing any violence to
the plain meaning of the provision. This is a legislative recognition of the
purposive approach and is in line with the current trend in statutory
interpretation.
[127] In the course of their
judgment the Federal Court referred to the House of Lords decision in R (on the
application of Quintavalle) v. Secretary of State for Health [2003] 2 All ER
113, in particular, the judgment of Lord Bingham who expressed in clear and
lucid terms the task of the court in construing a statute which is thus:
The basic task of the Court is to ascertain
and give effect to the true meaning of what Parliament has said in the
enactment to be construed. But that is not to say that attention should be
confined and a literal interpretation given to the particular provisions which
give rise to difficulty. Such an approach not only encourages immense prolixity
in drafting, since the draftsmen will feel obliged to provide expressly for
every contingency which may possibly arise. It may also (under the banner of
loyalty to the will of Parliament) lead to the frustration of that will,
because undue concentration on the minutiae of the enactment may lead the court
to neglect the purpose which Parliament intended to achieve when it enacted the
statute. Every statute other than a pure consolidating statute is, after all,
enacted to make some change, or address some problem, or remove some blemish,
or effect some improvement in the national life. The court's task, within the
permissible bounds of interpretation, is to give effect to Parliament's
purpose. So the controversial provisions should be read in the context of the
statute as a whole, and the statute as a whole should be read in the historical
context of the situation which led to its enactment. (emphasis added)
[128] Thus applying s. 17A and
the principles enunciated in the aforesaid judgment, the purposive approach
would be preferable in construing s. 26(1A) and the other relevant provisions
of the TUA, that is, the definition "workman", "trade
union" and "trade dispute" as a literal interpretation of these
provisions would negate the very purpose for which the TUA was enacted.
[129] In other words the
interpretation advocated by the defendants would, instead of promoting social
harmony, result in "union busting" (see p. 15 (supra ) on the effects
of union busting as submitted by learned counsel of the first plaintiff). Such
a consequence as submitted by counsel for the plaintiffs could not have been
intended by the legislature.
[130] In this regard I would
also disagree with Cik Eswary's contention that s. 26(1B) (read together with
s. 29(1) of the TUA) and r. 14 of the first plaintiff's Constitution and Rules
clearly prohibited a dismissed member including one who is challenging his
dismissal as in the case of Mr Solomon from holding the position of an officer
of a trade union.
[131] Apart from the aforesaid
grounds the plaintiffs also relied on the following argument to counter the
defendant's contention on the effect of s. 26(1A) on a dismissed employee.
[132] The plaintiffs' argument
was as follows:
It would be premature to decide whether a
member of a union has lost his membership due to a dismissal which is being
challenged and where a representation has been made under s. 20 and the matter
referred to the Industrial Court for adjudication, because when an employee is
dismissed and the matter referred to the Industrial Court under s. 20 of the
IRA, the burden is on the employer to prove that the dismissal was done with
just cause and excuse. Thus until and unless the Industrial Court has disposed
of a representation made under s. 20 of the IRA for reinstatement another court
may not deem that the workman has forfeited his union membership. This was the
ratio decidendi in the case of National Union of Teachers in Independent
Schools, West Malaysia, (supra ). In that case out of 53 teachers who were
members of teachers' union 18 had resigned from the union on various dates and
35 had their services terminated by way of non-renewal of their contracts.
[133] The court was confronted
with the issue of whether the Union had the necessary locus standi to make
representation to the Industrial Court as none of the teachers were members of
the Union for the reason stated above. The school and the union were at the
material time locked in two disputes; one was a dispute over a collective
agreement on wages and terms and conditions employed in the school, and the
other was a dispute over the alleged wrongful dismissal of 35 teachers. The
dispute over the collective agreement was referred to the Industrial Court by
the Minister on 12 January 1987 for adjudication and the dispute over the
alleged wrongful dismissal of 35 teachers was referred to the Industrial Court
on 14 August 1987.
[134] In the case before the
High Court, the Industrial Court was concerned only with the dispute over the
collective agreement. The dispute over the alleged wrongful dismissal of 35
teachers was before another division of the court.
[135] It was held by the High
Court that it was premature for an Industrial Court to decide whether the union
had members or not when another Industrial Court had yet to decide on the
representations made to it under s. 20 of the IRA. Eusoff Chin J (as he then
was) in his judgment observed as follows:
The Industrial Court here made a finding
that although the school had not closed down, and was still in operation at the
date of hearing, there was not a teacher employed by the school who was a union
member because those who were union members had either resigned from the union
or because their contracts were not renewed by the school. The Industrial Court
held that the union could not represent and act in a dispute on behalf of the
school teachers who were not its members or no longer its members, and so the
union had no locus standi before the court.
As stated earlier, the dispute concerning
the alleged wrongful dismissal of the 35 teachers who were union members was
referred to another division of the Industrial Court by the Minister on 14
August 1987. That division had not determined and made an award in respect of
that dispute on 27 February 1988, when the question of locus standi of the
union was heard by the Industrial Court. In holding that the union had no locus
standi because it no longer had any members, the Industrial Court was in fact
adjudicating the dispute of wrongful dismissal of the teachers who were union
members, and had come to the conclusion that the teachers' services had been lawfully
terminated. This Industrial Court had no jurisdiction to determine that
dispute, because that very dispute had not been referred to it by the Minister,
but to another division of the Industrial Court to adjudicate.
[136] In the present case Mr
Solomon was seeking reinstatement to his employment with his former employers,
CIMB Bank Bhd. Relying on the aforesaid decision the plaintiffs contended that
until and unless final determination of the reinstatement is decided upon by
the courts, it would be premature for anyone to declare that his membership as
a member of the first plaintiff is automatically terminated due to his
termination from employment.
[137] I agreed with the
plaintiff's submission on this issue and the decision in the National Union of
Teachers in Independent Schools, West Malaysia as it is in accord with the
underlying jurisprudence of s. 20 of the IRA.
[138] Although, as mentioned
earlier, the Industrial Court subsequently found that Mr Solomon's (and the
other eight members') dismissal was with just cause and excuse, I also agreed
with learned counsel for the first plaintiff that as Mr Solomon (and the other
eight members) had filed an application for judicial review, the argument that
it would be premature for the court at this juncture to hold that a dismissed
workman would automatically lose his union membership notwithstanding his
challenge to the dismissal, remained a valid argument.
Conclusion
[139] Thus for the reasons
stated above I agreed with the plaintiffs' submission that the defendants'
interpretation of s. 26(1A) on the status of a member of a trade union who had
been dismissed and who had challenged his dismissal, was in the circumstances
erroneous and I therefore allowed the plaintiffs' application in terms prayed for
in prayers (1) and (2) of the said application.
[140] In arriving at my
decision I had considered carefully the arguments canvassed by all the
plaintiffs and the defendants, in particular, the reasons set out by Cik Eswary
in paras. (a) to (f) of pp. 28 to 29 of this judgment on why a dismissed member
whose dismissal was challenged can never be considered to be a member of a
trade union. In my view, those reasons whilst arguably valid could not
constitute sufficient justification for construing s. 26(1A) the way in which
the defendants have construed it.
[141] It should be emphasised
however that the court's decision herein was in respect of the specific issue
raised before the court and in that sense was restricted to the fact situation
before the court.
[142] Finally, by way of post
script I would like to refer to two other issues that were raised in the course
of submission before the court. There were:
(i) The ILO Convention
In the course of her submission before the
court, learned counsel for the first plaintiff had alluded to the letter
addressed to the Minister of Human Resources by the MTUC (see p. 180, encl. 2)
that a complaint will be made to the ILO arising from the interpretation of s.
26(1A) given by the Attorney-General's Chambers. Learned counsel had submitted
that such an interpretation would contravene the ILO convention namely C98, ie,
the Convention on the Right to Organize and Collective Bargaining Convention
1949 which Malaysia ratified in 1961 ("the said Convention"). Both learned
SFC, and counsel for the second to the 11th defendants argued that the question
of the said Convention being transgressed did not arise as the provision of the
said Convention had been incorporated in the IRA notably in ss. 4, 5 and 7 and
s. 59. Section 59 in particular provide the penalties that would be imposed on
employers found guilty of "union busting".
Alternatively both counsel opined that even
if there was a conflict the court has a duty to give effect to a national law
and not international law, citing the Court of Appeal in Singapore's decision
in Seow Teck Ming & Anor v. Tan Ah Yeo & Anor [1991] 3 CLJ 2731; [1991]
4 CLJ (Rep) 576 as authority and also Lord Denning's decision in Blackburn v.
Attorney-General [1971] 2 All ER 1380.
Dato' Ambiga, on the other hand referred to
Lord Diplock LJ's proposition in Salomon v. Commissioners of Customs &
Excise [1967] 2 QB 116, which was as follows:
... there is a prima facie presumption
that Parliament does not intend to act in breach of international law,
including therein specific treaty obligations; and if one of the meanings which
can reasonably be ascribed to the legislation is consonant with the treaty
obligations and another and others are not, the meaning which is consonant is
to be preferred.
In the light of my findings above I did not
think it necessary to express an opinion on this issue except to state that
whilst I agree with the view expressed by the Singapore Court of Appeal in Seow
Teck Ming (supra ) that it is settled law that the duty of the court is to give
effect to a national law and not international law if there were a real
conflict between them, Lord Diplock's proposition (supra ) to my mind is
equally sound.
(ii) Position in other jurisdictions
Pursuant to the court's query as to the
position in other jurisdictions on the issue before the court, learned counsel
for the first plaintiff had looked at the trade union legislations in
Singapore, India, UK and Australia to see whether there was an equivalent
provision to our s. 26(1A).
From a perusal of the relevant legislation
in Singapore (the Singaporean Trade Unions Act Chapter 333); India (the Indian
Trade Unions Act 1926); the UK (Trade Union and Labour Relations
(Consolidation) Act 1992 and the Trade Union Reform and Employment Rights Act
1993); and Australia (Fair Work (Registered Organizations) Act 2009), it would
appear that there is no equivalent provision to our s. 26(1A) or at least there
is no clear provision that provides that a member of a trade union who has been
terminated or dismissed from employment would automatically lose his membership
upon such termination or dismissal.
[2014] 5 CLJ 213
