Sunday, March 13, 2016

MALAYSIA:::Found guilty of union busting

 (* The full court AWARD is found below)

An electronics company has been found guilty of union busting by the Industrial Court.
Court chairman Datuk Mary Shakila G. Azariah said Renesas Semiconductor KL Sdn Bhd had violated the Industrial Relations Act by its actions against members of the Electro­nics Industry Employees Union Western Region Peninsular Malaysia in its employ.
She said employers were lawfully bound to respect a worker’s right to engage in unionism and also they can participate in the lawful activities of a union.
She added that employers were also ethically and morally constrained from interfering with the affairs of a trade union and the right of workers to organise, discriminate, restrain, or coerce against any worker because of legitimate trade union activities and abuse authority in any form.
Mary Shakila said this in the complaint of union busting brought by the union against Renesas for breaching Sections 4(1), 4(3), and 5(1)(d)(i) and (ii) of the Act.
The western region union was registered on Dec 1, 2009, seven months after the Government approved the unionisation of the workers in the electronics industry into four regions. Previously, there were only in-house unions in the electronics sector.
In her 49-page award dated March 8, Mary Shakila said a Renesas employee, Wan Noorulazhar Mohd Hanafiah, was elected as pro-tem president of the union but he was told by the plant director that he “was not to promote the establishment of a national/regional wide union for the electronics industry” as the company would be forming an in-house union.
The union submitted a claim for recognition from Renesas on Jan 18, 2010 but the company refused to grant it.
A month later, the company organised a seminar on the setting up of an in-house union which was attended by members of the Joint Consultative Committee (JCC) in the company at Cyberview Resort & Spa.
Mary Shakila noted that the timing of the seminar left “a lot to be said” as to the motives of Renesas.
Wan Noorulazhar alleged he was offered the role of president in the proposed in-house union, which he declined, resulting in him being made to perform tasks below his job grade and being monitored by the Human Resources Department via CCTV.
He was later dismissed in 2011 after a domestic inquiry found him guilty of misconduct for allegedly maligning Renesas Semiconductor publicly on his Facebook page. Wan Noorulazhar is challenging his dismissal in the Industrial Court.
While Mary Shakila refrained from passing comment on his case, she noted that his termination was “manifestly a union-busting tactic”.
In evaluating the evidence, she said that the company’s witnesses, all still serving in the employ of the company, “are not to be believed.”
“The court is satisfied with the veracity of the union’s witnesses and their evidence, some of whom are still employed by the company and have risked their jobs to testify against the company.”
Image result for stop union busting

Electronic Union win in 'Union Busting' Case against Renesas Semiconductor? HRD Wan Noorulazhar?


* The full court AWARD is found below
Electronic Industry Employees Union Western Region, Peninsular Malaysia (EIEUWR)/
 Kesatuan Sekerja Industri Elektronik Wilayah Barat Semenjung Malaysia(KSIEWBSM)[UNION]
 have been seeking recognition from RENESAS Semiconductor KL Sdn Bhd (formerly known 
as NEC Semiconductors (Malaysia) Sdn Bhd] since January 2010. The Company had used
 various 'union busting' tactics against the Union - Wan Noorulazhar bin Mohd. Hanafiah,
 an employee of the Company, and President of the Union, have been one of the
 victims - finally, he was allegedly 'wrongfully dismissed' on or about 26/8/2011. 

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 fiv
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?

WHAT REFORMS NEEDED?
1 - Certainly a more Deterrent Fine?
2 - All victims of Discrimination should be adequately compensated for all
 that they lost by reason of non-promotion, non-increase of salaries,
 non-payment of incentives, etc - and the Company should be made to
 immediately reinstate/promote them to the position that they should justly
 now be in, if not for these 'union busting' activities.

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.  



INDUSTRIAL COURT OF MALAYSIA 

CASE NO: 22/3-733/13 



BETWEEN 

KESATUAN SEKERJA INDUSTRI ELEKTRONIK WILAYAH BARAT
 SEMENANJUNG MALAYSIA 

AND 

RENESAS SEMICONDUCTOR KL SDN. BHD. 

AWARD NO: 244 OF 2016

CORAMY.A. DATO’ MARY SHAKILA G. AZARIAH - CHAIRMAN

MR. ABDULALIM BIN ZAKARIA - EMPLOYERS' PANEL
MR. PREM KUMAR A/L APPUKUTTY - EMPLOYEES' PANEL 
VENUE : Industrial Court, Kuala Lumpur 


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
DATES OF HEARING : 23 April 2015, 6-7 May 2015and 9 December 2015
DATE OF ORAL SUBMISSIONS : 12 January 2016 
REPRESENTATION :
Mr. Chandra Segaran of Messrs. Prem & Chandra, Counsel for Union
Mr. Edward Saw and Mr. Jerry Low of Messrs. Josephine L K Chow & Co, Counsel for Company

REFERENCES:

This is a reference made under Section 8(2A) of the Industrial Relations Act 1967
 between Kesatuan Sekerja Industri Elektronik Wilayah Barat Semenanjung
 Malaysia (hereinafter referred to as “the Union”) and Renesas Semiconductor
 KL Sdn. Bhd. (hereinafter referred to as “the Company”).

( 1 ) 22/3-733/13

AWARD

This reference pertains to a trade dispute between Kesatuan
 Sekerja Industri Elektronik Wilayah Barat Semenanjung Malaysia
 (hereinafter referred to as “the Union”) and Renesas 
Semiconductor KL Sdn. Bhd. (hereinafter referred to as “theCompany”).

Brief Facts


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.

( 2 ) 22/3-733/13
Wan Noorulazhar contends that sometime in November 2009 he
 was called by the Plant Director of the Company and told that he
 was not to promote the establishment of a national/regional 
wide Union for the electronics industry and told that the
 Company will very soon be promoting an Union. He was
 told to cooperate with Zulkifly Abdul Rahman who was
 then the Division Manager, Human Resource General 
Admin Department to facilitate the establishment of the in-house union.

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.

The Company vide its letter dated 8 February 2010 refused to
 grant recognition to the Union.
( 3 ) 22/3-733/13

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.

( 4 ) 22/3-733/13

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

( 5 ) 22/3-733/13
for Wan Noorulazhar who in fact was dismissed with
 effect from 26 August 2011 after a domestic inquiry for a
 Charge that was allegedly without basis. Pursuant to 
section 9 of the Industrial Relations Act 1967 a secret
 ballot was conducted to ascertain what percentage of workers
 employed by the Company were members of the Union and it
 was declared that 72.69% were members of the Union by the
 IR Department.

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.

( 6 ) 22/3-733/13

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 it had no knowledge of the registration
 of the Union and that Wan Noorulazhar its employee had been
 elected as the Pro-Tem President of the said Union. It is 
contended that it came to know that Wan Noorulazhar was
 its President when a claim for recognition was signed by 
him in his capacity as President which was served on the 
Company on 18 January 2010.

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 
( 7 ) 22/3-733/13

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.

( 8 ) 22/3-733/13
It is the Company's contention that Wan Noorulazhar was 
dismissed on 26 August 2011 after a domestic inquiry had
 found him guilty of a misconduct that is that he had maligned 
the Company publicly online through his facebook page.

Evidence, Evaluation and Findings

The Union's

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.
( 9 ) 22/3-733/13

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.

( 10 ) 22/3-733/13

UW.1 testified that the Union was registered as Kesatuan 
Sekerja Industri Elektronik Wilayah Barat Semenanjung 
Malaysia on 1 December 2009 and was permitted to receive
 as members those workmen employed in the electronics industry
 located in the States of Selangor, Wilayah Persekutuan and Perak. 
It was his evidence that he was aware that the Union submitted 
a claim for recognition on 8 January 2010 to the Company.
 He testified that the Company refused to recognise the 
Union. He testified that the Company sometime in 
March 2010 arranged for the members of the 
Joint Consultative Committee (JCC) in the Company 
to attend a seminar on the setting up of an in-house union
 conducted by an Official from the Malaysian Federation 
of Employers at Cyberview Resort & Spa. It was his 
evidence that the JCC members who attended were
 advised to join the in-house union and Siti Jumiah 
Md. Ful and Roziah bt. Karim who attended the said 
seminar were encouraged by Zulkifly Abdul Rahman 
and Loh to lead the inhouse union. He testified that
 under the guidance and influence of Loh and/or Zulkifly
 Abdul Rahman, Siti Jumiah Md. Ful, Roziah bt. Karim,
 Zakaria bin Deraman, Nurul Azira bt. Abd. Rahman 
and Julaidah bt. Pardi who were the principal pro-tem
 committee officials took steps to for the formation of 
an in-house union in the Company.

( 11 ) 22/3-733/13

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.

( 12 ) 22/3-733/13
UW.1 further testified that in July 2010 Romanza bin Ramli 
who was a shop steward in the Union and employed as a 
Senior Technician in the Company was approached by Loh
 to discuss with the other shop stewards to request the Union
 to withdraw its claim for recognition and to replace the Union
 to enable the inhouse union to secure recognition form the
 Company. He said that in exchange Romanza was offered 
the authority of appointing anyone in the Company to be
 the leadership with him in the inhouse union. He testified
 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. He said that sometime in January 2011 Wan
 Noorulazhar was asked by Loh again to withdraw the Union
's claim for recognition and stating that it was easier for an 
in-house union to obtain recognition. He said that sometime
 in February 2011 the new Manager of FMD Department
 asked Wan Noorulazhar to withdraw the Union's claim for 
recognition and if he did so there will be no more harassment
 discrimination in any form or victimisation on him. He testified 
that Wan Noorulazhar declined the offer.

( 13 ) 22/3-733/13

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 
( 14 ) 22/3-733/13

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.

( 15 ) 22/3-733/13

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 

( 16 ) 22/3-733/13
that he cannot be influenced by the Company. He testified that
 he was told by Goh then to concentrate on his work so as to
 preserve his position in the Company. He further testified 
that on 12 November 2009 the Senior Manager in the Human
 Resource Department, Loh telephoned Mohd. Nazri bin Jahuri
 offering him membership in the in-house union that the Company
 was intending to set up. He said that at 7.55 pm that same day 
Loh met Mohd. Nazri and during this meeting he rejected Loh's offer.

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.

( 17 ) 22/3-733/13

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.

( 18 ) 22/3-733/13

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.

( 19 ) 22/3-733/13

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.

( 20 ) 22/3-733/13

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 

( 21 ) 22/3-733/13

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.

( 22 ) 22/3-733/13
UW.4, a Technical Assistant with the Company, testified
 that he was aware that the JCC was set up in the Company
 and that he was involved in it. It was his testimony that he 
attended the seminar that was sponsored by the Company at 
Cyberview Resort & Spa in 2010 together with, inter alia,
 Puan Siti Jumiah another  member of the JCC. He testified 
that he informed UW.2 what was discussed at the said 
seminar viz that the representative from Malaysian Employers
 Federation and the Company's representatives present at the 
said seminar attempted to influence  them to join the 
in-house union. It was his evidence that Loh and Zulkifly 
Abdul Rahman both from the Human Resource Department,
 were at the said seminar. He testified that they were 
told about the advantages of joining an in-house union and
 the disadvantages of joining the Union.

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

( 23 ) 22/3-733/13
and if he did then he and his other shop steward could decide 
who should lead and be shop steward in the in-house union
 that was to be set up. He said that Loh said that if they did
 not compromise it will be a loss because the Union will never
 obtain its recognition as the officials of the JPP were working
 with the Company to hinder this. It was his evidence that because
 he did not give Loh a reply to this he was transferred out without
 prior discussion or his consent to another department. He said
 that he was not allowed to do overtime and his movements 
were monitored by the Company closely. He said that he
 felt pressured and was told by his superior that this was the
 Company's orders that he be monitored.

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.

He testified that Vijendran had also told him that he was to
 not follow UW.2 a UW.2 had no future in the Company as he refuses


( 24 ) 22/3-733/13

to give up his activities of the Union and join the in-house
 union that is sponsored by the Company.

The Company's

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

( 25 ) 22/3-733/13

the application in Court. COW.1 testified that he was 
not aware that the in-house union had filed their application
 for registration as he was not provided with or given a copy 
of the in-house union's said application. It was his evidence
 that he did not know who the members of the pro-tem committee
 members were save for Siti Jumiah.

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.

( 26 ) 22/3-733/13

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

( 27 ) 22/3-733/13
fact paid the incentive. COW.1 testified further that 
Wan Noorulazhar was dismissed for gross misconduct
 as he had made false and irresponsible statements 
on social media against the Company so as to incite
 employees to go against the Company.

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 ou
t 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 
( 28 ) 22/3-733/13

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.

( 29 ) 22/3-733/13
The Company's 2nd witness, COW.2, testified that UW.2
 was given the incentive that meant that his salary was
 increased by 6%. He testified that some of the employees
 under him were not given the incentive by the Company
 as they were underperformers. He testified that he did not
 know whether these named employees were shop stewards and
 members of the regional Union. It was his testimony that the said
 incentive was given to those who performed well and had nothing 
to do with whether they were members or active in the Union.
 He testified that he did not know who the Union's shop stewards were.

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 3
rd 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 

( 30 ) 22/3-733/13

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 

( 31 ) 22/3-733/13

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.

( 32 ) 22/3-733/13
COW.4 further testified that he did not meet Mohd. Saizol bin Othman
 and told him not to join the Union but to join the inhouse union
 approved by the Company. He denied that he had told him that
 if he followed UW.2 he too would have no future in the Company.

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 
( 33 ) 22/3-733/13

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.

( 34 ) 22/3-733/13

The Court's Evaluation
The Honourable Minister has referred this dispute involving the 
Union and the Company as a case of “Union busting”. The term
 “Union busting” as we know it to be is a term used to describe a 
wide range of activities undertaken to disrupt or prevent the formation
 of a Trade Union. Union busting tactics can refer to both legal and
 illegal activities and can range anywhere from subtle to violent. It is
 trite enshrined in the Federal Constitution that the right to form or
 join a Union. It includes, inter alia the right to help organise, to join
 and to support a Union of your choosing. It includes also and is not
 limited to such activities as talking to other employees about the 
Union, passing out literature and one cannot be punished for his
 own Union activity. Most employers do not want their employees
 to be in a Union. Think about it; employers go from having to 
share power with workers who stand together. From their perspective
 organised workers will cost more money and require that they follow
 a legally binding contract when before they could do it however
 they wanted. So when employees show interest in organising a 
Union the Company responds with an anti-Union program. These
 Union-avoidance

( 35 ) 22/3-733/13
programs serve to impede Union organising. Sometimes they
 are legal restrictions on specific actions. Union-busting tactics
 range from urging employees to try and influence others to oppose
 Union and tantamounts to a violation of law protecting the right 
to organise a Union. Often the employer may resort to threatening
 supporters through third party and taking of actions that adversely
 affect an employee's job because of Union activities. It may also 
consists in discriminating against Union supporters when assigning
 desirable work or overtime work. It is observed that a disturbing 
Union-busting trend is emerging whereby employers have been
 terminating, suspending and taking disciplinary actions against 
Trade Union leaders and members and workers involved in 
legitimate Trade Union and workers activities.

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.

( 36 ) 22/3-733/13

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.

( 37 ) 22/3-733/13
The Union's complaint in this case is that the Company has by its
 actions contravened section 4(1) and (3) and sections 5(1)(d) (i)
 and (ii) of the IR Act.They complain that the Company has
 engaged in Union-busting actions. The burden is on the Union
 to prove that the Company has indeed violated section 4 
and (3) and sections 5(1)(d)(i) and (ii) of the IR Act. Has it 
discharged its burden on a balance of probabilities?
Section 4(1)

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

( 38 ) 22/3-733/13
establishment of the Electronic Industry Employees' 
Union Western Region Peninsular Malaysia which is the
 Union in this matter. This was approved sometime in May
 2009 by the Government of Malaysia and a pro-tem 
committee according to the evidence of UW.1 was set up
 for the registration of a Union of those workmen employed
 in the electronics industry and UW.2 was elected as its President
 on 31 July 2009. These facts are not in dispute.

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 thi
s extent was not rebutted by the Company.

COW.1 denied the allegations that he telephoned UW.3
 prior to 12 November 2009 offering him to lead the
 in-house union that was formed. COW.1 denied that he
 met UW. 4 in July 2010 as alleged requesting him and 
other shop stewards top call for the Union's withdrawal 
of its claim for 

( 39 ) 22/3-733/13

recognition so as to enable the in-house union to
 secure registration. COW.1 denied telling him that h
e 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.
The Union alleged that the active shop stewards and UW.2
 were not given special incentives that was given to the other
 workmen by the Company. This was denied by the Company.
 The Company adduced evidence to show that UW.1 received
 a special incentive of 6% raise in his salary, and that this was
 handled by the Human Resources Department and was based 
on performance as per COW.2's evidence. COW.2 also said that
 he did not know who the shop stewards were.

( 40 ) 22/

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. 
Supervisors are usually the front line troops against the Union 
delivering informal chats and speeches. This then is the scenario
 and the difficulty that the Court faces. The chronology of events 
that the Union alleges took place were designed to interfere, 
with, restrain or coerce UW.2 and the remaining the other witnesses
 who testified from joining the Union and/or participating in the lawful
 activities of the Union. These actions if established by the Union will 
tantamount to a clear-cutviolation of section 4(1) by the Company. 
Taking into 
( 41 ) 22/3-733/13
consideration the other acts of the Company which I shall deal 
with a little later as we consider the other complains of the Union,
 the Court is of the view that the Company's witnesses, all still serving
 in the employ of the Company, are not to be believed. To state it slightly 
differently the Court is satisfied with the veracity of the Union's 
witnesses and their evidence some of whom are still employed by the
 Company and have risked their jobs to testify against the Company. 
The Court is aware that in its Statement In Reply the Company had 
pleaded that after becoming aware that the unionization of the electronics
 industry on a regional basis had been approved by the Government o
f Malaysia it had formed the intention of forming an in-house union
 and had discussions with the JCC within the Company. The JCC
 was described as a body which served as the bridge between the 
employees and the Management. This pleaded fact does not augur 
well for the Company and throws open for interpretation whether 
from thence onwards they were going to indulge in any 
Union-avoidance activities and the complains of what the 
management did after that, leveled by the Union, perhaps 
is suggestive of this. UW.2 was terminated by the Company 
subsequently. This is manifestly 
( 42 ) 22/3-733/13
a Union-busting tactic and a violation of section 5(I)(d) 
of the IR Act 1967 that protects the termination, disciplinary 
action or discrimination against Union members if there is no
 just cause for his termination. Weighing them side by side 
each other is enough for the Court to conclude that certain 
findings of fact that the  Company had indulged in Union-busting
 tactics and has violated section 4(1) of the IR Act 1967 which 
prohibits the interference, restrain or coercion of any workman
 in participating in the lawful activities of a Trade Union. The
 Union's Counsel conceded that the Union's complaint was limited
 to this limb of section 4(I).

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 

( 43 ) 22/3-733/13

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.

Section 4(3)

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 
( 44 ) 22/3-733/13

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”

( 45 ) 22/3-733/13
encompasses the giving of assistance, encouragement or approval 
to or to be actively interested in. Although their claim for recognition
 was rejected subsequently the circumstantial evidence surrounding
 the facts of this case points to the Company having supported and
 encouraged the formation of the in-house union.This is in gross 
violation of section 4(3).

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-
(1) is or proposes to become or seeks to become, or seeks 
to persuade any other person to become a member or officer 
of a Trade Union: or
(2) participates in the promotion, formation or activities 

of a Trade Union”.

( 46 ) 22/3-733/13
The Union witness, UW.2 testified that COW.1 met him in May 
2010 and had told him that if he did not cooperate his future looked
 bleak and that he was at the risk of  being dismissed. UW.2
 testified that COW.5, his superior, on several occasions had 
intimated to him that he had no future in the Company 
including promotions as the HR Department of the
 Company will pressure him to resign and if this fail he 
will be dismissed by the Company.

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 
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material time. The Company did not adduce evidence or defend 
UW.2's claim against them that he was also sidelined, his shift 
taken away from him which shows that he was victimized since 
2009 that is since his appointment as President of the said Union.

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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Conclusion

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 Ac
t 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 protection of the right of the employees to unionise for their
 common good is stated in section 4(1) of the IR Act 1967. On 
the evidence, facts and its pleaded case, the Court finds that the
 Company has violated the sections as pleaded by the Union 
save for section 4(2) which the Union had withdrawn during its
 submissions in Court. This is the Court's final order.

HANDED DOWN AND DATED THIS 8 DAY OF MARCH 2016 
Signed
( DATO’ MARY SHAKILA G. AZARIAH )
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR


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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. 



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