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.”

source:::http://www.thestar.com.my

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 five 

thousand ringgit or to both' (see section 60). If so, it is grossly UNJUST.

Who pays for the lawyers? Who pays for the cost and effort expended by the Union?

 Well, in Industrial Court matters, each party bears their own cost...

And, if the Company only has to pay a fine of 'RM5,000' (which is about 5 months

 wages for a Minimum Waged Worker in Malaysia) -where is the JUSTICE?

Are worker and trade union rights protected in Malaysia? I would say 'No' -

 Would employers be DETERRED? - Would workers and Unions be encouraged

 to use the avenues of justice - when at the end of the day, guilty employers

 just will have to pay a measly fine, and note fines are paid to court/government 

- not the Union/workers?

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

CORAM: Y.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 3rd witness denied that he advised

 UW.2 to not tell the other employees of the Company

 about the formation of the Union and that at anytime the Human Resources 

( 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 

( 47 ) 22/3-733/13

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.

( 48 ) 22/3-733/13

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.

( 49 ) 22/3-733/13

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

( 50 ) 22/3-733/13

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