Court ruling shows banks promote staff to erode union power, says NUBE

The National Union of Bank Employees is happy that all three courts agreed with the union that this was a case of disguised promotion, aimed at depriving staff of NUBE membership.

KUALA LUMPUR: The National Union of Bank Employees (NUBE) today hailed a recent landmark Federal Court decision as vindication of its claim that some banks were promoting staff to executive positions to dilute the power of the union.

The July 10 verdict upheld the contention of NUBE that certain promotions were merely to alter the employees’ designation to exclude them from being part of the union.

In describing the verdict as a huge victory for the workers and unionism in the country, NUBE general secretary J Solomon said in a statement today: “The right to association is a fundamental right. Employers are under a duty not only to respect and promote the right, but additionally, they are to protect and facilitate the effective exercise of the right.

“Any attempt to dilute the strength of trade unions through disguised promotions threatens the workers’ right to be part of organisations established to organise and further their interests through collective bargaining.”

The Federal Court ruled that Bank Muamalat and Alliance Bank “were guilty of union-busting tactics by promoting workers without giving them any ‘real’ executive powers as implied in their appointment letters”, according to the statement.

All five Federal Court judges agreed with the findings of the lower courts that the two banks had ”promoted” clerical staff to executives merely to exclude them from being part of NUBE.

”In fact, the Federal Court said the staff were never given any significant executive powers or duties befitting their new positions but were merely performing the same job as before,” the NUBE statement said.

NUBE took the two banks to the Industrial Relations Department more than seven years ago when they started promoting clerical staff to customer relationship representatives (CRR) and customer service executives (CSE).

The union found that despite the promotions, they were still doing jobs clerical in nature with no or little executive powers. But as executives, they had now lost the right to be union members.

NUBE took the matter to the director-general of industrial relations who ruled that the promotions were not “genuine” because the employees were still doing what they did before as clerical staff.

When the human resources minister accepted the director-general’s findings, the banks filed judicial review challenges against the minister’s decision.

In 2016, the High Court dismissed the judicial review application and in 2017, the Court of Appeal affirmed the High Court’s decisions, according to the statement.

Last week, the Federal Court heard submissions on several questions, including whether the minister, in handing down a decision under the Industrial Relations Act 1967, had exceeded his jurisdiction by deciding on a matter beyond the scope of the dispute raised by the parties.

NUBE lawyer Edmund Bon was quoted in the statement as saying this “ground-breaking ruling” would be applicable to all other sectors and industries.

“It is significant that the director-general of industrial relations decided for NUBE and all three courts that heard the appeals from the banks ruled that this was a case of disguised promotion, aimed at depriving them of NUBE membership. It wasn’t just one but all the courts agreed with NUBE,” Bon said.

Noting that Malaysia had ratified the International Labour Organisation’s Right to Organise and Collective Bargaining Convention, Solomon said: “NUBE calls on all employers and businesses to hold true to the commitment Malaysia has made; and further for the government to implement new protective measures to better regulate anti-union activities being practised by employers.

”The proposed National Action Plan on Business and Human Rights should include mandatory provisions amounting to enhanced obligations on businesses to respect the right to association, protected under Article 10 of the Federal Constitution.”