IN a landmark judgement on Wednesday, the Federal Court agreed that two banks were guilty of union-busting tactics in promoting employees to executive positions without according them any “real” executive powers that should come with the job.
 
In a resounding victory for the National Union of Bank Employees (NUBE), all five judges on the bench agreed with the findings of the lower courts that Bank Muamalat and Alliance Bank had “promoted” clerical staff to executives merely to preempt their joining the union.

In reality, the Federal Court said, the staff were never given any significant executive powers or duties befitting their new positions but merely continued doing the same job.
 
Judges Rohana Yusuf, Mohd Zawawi Salleh, Abang Iskandar Abang Hashim, Idrus Harun and Dauk Nallini Pathmanathan dismissed the appeals of Bank Muamalat and Alliance Bank with costs, thus bringing a seven-year-battle to an end.
  
NUBE had contended that the action of the two banks was aimed at diluting its influence and bargaining power, and  tantamount to union-busting.

It took the two banks to court in 2012 when they started promoting clerical staff to customer relationship representatives and customer service executives.
 
In its claims, the union stated that while the staff had been upgraded to executives, their jobs were still clerical in nature with no or little executive powers. As executives, however, they were disqualified from joining NUBE
 
NUBE had first lodged a complaint to the Director-General of Industrial Relations (DGIR) which after investigation found that the promoted employees were not working in either a “managerial, executive, confidential or security” capacity.
 
It gave the verdict that the purported promotions were not genuine, which was accepted by the human resources minister. The banks subsequently filed for a judicial review against the minister’s decision but the application was thrown out by the High Court in 2016. The following year, the Court of Appeal affirmed the High Court’s decision.
  
NUBE lawyer Edmund Bon said the Federal Court had made a ground-breaking ruling that set a precedent in all sectors with human industry.
 
“It is significant that after DGIR decided for NUBE, all three courts that heard the appeals from the banks ruled that it was a case of disguised promotion aimed at depriving them of NUBE membership. It wasn’t just one but all courts agreed with NUBE,” he said.
 
NUBE general-secretary J. Solomon, who was in the forefront of the long court battle, described the outcome as a huge victory for workers and unionism in the country.
 
“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 by disguised promotions threatens the workers’ right to be part of organisations established to organise and further their interests through collective bargaining,” he said.
 
Solomon said Malaysia had also ratified the International Labour Organization’s Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which states that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
 
“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.
 
“The two banks in question here should also be called out and penalised by the regulators for their conduct in the affair.” – July 13, 2019.