KUALA LUMPUR, 29 July 2025:
Malaysia’s Industrial Court has, once again, found itself in National Union of Bank Employees’ (NUBE) cross-hairs after an alleged procedural misstep in a case that the banking union is calling a “grave breach”.
The controversy centres on a 68-page award signed by Industrial Court chairman Andersen Ong Wai Leong, which NUBE contends was improperly handled as a unilateral dismissal case, rather than a trade dispute requiring a tripartite panel representing employees and employers.
NUBE general secretary J Solomon asserted in a recently issued statement that chairman Ong unlawfully issued his ruling without the mandatory input of panel members — a procedural cornerstone designed to ensure balanced adjudication in industrial matters.
The Industrial Court in its award had issued an order which is akin to a “gag-order” restraining the union from commenting on an alleged sexual harassment case, which Solomon views as an “egregious overreach.”
NUBE argued the Industrial Court had no jurisdiction to grant such an order.
Further exacerbating the union’s concerns, the Industrial Court, despite NUBE’s objections citing the legal principle of “functus officio” — which precludes a court from altering a finalised ruling — had accepted the bank’s argument for rectification despite the union’s objection.
Solomon lamented that such actions “damage the integrity of the decision-making process and set a worrying precedent for Industrial Court chairpersons. The court’s misstep was a “grave breach” that “failed to obtain the views of the panel members”, he contended.
A history of contentious encounters
NUBE’s current allegations resonate within a broader history of contentious struggles with Malaysia’s industrial relations system. The union has frequently voiced concerns over delays and perceived biases within the Industrial Court.
As far back as 2004, criticisms surfaced regarding “inordinate delay in settlement of disputes and dismissal cases,” with proceedings often stretching for years — a stark contrast to Section 30 (3) of the Industrial Relations Act 1967, which mandates awards be made “without delay and where practical within 30 days.
More recently, NUBE was embroiled in disputes over festival aid payments, where the Industrial Court ruled against the union in certain instances.
The union also lodged a police report against the Human Resources Minister Steven Sim in connection with alleged interference in the festive aid matter and protested when collective agreement negotiations were “rushed to courts” by banks without prior dialogue.
These instances, according to NUBE, reflect a pattern of anti-union discrimination and an uneven playing field in industrial disputes.
Legal principles at stake
At the heart of NUBE’s current challenge are fundamental tenets of Malaysian industrial law. The Industrial Relations Act 1967 outlines specific procedures for trade disputes, clearly distinguishing them from individual dismissal cases.
Legal precedence indicates that the Industrial Court, while mandated to dispense “social justice according to equity and good conscience,” is still bound by established legal procedures.
The principle of “functus officio” cited by NUBE is a well-established common law doctrine that prevents a court or tribunal from revisiting its own decisions once a final order has been issued.
While Industrial Court awards are generally considered “final and conclusive,” they are subject to scrutiny by higher courts through judicial review for errors of law or procedural improprieties.
Prior to 2021, judicial review was the primary avenue to challenge Industrial Court awards, and even with the introduction of an appeal process for newer cases, the High Court retains supervisory jurisdiction in instances where the Industrial Court is alleged to have acted without competence, unconstitutionally, unreasonably, disproportionately, or unfairly.
Solomon’s assertion that the Industrial Court lacked jurisdiction to issue the “gag order” touches upon the delicate balance between legitimate trade union activities and judicial authority.
While a 2023 High Court case involving NUBE clarified that a union’s immunity for tortious acts applies to civil courts and not necessarily to the Industrial Court when a dispute is rooted in a collective agreement breach, the union maintains its right to freedom of expression in the context of trade disputes.
NUBE’s allegations underscore ongoing tensions within Malaysia’s industrial relations landscape, highlighting the critical importance of adherence to legal procedures and the safeguarding of trade union rights in the pursuit of industrial harmony.