ARTICLE
9 February 2024

The Secret Ballot Process In Union Recognition

A trade union has to be recognised before it can bargain with the employer.
Malaysia Employment and HR
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A trade union has to be recognised before it can bargain with the employer. When the employer refuses to recognise the union, the union can seek government intervention for the recognition of the union under Section 9 of the Industrial Relations Act 1967. However, this process can be complex and involves conducting a secret ballot.

The High Court in the recent case of Adabi Consumer Industries Sdn Bhd v Ketua Pengarah Perhubungan Awam Malaysia & Anor [2023] MLJU 1637 addressed the issue of how a secret ballot should be conducted.

Brief Facts

  • The Employer applied for judicial review to quash the decision of the Director General of Industrial Relations ("DGIR") which accorded recognition to the Union. According to the secret ballot conducted by the DGIR, more than 72% of employees were members of the Union.
  • The Employer's grounds for judicial review were:
    1. The DGIR failed to ensure that the secret ballot was fairly conducted. The Employer alleged that the workers were influenced or encouraged to vote in favour of the Union; and
    2. There was a failure to ensure that the secret ballot was conducted in a language understood by the workers. Among other things, the Employer contended that there were foreign workers from Bangladesh, Nepal, Pakistan and Myanmar voting who may not have understood the secret ballot.

Court's Findings

The High Court dismissed the application for judicial review and held:

  • The DGIR complied with Regulations 6 to 13 of the Industrial Relations Regulations 2009 ("IRR 2009") which governs the process of conducting a secret ballot.
  • The Employer failed to adduce any evidence to substantiate allegations that workers were directed, instructed or influenced by officers who favoured the Union.
  • There was a time frame of approximately 1 month before the secret ballot was conducted, for the process to be explained to the foreign workers. In any event, no issue was raised until 11 months after the results of the secret ballot was announced.
  • It can be presumed that the foreign workers have some level of comprehension of Bahasa Malaysia since they have been working in Malaysia. It is otherwise questionable as to how the Employer previously communicated with all these foreign workers throughout their employment.
  • There is no legal requirement for the secret ballot to be conducted in a language understood by the workers. In any event, the Employer's representative was present during the voting day and no objection was raised. As such, the use of Bahasa Malaysia during the secret ballot process did not render the DGIR's decision illegal, irrational or procedurally improper.

Key Takeaways

If either the employer or the union suspects that voters are being swayed by the opposing party, it is crucial to gather substantial evidence to support such claims. Mere allegations without concrete proof hold no weight in a court of law.

While there is no legal requirement for the secret ballot to be conducted in a language that all workers comprehend, workers still need to be informed about the purpose of the secret ballot, ensuring they understand its significance and implications. If there are any objections about the process or the workers' lack of understanding, it should be raised promptly. Any delay in taking such actions could diminish the likelihood of a successful challenge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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