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Federal Court Of Malaysia |
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The
Minister for Human Resources
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The
Association of Bank Officers
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Coram
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EDGER JOSEPH JR FCJ
MOHAMED DZAIDDIN ABDULLAH FCJ
ABU MANSOR ALI FCJ |
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25
March 1999 |
Judgement
Edgar Joseph Jr FCJ
(delivering the judgment
of the court)
PRELIMINARY
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These were two appeals
(heard together for convenience) by the Minister of Human
Resources (‘the Minister’) and the National Union of Bank
Employees (‘NUBE’), respectively, from the decision of the Court
of Appeal, allowing the appeal of the Association of Bank
Officers, Peninsular Malaysia (‘ABOM’), from the decision of the
High Court, refusing an application for an order of
certiorari to quash the decision of the Minister made under
s 9(5) of the Industrial Relations Act 1967 (‘the Act’) that
certain employees of Perwira Affin Bank (‘the Bank’) who were
tellers and receptionists and who had been upgraded/promoted to
the status of internal officers (‘the relevant officers’) had
not thereby become officers employed in an executive capacity
within the meaning of s 9(1) of the Act.
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In this judgment, all
references to sections, unless the context otherwise requires,
are to sections of the Act.
THE PROCEEDINGS IN THE HIGH COURT
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In the High Court, the
applicants were, of course, ABOM whilst the Minister, the Bank
and NUBE, were the first, second and third respondents,
respectively.
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Broadly stated, the
grounds upon which ABOM relied to impugn the decision of the
Minister by way of certiorari were, that in arriving at
his decision aforesaid, he acted irrationally, and illegally and
in excess of jurisdiction, in that he had refused or failed to
take into account certain relevant considerations of Fact and
Law to which we shall refer later.
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A separate ground
relied upon by ABOM was that there being no dispute as between
the Bank and ABOM regarding the question whether or not the
relevant officers were executive officers, the Director General
of Industrial Relations (‘the Director General’) had no
jurisdiction to entertain the purported reference under s 9(1A)
or to notify the Minister under s 9(4C), and by the same token,
the Minister himself had no threshold jurisdiction to embark
upon a consideration of the purported notification, and
consequently, to give a decision thereon pursuant to s 9(5).
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In the event, none of
the contentions of Counsel for ABOM prevailed; the learned Judge
in the High Court holding that the Minister had the necessary
threshold jurisdiction to consider the notification from the
Director General and his decision was not flawed by mala
fides, Wednesbury unreasonableness or breach of the
rules of natural justice. The application was accordingly
dismissed with costs.
THE PROCEEDINGS IN THE COURT OF
APPEAL
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From that decision of
the High Court, ABOM appealed to the Court of Appeal on a number
of grounds but at the end of the day, the only ground which
commended itself to the Court of Appeal was that relating to the
threshold jurisdiction of the Minister, that is to say, that
there being no dispute as between the Bank and its workers as to
whether any of them were employed in a managerial, executive,
confidential or security capacity, recourse to s 9(1A) was
precluded. The reasoning of the Court of Appeal appears
sufficiently from the following passages in its judgment ([1997]
3 MLJ 277 at p 280):
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From the
above provisions [(s 9(1A)], it seems clear that in
order for any party mentioned therein to have
recourse to s 9(1A) the condition precedent is that
a dispute had arisen as to whether any workman or
workmen are employed in a managerial, executive,
confidential or security capacity. From our perusal
of the records, there was no evidence of any such
dispute. The dispute envisaged in that section must
necessarily be between the employees and the bank.
What seems to be in dispute here is between two
trade unions, the appellant and the third respondent
[with] each claiming to have a superior right to
represent the internal officers.
We stress
again that no dispute had arisen between the second
respondent and those of its employees that were
affected by the upgrading /promotion exercise and,
as such [there] could not have been recourse to
s 9(1A) of the 1967 Act and no representation ought
to have been referred to the DG under these
circumstances. The DG, therefore, had no
jurisdiction to entertain the so called
representation from either the appellant or the
third respondent. We are of the view that both, the
appellant and the third respondent, have no locus
standi to refer the matter to the DG under s 9(1A).
Flowing from that, the DG has no jurisdiction to
entertain the reference and in turn to notify the
first respondent, the Minister, under s 9(4C). In
the light of this, we hold that the first respondent
had no threshold jurisdiction to entertain such a
notification under s 9(5).
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THE PROCEEDINGS IN THE FEDERAL
COURT
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As indicated at the
outset, from that judgment of the Court of Appeal both the
Minister and NUBE lodged separate appeals pursuant to leave of
this Court, which were heard together for convenience.
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According to the order
granting leave to appeal, the question of Law for the
determination of this Court — shortly put — concerned the
threshold jurisdiction point and, more particularly, was this:
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What sort
of dispute is envisaged by s 9(1A) of Industrial
Relations Act. Must it be dispute between employer
and employee only?
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In this judgment,
unless the context otherwise requires, we shall, for the sake of
brevity and convenience, refer to this question of Law as ‘the
threshold jurisdiction point’.
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Before us, the
submissions advanced by the parties, were not confined to the
threshold jurisdiction point but were wide ranging and raised
questions of Law and Fact along the same lines as those advanced
in the Courts below. And, although the Bank was not cited as a
respondent in either appeal to this Court, it was represented by
Counsel and we did invite him to submit on certain aspects of
the case and it was quite clear from what he said that the Bank
was supporting ABOM regarding the questions of scope of
representation and membership of the relevant officers.
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To put the matter in
perspective, the provisions of the Act which it would be
convenient to set out are ss 5(2)(a)(b), 9(1), 9(1A), 9(4),
9(4A), 9(4B), 9(4C), 9(5), 9(6), 11, 13(3)(a), s 17(1)(a) and
(b), 32(2), 56(1), (2)(c) and (3).
These provisions read
as follows:
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5. |
(1) |
..... |
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(2) |
Subsection
(1) [not applicable] shall not be deemed to preclude
an employer from — |
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(a) |
refusing
to employ a person for proper cause, or not
promoting a workman for proper cause, or suspending,
transferring, laying-off or discharging a workman
for proper cause; |
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(b) |
requiring
at any time that a person who is or has been
appointed or promoted to a managerial position shall
cease to be or not become a member or officer of a
trade union catering for workmen other than those in
a managerial position; or … |
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9. |
(1) |
No trade
union of workmen the majority of whose membership
consists of workmen who are not employed in any of
the following capacities that is to say — |
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(a) |
managerial
capacity;
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(b) |
executive
capacity;
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(c) |
confidential capacity; or
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(d) |
security
capacity,
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may seek
recognition or serve an invitation under section 13
in respect of workmen employed in any of the
abovementioned capacities.
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(1A) |
Any
dispute arising at any time, whether before or after
recognition has been accorded, as to whether any
workman or workmen are employed in a managerial,
executive, confidential or security capacity may be
referred to the Director General by a trade union of
workmen or by an employer or by a trade union of
employers.
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..... |
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(4) |
Where the
trade union of workmen concerned receives a
notification under subsection (3)(b), or where the
employer or trade union of employers concerned fails
to comply with subsection (3), the trade union of
workmen may report the matter in writing to the
Director General.
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(4A) |
The
Director General, upon receipt of a reference under
subsection (1A), or an application under subsection
(3)(c), or a report under subsection (4) may take
such steps or make such enquiries as he may consider
necessary or expedient to resolve the matter.
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(4B) |
For the
purpose of carrying out his functions under
subsection (4A) the Director General — |
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(a) |
shall have
the power to require the trade union of workmen, the
employer, or the trade union of employers concerned
to furnish such information as he may consider
necessary or relevant; and |
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(b) |
may refer
to the Director General of Trade Unions for his
decision any question of the competence of the trade
union of workmen concerned to represent any workmen
or class of workmen in respect of whom recognition
is sought to be accorded, and the performance of
duties and functions by the Director General of
Trade Unions under this paragraph shall be deemed to
be a performance of his duties and functions under
the written law relating to the registration of
trade unions.
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(4C) |
Where the
matter is not resolved under subsection (4A) the
Director General shall notify the Minister. |
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(5) |
Upon
receipt of a notification under subsection (4C) the
Minister shall give his decision thereon; where the
Minister decides that recognition is to be accorded,
such recognition shall be deemed to be accorded by
the employer or trade union of employers concerned,
as the case may be, as from such date as the
Minister may specify; a decision of the Minister
under this subsection may include a decision as to
who are workmen employed in a managerial, executive,
confidential or security capacity.
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(6) |
A decision
of the Minister under subsection (5) shall be final
and shall not be questioned in any court. |
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11. |
Where a
trade union has been accorded recognition in respect
of any workman or class of workmen whether by a
decision of the Minister or otherwise no other trade
union shall make any claim of recognition in respect
of the same workman or class of workmen unless a
period of three years has elapsed after such
recognition has been accorded or the trade union
which has been accorded recognition is no longer in
existence.
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13. |
.... |
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(3) |
Notwithstanding subsection (1), no trade union of
workmen may include in its proposals for a
collective agreement a proposal in relation to any
of the following matters, that is to say — |
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(a) |
the
promotion by an employer of any workman from a lower
grade or category to a higher grade or category; … |
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17. |
(1) |
A
collective agreement which has been taken cognizance
of by the Court shall be deemed to be an award and
shall be binding on — |
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(a) |
the
parties to the agreement including in any case where
a party is a trade union of employers, all members
of the trade union to whom the agreement relates and
their successors, assignees or transferees; and |
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(b) |
all
workmen who are employed or subsequently employed in
the undertaking or part of the undertaking, to which
the agreement relates. |
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32. |
(1) |
..... |
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(2) |
As from
the date of the award or as from such date and for
such period as may be specified therein, it shall be
an implied term of the contract between the workmen
and employers bound by the award that the rates of
wages to be paid and the conditions of employment to
be observed under the contract shall be in
accordance with the award or decision unless varied
by a subsequent award or agreement between the
parties.
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56 |
(1) |
Any
complaint that any term of any award or of any
collective agreement which has been taken cognizance
of by the Court has not been complied with may be
lodged with the Court in writing by any trade union
or person bound by such award or agreement.
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(2) |
The Court
may, upon receipt of the complaint — |
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..... |
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(c) |
make such
order as it considers desirable to vary or set aside
upon special circumstances any term of the award or
collective agreement. |
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(3) |
Any person
who fails to comply with an order of the Court under
subsection (2) shall be guilty of an offence and
shall, on conviction, be liable to a fine not
exceeding two thousand ringgit, or to imprisonment
for a term not exceeding one year, or to both, and a
further fine of five hundred ringgit for every day
during which such offence continues.
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THE FACTUAL BACKGROUND
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The essential facts
which gave rise to the present litigation need to be explored a
little further. In doing so, some degree of repetition will be
inevitable.
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ABOM is a trade union
registered under the Trade Unions Act 1959, whose membership, by
virtue of Rule 3 of its Constitution, is open to all workmen
classified as Class II Officers in the Executive category and
Internal Officers in the category excluding Management,
Confidential and Security capacities in commercial banks in
Peninsular Malaysia.
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NUBE is also a trade
union of workmen registered under the Trade Unions Act 1959,
membership of which is open to all workmen employed in
categories other than, the Executive, Management, Confidential
and Security capacities in commercial banks in Peninsular
Malaysia.
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The Bank is a
commercial bank incorporated in Malaysia and, as we have already
observed, although a party to the proceedings both in the High
Court and the Court of Appeal, were not a party in the appeals
before us. We mention this in passing only as nothing turns upon
it.
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We would interpolate,
to observe, that it was said that as a result of the
upgrading/promotion exercise on or about 1 June 1990, the
majority of these relevant officers who were designated
‘Business Service Executives’ and ‘Customer Service Officers’
became eligible to be members of ABOM and, consequently, to be
covered by the Collective Agreement between ABOM and the Bank
(‘the Collective Agreement’) and it having been deposited in the
Industrial Court was deemed to be an award by virtue of s 17 of
the Act (‘the Award’). Indeed, ABOM and the Bank had treated the
relevant officers as so covered since 1990 and they had thereby
become entitled to, and indeed had been enjoying, up to the
present time, certain benefits over and above that which they
had been receiving prior to the upgrading/promotion exercise
when they were within the scope of membership of NUBE.
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We need to go back a
little and add a few words about the Collective Agreement and
the Award.
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The effect of the
Collective Agreement and the Award was to regulate the terms and
conditions of service of, inter alia, the Bank’s workmen
who were designated Officers II and/or Internal Officers, many
of whom were ABOM’S officers and were bound by the Collective
Agreement the period of which was from 1 January 1994 to 31
December 1996. It is therefore pertinent to refer to Article 7
of the Collective Agreement, by which the Bank recognized ABOM
as the sole negotiating body in respect of Officers II and/or
Internal Officers which term, both the Bank and ABOM said,
included the relevant officers.
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The material part of
Article 7 provided as follows:
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The Association and the
Bank shall recognize the Union as the sole
negotiating body in respect of Officers II and
Internal Officers. |
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At all material times,
the Bank and NUBE were bound by a separate collective agreement
which regulated the terms and conditions of service of
non-executive workmen employed, inter alia, by the Bank.
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As we have indicated,
the Bank and ABOM stood on common ground in saying that the
relevant officers were eligible for membership of ABOM and, that
consequently, they came within ABOM’s scope of representation.
But there was, of course, an acute conflict between the two
unions — ABOM and NUBE — as to which of them had the right to
represent the relevant officers.
WHO WAS IT WHO REFERRED THE DISPUTE
TO THE DIRECTOR GENERAL?
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Before proceeding
further, it would be convenient if we disposed of a point —
concerning s 9(1A) — and it is this: who was it who referred the
dispute concerned to the Director General? Was it ABOM or NUBE?
The Court of Appeal found that the Director General had acted
upon a letter dated 17 August 1994 from ABOM addressed to him.
In particular, the Director General had, in reply to that letter
enquired from ABOM as to why it considered that the relevant
officers ought to be represented by it. From this the Court of
Appeal drew the inference that it was ABOM which had made the
required representation under s 9(1A).
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In our view, this
point is only of peripheral importance because nothing turns
upon it. Whether it was ABOM or NUBE which made the required
representation is not really material for, on either view, the
Director General was authorized to entertain the reference under
s 9(1A).
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Having said that, we
consider that the probabilities are that it was NUBE which had
made the required representation for it was NUBE which
challenged the right of representation claimed by ABOM which
right, incidentally, had been recognized by the Bank since 1990
and as a result, the relevant officers had come within ABOM’s
scope of representation.
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It is true that what
would have provided conclusive evidence on this point would have
been an affidavit by the Director General but there was none.
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The next topic to be
logically considered is the role of the Director General.
THE ROLE OF THE DIRECTOR GENERAL
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In attempting to
resolve the dispute, the Director General is empowered by s
9(4A) ‘to make such steps or take such enquiries as he may
consider necessary or expedient to resolve the matter’. To carry
out his task the Director General is empowered by s 9(4B) ‘… to
require the trade union of workmen, the employer, or the trade
union of employers concerned to furnish such information as he
may consider necessary or relevant’; and by s 9(4B)(b) ‘to refer
to the Director General of Trade Unions for his decision any
question of the competence of the trade union of workmen
concerned to represent any workmen or class of workmen in
respect of whom recognition is sought to be accorded, and the
performance of duties and functions by the Director General of
Trade Unions under this paragraph shall be deemed to be a
performance of his duties and functions under the written law
relating to the registration of trade unions’.
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Moving on, we note
that although in carrying out his functions under s 9(4A), the
Director General was empowered by s 9(4B)(b) of the Act to refer
to the Director General of Trade Unions for decision any
question as to the competence of a trade union of workmen to
represent any workmen or class of workmen in respect of whom
recognition is sought, for reasons which are not apparent, he
did not do so nor was any explanation vouchsafed to the Court
for this omission. We shall return to this point later.
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Indeed, although he
had specific threshold statutory jurisdiction in the
decision-making process under Part III of the Act, the Director
General did not affirm and file any affidavit.
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In the events which
followed, the Director General after having made certain
enquiries, collected information, and interviewed
representatives of the two trade unions and the Bank, was unable
to resolve the dispute and so, had pursuant to the provisions of
s 9(4C), notified the Minister, accordingly, at the same time
passing on to him the results of his inquiries etc. The Minister
then relying upon the material provided by the Director General,
and in exercise of his powers under s 9(5) of the Act, decided
that the relevant officers were non-executive officers, which
decision, if correct, meant that the relevant officers ceased to
be members of ABOM and came within the scope of membership of
NUBE and, in consequence, NUBE replaced ABOM as the trade union
entitled to represent the relevant officers for the usual
purposes permitted under the Act.
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The next topic to be
logically considered is the role of the Minister.
THE ROLE OF THE MINISTER
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In considering this
part of the case, we should like, first of all, to refer to the
powers and duties of the Minister when deciding a dispute of the
kind which arose in this case. In doing so, again some degree of
repetition will be inevitable.
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Although nowhere in
the Act is the term ‘executive’ defined, the Minister is
specifically empowered by s 9(5) to decide who are workmen
employed in an ‘executive’, ‘managerial’, ‘confidential’ or
‘security’ capacity. But before the dispute is referred to the
Minister for decision it will have been referred to the Director
General to see if he could resolve the matter. Moreover, the
fact that at the time NUBE had referred the dispute to the
Director General, the Bank had prior to that, already accorded
recognition to ABOM in respect of the relevant officers,
mattered not because the Act by s 9(1A) expressly peanuts this.
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We shall be addressing
the issue of the adequacy of the Minister’s reasons for decision
under s 9(5) at a later stage of this judgment.
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This is a convenient
point at which to consider the threshold jurisdiction point.
THE THRESHOLD JURISDICTION POINT:
S. 9(1A)
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With all due respect,
it is difficult to agree with the Court of Appeal that the
dispute envisaged by s 9(1A) of the Act, must necessarily be
between an employer and an employee only. To so hold would be to
do violence to the plain language of the statute which expressly
authorizes a trade union of workmen or an employer or a trade
union of employers to refer the dispute concerned to the
Director General.
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Moreover, the practical
consequences of so holding would be destructive of industrial
peace and harmony as in the event of a dispute between two trade
unions of the sort which occurred in this case, the only remedy
would be to proceed by way of an ordinary action. Bearing in
mind that Courts of Law would be ill equipped to resolve such
issues, this is a conclusion to be avoided, if at all possible.
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We are, thus compelled
to hold, that the Minister did
have the necessary threshold jurisdiction to entertain the
notification under the Act from the Director General pursuant to
s 9(4C). Consequently, we would answer the question of Law in
regard to which leave to appeal from the decision of the Court
of Appeal to this Court was given, in favour of NUBE, that is to
say, in the negative.
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That, however, does
not conclude this appeal.
IS ABOM AS RESPONDENT TO THE APPEAL
CONFINED
TO THE THRESHOLD JURISDICTION POINT?
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A preliminary question arises
whether Counsel for ABOM is precluded from raising points other
than the threshold jurisdiction point in order to hold the
judgment he had obtained in the Court of Appeal bearing in mind
that the sole ground upon which the Court of Appeal had reversed
the High Court and quashed the decision of the Minister was the
threshold jurisdiction point and, furthermore, that in
accordance with r 108(1) of the Rules of the Federal Court 1995,
(‘the Rules’) the order of this Court granting leave to appeal
specified only that issue for determination on the appeal to
itself.
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We are aware of the decision of
this Court in Sababumi (Sandakan) Sdn
Bhd v Yap Pak Leong [1998] 3 MLJ 151 where separate
judgments were delivered and one of the Judges held (at p 173 E)
that having regard to the provisions of r 108(1)(c) of the Rules
only the issues or questions framed by this Court when granting
leave would be heard or entertained on the appeal to itself.
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It should be noted,
however, that in Sababumi the Court
was dealing with an objection taken by Counsel for the
respondent, the effect of which was that certain grounds raised
in the memorandum of appeal were outside the scope of the issues
in respect of which leave to appeal had been granted by the
Federal Court and, that consequently, it was not open to the
appellant to raise those grounds.
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Although it might
appear that what the Court had there said was expressed in terms
wide enough to preclude either party from raising in the
Federal Court a point outside the scope of the issue in respect
of which leave to appeal was given, whatever the circumstances,
we do not consider this was what was intended by the Court. As a
matter of principle, there can be no justification whatsoever
for depriving a respondent to an appeal of his general right to
take any point open to him in order to hold his judgment. (See,
Viking Askim Sdn Bhd v NUECM
[1990] 2 ILR 634 at p 638; Waller & Son,
Ltd v Thomas [1921] 1 KB 541;
Property Holding Co Ltd v Clark [1948] 1 KB 630 at
p 637 (CA); Errington v Errington &
Woods [1952] 1 KB 290 at p 300 (CA).) Apart from
these cases we consider it pertinent to refer to the following
passage in the judgment of Willmer LJ in
Thomas v Marconi’s Wireless Telegraph Co Ltd
[1965] 2 All ER 598, CA (at p 600) which we consider especially
relevant:
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… On
principle, I should have thought, it is plain that
the position of a respondent, who is brought to this
court on appeal against his will, is necessarily
quite different from that of an appellant who
initiates the proceedings in this court. It is right
that an appellant should be precluded from raising
here for the first time a point not taken below; but
there is no similar justification for shutting out a
respondent, who is brought here on appeal, from
taking any point
in support of the judgment which he has obtained.
[emphasis added] |
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In our view,
therefore, it was open to ABOM to raise these other points in
order to hold their judgment and both Counsel for the Minister
and NUBE were quite correct in taking no objection.
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We would go further
and say that notwithstanding the Sababumi
case, it would be wrong to assume that the last word has been
spoken regarding the position of even an appellant who seeks to
argue in this Court — a Court of Last Resort — a ground which
falls outside the scope of the issues regarding which leave to
appeal has been granted.
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Looking at the Rules,
we note that sub-r 4 of r 47 shows that the appellant is
‘confined to matters, issues or questions in respect of which
leave to appeal has been granted’, and sub-r 1 of r 57
emphasizes the same point by
providing that ‘Subject to Rule 47(4)
… the appellant shall prepare a memorandum of appeal setting
forth the grounds of objection to the decision appealed against
and specifying the points of law or fact which are alleged to
have been wrongly decided …’, but sub-r 2 of r 57 makes the
important concession to the
appellant by providing that ‘the appellant shall not at the
hearing without the leave of the Court
put forward any other ground of objection ….’ [emphasis added].
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Clearly, therefore,
having regard to these provisions, the Federal Court has the
power and therefore the
discretion to permit an
appellant to argue a ground which falls outside the scope of the
questions regarding which leave to appeal had been granted in
order to avoid a miscarriage of justice. These are matters which
Sababumi does not appear to
have addressed — perhaps, because they were not raised in
argument — and so, the focus of the decision lay elsewhere, more
particularly, having decided the question of power
against the appellant, understandably, it did not address the
issue of discretion.
THE PRIVATE OR OUSTER CLAUSE: S.
9(6)
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We now turn to
consider the privative or ouster clause — s 9(6) of the Act —
which says this:
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A decision
of the Minister under subsection (5) shall be final
and shall not be questioned in any court.
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In
Anisminic Ltd v Foreign Compensation
Commission Ltd [1969] 2 AC 147 (perhaps the most
important case in modern judicial review) the House of Lords
widened the already wide doctrine of ultra vires to
minimise the effect of an ouster clause of the ‘shall not be
questioned’ variety. In doing so, the House gave the following
formulation of what errors are jurisdictional:
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The tribunal was
not entitled to enter into the inquiry in question;
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The tribunal
failed to comply with the conditions precedent to its
jurisdiction;
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The tribunal made
a decision it had no power to make;
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The tribunal made
a decision in bad faith;
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The tribunal
failed to comply with the rules of natural justice;
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The tribunal
‘asked itself the wrong question’;
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The tribunal
‘applied the wrong test’;
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The tribunal
‘failed to deal with the question remitted to it and decided
some question which was not remitted to it’;
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The tribunal
failed to take into account something it was required to
take into account; and
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The tribunal based
itself on something it was not entitled to take into
account.
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In the context of the
present case, having regard to paras (i) and (j) of the above
formulation, the Wednesbury ground is capable of being an
effective deployment of argument notwithstanding the privative
clause. See, also, Tanjong Jaga Sdn Bhd
v Minister of Labour & Manpower [1987] 1 MLJ 124 at
131 Col 1 H, where the Supreme Court held that s 9(6) of the Act
is ineffective as regards jurisdictional error.
THE WEDNESBURY POINT — THE LAW
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The Wednesbury Principle arose from
the case of Associated Provincial
Picture Houses Ltd v Wednesbury Corp [1948] 1 KB (CA)
223 where the facts were these: Wednesbury Corporation was
empowered by statute to grant licences for cinemas to be open on
Sundays, subject to such conditions as they thought fit to
impose. They granted a licence to open a cinema on Sundays,
subject to the condition that no children under the age of 15
should be admitted. The cinema proprietors argued that the
condition was ultra vires and unreasonable, and argued
that it should at least have been restricted to children not
accompanied by an adult. The Court upheld the validity of the
condition.
-
The following passage
in the judgment of Lord Greene MR — [1948] 1 KB 223 at pp
228–230 — regarded by many administrative lawyers as classically
sybiline — captures the essence of what is now commonly called
‘Wednesbury unreasonableness’:
|
… If, in
the statute conferring the discretion, there is to
be found expressly or by implication matters which
the authority exercising the discretion ought to
have regard to, then in exercising the discretion it
must have regard to those matters. Conversely, if
the nature of the subject-matter and the general
interpretation of the Act make it clear that certain
matters would not be germane to the matter in
question, the authority must disregard those
irrelevant collateral matters … Bad faith,
dishonesty … unreasonableness, attention given to
extraneous circumstances, disregard of public policy
and things like that have all been referred to,
according to the facts of individual cases … If they
cannot all be confined under one head, they at any
rate, I think, overlap to a very great extent … a
person entrusted with a discretion must, so to
speak, direct himself
properly in law. He must call his own
attention to the matters which he is bound to
consider. … If he does not obey these rules, he may
truly be said, and often is said, to be acting
‘unreasonably’. Similarly there may be something so
absurd that no sensible person could ever dream that
it lay within the powers of the authority … That is
unreasonable in one sense. In another sense it is
taking into consideration extraneous matters. It is
so unreasonable that it might almost be described as
being done in bad faith; and, in fact, all these
things run into one another … It is true to say
that, if a decision on a competent matter is so
unreasonable that no reasonable authority could ever
have come to it, then the Courts can interfere. …
but to prove a case of that kind would require
something overwhelming …
[emphasis added] |
-
Supperstone in his
book Judicial Review (2nd Ed, 1997)
at para 5.35, when referring to the above formulations given by
Lord Greene has observed — and we agree — that ‘law’ is used
deliberately to indicate that relevance may be derived not just
from the enabling statute, or indeed other relevant statutes,
but also general principles which may enlarge or confine the
range of relevant criteria.
-
In the context of the present case,
the important point to note about this passage is that it covers
a multitude of errors which flow from:
-
undue attention to the mere
language of the Act and too little to its general scheme and
purpose; and
-
the fallacy that
unrestricted language naturally confers unfettered
discretion.
-
Raja Azlan Shah CJ
(Malaya) (now His Royal Highness Sultan Azlan Shah) summed up
the legal position regarding the approach of the Court in
interpreting the Act in the old Federal Court in
National Union of Hotel, Bar & Restaurant
Workers v Minister of Labour & Manpower [1980] 2 MLJ
189 at 191 col 1B to D admirably:
|
… We must
construe the Industrial Relations Act 1967, to
determine its policy and object … the intention of
the Act is to regulate the relations between
management and labour and to prevent and settle
trade disputes … if the Minister, by reason of his
having misconstrued the Act or for some other
reason, so exercises his discretion in a way as to
defeat the policy and object of the Act, then he has
clearly exercised it wrongly. In that case, the
courts will interfere with the exercise of his
discretion by saying that he has given no weight or
has given insufficient weight, to the considerations
that ought to have weighed with him .. |
-
The next case we would
like to cite is a New Zealand case —
Greednz v Governor General [1981] 1 NZLR 172 — where,
Cooke J (as he then was) explained that ‘the more general and
the more obviously important the consideration, the readier the
court must be to hold that Parliament must have meant it to be
taken into account’. This dictum was applied in the UK in
R v Hillingdon Health Authority, exp
Goodwin [1984] ICR 800 where a decision to close a
hospital was quashed for failure to take account of doctors’
interests.
-
The classic case
raising the issue of ultra vires goes back to 1921 —
Attorney- General v Fulham Corp
[1921] 1 Ch 440: A local council was by statute authorized to
establish public baths, wash houses and open bathing places for
the health, comfort and welfare of the local inhabitants. The
council then set about providing a laundry service. One local
ratepayer objected: the council could help people to wash their
own dirty linen, but not that of others. The court agreed: a
laundry service was ultra vires the statute.
-
As Wade says in his
Appendix to Dicey’s Law of the Constitution
(9th Ed, 1952) at p 487:
|
The last
word on the question of legality rests with the
courts and not with the administration.
|
-
In more recent times,
the ‘Wednesbury Unreasonableness’ test has yielded such leading
cases as Secretary of State for
Education & Science v Tameside Metropolitan Borough Council
[1977] AC 1014, and Laker Airways Ltd v
Department of Trade [1977] QB 643.
-
In
Tameside, there had been a
challenge to a Ministerial decision that a local authority had
acted unreasonably in reverting from fully comprehensive state
secondary schools to partly selective schooling. The Minister
was given power to give direction if he was satisfied that the
local education authority were acting unreasonably. The case
shows that misdirection as to material facts may also vitiate
exercise of discretion. In the words of Scarman LJ, when giving
examples of this, ‘misunderstanding or ignorance of an
established and relevant fact’ and acting ‘upon an incorrect
basis of fact’ can constitute a ground for judicial review. And
Lord Wilberforce speaking (in Tameside
at p 1047) with reference to the above power of the Minister to
give directions said this:
|
If a
judgment requires, before it can be made, the
existence of some facts, then, although the
evaluation of those facts is for the Secretary of
State alone, the court must inquire whether those
facts exist, and have been taken into account,
whether the judgment has been made upon a proper
self-direction as to those facts, whether the
judgment has not been made upon other facts which
ought not to have been taken into account. If those
requirements are not met, then the exercise of
judgment, however bona fide it may be,
becomes capable of challenge. |
-
The above passage in
the judgment of Lord Wilberforce was quoted with approval by the
old Federal Court of Malaysia in
Selangor Omnibus Co Bhd v Perumal [1981] 2 MLJ 124.
-
Another passage in the
judgment of Lord Wilberforce in the
Tameside case to which we should like to refer is
this (at p 1047):
|
… In many
statutes a Minister or other authority is given a
discretionary power and in these cases the court’s
power to review any exercise of the discretion,
though still real, is limited. In these cases it is
said that the courts cannot substitute their opinion
for that of the minister; they can interfere on such
grounds as that the minister has acted right outside
his powers or outside the purpose of the Act, or
unfairly, or upon an incorrect basis of fact.
|
-
The next case we
should like to refer to is Laker Airways,
a striking feature of which, according to Wade and Forsyth in
their work on Administrative Law
(7th Ed) at p 414, ‘is the use of the doctrine of implied
prohibition to restrain action which would normally be beyond
the court’s control’.
-
In that case, the
Civil Aviation Act 1971, provided for the objectives which the
Civil Aviation Authority had to meet in carrying out its
functions. Under the Act, the Secretary of State was authorized
to give the authority guidance regarding the performance of its
functions which the authority was obliged to obey. The Court
held that the guidance issued by the Secretary of State to the
authority was ultra vires and invalid as it offended the
statutory objectives, conflicted not only with the express
policy of the Act but also with its general scheme. And in the
course of his judgment Lord Denning MR stated (at pp 705–706):
|
… when
discretionary powers are entrusted to the executive
by statute, the courts can examine the exercise of
those powers to see that they are used properly, and
not improperly or mistakenly. By ‘mistakenly’, I
mean under the influence of a misdirection in fact
or in law. |
-
In
Smith v Inner London Education Authority
[1978] 1 All ER 411, Lord Denning MR said (at p 415):
|
… It is
clear that, if the education authority or the
Secretary of State have exceeded their powers or
misused them, the courts can say: ‘Stop’. Likewise,
if they have misdirected themselves in fact or in
law. I go further. If they have exercised their
discretion wrongly, or for no good reason, then too
the courts can interfere.
|
-
In
Jagendorf & Trott v Secretary of State for
the Environment & Krasucki [1987] JPL 771, a material
error by a planning inspector that an extension would not
obstruct premises when clearly it would do so, was treated as a
proper ground for quashing the decision of the planning
inspector.
-
Other authorities in
the UK to which we should like to refer regarding this part of
the case are:
-
Secretary of State
for Employment v Associated Society of Locomotive Engineers &
Firemen (No 2) [1972] 2 QB
455 at p 493; R v Hertfordshire CC,
exp Cheung; R v Sefton MBC, ex p Pau (1986) The
Times, 4 April, a case concerning refusal to reconsider
students’ grant applications, R v Home
Secretary of State, exp Awuku (1987) The
Times, 3 October, a case where an immigration officer’s decision
was quashed for ‘material errors of fact’ and breach of natural
justice.
-
Yet another case —
this time from New Zealand — which will repay reading is
Daganayasi v Minister of Immigration
[1980] 2 NZLR 130 (per Cook J) where it was held that a
Minister’s decision was invalid by reason of failure to take
into account the true facts as a result of having been misled by
the inadequate report of the medical referee.
-
It is with the above
principles in mind that we move on to consider whether there was
substance in the submission advanced by Mr Lobo for ABOM that
the Minister had offended the Wednesbury principles by allegedly
failing to take into account certain relevant factors both of
Fact and Law.
THE WEDNESBURY POINT — APPLYING THE
LAW TO THE FACTS
-
Mr Lobo urged that in
arriving at his decision, the Minister had acted irrationally
and illegally and in excess of jurisdiction by failing to take
into consideration various relevant factors both of Fact and Law
enumerated in the affidavit by the General Secretary of ABOM, Mr
Ng Choo Seong, affirmed on 24 March 1995.
-
For convenience, these
factors may be taken, in substance, from the affidavit of Mr Ng
and stated thus:
-
upon being
upgraded/promoted as aforesaid, the relevant officers became
members of ABOM and were covered by the scope of a
Collective Agreement of 1994 (‘the Collective Agreement’)
which had been taken cognizance of by the Industrial Court
by virtue of Cognizance No 253/94 dated 17 September 1994,
and thus deemed to be an award binding on the parties by
virtue of s 17(1) of the Act (‘the Award’) which, in turn,
was reinforced by s 32(2). The Collective Agreement, of
course, regulated the rates of wages and the conditions of
employment, this being a term implied by law, to wit,
s 17(2) of the Act. The effect of this was that the relevant
officers enjoyed certain benefits over and above what they
had enjoyed prior to the upgrading/promotion exercise;
-
if the Minister’s
decision was allowed to stand, it would have the effect of
downgrading the status of the relevant officers from
executives to non- executives and, that too, with
retrospective effect, thus depriving them of the benefits
aforesaid which they had been enjoying for some five years
on the basis that they were of executive rank. Put simply,
the Minister’s decision had the effect of taking away vested
rights and hence the decision was ultra vires the
powers conferred upon him under the Act — so it was said;
-
the combined
effect of ss 5(2)(a) and 13(3) of the Act, was that the Bank
was given the right to decide which of its staff should be
promoted or upgraded and no trade union of workmen could
meddle with that right which was a management prerogative
save and except to the limited extent specified in the
provisions of the proviso to s 13(3) which relate to
promotion procedures and which were immaterial to the
present case. Accordingly, the Minister’s decision was an
interference with the management’s right of promotion and,
so, ultra vires the powers conferred upon him by the
Act — so it was said;
-
upon their
promotion, the Internal Officers, that is to say, the
relevant officers, became members of ABOM and were thus
covered by the scope of the statutorily recognized
Collective Agreement/Award, which was in force at all
material times. The effect of the Minister’s decision, if
allowed to stand, would mean that if the Bank as employer
acted upon it, the Bank would be in breach of Article 7 of
the Collective Agreement, thus exposing itself to the risk
of conviction under s 56(3) of the Act — so it was said;
-
as at the date of
the Minister’s decision, namely, 16 December 1995, the
Collective Agreement/Award which was for a term of three
years was only in its second year. It was therefore said
that another consequence of the Minister’s decision was,
that if the Bank were to act upon it, the Bank would be in
breach of s 11 of the Act which provides:
|
Where
a trade union has been accorded recognition in
respect of any workman or class of workmen
whether by a decision of the Minister or
otherwise no other trade union shall make any
claim for recognition in respect of the same
workman or class of workmen
unless a period of three
years has elapsed after such
recognition has been accorded or the trade union
which has been accorded recognition is no longer
in existence.
[emphasis added] |
-
yet another effect
of the Minister’s decision was that it would amount to the
removal of the relevant officers by the ‘back door’ from the
membership roll of ABOM without their having been accorded
an opportunity of being heard at both the levels of the
Director General and the Minister, thus violating the
audi alterem partem rule (see
Metal Industry Employees Union v RTU [1982] 1 MLJ
46 at p 47I) — so the argument ran.
-
We must now move on to
consider the Minister’s reasons for giving his decision under s
9(5) of the Act.
EXAMINING THE MINISTER'S REASONS
-
Here are the most
noteworthy extracts from the affidavit in opposition of the
Minister giving his reasons for decision which, being freely
translated, read as follows:
|
10. |
(i) |
The result
of the investigation carried out on the Internal
Officers showed that the majority of them carried
out the job functions listed out by the Bank but
there were amongst them some who did not perform the
duties of revising report, statements and loan
statistics and checking of documents for purposes of
loan applications; |
|
|
(ii) |
It has
been established that not all the job functions of
the internal officers required the assistance of
other clerical staff; |
|
|
(iii) |
They were
not involved in making recommendations for promotion
transfer or approval of leave; |
|
|
(iv) |
They had
no power to institute disciplinary action against
their assistants. |
|
11. |
I have
been requested to make a decision regarding the
dispute aforesaid and after taking into account all
relevant factors and ignoring irrelevant factors, I
gave my decision in Form E in exercise of my
discretion according to Law. |
|
12. |
I wish to refer to para
8(a) to (g) of the affidavit of Mr Ng and deny the
allegations referred to therein.
|
-
There are certain
preliminary observations we should like to make regarding this
part of the case.
-
First, we recognze
that in the delicate field of labour relations, the High Courts
and, indeed, the higher tiers of the Judiciary, should generally
pursue a policy of restraint by not involving themselves in
issues which move too far from those of strict law into those
with substantial labour relation elements.
-
Second, to quote de
Smith, on Judicial Review of Administrative
Action (5th Ed) para 5-094 at p 288:
|
In general it is right
that courts do leave the assessment of fact to
bodies which are primarily suited to gathering and
assessing the evidence. Review must not become
appeal. On the other hand it should be presumed that
Parliament intended inferior bodies rationally to
relate the evidence and their reasoning to the
decision with which they are charged with making.
The taking into account of a mistaken fact can just
as easily be absorbed into a traditional legal
ground of review by referring to the taking into
account of an irrelevant consideration, or the
failure to provide reasons that are adequate or
intelligible, or the failure to base the decision
upon any evidence. In this limited context material
error of fact has always been a recognized ground
for judicial intervention.
|
-
Thirdly, it is right
to say, at the risk of being trite, that the idea of absolute or
unfettered discretion has no place in public law. The reason for
this is understandable for as Professor Sir William Wade has
pointed out in his valuable work on
Administrative Law (5th Ed) at pp 355–357:
|
The common theme of all
the passages quoted is that the notion of absolute
or unfettered discretion is rejected. Statutory
power conferred for public purposes is conferred as
it were upon trust, not absolutely — that is to say,
it can validly be used only in the right and proper
way which Parliament when conferring it is presumed
to have intended. Although the Crown’s lawyers have
argued in numerous cases that unrestricted
permissive language confers unfettered discretion,
the truth is that, in a system based on the rule of
law, unfettered governmental discretion is a
contradiction in terms. The real question is whether
the discretion is wide or narrow, and where the
legal line is to be drawn. For this purpose
everything depends upon the intent and meaning of
the empowering Act.
The powers of public
authorities are therefore essentially different from
those of private persons. A man making his will may,
subject to any rights of his dependants, dispose of
his property just as he may wish. He may act out of
malice or a spirit of revenge, but in law this does
not affect his exercise of power. In the same way a
private person has an absolute power to release a
debtor, or, where the law permits, to evict a
tenant, regardless of his motives. This is
unfettered discretion. But a public authority may do
neither unless it acts reasonably and in good faith
and upon lawful and relevant grounds of public
interest. Unfettered discretion is wholly
inappropriate to a public authority, which possesses
powers solely in order that it may use them for the
public good … Unreviewable administrative action is
just as much a contradiction in terms as is
unfettered discretion, at any rate in the case of
statutory powers. The question which has to be asked
is what is the scope of judicial review. But that
there are legal limits to every power is axiomatic.
|
-
The above illuminating
passage by Wade (reproduced in his 7th Ed at pp 391– 393) was
adopted verbatim by Lord Bridge of Harwich speaking in the House
of Lords in R v Tower Hamlets London
Borough Council, exp Chetnik Developments Ltd
[1988] AC 858 at p 872, and thereby confirmed the classic
Padfield ([1968] AC 997) principle
of statutory purpose as the primary guide of public authority
powers.
-
The imposition of
legal limits on powers applies not only to local authorities but
to Ministers of the Crown. (See
Commissioners of Customs & Execise v Cure and Deeley Ltd
[1962] 1 QB 340; [1961] 3 All ER 641;
Padfield v Minister of Agriculture, Fisheries & Food
[1968] AC 997; Congreve v Home Office
[1976] QB 629.)
-
In considering the
standard of reasonableness under the Wednesbury principle, Wade
and Forsyth Administrative Law (7th
Ed) have said at p 399 — and we heartily agree:
|
The doctrine that powers
must be exercised reasonably has to be reconciled
with the no less important doctrine that the court
must not usurp the discretion of the public
authority which Parliament appointed to take the
decision. Within the bounds of legal reasonableness
is the area in which the deciding authority has
genuinely free discretion. If it passes those
bounds, it acts ultra vires. The court must
therefore resist the temptation to draw the bounds
too tightly, merely according to its own opinion.
|
-
The learned authors
then refer to the case R v Secretary of
State for Trade & Industry, exp Lonrho Plc
[1989] 1 WLR 525 when a Divisional Court yielded to that
temptation by invalidating a Secretary of State’s decision to
postpone publication of a report by company inspectors, and the
House of Lords held that the judgments illustrate the danger of
judges wrongly though unconsciously substituting their own views
for the views of the decision-making body who alone is charged
by Parliament to exercise a discretion.
-
The learned authors
then go on to say something which received the approval of Lord
Denning MR in the Court of Appeal in R v
Boundary Commission for England, exp Foot
[1983] QB 600 (at p 626F):
|
… The court must strive
to apply an objective standard which leaves to the
deciding authority the full range of choices which
the legislature is presumed to have intended.
|
-
In this context, we
should not forget the dictum of Lord Hailsham LC in
Re W (An infant) [1971] AC 682
at p 700 that two reasonable persons can perfectly reasonably
come to opposite conclusions on the same set of facts without
forfeiting their title to be regarded as reasonable. Nor should
we forget the following passage in the judgment of Lord Denning
in General Electric Co Ltd v Price
Commission (1975) ICR 1 quoted with approval in
Pahang South Union Omnibus Co Bhd v
Minister of Labour & Manpower [1981] 2 MLJ 199:
|
Parliament
often entrusts the decision of a matter to a
specified person or body, without providing for any
appeal. It may be a judicial decision, or a
quasi-judicial decision, or an administrative
decision. Sometimes Parliament says its decision is
to be final. At other times, it says nothing about
it. In all these cases the courts will not
themselves take the place of the body to whom
Parliament has entrusted the decision. The courts
will not themselves embark make the original
findings of fact. They will not themselves on a
rehearing of the matter: see
Healey v Minister of Health [1955] 1
QB 221. But nevertheless, the courts will, if called
upon, act in a supervisory capacity. They will see
that the decision-making body acts fairly: see
Re HK (An lnfant)
[1967] 2 QB 617 at p 630 and
Reg v Gaming Board for Great Britain, exp
Benaim & Khaida [1970] 2 QB 417. The
courts will ensure that the body acts in accordance
with the law. If a question arises on the
interpretation of words, the courts will decide it
by declaring what is the correct interpretation: see
Punton v Ministry of
Pensions & National Insurance [1963] 1
WLR 186. And if the decision-making body has gone
wrong in its interpretation, they can set its order
aside: see Ashbridge
Investments Ltd v Minister of Housing & Local
Government [1965] 1 WLR 1320. (I know of
some expressions to the contrary, but they are not
correct.) If the decision-making body is influenced
by considerations which ought not to influence it;
or fails to take into account matters which it ought
to take into account, the court will interfere: see
Padfield v Minister of
Agriculture, Fisheries & Food [1968] AC
997 at pp 1007, 1061. If the decision- making body
comes to its decision on no evidence or comes to an
unreasonable finding — so unreasonable that a
reasonable person would not have come to it — then
again the courts will interfere: see
Associated Provincial
Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223. If the decision-making body goes
outside its powers, or misconstrues the extent of
its powers, then, too, the courts can interfere: see
Anisminic Ltd v Foreign
Compensation Commission [1969] 2 AC 147.
And, of course, if the body acts in bad faith or for
an ulterior object, which is not authorized by law,
its decision will be set aside: see
Sydney Municipal Council v
Campbell [1925] AC 338. In exercising
these powers, the courts will take into account any
reasons which the body may give for its decisions.
If it gives no reasons — in a case when it may
reasonably be expected to do so, the courts may
infer that it has no good reason for reaching its
conclusion, and act accordingly: see
Padfield’s case.
[emphasis added] |
-
Having said that,
Professor MP Jain’s observations on the doctrine of Extended
Ultra Vires in his well regarded work on
Administrative Law of Malaysia and
Singapore (3rd Ed) at pp 445 and 446 should also be borne
in mind. Introducing the topic the learned author says this:
|
… The
courts have developed a broad doctrine of ultra
vires so that they are able to review the
exercise of wide discretionary powers to some extent
on certain grounds.
|
-
Amplifying the same
point, Professor Jain says this:
|
A
discretionary decision may prima facie seem
to fall within the express wording of the law
conferring the power, but the court may still hold
it invalid because it infringes
a limitation read by the court into the power.
This judicial approach by [the court] denotes
judicial creativity.
[emphasis added] |
-
Explaining the
justification for invoking the doctrine, he points out, in our
view quite correctly:
|
… The
justification for such judicial approach is that
because of the expansion in the powers of the
government, the potential for abuse of power has
increased and, therefore, extended judicial review
in this area is a necessity … The courts justify
this approach by arguing that the legislature could
not have intended that the power conferred by it be
misused or abused by the administration. What the
courts seek to do is to imply certain legal limits
in the grant of power and to insist that certain
vitiating elements (implied by them) be kept out of
the decision-making process … .
|
-
It is also with the
above principles in mind that we turn to examine the Minister’s
reasons for giving his decision under s 9(5) of the Act.
-
To recapitulate, what
we have here is the Minister’s decision under s 9(5) given, of
course, in Form E as prescribed by r 5(b) of the relevant
regulations. It is obvious that this statutory form of decision
does not provide for the giving of reasons.
-
However, it will be
recalled that subsequently, in his affidavit in opposition to
the application for certiorari, the Minister did give
reasons for his decision. The Court is, therefore, entitled to
examine these reasons to determine their adequacy. As de Smith
has said, in his work on Judicial Review of
Administrative Action (5th Ed) at para 9-053:
|
It is no
answer to an attack on the reasons for a decision on
the grounds that they disclose a failure to take
into account a relevant consideration or that an
irrelevant consideration was taken into account or
an error of law was made, that there is no
requirement to give reasons.
|
-
In the present
context, it is most material to consider what the Bank had to
say on the issue at hand since one would expect that it being
the employer concerned should be an independent and reliable
source of information. After setting out at length its rationale
for promoting and/or upgrading the relevant officers to Internal
Officers, the Bank itself categorically concluded as follows:
|
The job
responsibilities of these Internal Officers are
multiskills in that, apart from the usual Internal
Officer functions, including teller functions, they
are also responsible for marketing and cross-selling
consumer loan products as well as processing
instruments at the service centres.
The above
paragraphs clearly show the job functions,
responsibilities and importance of Internal
Officers’ job grades and also that officers in this
grade are multiskilled. They also show that such
officers cannot come within the scope of NUBE
representation. The above reasons ought to provide
sufficient and adequate grounds justifying the Bank
to reclassify the said positions as Internal
Officers.
|
-
We regret to have to say that the
decision-making process of the Minister was open to some
justifiable criticism on three separate grounds, none of which,
with respect, the learned Judge in the High Court recognized,
and to which we shall now refer.
-
First of all, by para
10(i) of his affidavit (quoted above) the Minister had conceded
that the majority of the
relevant officers carried out the job functions listed out by
the Bank but that there were some
amongst the relevant officers who did not perform the duties of
revising reports, statements and loan statistics and checking of
documents for purposes of loan applications. This finding would
necessarily imply that only a minority
of the relevant officers did not perform those designated
duties, yet all the relevant
officers were treated on the same footing. Such an approach is
open to the objection that the majority
of the relevant officers — who were
performing those duties — had not been treated fairly overall.
This is a flaw which relates to the decision-making process.
-
The Wednesbury
unreasonableness ground has been prayed in aid to support a wide
meaning for unreasonableness equivalent to fairness in a broad
sense. (See Fowler & Roderique Ltd v
Attorney General [1987] 2 NZLR 56 (CA) where two
courses were open and it was held that choice reached unfairly
was unreasonable.) Other cases on this point which may be read
with profit are: R v Panel on Take-overs
& Mergers, exp Guinness plc [1990] 1 QB 146
(CA), Evans v Collins [1965]
1 QB 580.
-
On a further ground
also the Minister’s decision is open to challenge.
-
We have already
pointed out that the material upon which the Minister relied for
his decision under s 9(5) consisted of the results of
investigations carried out by the Director General’s Department.
Therefore, it is important to examine the material upon which
the Director General relied in attempting to resolve the dispute
between ABOM and NUBE, in discharge of his duties under s 9(4A).
-
It is true that the
Director General did interview representatives of NUBE, the Bank
and ABOM and he did collect evidence which included certain duty
lists.
-
But, it will be
recalled — and this is significant — that the Director General
in carrying out his functions under s 9(4A), did
not have the advantage of the
participation and expertise of the Director General of Trade
Unions, as he was entitled to by virtue of s 9(4B)(b).
-
We recognize, that
under s 9(4B)(b), the Director General has a
discretion whether or not to
seek the assistance of the Director General of Trade Unions.
But, having regard to the rival claims by ABOM and NUBE to
represent the relevant officers, and with the Bank strongly
supporting ABOM, the Director General should, at the very least,
have gone on affidavit to state why
he did not pray in aid the views and experience of the Director
General of Trade Unions. Had he done so, then we would have
known that he had exercised his
discretion and on what grounds. We therefore do not
consider that he can be taken to have exercised his discretion
on the point. Indeed, as we have pointed out, there was no
affidavit at all by the Director General.
-
In our view, in the particular
circumstances of the present case, the participation and
expertise of the Director General of Trade Unions under s 9B(4b)
of the Act, would have been of great utility in assisting the
Director General to carry out his job functions under s 9(4A) of
the Act, with a view to resolving the dispute.
-
If the Director
General had availed himself of the participation and expertise
of the Director General of Trade Unions for purposes of
resolving the dispute, as we consider he undoubtedly should
have, it is perfectly possible that the latter
might have given a decision
under s 9(4B)(b) in favour of ABOM, in which event, the
Minister’s decision under s 9(5) might
have been different.
-
In
East Hampshire District Council v
Secretary of State for the Environment [1979] JPL 533
at pp 533–534, Lord Denning MR is reported to have said:
|
So there
had seemed to be a material omission and error which
the inspector had made because he had not put the
evidence of the principal planning officer in his
report. It might well … have influenced the
Minister’s decision … |
-
If the minister had
been misled by the inspector’s report owing to a mistake in it,
it seemed to him [Lord Denning] only right that the decision
should be quashed.
-
There are clear
references in Tameside (per
Lords Diplock, Salmon and Russell [1977] AC 1014 at pp 1065,
1071, 1076) requiring authorities to be adequately informed as
to the facts before arriving at a decision.
-
Lord Diplock having
asked: Did the Secretary of State ask himself the right question
and take reasonable steps to acquaint himself with the relevant
information to enable him to answer the question correctly,
concluded that the Minister had been inadequately informed. Both
Lords Salmon and Russell based their decisions on inadequacy of
briefing on the issues.
-
And, in
New Zealand Fishing Industry Association
Inc v Minister of Agriculture and Fisheries [1988] 1
NZLR 544 at p 552 (CA) per Cooke P, adequacy of factual
briefings was relied upon as a separate ground for review.
-
In our view, the
omission of the Director General to exercise his powers under s
9(4B)(b) of the Act by referring to the Director General of
Trade Unions for the latter’s decision on the issue at hand,
resulted in the Minister not being adequately informed or
briefed on that issue.
-
There is authority for
saying that where adequate information has not been obtained to
found the conclusion, that may be analysed in terms of
unreasonableness. (See Minister for
Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR
24.)
-
Looking back on this
part of the case, we are in no position to speculate as to how
the Minister would have decided if he had had the advantage of
the participation and expertise of the Director General of Trade
Unions. It is sufficient for ABOM to show that the decision of
the Minister might have been
different had he had that advantage. In
Simplex GE (Holdings) Ltd v Secretary of State for the
Environment and the City of St Albans District Council
[1988] COD 160 at p 161, Purchas LJ said:
|
It is not
necessary for [the appellant] to show that the
Minister would, or even probably would, have come to
a different conclusion. He had to exclude only the
contrary contention, namely that the Minister
necessarily would still have made the same decision. |
-
Yet another criticism
of the decision-making process of the Minister is that while the
Minister’s affidavit does
give reasons which focus on the nature of the job functions of
the relevant officers, they do not
extend into the area of ABOM’s legal objections to which we have
adverted and, so, the question arises whether those reasons are
adequate having regard to the context of the relevant
legislation and the particular circumstances.
-
de Smith in his
celebrated work on Judicial Review of
Administrative Action (5th Ed, at p 559) has pointed out
that ‘when reasons are provided even though strictly not
required those reasons must be both adequate and intelligible’
and deal with the substantial points which have been made.
-
In
Re Poyser and Mills’ Arbitration
[1964] 2 QB 467, Megaw J said (at at p 478) that the required
reasons ‘must be read as meaning that proper, adequate reasons
must be given … which deal with the substantial points that have
been raised’. He added that there must be something
‘substantially wrong or inadequate’ in the reasons given. This
case is also authority for treating material omissions as error
of law.
-
In
Edwin H Bradley and Sons Ltd v Secretary
of State for the Environment (1982) 47 P & CR 374;
264 EG 926 at p 931, Glidewell J added a rider to the words of
Megaw J by saying that the reasons can be briefly stated.
-
In
Westminster City Council v Great
Portland Estates Plc [1985] AC 661 (at p 673) Lord
Scarman speaking in the House of Lords, accepted the guidance
given by Megaw and Glidewell JJ.
-
de Smith further says
(at para 13-020, pp 559, 560), citing
Save Britain’s Heritage v Number 1 Poultry Ltd [1991]
1 WLR 153 — and we agree — ‘… The reasons will not be construed
in the same way as a court would construe a statute, but a
decision may be struck down where an applicant can show
substantial prejudice resulting from a failure on the part of a
decision-maker to demonstrate how an issue of law had been
resolved or a disputed issue of fact decided, or by
‘demonstrating some other lack of reasoning which raised
substantial doubts over the decision-making process’.’
-
de Smith is also
careful to add in a footnote, referring to the same case, that
Lord Bridge emphasized ([1991] 1 WLR 153 at p 168) the adequacy
of reasons depended upon the legislative context and could not
be answered in vacuo.
-
Supperstone QC and
Goudie QC in their book on Judicial Review
(2nd Ed) at para 5.44 para (e) point out that:
|
In
practice it is common that reasoned decisions are
given, and the reasons given may then be subjected
to scrutiny which on occasions nears that given to a
statute. (Eg H Lavender &
Son Ltd v Minister of Housing & Local Government
[1970] 3 All ER 871; [1970] 1 WLR 1231 and
South Oxfordshire District
Council v Secretary of State for the Environment
[1981] 1 All ER 954; [1981] 1 WLR 1092, both
planning cases which turned on the interpretation of
a phrase in a decision letter.) How far it is
appropriate to dissect statements of reasons must
depend at least in part on how far the body giving
the reasons is able to call on professional advisers
to draft them. |
-
There can be no doubt
that in the present case, the Minister had had the advantage of
the services of legal officers in the Attorney General’s
Department to draft his affidavit. His reasons will thus have to
be subjected to careful scrutiny.
-
With respect, in our
view, the reasons given by the Minister for his decision under s
9(5), as they appear in his affidavit aforesaid, are not
adequate for, apart from a bare denial (see, para 12 of his
affidavit quoted above), there is no suggestion in them that he
had directed his mind to the substantial points of Law which had
been raised by ABOM or formed any reasoned view about them. We
need hardly add that we are in no position to speculate as to
how the Minister would have dealt with these points of Law had
he directed his mind adequately to them.
-
For the sake of
completeness, we would add that Miss Alice Loke Yee Ching,
Senior Federal Counsel for the Minister and Mr KP Gengatharan,
Counsel for NUBE had no real answer to the three separate
criticisms in the decision-making process of the Minister since
their submissions failed to take into account or give proper
weight to the various matters to which we have directed
attention.
CONCLUSION
-
At the end of the day,
we must keep in the forefront of our minds what Lord Donaldson
MR said in R v Panel on Take-overs &
Mergers, exp Guinness plc [1990] 1 QB 146 (CA)
at p 160:
|
… the
ultimate question would, as always, be whether
something had gone wrong of a nature and degree
which required the intervention of the Court and, if
so, what form that intervention should take.
|
-
In all the
circumstances, having regard to the three separate defects in
the decision-making process of the Minister to which we have
referred, we are satisfied this is a case where there are
substantial grounds for us to intervene. The next question is:
what would be the appropriate remedies?
-
The judgment of the
Court of Appeal quashing the decision of the Minister will
therefore stand, though for wholly different reasons.
-
However, we are not at
liberty to determine the merits of the dispute between ABOM and
NUBE and so cannot decide the matter in place of the Minister
who is the appropriate authority to do so by virtue of s 9(5) of
the Act.
-
Consequently,
mandamus must go — an order which, incidentally, was also
prayed for in the application before the High Court — directing
the Minister to consider the dispute afresh according to Law, in
the manner we have indicated, that is to say, adequate regard
being had to all relevant matters both of Fact and Law to which
we have referred when considering the decision-making process
under s 9(5).
-
Having regard to the particular
circumstances of this case, especially the fact that the Bank is
supporting ABOM, we would direct the Director General to
forthwith exercise his powers under s 9(4B)(b) of the Act by
referring to the Director General of Trade Unions for the
latter’s decision on the question of the rival claims as to
competence of ABOM and NUBE to represent the relevant officers.
-
The Director General
of Trade Unions will then, without delay, embark upon his
enquiries and, at the conclusion thereof, give his decision
under s 9(4B)(b) preferably, with his reasons for the same.
-
Upon receipt of the
decision of the Director General of Trade Unions under s
9(4B)(b) accompanied by his reasons for the same (if any), the
Director General will forthwith forward the same to the Minister
who will then have the advantage of the participation and
expertise of the Director General of Trade Unions in arriving at
his decision under s 9(5) afresh.
-
One final point must
be made. There has never been the slightest suggestion that the
Minister had acted otherwise than in good faith. Indeed, we find
that he did act in good faith at all material times.
THE RESULT
-
Accordingly, the appeals are
dismissed, the decision of the Court of Appeal quashing the
decision of the Minister is affirmed but, as we have said, for
wholly different reasons, mandamus will go to the
Minister in terms we have indicated. Costs here and in the
Courts below to ABOM. Deposits to ABOM to account of taxed
costs.
Cases
East Hampshire District Council v
Secretary of State for the Environment
[1979] JPL 533;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
(1986) 162 CLR 24;
New Zealand Fishing Industry Association Inc v Minister of
Agriculture & Fisheries
[1988] 1 NZLR 544;
Secretary of State for
Education & Science v Tameside Metropolitan Borough Council
[1977] AC 1014;
Simplex GE (Holdings) Ltd v Secretary of State for the Environment &
the City of St Albans District Council
[1988] COD 160;
Thomas v Marconi’s Wireless Telegraph Co Ltd
[1965] 2 All ER 598;
Anisminic Ltd v Foreign Compensation Commission Ltd
[1969] 2 AC 147;
Associated Provincial
Picture Houses Ltd v Wednesbury Corp
[1948] 1 KB 223;
Attorney General v Fulham Corp
[1921] 1 Ch 440;
Commissioners of Customs & Execise v Cure & Deeley Ltd
[1962] 1 QB 340; [1961] 3 All ER 641;
Congreve v Home Office
[1976] QB 629;
Daganayasi v Minister of Immigration
[1980] 2 NZLR 130;
Edwin H Bradley & Sons Ltd v Secretary of State for the Environment
(1982) 47 P & CR 374; NO YEAR 264 EG 926;
Errington v Errington &
Woods [1952] 1 KB 290;
Evans v Collins
[1965] 1 QB 580;
Fowler & Roderique Ltd v Attorney General
[1987] 2 NZLR 56;
General Electric Co Ltd v Price Commission
(1975) ICR 1;
Greednz v Governor General [1981]
1 NZLR 172;
Jagendorf & Trott v Secretary of State for the Environment &
Krasucki [1987] JPL 771;
Laker Airways Ltd v
Department of Trade [1977] QB 643;
National Union of
Hotel, Bar & Restaurant Workers v Minister of Labour and Manpower
[1980] 2 MLJ 189;
Padfield v Minister of Agriculture, Fisheries & Food
[1968] AC 997;
Pahang South Union Omnibus Co Bhd v Minister of Labour & Manpower
[1981] 2 MLJ 199;
Poyser and Mills’
Arbitration, Re [1964] 2 QB 467;
Property Holding Co
Ltd v Clark [1948] 1 KB 630;
R v Boundary
Commission for England, ex p Foot
[1983] QB 600; R v
Hertfordshire CC, ex p Cheung; R v Sefton MBC, ex p Pau((1986)
The Times, 4 April;
R v Hillingdon Health
Authority, ex p Goodwin [1984] ICR
800; R v Home
Secretary of State, ex p Awuku
(1987) The Times, 3 October;
R v Panel on Take-overs &
Mergers, ex p Guinness plc [1990]
1 QB 146; R v
Secretary of State for Trade & Industry, ex p Lonrho Plc
[1989] 1 WLR 525; R
v Tower Hamlets London Borough Council, ex p Chetnik Developments
Ltd [1988] AC 858;
Sababumi (Sandakan) Sdn
Bhd v Datuk Yap Pak Leong [1998] 3
MLJ 151; Save
Britain’s Heritage v Number 1 Poultry Ltd
[1991] 1 WLR 153;
Secretary of State for Employment v Associated Society of Locomotive
Engineers & Firemen (No 2) [1972]
2 QB 455; Selangor
Omnibus Co Bhd v Perumal [1981] 2
MLJ 124; Smith v
Inner London Education Authority
[1978] 1 All ER 411;
Tanjong Jaga Sdn Bhd v
Minister of Labour & Manpower
[1987] 1 MLJ 124;
Viking Askim Sdn Bhd v NUECM
[1990] 2 ILR 634; W
(An infant), Re [1971] AC 682;
Waller & Son, Ltd v
Thomas [1921] 1 KB 541;
Westminster City Council v
Great Portland Estates Plc
[1985] AC 661.
Legislations
Industrial Relations Act
1967: s.5(2)(a), (b), s.9(1), (1A), s.9(4), (4A), (4B), (4C), (5),
(6), s.11, s.13(3)(a), s.17(1)(a), (b), s.32(2), s.56(1), (2)(c),
(3)
Representation
Civil Appeal No 01–4 of
1998 (W)
Alice Loke Yee Ching
(Senior Federal Counsel) for the appellant.
B Lobo
(Lobo & Associates) for the respondent.
Civil Appeal No 02–1-
of 1998 (W)
KP Gengatharan
(N Mahalingan with him) (Genga
Maha Wong & Co) for the appellant.
Nanthabalan
(Lobo & Associates) for Perwira Affin
Bank.
Notes:-
This decision is also reported at [1999]
2 AMR 1837; [1999] 2 MLJ |
