Union loses bid to retain secretary after employment status ruling

 Judge says salary payments and Perkeso contributions alone do not prove that Kamarul Baharin Mansor was employed under a contract of service.

The director-general of trade unions had ruled that Kamarul Baharin Mansor was not eligible to remain a member or hold office in the Peninsular Malaysia Maintenance Services and Waste Management Workers Union because he was not a workman.

KUALA LUMPUR:

The Kuala Lumpur High Court has dismissed a trade union’s bid to overturn a decision by the director-general of trade unions that its secretary was no longer eligible to remain a member or hold office because he was not a workman.

Justice Alice Loke dismissed a judicial review application by the Peninsular Malaysia Maintenance Services and Waste Management Workers Union, ruling that the director-general had acted within his powers in determining Kamarul Baharin Mansor’s employment status.

The union had challenged the director-general’s May 2024 decision not to register Kamarul, who is also the Malaysian Trades Union Congress secretary-general, as its secretary for the 2023-2026 term.

The dispute arose after a complaint was lodged questioning Kamarul’s eligibility to remain a union member and subsequently hold office.

Kamarul joined Kemuncak Bumijaya Sdn Bhd (KBSB) as a clerk in 2013 and was released without pay in 2014 to serve the union.

He was recalled by KBSB in June 2023 and paid RM1,500 a month until January 2024.

The union argued that these circumstances showed Kamarul had remained continuously employed by KBSB.

However, Loke said the director-general was entitled to investigate the matter under Section 4A of the Trade Unions Act 1959.

She said Kamarul’s employment terms did not indicate permanent employment, or that KBSB exercised strict control over him.

She also took into account findings by Perkeso and the labour department that Kamarul was not an employee of KBSB.

In her 13-page judgment released recently, Loke said salary payments and Perkeso contributions alone did not establish that Kamarul was employed under a contract of service.

“Those documents merely show that he was paid for that period, without in any way establishing he was employed in a contract of service,” she said.

She applied the established distinction between a contract of service and a contract for services, noting that the degree of control exercised by an employer was an important consideration.

Loke also found that Section 28(2) of the Trade Unions Act did not apply to the circumstances of the case.

In assessing the director-general’s decision, she said the union had to show that it was so unreasonable that no sensible decision-maker could have reached it.

“I do not find it to be so,” she said.

The judge dismissed the application and ordered the union to pay RM5,000 in costs to the director-general.

The union has filed an appeal.

Chandra Segaran Rajandran appeared for the union, while federal counsel S Shamaaraj Shanker and Kashmeera Balamurale represented the director-general. - FMT