Malaysia Airlines can be sued if it refuses to recognise unions, say lawyers

KUALA LUMPUR — Trade union office-bearers and members can take Malaysia Airlines (MAS) to court if it attempts to destroy the voice of employees by banning unions, said a retired judge and industrial lawyers.

They said the right to have trade unions was a basic right guaranteed in the Federal Constitution via Article 10 on freedom of association.

The lawyers said a better solution for MAS management was to see existing the trade unions remain as representatives of general workers and executive staff to preserve industrial harmony and to enter into collective agreements.

Retired Federal Court judge Gopal Sri Ram said union officials and members could mount a constitutional challenge if the Malaysian Airline System Bhd (Administration) Act 2015 destroyed the right of a union to exist.

He said the new employer could not dissolve legally existing unions with the legislation coming into force.

“If the effect, in pith and substance of the act, is to violate Article 10 on the rights of trade unions, the office-bearers and members can challenge the validity of the law,” he said.

He said a better solution would be for the employer to recognise existing unions as any dissolution would lead to many legal implications.

“How are the unions going to dispose of and distribute the assets to members and former members?”

Mr Sri Ram said this in response to the future of the MAS Employees Union (Maseu), the airline’s biggest and most powerful union once MAS completed its restructuring exercise.

Maseu, which represents some 13,500 MAS employees, including those in Sabah and Sarawak, is expected to be dissolved as the new management has indicated that the union does not have a place in the new company, which will start operations on September 1.

The union, which is resigned to this for the moment, is looking at turning itself into a cooperative in the new entity.

Maseu executive secretary Mohd Jabarullah Abd Kadir confirmed this and told The Malaysian Insider that two extraordinary general meetings had been held recently to discuss the possible dissolution of the union.

“We’ve decided in the meeting that first, we will have to dissolve the union and second, maybe turn it into a cooperative,” he said.

Mr Jabarullah said although the union had held two EGMs, the matter would still need to be discussed further and members would have to vote at another meeting.

Mr Jabarullah said the union had to take this drastic measure because under Khazanah Nasional Berhad’s plan to return the troubled airline to profit, the new management did not recognise the union.

There are at least nine workers’ unions and associations in MAS. Others include National Union of Flight Attendants Malaysia (Nufam), which represents about 1,500 cabin crew members, Malaysia Airlines Employees Union Peninsular Malaysia and the Malaysia Airlines Pilot Association.

It is reported that 14,000 MAS employees have been selected to join the new company from September 1 and they had been given 12 days to decide while another 6,000 had been terminated as part of Khazanah’s RM6 billion (S$2.2 billion) restructuring plan.

Lawyer Shailender Bhar said Section 27 of the MAS legislation stated that unions could exist on the terms and conditions imposed by the management and banning it went against the constitution and other federal laws.

“It looks like unions are going to become mere rubber stamps of the new employer as the management breaches all laws that protect the workers’ representatives,” he said.

Mr Shailender said MAS was denying the 14,000 employees the right to join the new company with negotiation by their trade unions.

“It is akin to take it or leave it and they are given a short time to make a decision on their employment,” he added.

He said the MAS legislation stated that laws like the Company’s Act, Industrial Relations Act, Employment Act, Trades Union Act, Sabah and Sarawak Labour Ordinances did not apply.

“What is so special about the MAS Act that the constitution and existing legislations are secondary?”

Lawyer Alex De Silva said new employers could form new unions by seeking recognition from the MAS management but this was going to be an uphill task.

“But why bother to go through the process when there are legally recognised unions by the government,” he said, adding that it was better for the trade union officials to defend and protect existing organisations.

Mr De Silva said the director-general of trade unions could deregister unions in MAS if they remained defunct.

“Officials and members must keep their unions alive and carry on with their activities as allowed under the law.” THE MALAYSIAN INSIDER