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Appeals court’s striking down of NUBE-HSBC MoU stands

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The Federal Court has unanimously dismissed the union’s application for leave to appeal a Court of Appeal ruling delivered early this year.

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The Federal Court refused to grant leave to the National Union of Bank Employees to challenge the Court of Appeal’s finding that an outsourcing and restructuring agreement entered with HSBC in June 2010 was invalid.

PUTRAJAYA:
A ruling that a memorandum of understanding (MoU) between the National Union of Bank Employees (NUBE) and HSBC Bank Malaysia Bhd had no legal effect was upheld by the apex court today.

In a unanimous decision, the Federal Court dismissed the union’s application for leave to appeal a ruling handed down by the Court of Appeal earlier this year on grounds that the MoU was not deposited in the Industrial Court for cognisance.

A three-member apex court bench, chaired by Abdul Rahman Sebli, said this was not a fit and proper case to warrant the grant of leave to appeal under Section 96 of the Courts of Judicature Act 1964.

“The MoU has no legal effect due to non-compliance by the union since it was not deposited in the Industrial Court as required under Section 17(2) of the Industrial Relations Act for cognisance,” Rahman said.

Sitting with Rahman were Justices Zabariah Yusof and Rhodzariah Bujang.

To secure leave, applicants must satisfy the court that the appeal raises novel legal and constitutional questions of public importance raised for the first time.

The bench also ordered NUBE to pay RM30,000 in costs to HSBC.

HSBC has over the years entered into a series of collective agreements with NUBE, and in June 2010, the parties entered into a MoU titled “One HSBC, Outsourcing & Restructuring.”

It was not in dispute that the MoU was never deposited with the Industrial Court to be accorded cognisance.

In 2017, the bank offered a voluntary separation scheme (VSS) to its employees who were also members of NUBE.

The union contended that HSBC should have consulted them before conducting the VSS exercise, and that a trade dispute had arisen which ought to be referred to the Industrial Court.

In a 2019 award, the Industrial Court ruled that the MoU, being an agreement which purports to alter or vary the prevailing collective agreement and impose obligations on the parties, must be deposited in court to have legal effect.

NUBE failed in a judicial review application in the High Court to set aside the award. It also failed in an appeal in the Court of Appeal.

Lawyer K Shanmuga appeared for NUBE, while counsel N Sivabalah, Reena Enbasegaram and Sachin Niranjan Thavalingam acted for HSBC.

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