Introduction
The Federal Court on 5 March 2026 in the case of Permohonan Sivil No. 08(i)-406-11/2025(W) between National Union Of Bank Employees v Mahkamah Perusahaan, Malaysia & HSBC Bank Malaysia Berhad declined to grant the National Union of Bank Employees (“NUBE”) leave to appeal on three proposed questions relating to whether it has total immunity under section 22(1) the Trade Unions Act 1959 (“TUA”) wherein such absolute immunity would warrant the striking off of a trade dispute which was pending adjudication before the Industrial Court pursuant to a Ministerial Reference.
We acted for HSBC Bank Malaysia Berhad (“HSBC”).
Facts of the case
By way of background, HSBC is a member of the Malayan Commerce Banks’ Association (“MCBA”) and bound by the Collective Agreement between NUBE and MCBA. Article 4 of the Collective Agreement provides for a grievance procedure. NUBE circumvented the aforesaid available procedures provided for in Article 4 of the Collective Agreement and section 18 of the Industrial Relations Act 1967 (“IRA”) in undertaking industrial actions against HSBC.
As a result thereof, HSBC filed a trade dispute under section 18 of the IRA which was then referred to the Industrial Court under section 26(2) of the IRA for adjudication and registered as Industrial Court Case No. 4/3-2831/21.
Before the Industrial Court, NUBE did not deny that it had, inter alia, made “derogatory and defamatory social media postings and publications” against HSBC but applied to have the trade dispute stuck off on the basis that it had absolute immunity and had statutory protection against any tortious acts pursuant to section 22(1) of the TUA.
Apart from the derogatory and defamatory social media postings and publications complained off, HSBC also alleged that there were breaches of the collective agreement on the part of NUBE.
HSBC took the position that it is a matter for the Industrial Court to decide based on the factual circumstances of this matter, as to whether statutory immunity is applicable to NUBE, after the production of evidence and at the conclusion of a trial.
The Industrial Court agreed and dismissed NUBE’s interlocutory application. Aggrieved, NUBE challenged the interim award which dismissed its striking out application. The High Court and Court of Appeal decided against NUBE and confirmed that HSBC’s trade dispute had to proceed for full trial and not be pre-determined vide an interlocutory application.
In dismissing NUBE’s appeal, the Court of Appeal noted that:
“The Industrial Court is not a court of inherent jurisdiction and may only exercise such powers as has been conferred to it by statute. This would not include adjudicating on any liability for tortious act and hence it must follow that section 22 (1) of the [Trade Unions] Act could not conceivably have been intended to encompass the Industrial Court. This construction is supported by section 30 (1) of the [Industrial Relations Act], which unambiguously confers the powers to the Industrial Court to make an award in relation a trade dispute.”
Application for leave to appeal to the Federal Court
Before the Federal Court, HSBC highlighted that the matter before the Industrial Court was a trade dispute referred by the Minister for Human Resources. Apart from the complaints of NUBE’s industrial actions which were derogatory and defamatory in nature, HSBC had also raised NUBE’s breaches of the collective agreement. While HSBC maintained its contention of the defamatory nature of NUBE’s conduct, it was stressed that its trade dispute before the Industrial Court was not a defamation suit.
Further, in response to NUBE’s argument that it had blanket immunity, HSBC pointed out that industrial jurisprudence had confirmed that the same is not absolute and any conduct carried out maliciously and/or in a manner which knowingly or recklessly disregards the truth would not be covered by the immunity.
In order to determine whether or not NUBE’s industrial action attracted such immunity, the Industrial Court must be allowed to determine this upon the conclusion of a full trial during which oral and documentary evidence would be adduced.
Decision of the Federal Court
The Federal Court agreed with our arguments and found in favour of HSBC. NUBE’s application was accordingly dismissed with costs of RM50,000.
This decision of the Federal Court emphasises that while the TUA does afford protection to unions, any action committed must not be malicious or wantonly disregarding the truth. As to whether such action falls foul of this test, this is to be decided by the Industrial Court at the end of a trial and unions do not enjoy a blanket immunity which would allow them to strike-out a claim without going through the trial process.
HSBC was represented before the Federal Court by Vijayan Venugopal, Raymond TC Low, Reena Enbasegaram and Peter Santiago of the Firm’s Employment & Industrial Relations Practice.
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