When a union no longer has any members in a particular establishment, does it retain the legal standing to continue collective bargaining on behalf of employees? The Industrial Court addressed this in Maswings Sdn Bhd v Airlines Workers’ Union Sarawak (Award No. 967/2025).
Brief Facts
- Maswings Sdn Bhd (“the Company”) is a subsidiary of Malaysia Aviation Group, which operates primarily within Sabah and Sarawak.
- In 2010, the Company recognised the Airlines Workers’ Union Sarawak (“the Union”) as the representative union for its cabin crew based in Sarawak. This recognition allowed the Union to engage in collective bargaining and enter into collective agreements with the Company.
- In early 2023, both parties began negotiations for a new collective agreement. However, during discussions, the Company contacted its cabin crew based in Sarawak to enquire about their membership status with the Union. The Company received written confirmation by way of emails from all 28 cabin crew staff that they are not members of the Union.
- The Company then ceased further negotiations and cited the Union’s lack of locus standi to conduct collective bargaining.
- The Company also reported a trade dispute under Section 18 of the Industrial Relations Act 1967 to the Director General of Industrial Relations.
- Before the hearing at the Industrial Court, the Union wrote to the Court to request for the case to be withdrawn. The Union did not send any representative to attend the hearing. The Court then invoked its powers under the Industrial Relations Act 1976 to hear the case ex-parte (ie: without the attendance of the Union).
Industrial Court’s Findings
The Court accepted the Company’s evidence that:
- Recognition granted to the Union in 2010 was limited to cabin crew based in Sarawak.
- None of those cabin crew were Union members at the time of the 2023 negotiations.
Therefore, the Company’s decision to halt negotiations was bona fide and in accordance with legal principles.
The Court further held that the Union has no locus standi to commence, participate and enter into a collective agreement with the Company, and that the recognition obtained by the Union from the Company was no longer in effect.
Key Takeaways
This decision highlights that union recognition is not indefinite or automatic – an employer is entitled to challenge a union’s standing if it no longer represents any employees. It underscores the importance of verifying a union’s locus standi before or during negotiations, particularly where the employer is aware that only a small number of employees, if any, remain union members. That said, care must be taken to ensure that any verification exercise is conducted fairly and neutrally, so as not to be misconstrued as discriminatory or anti-union in nature.
Another point that should not be overlooked is that this case was heard ex-parte, ie the Union representatives and/or its counsel were not present during the hearing. As such, the Company’s evidence went unchallenged.
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This article was written by Leow Ho Eng (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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