The interpretation of profit for bonus eligibility must exclude certain deductions such as depreciation and tax under relevant Collective Agreement terms.

Enclosure (1)

[1] Enclosure (1) is the notice of application of Kesatuan Eksekutif Airod, ("the applicant"), which was filed on 17 February 2016, pursuant to O 53, r 3(2) of the Rules of 2012 ("RC 2012") against Airod Sdn Bhd ("the 1st respondent") and the Industrial Court Malaysia ("the 2nd respondent"), respectively, for leave to file for judicial review of the decision of the Industrial Court dated 16 October 2014.

[2] In the event that leave is granted, the applicant seeks the following reliefs from this Court in its substantive application:-

(a) To obtain an order of Certiorari to quash the decision of the Industrial Court in its Award no 1160 of 2014 dated 16 October 2014 and an Order to direct the 1st respondent to comply with Article 66.1 of the Collective Agreement (No 2) to pay bonus to the confirmed permanent executives of the respondent for the years 2011, 2012 and 2013.

(b) To obtain an order of Mandamus to direct the 2nd respondent to grant an award for the 1st respondent to comply with Article 66.1 of the Collective Agreement (No 2) to pay the bonus for the years 2011, 2012 and 2013.

Cause Papers For The Leave Application

[3] Together with his notice of application in encl (1), the applicant filed the following cause papers for the leave application:-

(1) Applicant's statement under O 53, r 3(2) of the RC 2012, encl (2);

(2) Applicant's affidavit-in-support affirmed on 19 January 2015, encl (3); and

(3) Applicant's affidavit-of-service affirmed on 16 February 2015, encl (4).

[4] On 26 March 2015, Asmabi Binti Mohamad J (now JCA) granted leave to the applicant to file the application for judicial review with cost in the cause.

Cause Papers For The Substantive Application

[5] The applicant and the 1st respondent then filed the following cause papers for the substantive application:-

(1) Applicant's notice of hearing of application for judicial review, encl (5);

(2) 1st respondent's affidavit-in-reply affirmed on 12 May 2015, encl (7);

(3) Applicant's additional affidavit affirmed on 3 September 2015, encl (8);

(4) Applicant's written submissions, encl (10);

(5) Applicant's bundle of authorities, encl (11); and

(6) 1st respondent's written submissions with bundle of authorities, encl (9).

Background

[6] The background of encl (1) is as follows:-

(1) The applicant is a Trade Union which is registered under the Trade Unions Act 1959 ("the Union") and the 1st respondent is a company incorporated under the Companies Act 1965 by the name of Airod Sdn Bhd ("the Company").

(2) The dispute between the parties is over the complaint of non-compliance of the Collective Agreement (No 2) ("the 2nd Collective Agreement") by the 1st respondent.

(3) The applicant contends that the 1st respondent had failed and/or refused to comply with Article 66.1 of the 2nd Collective Agreement ("Article 66.1") that was entered into between the Company and the Union.

(4) Article 66.1 states that the Company shall pay to the confirmed permanent executives the annual bonus of one month provided the company has achieved a 5% net profit from its annual turnover in the previous year as verified by the certified external appointed auditor.

(5) The applicant contends that the 1st respondent did not comply with Article 66.1 to pay the bonuses to the confirmed permanent executives of the Company for the years 2011, 2012 and 2013.

(6) Hence, the Union filed a complaint of non-compliance against the Company in the Industrial Court, pursuant to s 56 of the Industrial Relations Act 1967 , after having obtained the approval of the Minister of Human Resources.

(7) However, on 16 October 2014, after hearing both the parties, the Industrial Court dismissed the Union's complaint.

(8) Being aggrieved with the de