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2020 MarsdenLR 2198
HIGH COURT MALAYA KUALA LUMPUR
KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL BAR DAN RESTORAN SEMENANJUNG MALAYSIA – Appellant
Versus
PRIMULA BEACH H.... – Respondent
[Judicial Review Applications: WA-25-334-07-2019 & WA-25-348-07-2019]
Judicial review of the Industrial Court's decision on Collective Agreements confirms the necessity of negotiation and retention of employee rights regarding wages and benefits, rejecting unilateral employer decisions.
Headnote:(A) Industrial Relations Act 1967 – Sections 18(1), 26(2), 30(4), and 17 – Judicial review – Collective Agreement dispute regarding salary structure and service charge – Hotel's application for judicial review dismissed, while Union's application regarding sick leave capping allowed – Industrial Court's findings held reasonable and justified based on principles of industrial harmony and statutory compliance. (Paras 32, 61, 74)
(B)
The principles of judicial review – The court emphasizes that findings of the Industrial Court can only be disturbed on grounds of illegality, irrationality or procedural impropriety – A reviewing judge must not act as a court of appeal. (Paras 13, 14, 16)
(C)
The court confirmed the need for negotiation in wage restructuring as outlined under regulations and reiterated that unilateral changes by the employer lack legal authority. (Paras 30, 31, 52)
(D)
The acceptance of salary structure based on seniority and cost of living adjustments as per CPI held reasonable and justifiable; other proposals that diminish employee rights rejected. (Paras 18, 20, 36) (E) The principle that the service charge constitutes a fundamental term of the contract of service upheld. (Paras 50, 51)
JUDGMENT
Introduction
[1] On 25 April 2019, the Industrial Court handed down its award on a dispute over the terms of the Collective Agreement between the National Union of Hotel, Bar & Restaurant Workers, Peninsular Malaysia ('the Union') and Primula Beach Hotel Sdn Bhd ('the Hotel').
[2] Arising from this award, the Hotel filed a judicial review application No: WA-25-348-07-2019 for an order of certiorari to quash part of the said award.
[3] The Union also filed a judicial review application No: WA-25-334- 07/2019 for an order of certiorari to quash part of the Industrial Court's award.
[4] Both judicial review applications were heard together by this Court as the challenge is against the same award.
The Salient Facts
[5] Based on the affidavits filed and written submissions by both parties,the relevant facts in these applications are the following:
(i) On 17 March 2008, the Union submitted a claim for recognition where on 12 February 2010 the Minister of Human Resources decided recognition be given to the Union. The Hotel's application for judicial review to quash the Minister's decision was dismissed by the High Court on 22 August 2011. The Hotel's appeal to the Court of Appeal was dismissed on 6 May 2013 and the Hotel's application for leave to the Federal Court was dismissed on 26 September 2013.
(ii) On 22 January 2016, the Union submitted a proposal to the Hotel fora new collective agreement as the previous has expired since 31 October 2007. The negotiations on the Collective Agreement commenced on 15 September 2016.
(iii) Prior to the proposed new Collective Agreement, there were 6 Collective Agreements which are as follows:
(a) 1st Collective Agreement.
Collective Agreement between Pantai Terengganu Motel (Pantai Primula Hotel) and the Union from 1 April 1985 to 31 March 1988.
(b) 2nd Collective Agreement.
Collective Agreement between Primula Resorts Management Sdn Bhd (Primula Beach Resort) and the Union from 1 January 1991 to 31 December 1993.
(c) 3rd Collective Agreement.
Collective Agreement between Primula Resorts Management Sdn Bhd (Primula Beach Resort) and the union from 1 January 1994 to 31 December 1996.
(d) 4th Collective Agreement.
Collective Agreement between PTB Resorts Sdn Bhd (Primula Parkroyal, Kuala Terengganu) and Kesatuan Pekerja-Pekerja Primula Parkroyai Kuala Terengganu (In-House Union) from 1 November 1997 to 30,10.2000.
(e) 5th Collective Agreement.
Collective Agreement between PTB Resorts Sdn Bhd (Primula Beach Resort) and In-House Union from 1 November 201 to 30 October 2004.
(f) 6th Collective Agreement.
Collective Agreement between PTB Resorts Sdn Bhd (Primula Beach Resort) and In-House Union from 1 November 204 to 30 October 2007.
(iv) On 30 December 2016, the Union reported the trade dispute in respectof the new Collective Agreement to the Director-General of Industrial Relations pursuant to s 18(1) of the Industrial Relations Act 1967 (' IRA 1967').
(v) As both parties failed to resolve the trade dispute and to conclude the terms of the new Collective Agreement, the trade dispute was referred to the Industrial Court by the Minister on 24 March 2017 for adjudication pursuant to s 26(2) of the IRA 1967.
(vi) In the Industrial Court proceedings, the dispute was in relation to 7 articles of the new Collective Agreement which are as follows:
(a) Article 10 - Salary Structure and Appendices A & A1;
(b) Article 12 - Service Charge & Appendix B;
(c) Article 23 - Paid Leave for Trade Union Course;
(d) Article 27 - Retirement Benefits;
(e) Article 24 - Sick Leave & Hospitalisation; and
(f) Article 34 - Medical Boarded Out.
(vii) After having heard the evidence and submission by parties, on the 25 April 2019, the Industrial Court decided inter alia, the following:
(a) Article 10 proposed by the Union to be incorporated in the Collective Agreement which is as follows:
Article 10 - Salary Structure and Appendices A & A1.
(a) With effect from 1 January 2016 every employee whose basic salary is less than RM900.00 s
