Faiza Tamby Chik J:

This is an application by the applicant, P1HP (Selangor) Berhad (Petaling Jaya Hilton International) (PJ Hilton) under O. 53 of the Rules of the High Court 1980 for an order of certiorari to quash part of the decision of the Industrial Court in Award 106/2001. The background of the case is as follows. The applicant is the owner of a hotel known as the Petaling Jaya Hilton International (hereinafter referred to as `the hotel'). The first respondent is a trade union of employees (hereinafter referred to as `the Union') which represents employees within the scope of its representation and who are employed in the hotel. The present case arose out of a dispute on the terms and conditions of employment to be contained in the hotel's third collective agreement with the first respondent. Sometime in 1999, both the hotel and the second respondent commenced negotiations on the terms and conditions of employment to be concluded in the third collective agreement. The collective bargaining process reached a deadlock which resulted in a joint reference of the dispute to the Industrial Relations Department. The machinery of conciliation at the said department was exhausted but no settlement was reached. The matter was then referred to the Industrial Court as a trade dispute under s. 26 of the Act. On the date of hearing, the parties informed the Industrial Court that there were only seven disputed articles which required adjudication by the court. The court then proceeded to hear the matter. Both parties tendered several documents to support their respective proposals. The hotel called upon its General manager to testify to support its proposal. On 21 February 2000, the Industrial Court handed down its Award on the Disputed Articles. In the statement pursuant to O. 53 r. 3(2) (encl. 2), the applicant seeks to quash part of the award in respect of the following articles:

Article 10 - Salary Structure, Salary Adjustment and Appendix A; and

Article 11 - Annual Bonus

The applicant is also dissatisfied with the Industrial Court's award on PIHP (Selangor) Berhad's proposed introduction of a new job classification.

I am of the opinion that there is no doubt that an inferior tribunal has no jurisdiction to commit an error of law (see Syarikat Kenderaan Melayu Kelantan Bhd v. Transport Workers' Union [1995] 2 CLJ 748 CA (refd). Also in exercising its judicial review functions, the High Court cannot disturb findings of fact (see the case of Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9 CA (refd), per Gopal Sri Ram JCA at p. 23:

If a judge to whom application is made for certiorari inquiries into and disturbs findings of fact based on the credibility of witnesses, he does indeed exercise appellate functions. It is important to remember that in judicial review proceedings the High Court must accept as gospel findings of fact made by the Industrial Court based on credibility of witnesses.

See also Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong And Another Appeal [2001] 3 CLJ 9 CA (refd) and this court's judgment in Goh Keah Hock v. Mahkamah Perusahaan, Malaysia & Anor. [2002] 5 MLJ 37. It must be noted that a collective agreement is not a commercial document. "A reasonable and pragmatic approach, shorn of an excess of legal learning, is therefore called for when construing a collective agreement" (per Gopal Sri Ram, JCA in the case of Kesatuan Pekerja-Pekerja Perkayuan v. Syarikat Jengka Sdn Bhd [1997] 2 CLJ 276 CA (refd). Certiorari is a discretionary remedy and may be refused not only on the merits but also in the special circumstances of the case (Trengganu Bus Co Sdn Bhd v. Transport Workers Union 1982 CLJ 825 [1983] 1 MLJ 393 at 396).

PJ Hilton has argued that the Union, in not calling any witnesses had failed to rebut PJ Hilton's witnesses' testimony. Therefore, the testimony remained unchallenged. PJ Hilton relied on the case of Kesatuan Pekerja-Pekerja Perusahaan Dunlop Malaysia v. DMIB Bhd [1998] 1 MLJ 279.