Wan Suleiman FJ:

The respondent company is a private company and by its articles of association the number of its shareholders is limited to fifty. It deals extensively in provisions, medical supplies and general merchandise. It has many branches in the State of Selangor.

The business of the respondent company was conducted and managed by a group of persons known as Working Assistants who were rewarded by a share of the profits. All capital required by the business was provided by the respondent company and all labour and skill in the conduct and management of the business were supplied by these Working Assistants. Learned Counsel for the respondent described this arrangement as "a working partnership agreement", whereby one party contributed the capital and the other its labour and skill in running a joint business from year to year. The Working Assistants were either directors, managers, storekeepers, secretaries or accountants, each in charge of a branch or department.

The net profits of the business were distributed as follows:

(a) 49% to the defendant company,

(b) 48 1/2% to Working Assistants and

(c) 2 1/2% to charity.

Should the defendant company suffer a loss in its business in any financial year the Working Assistants would get nothing for their efforts but the defendant company would bear all losses including any loss of capital.

Net profits were arrived at by pooling together profits and losses of all branches at the end of each financial year. The number of Working Assistants varied from year to year. A Working Assistant would not know the amount of his share of profits until the end of the financial year when the shares of all Working Assistants would then be ascertained in the following manner. Out of the 48% share of profits payable to Working Assistants, 24% are shared by those who worked as managers, and the remaining 24% was then shared by those performing other functions. At the end of each financial year the Board of Directors would allot each Working Assistant a "ratio" or multiplier, the highest being 2.75 and the lowest 1.75. This multiplier multiplied by the number of days he had worked during the year would give the units he had earned for a particular year. His share of the net profits would depend on the number of units so earned.

All the goods sold in the shop belong to the respondent company and all the shop premises are rented by the respondent company who pay the rent.

Apart from a share of the profit, the Working Assistants are provided with food and lodging, hairdressing and laundry services free of charge and are also given cash for the purpose of purchasing their breakfast daily.

The various branches of the respondent company as well as the head office open and close for business at fixed hours except during festive seasons when extension of business hours may be necessary. The respondent company's Board of Directors can engage and dismiss Working Assistants.

In his judgment the learned trial Judge seems to labour under the misconception that Working Assistants employ or engage shop assistants. Mohd. Moideen did say so under cross-examination, but his superior, Abdul Wahab averred that they were servants and employees of the respondent company, so that if Working Assistants could indeed engage and dismiss them, it would only be as agents of the respondent company. It is not in dispute that shop assistants were under the control and supervision of Working Assistants and were paid fixed salaries. Shop assistants, after some years' experience are eligible for promotion to the post of Working Assistants, whereupon their fixed monthly salary would cease to become payable.

The two issues before the learned trial Judge were:

(1) whether Working Assistants are "employees" within the meaning of the EPF Ordinance 1951 (i.e. whether they are persons employed under a contract of service ... to work for an employer) and

(2) whether, even if Working Assistants are "employees" within