Gopal Sri Ram JCA:

[1] This appeal concerns a short but important point of principle. It has to do with the meaning of the term 'workman' appearing in s 2 of the Industrial Relations Act 1967 ('the Act') and whether the instant appellant comes within the statutory definition. Initially, after the delivery by the parties of the statement of case and statement in reply, the respondent invited the Industrial Court to adjudicate upon this question as a preliminary issue. That Tribunal having declined the invitation, the respondent moved the High Court which quashed the refusal and issued mandamus compelling the Industrial Court to hear and determine the point as a preliminary issue before proceeding to hear the case on its merits. In compliance with that order the Industrial Court proceeded to determine the question. It took evidence and heard argument on the issue. Later, it made an award in the appellant's favour. It ruled that he was a workman within the Act.

[3] We heard this appeal on 8 August 1995 and, at the conclusion of arguments, allowed it, indicating to Counsel that reasons for our decision would be given. These now follow.

[4] The facts of this case, in so far as they concern the instant appeal, are not in dispute and they are as follows. On 7 December 1977, the appellant was employed by Dorf Industries Pty Ltd ('Dorf) as the general manager of its Malaysian company. The terms and conditions upon which the appellant was to serve Dorf are set out in a letter of that date. It reads as follows:

7 December 1977

Mr Frank KN Hoh

107 Jalan Limau Purut

Off Jalan Maarof

Kuala Lumpur

Dear Frank

Re: General Manager - Dorf (Malaysia) Sdn Bhd.

Further to your recent interview, it is with pleasure that I advise you of your success in your application for the above position. In advising you of this, please note that it is subject to a satisfactory reference check by PA Management Consultants. In addition, they will require you to show evidence of your economics degree from ANU.

As far as the remuneration package and other details are concerned, we now list in detail our offer to you:

Position: General Manager - Dorf (Malaysia) Sdn Bhd

Responsible to: The board of directors through the General Manager, Dorf Industries Pty Ltd of Australia.

Responsible for: Initially, your main task is the establishment of a viable manufacturing entity. As pointed out to you, the current marketing arrangements are likely to remain the same during this period, ie our current plans are that our agent will continue to market the company's products in Malaysia for the first year. Following the successful establishment phase of approximately 12 months, you will then be responsible for developing the total market scene in Malaysia. The development of the export market will be the responsibility of Dorf Industries Pty Ltd Australia.

Remuneration package: Basic salary... RM3,000 per month

Bonus: As discussed, this will be along the lines of the bonus scheme in operation in our parent company, National Consolidated Ltd In essence, your bonus will be linked to the attainment of certain budget objectives which would enable you to earn a maximum bonus of 15% of your annual salary. For example, if budgeted profit is achieved, you immediately qualify for a 5% bonus. For every 1% that actual profit (before tax and interest) exceeds budget profit, you will qualify for a fur