JUDGMENT

Abdul Hamid Omar LP:

[1] I have had the advantage of reading the judgments of Gunn Chit Tuan CJ and Eusoff Chin SCJ and I concur with both of them that the appeal should be allowed and the order of the High Court dated 28 February 1992 granting the respondents an order in terms of prayers one, two and four of their originating summons dated 15 June 1984, be reversed. The deposit is also to be refunded to the appellants to account of taxed costs.

Gunn Chit Tuan CJ (Malaya):

[2] This appeal was involved with the construction of the following definition of "wages" in s 2 of the former Employees Provident Fund Act 1951, which was repealed and replaced by the Employees Provident Fund Act 1991, with effect from 1 June 1991:

'wages' means the remuneration in money due to an employee under his contract of service or apprenticeship, whether agreed to be paid monthly, weekly, daily or otherwise-

(a) in respect of the normal periods of work to be performed by the employee;

(b) where payment is calculated in relation to a set task or tasks, in respect of the number of tasks completed by the employee; or

(c) where payment is calculated in relation to the volume of work done, in respect of the work completed by the employee,

together with any allowance payable by the employer to the employee in respect, either explicitly or impliedly, of high cost of living:

Provided that the wages of an employee in the service of the Government of Malaysia or of a State or of a statutory or local authority under the new scheme shall be the monthly salary inclusive of pensionable allowances payable in accordance with the salary scales of the new scheme.

[3] The issue arose in the following circumstances in which Special Relief Allowance (SRA) was paid by Consolidated Plantations Berhad ("the first appellant"), which is a plantation company and a member of the Malayan Agricultural Producers Association ("the second appellant"). The second appellant is a registered trade union whose members are employers in the plantation industry and one of its aims is to negotiate collective agreements for its members with employee trade unions, such as the National Union of Plantation Workers ("the second respondent"). Several collective agreements were entered into between the second appellant and the second respondent between 1 October 1973, and 30 April 1986, and in those agreements SRA was excluded from the wages of the employees. It was not until the Industrial Court Award No 111/86, ([1986] 1 MELR 274; [1986] 1 ILR 586), which came into effect on 1 May 1986, that SRA was incorporated into the basic wage of the employees. In this case, there was no evidence of the terms of employment of one Ehambaram a/l Narayanan ("the first respondent"). We were informed by Mr Lobo, Counsel for the first and second respondents, that the first respondent was a daily-rated employee. In any case, it was an implied term of the contract of employment between the first appellant and the first respondent, who were bound by the collective agreements, that the rates of wages to be paid and the conditions of employment to be observed under the contract shall be in accordance with the said agreements.

[4] As a matter of history, the Court below was informed that the Government through the then Honourable Prime Minister had announced in a statement issued on 20 October 1973, that the Government had decided to pay SRA to employees in the public sector receiving salaries of RM500 per month and below as well as to pensioners to assist them to overcome the hardship caused by rising prices. It was stated that the said allowance was to be temporary and not subject to income tax or EPF contributions. The Government urged the private sector to follow suit and members of the second appellant, including the first appellant, responded to the call by Government to pay their employees SRA with effect from 1 October 1973. SRA was then paid by member companies of the second appellant to their respective employee