The payment of Special Ang Pow is discretionary and not a contractual obligation unless explicitly stated, but established practices should be honored for employee morale.

AWARD

Zulhelmy Hasan:

Reference

[1] This is a reference by the Honourable Minister of Human Resources to the Industrial Court of Malaysia dated 11 January 2023 pursuant s 26(2) of the Industrial Relations Act 1967 regarding the trade dispute between Kesatuan Pekerja Pekerja Perusahaan Simen Semenanjung Malaysia (hereinafter referred to as "the Union") and Tasek Corporation Berhad (hereinafter referred to as "the Company") regarding the failure and/or non-compliance of the employer to pay Special Ang Pow Payment For Working Hours During Chinese New Year 2022 for adjudication and an Award to be handed down.

Factual Backgrounds

[2] The Company is principally engaged in manufacturing both bag and bulk cement for general purpose usage for general concrete works. The dispute before this Court is in relation to the 16th Collective Agreement (CA) between the Company and the Union for the period of 1 July 2019 to 30 June 2022 for the claim respect of non-payment of Special Ang Pow Payment for working hours during the Chinese New Year.

[3] The Union claims that due to the nature of the industry, it cannot stop its operations during the Chinese New Year whereas the employees who performed overtime work during this time sacrifice their festivity with their families to ensure the plant operations continues. Hence, it is an existing benefit practiced by the Company and it is unfair and unjustified to unilaterally withdraw such benefit. The Company in principle, consented and endorsed this conduct wherein the Company had indeed waived its discretionary power and for fair employment practices, clearly precludes the Company form now revoking or withdrawing these established benefits at its sole discretion.

[4] The Union refers to and relies on a document titled "Special Ang Pow Payment for Working During Chinese New Year" (p 2 of UB-1) from the 1960's which is said to be a Company's independent circular issued in year 1960 as the Company's obligation to pay Ang Pow to its employees. In contrary, the Company denies by stating that the document is only a formula for the calculation of the ang pow payment to the employees that has no effect of any obligation whatsoever upon the Company to pay to its employees but is merely a sole discretion of the Company which is not a contractual obligation by any legal provisions nor agreement between the Company and the Union at any material times.

[5] As alleged by the Union that pursuant to art 38 - Grievance Procedure, the Union had raised a grievance against the Company pertaining to non-payment of special ang pow payment, vide Union's letter dated 16 March 2022. However, the Company was unable to resolve this matter amicably at their level, the Union had no alternative but to refer the dispute to the relevant government authority and further referred to the Industrial Court for adjudication and Award.

[6] Nevertheless, the Company contends that the Union's claim to demand that the Company to pay special ang pow for working during Chinese New Year is an unfounded and without any basis because it was never contained in the Collective Agreement, Company's policy, Employees' Handbook, Letter of Exchange, terms employment and in any bundle of documents whatsoever during the trial. Thus, the Company has no contractual obligation to pay the claim because there is no valid legal and binding agreement between the Company and the Union in which obligate the Company to pay the same. Moreover, there is no legal provision whatsoever that obliges the Company to pay the special ang pow to its employees at any material times.

[7] The Company denies that the document referred to by the Union entitled "Special Ang Pow Payment for Working during the Chinese New Year" (p 2 of UB-1) is not a contractual agreement, memo nor circular letter issued by the Company. This document is only a document that shows the formula/calculation of the payment and also the history of the special Ang pow payments to its staff only. Based on the