AWARD

This is an application by the National Union of Hotel, Bar & Restaurant Workers (the union) for interpretation of Award No. 12/91 in Case No. 2/3- 259/86 for the purpose of removing uncertainty in the interpretation of the word wages in the said award dated 16 January 1991 which stated as follows:

This court finds that the dismissal of the claimant Encik Mohd Hamir bin Mohd Hussain, was without just cause and excuse and awards him thirty months backwages being compensation in respect of lost wages. The retrenchment benefits paid to claimant are to be deducted from the compensation awarded. This court further orders that the payment of backwages ordered be made within one month of the date of this award.

Tropical Inn Sdn. Bhd. Johore (the hotel) interpreted the word wages in the award strictly within the definition of wages in s. 2 of the Employment Act, 1955 , so as to exclude annual increments, service charge and bonus. The hotel calculated the claimant's backwages on the basis of the claimant's basic wage of $495 and only added his food allowance of $40 making a monthly total wage of $535. The union disagrees with the rigid and inflexible interpretation by the hotel. In industrial adjudication the concept of social justice plays an important role. In the circumstances the union made the following application:

The applicant submits that the award should be interpreted in the following manner:

1.That the thirty months backwages being compensation in respect of lost wages includes not only basic wage, food allowance, annual increment but also service charge which is payable by the company from its own fund in the first instance.

2.That only retrenchment benefits be deductible from the said compensation.

3.The union hereby includes annual bonus in the thirty months backwages.

It must be borne in mind that awards of the Industrial court are made according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. This is a mandatory requirement under s. 30(5) of the Industrial Relations Act, 1967 .

En. Lim Chooi Phoe in a well researched and admirable presentation of the union's case argued that the word wages in the award was not intended to be given a statutory interpretation as though it was a word used in an Act of Parliament. It was intended, he said to convey what it means to ordinary people and workmen. It would not be in good conscience to define the word wages according to the definition in the Employment Act, 1955 so as to deprive the claimant his lawful dues when this court's award did not restrict the definition of wages to s. 2 of the Employment Act, 1955 .

En. Lim submitted that the Industrial court was in essence functioning as an industrial jury and cited the cases of Williams & Ors. v. Compaire Maxam Ltd. EAT Cardiff [1982] (per Brown Wilkonson J) and Earl v. Slater Wheller (Airline Ltd.) NIRC 1972 (per Sir John Donaldson). He therefore urged this court given the interpretation applied for and to make the variation for the purpose of removing ambiguity and uncertainity in the said award and stated that the interpretation given by the Industrial court ti its award is final and conclusive. He cited the case of Trengganu Bus Co. Sdn. Bhd. v. Transport Workers' Union [1983] 1 MLJ where His Lordship Hashim Yeop A. Sani J said:

In my opinion according to the scheme of the Act it is imperative that some finality must be read into the power of the Industrial court to interpret its own award. Moreover the Industrial court itself should be regarded as the most competent authority to interpret its own award. For these reasons it is my view that it is not the intention of the statute to allow an applicant to seek this court's aid to quash an order of the Industrial court under s. 33 of the Act .

En. Lim contended that in computing the arrears of 30 months backwages as compensation the correct criteria is to consider what the claimant would have earned had he not been dismisse