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2023 MarsdenLR 709
INDUSTRIAL COURT KUALA LUMPUR
KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL BAR DAN RESTORAN SEMENANJUG MALAYSIA – Appellant
Versus
DL HOTELS (MALAY.... – Respondent
Award No: 1706 Of 2023 [Case No: 21(6)/2-3117/18]
Salary adjustments and increments must reflect employees' added value and comply with minimum wage regulations, while maintaining job hierarchy and considering the employer's financial capacity.
Headnote:(A) Industrial Relations Act 1967 - Section 26(2) - Trade dispute regarding Collective Agreement terms - Dispute over Salary Structure between hotel and employees' union - Court found in favor of hotel’s proposal for salary adjustments in accordance with Minimum Wage Orders - Union’s proposal dismissed. (Paras 47, 84)
(B) Collective Bargaining - Principles of salary adjustments and increments must reflect employees' added value, not merely seniority - Performance-based increments deemed fair and necessary. (Paras 38, 64)
(C) Salary Structure - Adjustments should maintain job hierarchy and comply with statutory minimum wage requirements. (Paras 19, 20)
(D) Financial Capacity - Employer's financial ability to pay must be considered in salary negotiations. (Paras 43, 44)
| Table of Content |
|---|
| 1. reference to trade dispute details. (Para 1 , 2 , 3 , 4) |
| 2. overview of hearing and dispute. (Para 5 , 6) |
| 3. background on hotel operations and union recognition. (Para 7 , 8) |
| 4. judicial review application details. (Para 10 , 11) |
| 5. court of appeal's decision on appeal. (Para 12) |
| 6. minimum wage orders relevant to dispute. (Para 13 , 14) |
| 7. definition and principles of collective bargaining. (Para 15 , 16) |
| 8. factors influencing wage structure and increases. (Para 17 , 18 , 19 , 20) |
| 9. annual increments and their basis. (Para 21 , 22) |
| 10. dispute over article 10 of ca. (Para 23 , 24) |
| 11. union's proposal for salary structure. (Para 25 , 26 , 27 , 28) |
| 12. arguments on salary revision and seniority. (Para 29 , 30 , 31) |
| 13. concerns over hotel’s proposal and its implications. (Para 32 , 33 , 34) |
| 14. union's stance on annual increments. (Para 35 , 36) |
| 15. annual increment proposals compared. (Para 37 , 38) |
| 16. performance-based increments and their justification. (Para 39 , 40) |
| 17. financial capacity considerations. (Para 41 , 42 , 43) |
| 18. comparison with other hotels. (Para 44 , 45) |
| 19. court's evaluation of submissions. (Para 46 , 47 , 48) |
| 20. court's rationale for decision. (Para 49 , 50 , 51) |
| 21. precedent cases influencing decision. (Para 52 , 53 , 54) |
| 22. evidence of salary increments. (Para 55 , 56 , 57) |
| 23. application of harun formula. (Para 58 , 59) |
| 24. justification for salary adjustments. (Para 60 , 61 , 62) |
| 25. basis for annual increments. (Para 63 , 64) |
| 26. performance assessment in increments. (Para 65 , 66) |
| 27. union's presumption on employee skill. (Para 67 , 68) |
| 28. assessment of performance management system. (Para 69 , 70 , 71) |
| 29. evidence assessment in court. (Para 72 , 73) |
| 30. union's comparison with other hotels. (Para 74 , 75) |
| 31. court's distinction of comparable hotels. (Para 76 , 77 , 78) |
| 32. court's rationale for rejecting comparisons. (Para 79 , 80) |
| 33. finality of court's decision. (Para 81 , 82) |
| 34. conclusion and order of the court. (Para 84 , 85) |
Reference
[1] This is a reference made under s 26(2) of the Industrial Relations Act 1967 (Act 177) dated 16 August 2018 arising out of the trade dispute between CDL HOTELS (MALAYSIA) SDN BHD (GRAND MILLENNIUM KUALA LUMPUR) ("the hotel") and KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR DAN RESTORAN, SEMENANJUNG MALAYSIA ("the Union").
Preface
[2] The company in the present matter, operates the Grand Millennium Hotel, Kuala Lumpur ("the Hotel"). The trade dispute between the parties is over the terms and conditions of service to be contained in the Collective Agreement between the parties (hereinafter referred to as the "1st CA"), for the period of 1 February 2015, to 31 January 2018 between the Hotel and several categories of the employees that fall within the scope of the Union.
[3] The Union filed one bundle of documents which was marked as "UBD-1". The Union's witnesses were:
a. En Rusli bin Affandi, its Secretary General ("UW -1"), whose witness statement marked as "UWS-1": and
b. En Abdul Halim bin Abdul Kadir, a Union member, the Room Dining Captain of the Hotel ("UW-2") whose witness statement was marked as "UWS-2"
[4] The Hotel has two volumes of bundles of documents, marked as COB-1 and COB-2. The Hotel's sole witness is the Hotel's General Manager, Mr Peter Gibbons, whose witness statement was marked as COWS-1.
Part A: Introduction
[5] Both parties had successfully completed full hearing of the instant dispute at this Court on 20 February 2023 in respect of art 10 of the proposed 1st collective agreement to be entered into between the Union and Grand Millenium Kuala Lumpur c/o CDL Hotels (Malaysia) Sdn Bhd [Hotel] for the period 1 February 2015 to 31 January 2018 [1st CA]. This is the 2nd Industrial Court hearing in respect of disputes over the terms to be incorporated into the 1st CA pursuant to the Order of the Court of Appeal dated 26 January 2022.
[6] This matter originated as a trade dispute filed by the Union in respect of mult
