Faiza Thamby Chik J::

(1) This is an application by Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar dan Restoran, Semenanjung Malaysia ‘the applicant’) to quash the Industrial Court award No 7 of 2002 dated 8 January 2002 (‘the said award’) and for consequential/alternative orders referred to in the application. The Industrial Court vide the said award had refused to allow the applicant’s claims in respect of the fifth collective agreement between the applicant and MTC Realty Sdn Bhd/Renaissance Melaka Hotel (‘the respondent’) in terms prayed for by the applicant in exh U1(b) of the applicant’s statement of case (see exh CP-2’ of the applicant’s affidavit at p 8 of encl 1) (‘the proposed fifth CA’). The respondent and the applicant were at all material times bound by various collective agreements governing the terms and conditions of employees engaged in the hotel business of the respondent. The respondent and the applicant had failed to conclude the proposed fifth CA for the period 1 January 98 to 31 December 2000 giving rise to a trade dispute. On 28 January 2000, YB the minister referred the trade dispute to the Industrial Court for a decision under s 26(2) of the Industrial Relations Act 1967 (‘the Act’). The case was heard by the Industrial Court on 3 August 2000 and 14 September 2000. In the said award, the Industrial Court made a finding that the applicant’s claims were unjustified and ordered that there be no adjustments to the terms and conditions of the fifth collective agreement between the parties which was to be for the period 1 January 1998 to 31 December 2000.

(2) The applicant prays for the following relief (see statement in encl (1)):

(a) an order of certiorari to quash the said award;

(b) an order of mandamus directed to the Industrial Court to make a proper

finding of fact and law;

or in the alternative,

(c) a declaration that the respondent was at all material times operating

at a profit;

and/or,

(d) such other relief that this court deems just; and

(e) costs of this application.

(3) The applicant submitted that the Industrial Court had acted irrationally, unreasonably and illegally in making the said award. In Minister of Home Affairs v Persatuan Aliran Kesedaran Negara [1990] 1 MLJ 351, the Supreme Court had cited with approval the following passage from Council of Civil Service Unions and Ors v Minister for the Civil Service [1985] AC 374:

… Judicial review has I think developed to a stage today when without

reiterating any analysis of the steps by which the development has come

about, one can conveniently classify under three heads the grounds upon

which the administrative action is subject to control by judicial

review. The first ground I would call ‘illegality’, the second ‘

irrationality’ and the third ‘procedural impropriety’… By ‘irrationality

’, I mean what can now be succinctly referred to as ‘Wednesbury

unreasonableness’ (Associated Provincial Picture Houses Ltd v

Wednesbury Corp (1948) 1 KB 223). It applies to a decision which is

so outrageous in its defiance of logic or of accepted moral standards

that no sensible person who had applied his mind to the question to be

decided could have arrived at it …

(4) I am of the opinion that the Industrial Court had acted irrationally and unreasonably in finding that the respondent is paying better wages than the Emperor Hotel Sdn Bhd (‘Emperor Hotel’), which is one of the hotels in Malacca. Thus in making the said award, the Industrial Court had breached s 30(4) and (5) of the Act. This fact is supported by para 6.4 of the applicant’s affidavit, the fourth collective agreement between the applicant and the respondent for the period 1 January 1995–31 December 1997 (‘the fourth CA’), and a Collective Agreement between the applicant and Emperor Hotel for the period 1 June 1997–31 May 2000 (‘Emperor’s second CA’). However, a comparison between th