New York Hotel Johor Bahru v 1. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar dan Restoran, (Permohonan Semakan Kehakiman No. WA-25-153-06/2017)

KESATUAN KEBANGSAAN PEKERJA-PEKERJA

MAHKAMAH PERUSAHAAN … RESPONDEN-RESPONDEN Grounds of Decision 2 Azizah Nawawi, J: Application [1] In this application for judicial review, the applicant is seeking to quash the Industrial Court’s decision in the Industrial Court Case No. 402 of 2017 dated 16.3.2017 (the “Award”). [2] The grounds of the application are essentially illegality, irrationality and procedural impropriety. The applicant submits that the Award is illegal, irrational and suffers from procedural impropriety premised on the following grounds:

that the 2nd respondent (“Industrial Court”) erred in law and in fact on the issue of utilising the employees service charge to pay the minimum wages when the Industrial Court held that it was bound by the decision of the High Court in Crystal Crown Hotel & Resorts Sdn Bhd (Crystal Crown Hotel Petaling Jaya) v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia [2017] 9 MLJ 119;

(ii) the Industrial Court erred in law and in fact when it failed to give due consideration to the Guidelines on the Implementation of the Minimum Wages Order 2012; 3

(iii) the Industrial Court erred in law and in fact when it failed to apply the principles of equity and good conscience;

(iv) the Industrial Court erred in law and in fact when it accepted the proposal of the Union on the salary structure;

the Industrial Court erred in law and in fact on the minimum starting wages;

(vi) the Industrial Court erred in law and in fact when it accepted the Union’s proposal on salary adjustment on the basis that the Hotel did not plead financial incapacity in its Statement in Reply: and

(vii) the Industrial Court erred in law and in fact when it held that the Hotel failed to rebut the Union’s proposal. [3] Having considered the application and the submission of the parties, this Court has dismissed the application with costs. The Salient Facts [4] The applicant started operations in April 2001 (the “Hotel”) whilst the 1st respondent is a trade union of employees (the “Union”) established and registered under the Trade Union Act 1959. 4 [5] The Hotel and the Union entered into the 1st Collective Agreement for the period 1.1.2011 to 31.12.2013. [6] Prior to the implementation of the Minimum Wages Order 2012 (the “MWO 2012”), service charge was collected by the Hotel from the Hotel’s customer when the bill is presented. It is then distributed to the Hotel’s employees in accordance to service charge point allocation under the said Collective Agreement. [7] With the implementation of the MWO 2012 and the Guidelines issued by the National Wages Consultative Council, the Hotel proposed to implement the WMO 2012 by utilising/converting all or part of the employees’ service charge entitlement to meet the Hotel’s minimum wage obligation. [8] In October 2013, the Hotel unilaterally implemented the Hotel’s proposal to utilise the employees’ service charge to pay the minimum wages of RM900.00. [9] The Union’s position is that the Hotel is to pay the minimum wages of RM900.00 from the Hotel’s own funds without recourse to the employees’ service charge, as the service charge is payable to the employee above their basic wage/salary under Article 12 of the Collective Agreement. 5 [10] On 6.12.2013, the Union submitted a proposal relating to the terms and conditions for a 2nd Collective Agreement, and under Article 10 the employees are to be paid a basic salary RM900.00, with an increment between 2% to 5%, depending on the years of service with the Hotel (“Salary Structure”). [11] The Hotel disagreed with the Union’s Salary Structure. [12] Collective bargaining began on 10.1.2014, but despite many sessions of negotiations, the parties could not reach an agreement. [13] On 5.3.2015, the Union reported the trade dispute to the Director General the Industrial Relations Department under Section 18 of the Industrial Relations Act 1967 (the “IRA 1967”). Since both parties failed to reach an amicable settlement, the Minister of Human Resources referred the trade dispute to the 2nd Respondent (“Industrial Court”) for adjudication on 5.11.2015. [14] Both parties have agreed on the Articles in the proposed 2nd Collective Agreement except for Article 10 pertaining to the Salary Structure and Appendix B. 6 [15] After considering all evidence and submissions by both parties, the Industrial Court ruled in favour of the Union and ordered the Hotel:

to adopt the Union’s Salary Structure; and

(ii) to refund to the employees the utilized service charge deducted to top up basic wages from 1.10.2013 within one month from the date of the Award. [16] Being dissatisfied with the said Award, the Hotel filed the present judicial review application to challenge the said Award. The Findings of the Court [17] The Federal Court in Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 has set out the function of the Court in an application for Judicial Review and the correct test to be applied in reviewing the findings made by the Industrial Court, to be as follows: “[15] …… Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark 7 decision has held that the decision of inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality" which permits the courts to scrutinize the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds. [16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts' liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Peransang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and 8 not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion. [18] The Court of Appeal has in a number of cases held that where finding of facts by the Industrial Court are based on the credibility of witnesses, those findings should not be reviewed (see William Jacks & Co (M) Sdn Bhd v. S Balasingam [1997] 3 CLJ 235, National Union of Plantation Workers v. Kumpulan Jerai Sdn Bhd (Rengam) [2001] 1 CLJ 681, Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9, Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong & Another [2001] 3 CLJ 9. However, there are exceptions to this restrictive principle where:

reliance upon an erroneous factual conclusion may itself offend against the principle of legality and rationality, or

there is no evidence to support the conclusion reached. 9 (See Swedish Motor Assemblies Sdn Bhd v. Hj. MdIson Baba [1998] 3 CLJ 288). [19] It is clear from the above authorities that the scope and ambit of Rama Chandran had been clearly explained and clarified. Decided cases cited above have also clearly established that where the facts do not support the conclusion arrived at by the Industrial Court, or where the findings of the Industrial Court had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into consideration, such findings are always amendable to judicial review”. (emphasis added) [18] In Booi Kim Lee v YB Menteri Sumber Manusia & Golden Plus Geaniait SB [1999] 3 MLJ 515, Justice KC Vohrah adopted Lord Diplock’s classification of grounds of judicial review in the House of Lords case of Council of Civil Service Unions V. Minister for the Civil Service [1985] AC 374. The three (3) grounds described by Lord Diplock are:

illegality;

(ii) irrationality; and

(iii) procedural impropriety. 10 [19] By illegality as a ground for judicial review, it means “that the decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it’ and that “… the authority concerned has been guilty of an error of law in its action as for example, purporting to exercise a power which in law it does not possess.” [20] By irrationality it means ‘Wednesbury unreasonableness’ and “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 upon could have arrived at it” [21] By procedural impropriety, it includes ‘failure by an administrative tribunal to observe procedural rules that are expressly laid out...” and “duty to act fairly”. [22] Bearing in mind the above principles, the core issues in this case are:

whether the decision of the Industrial Court which dismissed the Hotel’s proposal to utilise service charge to pay minimum wages is legal, reasonable and rational; and

(ii) whether the decision of the Industrial Court to accept the Union’s Salary Structure is legal, reasonable and rational. 11 Issue (i) whether the decision of the Industrial Court which dismissed the Hotel’s proposal to utilise service charge to pay minimum wages is legal, reasonable and rational [23] Service charges is imposed by the Hotel at the rate of 10% on all bills and receipts. Service charged was introduced to replace tipping so that every employee enjoys a fair share of it as opposed to tipping which goes to front-liners or guest-contact employees only, such as waiters. Service charge that is paid by the customers will be placed in a fund. [24] The Hotel would retain 10% out of the 100% gross service charge. The remaining 90% gross service charge would be distributed to all employees covered within the scope of the collective agreement and the distribution shall be based on service charge points allotted to each employee. [25] With the implementation of the National Wages Consultative Council Act 2012 (“Act 732”), a National Wages Consultative Council (the “NWCC”) is established, whose functions includes making recommendation to the Government on the minimum wages and to review the minimum wages order (see section 4). Under section 22 of Act 732, the NWCC made a recommendation to the Government to implement the minimum wage of RM900.00, which was accepted by the Government under section 23 and hence the MWO 2012 was issued. Therefore, in the hotel industry, the minimum wages of RM900.00 takes effect from 1.10.2013. 12 [26] With the implementation of the minimum wages, the Hotel is now seeking to use the service charges to meet its obligation under the MWO 2012. This means that the Hotel will continue to charge 10% service charge from its customers, but instead of distributing it to its employees as agreed in the Collective Agreement, all or part of it will be used to help the Hotel meet the minimum wages payment. [27] Having considered the submission of both parties, I agree with the Union that the Hotel cannot use the service charge to pay the employees basic minimum wages as the minimum wages are the basic wages and that service charge is not part of the basic wages of the employees. [28] Section 2 of the Employment Act 1955 defines wages as “means basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service...” [29] Section 2 of Act 732 defines wages and minimum wages to be as follows: “wages” – has the same meaning assigned to it in section 2 of the Employment Act 1955 “minimum wages” – means the basic wages to be or as determined under section 23 13 [30] Therefore, the minimum wages under Act 732 can only mean the basic wages and not the wider concept of wages or remuneration. Basic wages do not include service charges or overtime payment. In Funk David Paul v. Asia General Asset Berhad [2013] 1 LNS 1327, the Court of Appeal held that: “13. ……… Wages in our view is a term referring to payments for service or works rendered on a regular basis; hence we have the terms or sayings ‘my weekly or monthly wages’ in ordinary parlance. This meaning would explain the exclusion of (a) service charge (b) overtime payment (c) gratuity or (d) retirement benefits from the definition of wages in s. 2. Wages is but one species of remuneration.” (emphasis added) [31] The same position was taken by Justice Asmabi in the In Crystal Crown Hotel (supra), where Her Ladyship held as follows: “[35] What amounts to the "basic wages " had been illustrated in the case of Décor Wood Industries (Terengganu) Sdn Bhd v. Timber Employees Union [1990] 1 ILR 423 as: "...does not include additional emoluments which some workmen may earn on the basis of a system of bonus related to production. Nor does it include any other supplements and 14 allowances, such as housing and cost of living which is not directly related to the work in that category. " [36] From the above, it would appear that the concept of "basic wages" under the NWCC does not include any other additional components. This concept had been illustrated in OP Malhotra's "The law of Industrial Disputes" at page 84 (supra) as follows: "The phrase 'basic wage' is also ordinarily understood to earn that part of the price of labour, which the employer must pay to all workmen, belonging to all categories. The phrase is used ordinarily, in contradistinction to allowance----the quantum of which may vary in different contingencies. The 'basic wage', therefore does not include additional emoluments, which some workmen may earn on the basis of a system of bonuses, related to production. The quantum of the earnings from such bonuses, varies from individual, to individual according to efficiency and diligence; it will vary sometimes from season to season, with the variation in the working conditions in the establishment; it will also vary with variations in the rate of supply of raw materials or with assistance obtainable from machine. This element of variation 15 excludes the additional emoluments from connotation of the 'basis wage'." (emphasis added) [32] I am also of the considered opinion that since the service charge fund does not belong to the Hotel, therefore the Hotel is not entitled to dip into the service charge for its statutory duty to pay the minimum wages. Since the service charge is collected from the customers for the employees, this fund does not belong to the Hotel as it is not from the hotel itself. The service charge collected from the hotel’s customers then form part of the income for the employee under his contract of service with the hotel. In Crystal Crown Hotel (supra) Justice Asmabi Mohamad held as follows: “[41] The service charge scheme is unique, in that, the money does not come from the employer but collected from the customers of the hotel and placed in a fund jointly owned by the employer and employees. This fund is pure income of the employee which sum is paid to employees pursuant to the contract of service. [42] The Privy Council had clarified that the money from which the service charge points were paid did not belong to the hotel (see Peter Anthony Pereira & Anor v. Hotel Jayapuri Bhd. & Another [1986] 1 WLR at page 449). 16 [43] The rationale and concept for the introduction of the service charge in the hotel industry as highlighted above showed that the money collected and deposited into the joint account of the employee and the Hotel belongs to the eligible employees of the Hotel and the payment to the employees in accordance with the service points allocation is provided in the contract of employment, hence I agree with the Award made by the IC that the Hotel could not be permitted to meet its obligation to pay the minimum wage as envisaged by the NWCC and MWO by utilising the service charge paid by its customers or patrons. In view of the above, the 'clean wage' system proposed by the Hotel was rightly rejected by the IC.” (emphasis added) [33] Added to that, to take the service charge away from the employees would mean that it will be less favourable to the employees and this would be in breach of Order 6 of the MWO 2012. Therefore, the service charges should not be made as part of the salary structure, whereby the employees’ portion of the service charge is being used to pay their minimum wages, resulting in them getting a lesser share of the service charges. In Crystal Crown Hotel (supra), Justice Asmabi held as follows: 17 “[37] For the purpose of implementing the MWO, the employer may, before the coming into force of the MWO, negotiate on the restructuring of wages (see Order 6 of the MWO) provided that:

the restructured basic wages to be paid to the employee should be in accordance with the minimum wages rates specified in the MWO (Order 6 (a));

the restructured wages should not be less favourable than the employee's existing wages (Order 6 (b) );

the restructured wages should not be less than the amount of wages earned by the employee as agreed in the contract of service before the restructuring of wages (Order 6 (c) );

the restructuring of wages should only involve the payment for work done during the normal hours of work of the employee (Order 6 (e) ); and

the restructuring of wages should not cause the employee to lose any remuneration specified under paragraphs (a) to (f) of the definition of 'wages' in section 2 of the Employment Act 1955, section 2 of the Sabah Labour Ordinance, section 2 of the Sarawak Labour Ordinance which the employee would be entitled to under the contract of service (Order 6 (f) ). 18 [38] The law had envisaged that the implementation of the minimum wage system must not in any way result in the employee getting anything less favourable than the employee's current wages. Neither could the basic restructured wages be less than the amount of wages earned by the employee pursuant to the contract of service.” (emphasis added) [34] However, it is the submission of the Hotels that the minimum salary structure that it is seeking to implement is consistent with paragraph 3(v) of the Guidelines on the Implementation of the Minimum Wages Order 2012, which provides that: “Subject to negotiation between the employer and the employee, the method of restructuring of wages is based on the following conditions: ….

for the hotel sector where service charge collection is implemented, the employer may convert all or part of the service charge meant for distribution to the employee, to form part of the minimum wages.” [35] However, in the present cases, even though there was a negotiation, the Union did not agree to its implementation. Therefore, I agree with the Union that without the Union’s agreement or consent, the Hotel cannot have proceeded to unilaterally implement the salary structure. This is consistent with 19 the case of Shangri-La Hotel (KL) Bhd v. National Wages Consultative Council & Ors [2017] MLJU 502, where the Court held as follows: “[26] The Guidelines stipulate that it is "subject to negotiation" which means that it cannot be unilaterally imposed on the Unions. [27] This interpretation is consistent with paragraph 6 of the MWO 2012 which stipulates that any restructuring of wages is by way of "negotiation". [28] Therefore, the Hotel cannot force the Unions to accept the Top Up Structure if the Unions do not agree to the proposal otherwise it would render the clear words of paragraph 6 of the MWO and even paragraph 3 of the Guidelines redundant.” (emphasis added) [36] Added to that, I am also of the considered opinion and I agree with the Union that the Guidelines are merely advisory in nature and have no force of law. The same position was taken by Justice Asmabi in Crystal Crown Hotel (supra) case: “[30] The Hotel’s reliance on section 3 of the Guidelines on the implementation of the Minimum Wages Order 2012 which stated that with respect of the hotel sector where the service charge was 20 implemented, the employer may convert all or part of the same to form part of the minimum wages was misconceived as the Guidelines itself had expressly provided that such a term was subject to negotiations between the employer and the employees. In the case at hand the Union had strongly objected to the proposal. Further the Hotel was only relying on the Guidelines with no legislative force. Therefore, non-binding.” (emphasis added) [37] In the Award, the Industrial Court made the following finding: “[16] This court is bound by the decision of the High Court in Crystal Crown Hotel & Resort Sdn Bhd (Crystal Crown Hotel Petaling Jaya) dan Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia supra – the judgment in the Federal Court case in Metra,ac Corporation Sdn Bhd v Fawziah Holdings Sdn Bhd [2006] 3 CLJ 177 on the doctrine of stare decisis is in point. Hence, it is the majority decision of this court that the Hotel cannot use the service charge to top up the minimum wages of the employees as the issue has been decided by the High Court” 21 [38] Premised on the reasons enumerated above, on issue (i), I am of the considered opinion and I agree with the findings of the Industrial Court that the Hotel is not entitled to convert part or whole of the service charge payable to the employees covered by the Collective Agreement to make up the minimum wages of RM900.00. Issue (ii) whether the decision of the Industrial Court to accept the Union’s Salary Structure is legal, reasonable and rational [39] Article 10 of the Union’s proposal on Salary Structure reads as follows: “Article 10 Salary Structure

With effect from 1st January 2014 every employee whose basic salary is less than RM900.00 shall be entitled to a salary revision as follows:

An employee who has served less than 2 years shall be paid the basic salary of RM900.00;

(ii) An employee who has served 2 years and more but less than 5 years shall be paid the basic salary of RM900.00 + 2%;

(iii) An employee who has served 5 years and more shall be paid the basic salary of RM900.00 + 4%; 22

(iv) An employee irrespective of years of service, is drawing a basic salary of RM900.00 and more, shall be paid 6% on the existing basic salary.

New employees who join the Hotel on or after 1st January 2014 shall follow the salary structure as per

….

Every employee shall be entitled to his annual increment on the anniversary date of each calendar year and pro-rated to the nearest month, to the nearest Ringgit for employees who have served less than one (1) year. The rate of annual increment shall be as follows: Monthly Salary Annual Increment Less than RM1,000.00 RM60.00 RM1,200.00 to RM1,400.00 RM70.00 RM1,400.00 to RM1,600.00 RM80.00 RM1,600.00 to RM1,800.00 RM90.00 RM1,800.00 above RM100.00” 23 [40] With regards to the Union’s salary structure, the Industrial Court made the following finding: “[36] In Appendix B of the Statement of Case, the Union had proposed the starting basic salary of RM900.00 with a graduated salary structure of 17 steps as comparable with Crystal Crown Hotel’s case which has 20 steps for all different job categories. The basis of the Union’s claim is in line with MWO 2012. Toted that the Hotel has glaringly not countered any proposal in its Statement in Reply to oppose the Union’s proposal. It is settled law that if the Hotel is in disagreement with the Union’s proposal, then it ought to have been pleaded. The Syuen Built together with Ramachandran and Ranjit Kaur’s cases supra on pleadings are applicable here. [37] The court has considered the Hotel’s financials and is the view that it has the financial capacity to pay the salary revision and the new salary structure of its employees. The Union’s proposed Salary Structure in Appendix B shall therefore be adopted...” [41] The Hotel took the position that the fact the Hotel did not plead incapacity to pay does not justify the Industrial Court to decide outside the intent of the Minimum Wages Act 2012. Added to that, 24 even if the Hotel did not challenge the Union’s proposal in the Statement in Reply, the Industrial Court still has a duty to study the proposal made by the Union in order to ascertain if the proposal is reasonable, and in doing so, the Industrial Court has to apply her mind to section 30(4) and 30(5) of the IRA 1967. [42] Having considered the Award, I am of the considered opinion that the Industrial Court had correctly applied the cases on pleaded issues, in particular the Federal Court decision in Ranjit Kaur (supra), where the Court held as follows: “….Pleadings in the Industrial Court are as important as in the civil courts. The appellant must plead its case and the Industrial Court must decide on the appellant’s pleaded case. This is important in order to prevent the element of surprise and provide room for the other party to adduce evidence once the fact or an issue is pleaded. Thus, the Industrial Court’s duty, to act according to equity, good conscience and substantial merits of the case without regard to technicalities and legal form under s. 30(5) does not give the Industrial Court the right to ignore the Industrial Court Rules 1967 made under the principal Act.” 25 [43] Therefore, the Industrial Court has correctly held since the Hotel did not challenge the Union’s salary proposal in its Statement in Reply, then the Union’s proposal has been accepted. [44] However, the Industrial Court did stop at that. The Industrial Court went on to consider the merits of the Union’s proposal and held that the Hotel is in a financial position to implement the Union’s Salary Structure: “[26] Moreover, the audited accounts of the Hotel for the past three years show that the Hotel had been making profits as exhibited in COB3 and COB4 which were signed by the Hotel’s external auditors and directors: 2011 2012 2013 Hotel operating profit RM2,279,055 RM3,092,015 RM4,604,110 Depreciation RM2,192,702 RM676,104 RM560,638 RM4,471,757 RM3,768,155 RM5,164,748 [28] Under cross-examination, COW1 had agreed that depreciation is a book entry. Her evidence was that the Hotel had made profits of RM4,604,110 for 2013 and RM3,092,051 for 2012. The audited accounts further showed profit of RM2,279,055 for 2011. Her evidence 26 confirmed that the cash flow generated a very healthy account for the Hotel. It must also be noted that the figures above pertaining to the Hotel’s business are relevant only for the Hotel and not the other company as it was evident from COW1’s testimony that there are two companies operating under Imej Klasik Sdn Bhd.” (emphasis added) [45] Therefore, I agree with the Union that in light of the financial capability of the Hotel, the Industrial Court was correct to have accepted the Union’s Salary Structure. [46] The Industrial Court also takes into consideration that there will be industrial disharmony if the salaries of the employees are not adjusted according to their seniority. The Industrial Court held as follows: “[23] With the MWO 2012 maintaining RM900 as minimum wages, the minimum starting salary of different categories have to be adjusted to the same level of RM900 by the Hotel and if a percentage of increase is not given, the junior employees will be receiving the same salary as senior employees which would result in industrial disharmony …. …. 27 [30] The Hotel had not pleaded anything on the minimum salary and the number of steps to oppose Appendix B proposed by the Union. It is to be observed that since the rate for the job for a waiter/waitress has been fixed at RM400 and with the minimum wages at RM900, the rest of the job hierarchy has to be raised correspondingly, failing which will result in the junior employee drawing the same salary as the senior employee.” (emphasis added) [47] With regards to the issue of annual increment of 5% proposed by the Union which was accepted by the Industrial Court, the Industrial Court held as follows: “[32] The Union submitted that the annual increment should be based on 5% of the basic salary of the employees. The Court has observed that the Hotel had again failed to plead, objecting to this proposal.” [48] The Industrial Court then referred to other industrial court decisions which had similarly awarded an annual increment of 5%. The Industrial Court then made a finding of fact that the Consumer Price Index from 1.1.2011 to 31.12.2013 is 7.07%. Therefore, having considered the findings of the Industrial Court, I agree with the Union that the Industrial Court’s finding that the annual increment of 5% proposed by the Union is reasonable. 28 Conclusion [49] In view of the reasons enumerated above, I am of the considered opinion that the Award is not illegal or irrational as the Industrial Court have applied the correct legal principles in its findings. Therefore, I find no merit in this application and the same is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 25 September 2018 For the Applicant : A. Ramadass / M. Jothiletchimy Messrs Ramadass & Associates Kuala Lumpur. For the 1st Respondent : Shireen Selvaratnam / Lim Wei Jiet Messrs Sreenevasan Kuala Lumpur. Cases referred:

Crystal Crown Hotel & Resorts Sdn Bhd (Crystal Crown Hotel Petaling Jaya) v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia [2017] 9 MLJ 119.

Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629. 29

Booi Kim Lee v YB Menteri Sumber Manusia & Golden Plus Geaniait SB [1999] 3 MLJ 515.

Funk David Paul v. Asia General Asset Berhad [2013] 1 LNS 1327.

Shangri-La Hotel (KL) Bhd v. National Wages Consultative Council &Ors [2017] MLJU 502.