Peps-Jv (Melaka) Sdn Bhd v 1. ) Industrial Court of Malaysia (WA-25-194-05/2021)

NATIONAL UNION OF TRANSPORT EQUIPMENT AND ALLIED INDUSTRIES WORKERS RESPONDEN-RESPONDEN JUDGMENT [1] This case is about a trade dispute. [2] The applicant Company is in the business of manufacturing specialised automotive metal-based components and modular assembly parts for cars. The manufacturing plant is located in Melaka. [3] The 2nd respondent is a trade union having the exclusive bargaining agent in respect of the categories of employees of the 1st applicant Company. [4] The Union entered into a first Collective Agreement (“1st CA”) with the applicant for the period from 1.4.2016 to 31.3.2019. Art 41(a) of the 1st CA provides that it is to continue in force thereafter “until and unless superseded by a new collective Agreement or Award”. [5] A trade dispute arose when the parties could not conclude a 2nd Collective Agreement (“2nd CA”). The dispute was reported to the Director General of Industrial Relations. Unfortunately, the matter could not be resolved. [6] The parties then made a joint request to the Minister of Human Resources (“the Minister”) and thereafter, the Minister, acting under s 26(1) of the Industrial Relations Act 1967 (“IRA”), referred the dispute to the Industrial Court for adjudication and an award. [7] The matter referred to by the Minister arose from the trade dispute in respect of Perjanjian Kolektif Ke-2 bagi tempoh 01.04.2019 hingga 31.03.2022 pertaining to the terms and conditions of employment applicable to the employees. At the Industrial Court [8] At the outset of the reference before the Industrial Court, the parties agreed to maintain the status quo of some of the articles in the 1st CA. [9] Only the remaining un-agreed articles that were in dispute were referred to the Industrial Court for the adjudication and award. The un-agreed articles proposed under the new 2nd CA are as follows:

Art 3 Recognition of Union and Security

(ii) Art 6 Scope of Agreement

(iii) Art 7 Probation

(iv) Art 8 Promotion

Art 9 Grade and Salary Range

(vi) Art 10(i) Annual Increment

(vii) Art 11 Hours of Work

(viii) Art 12 Overtime

(ix) Art 13 Payment for work done on Rest Days and Public Holidays

Art 14 Shift Allowance

(xi) Art 15 Subsistence Allowance/ Heat Allowance/ Special Allowance

(xii) Art 15(ii) Outstation Allowance

(xiii) Art 16 Gazetted Public Holiday

(xiv) Art 17 Annual Leave

(xv) Art 21(i) Prolonged Illness

(xvi) Art 23 Retirement

(xvii) Art 26 Existing Benefits

(xviii) Art 29 Check off

(xix) Art 39 Attendance Allowance

(xx) Art 40 Across the Board Adjustment

(xxi) Art 41 Duration, Modification and Termination of Agreement

(xxii) Art 42 Pilgrimage Leave and its equivalent

(xxiii) Appendix 1 (Probation)

(xxiv) Appendix 2 (Extension of Probation Appointment)

(xxv) Appendix 3 (Confirmation of Appointment)

(xxvi) Appendix 4 (Offer of Promotion on Probation)

(xxvii) Appendix 5 (Offer of Confirmation of probation)

(xxviii) Appendix 7 (Salary structure)

(xxix) Appendix 8 (Deduction of Union Wages) [10] After having heard the evidence, submissions of the parties and making a comparative analysis with other collective agreements in similar industries, the Industrial Court handed down the award, which can be summarised as follows: Art 3: Recognition of Union and Security [11] The dispute is in respect of the existing art 3(g) which provides that the Union Room shall be provided upon request and subject to availability for the Union’s legitimate use. The Union requested for the applicant company to provide a Union Room equipped with a notice board and sought to remove the phrase “subject to availability”. [12] The Industrial Court decided to retain the status quo in the 1st CA which provides that the applicant Company “shall provide a room upon request and subject to availability”. Art 6: Scope of Agreement [13] The Company proposed that art 6(f) be included and suggested that employees shall not be entitled to the benefits of the agreement if they resigned, are medically boarded out or are no longer in service. The Union, however, was of the view that it would be fair to grant the workers who have left the Company to be paid back wages. [14] The Industrial Court decided that art 6(f) shall remain. However, only the medically boarded out shall remain in the scope of art 6(f). Hence, art 6(f) is to read: Save for medically boarded out employees, those employees who had resigned or no longer in service prior to the signing of this Agreement shall not be entitled to the benefits arising from this Agreement. Article 7 – Probation [15] In respect of art 7 (b), the Union proposed an increment of RM50.00 as a confirmation increment. The applicant Company, however, wanted to confine itself in issuing the letter of appointment on probation, the extension of probation and confirmation to be in accordance with the appendices. The Company also sought to remove the clause that states that the confirmation letters shall be copied to the Union. [16] The Industrial Court decided that art 7 of the 1st CA shall remain and there was no necessity to warrant any change. Article 8 – Promotion [17] The proposed amendments are in respect of art 8 (d) (i),

(ii) and (iii). The Union proposed a 12% increment for all the categories from the existing 8%, whereas the Company insisted that clauses (c) and (d) be deleted. [18] The Industrial Court decided that there is no need for clauses (c) and (d) to be deleted. As for the workers, there would not be any cause for complaint as the rates are clearly stipulated. [19] The Industrial Court held for art 8 to remain as it is. Article 9 – Grades and Salary Range – Appendix 7 [20] In the 1st CA, clause (e) is with regard to computing wages, where the working week commences on Monday at 12.00 am and ceases on the following night at 12.00 midnight band for purposes of computing the daily rate where the formula is as follows:

42.5 hrs. x 52 weeks = 191 hours 12 months. The Union proposed to change the formula as follows: 44 hrs. x 52 weeks = 184 hours 12 months. [21] The Industrial Court decided that the denominator of 42.5 hours is derived from the existing work hours in art 11 of the 1st CA and that it was fair and ought to be maintained. [22] As to Appendix 7 which was put up by the Company, the Industrial Court ordered the increase of 20% in the minimum salary and 20% in the maximum salary. The Industrial Court was of the view that the applicant Company's original proposal's rate was way too low compared to similar industries considering that the Company is a Tier 1 vendor. Article 10(i) – Annual Increment [23] In the 1st CA, the employees received an annual increment of not less than 4% of their last drawn basic salary in accordance with their appropriate salary grade, payable on the 1st day of January each year. The Union proposed a 7% annual increment on the 1st of April of each year for the duration of the 2nd CA. [24] However, the Company proposed a 1% annual increment. The Union argued that the 1% increment suggested by the Company is far too low by any standards. In the worst-case scenario, the employees should continue to receive a 4% increment and retain the percentage of increment and therefore retain the status quo. [25] The Industrial Court had considered the Company's financial ability and ordered for the Company to pay all confirmed employees not less than a 4% increment of their last drawn salary in accordance with the appropriate salary grade payable on the 1st day of April each year. Article 11 – Hours of Work [26] The Union proposed to retain the working hours as stipulated in the 1st CA. According to the Union’s proposal, the day and night shifts should also be retained. This was further followed by a proposal that employees should be given two hours off for Friday prayers and meal breaks on Fridays. It was also proposed that all employees work five days per week, i.e., from Monday to Friday and to retain the existing clause (c). [27] The Company had proposed 48 hours' work per week and for six days' work a week. However, according to the Industrial Court, the Company did not provide any justification for the proposal. [28] The Industrial Court then decided that the Article is to remain as per the 1st CA and the proposals of both parties were dismissed. Article 12(f) – Overtime Meal Allowance [29] In the 1st CA under art 12(g), the overtime meal allowance was RM2.00 which is paid to the employees who are requested to work overtime from Monday to Friday after normal working hours, provided that the workers work for more than two (2) hours. [30] The Union proposed a RM2.00 increase, i.e., RM4.00 for overtime meal allowance. The applicant Company sought to retain the rate at RM2.00, but it had increased the qualification hours to 2.5 hours from the existing two hours. The applicant company proposed to delete clauses (b) to

in art 12. [31] The Industrial Court directed that the existing Article be retained. However, the Industrial Court agreed to increase the meal allowance to RM3.00 instead of RM4.00 proposed by the Union. Article 14(b) – Shift Allowances [32] Under art 14(b) of the 1st CA, the shift allowances are as follows:

Morning Shift Allowance is RM1.50 and

(ii) Night Shift Allowance is RM5.50. In the 2nd CA, the Union proposed RM3.00 for the morning shift and RM10.00 for the night shift. [33] On the other hand, the Company proposed to delete clause (b). In so far as clause (a) is concerned, the Company further proposed that night shift employees be paid RM4.00 instead of the previous RM5.50. [34] The Industrial Court agreed that the rates in the 1st CA were low. It further held that the Union had provided concrete proof of the rates prevailing in the industry. Considering the financial ability of the applicant Company to pay, the Industrial Court ordered that the morning shift rate be increased to RM2.50 and the night shift rate be increased to RM6.50. Article 15 – Subsistence Allowances [35] The Union has agreed to retain Art 15 as per the 1st CA. It is the Company's proposal under Article 15(a), (b) and (c) to be deleted. [36] The applicant Company has not given any specific reasons for proposing to delete some of the clauses. [37] The Industrial Court held that the rates stated in Art 15 are not exorbitant. In the circumstances, it was the view that the applicant Company could still afford to pay them. Thus, Art 15 is to remain as per the 1st CA. Article 16 – Gazetted Public Holidays [38] The applicant Company's proposal under the 2nd CA is as follows:

Each employee will be granted paid holidays as stipulated under the Employment Act 1955.

To be deleted.

To be deleted. [39] The applicant Company submitted that its proposal should be adopted in line with the Company's aim to increase productivity and reduce the costs associated with paying employees for working on public holidays, given the Company's dire financial situation. [40] The Industrial Court found that the number of public holidays is not excessive and held that the Article should be retained as per the 1st CA. Article 17 – Annual Leave [41] The Company's proposal is as follows:

An employee becomes eligible for annual leave on completion of twelve (12) continuous months of service. The annual leave entitlement will be as stipulated under the Employment Act 1955. (i) To be deleted (ii) To be deleted (iii) To be deleted.

To be deleted

To be deleted

To be deleted

Agreed

Agreed

Agreed

To be deleted

To be deleted. [42] The Company's justification for reducing the employees' annual leave and reverting to the Employment Act is in line with its policy to raise the employees' productivity as the Company practises a 5-day work week. The Union has dropped its proposal and proposes to retain the status quo as reflected in the existing provision appearing in the 1st CA. [43] The Industrial Court decided art 17 could be retained. Hence, the Company's proposal was rejected. Article 23 – Retirement [44] The Union has requested for this article to remain, but the applicant Company came up with new proposals that:

All employees shall retire at age sixty (60). However, an employee may opt for retirement at any time after attaining 50 years old.

The Company shall contribute in accordance with the statutory requirement as defined under the Employees' Provident Fund Act “from the date of the commencement of this collective agreement.”. [45] The Company submitted for its proposal to be maintained as it is reasonable and in compliance with the law and that the Company cannot afford any additional costs to be incurred. [46] The Industrial Court ordered that the position remains and the existing art 23 in the 1st CA be retained. Article 26 – Existing Benefits [47] The applicant company proposed to remove this article while the Union had requested it to be retained. [48] The reason proffered by the Company, as stated by COW1, is that the terms of the CA negotiated with the Union sufficiently cover the needs of the employees, so there was no practical need to retain the article since it is rendered redundant. Hence, it should not have a place in the proposed CA. [49] The Industrial Court held that the article should remain status quo to ensure a stabilised industrial relation between employers and employees. Article 29 – Check off [50] The applicant Company also proposed to remove this article as the Company held the view that ''check off'' is not an employment term. Therefore, the Company decided that it is the Union's duty to ensure due collection of Union subscriptions is paid by their members directly to them, the Company not wanting any involvement in the process. [51] The Union was of the view that it was providing services to its members and is dependent on the union subscription. If the applicant company insisted on dropping the “check off” provision, this would cause unnecessary problems, where the Union would have to deploy the Worksite Committee members to do a manual collection of the Union dues. [52] It was further argued at the Industrial Court that since the “check off” provision had been incorporated in the 1st CA, the applicant Company could not arbitrarily seek to drop the article. Section 24(3)(a) of the Employment Act provides, inter alia, that deductions from the wages of an employee made by an employer on account of subscription payable to a trade union shall be lawful if it is made upon the written request of the employee. Since the inception of the Union, the Union stressed that workers who are members of the Union had given consent to the employer (Company) to deduct the Union dues and the Company has been extending this “service” all along. [53] In the circumstances, the Industrial Court ordered the article to remain as per the 1st CA. Article 39 – Attendance Allowance [54] It is the applicant company's proposal that the Company continues to maintain its current practice of paying RM60.00 on full attendance to all employees covered by the CA with some conditions. The Company proposed some deductions be based on factors such as lateness for work. [55] The Industrial Court was of the view that the company's proposal was unreasonable, whereby 1 day of absence would result in a total wipe-out of the RM60.00 per month allotted. [56] Therefore, the Industrial Court held that the article should remain as per the 1st CA. Article 40 – Salary Adjustment [57] The applicant Company proposed that all confirmed employees at the time of signing this agreement should be granted a salary adjustment of 1% of their basic salary as of 31 March 2019. [58] However, the Union proposed a 7% salary adjustment which was brought down from the initial proposal of 12%. [59] The Union has established that the full CPI for the period in question is 7.2%. The Union said the 1st CA was concluded with a 5% salary adjustment but for the 2nd CA, the Union has considered the fact that the Company had made profits for the last three preceding years where in 2018, it was RM6,697,000.00, RM7,475,000600 in 2017 and in 2016 it was RM12,051,000.00. [60] It was submitted on behalf of the Union that it was a fit case for the Industrial Court to depart from the two-third principle and award a salary adjustment of 7%. [61] The Industrial Court had scrutinised the Company's finances since 2016 and was satisfied that the Company had the financial means to pay as stated under section 30(4) of the Act. [62] After considering the arguments and the evidence before it, the Industrial Court decided that art 40 shall read: All confirmed employees as at 1st April 2019 shall be given 6% of their last drawn salary as across the board salary adjustment. Article 41 – Duration, Modification and Termination of Agreement [63] In the Company's 2nd CA Proposal, it was proposed that:

The 1st CA shall cease upon its expiry date.

The 2nd CA shall take effect upon being agreed by both parties and/or Award handed down by the Court and shall continue until the expiry date and/or superseded by a new Collective Agreement. [64] The Union proposed that arty 41(a) that the CA was to commence from 1 April 2019 and to remain in force for three years until superseded by a new CA. The Union's stand on the duration of the 2nd CA is that since it was jointly agreed by the parties, the duration of the 2nd CA should commence on 1 April 2019 for a period of three years ending 31 March 2022. [65] The Industrial Court took cognisance that in the parties' joint application letter dated 26 August 2019 to the Minister for the matter to be referred to the Industrial Court under section 26(1) of the Act, Article 41 was listed as one of the Articles agreed by the parties. [66] In the circumstances, the Industrial Court ordered that art 41 should read as follows:

This agreement shall take effect from 1st April 2019 and shall remain in force and be binding on the Company and the Union for a period of three (3) years and shall continue to remain in force thereafter until and unless superseded by a new collective Agreement or Award. Article 42 - Pilgrimage Leave [67] The applicant Company proposed that this article be deleted while the Union has asked for it to remain status quo. [68] The Industrial Court held that the pilgrimage leave should remain status quo as per the 1st CA since the leave is for 20 working days and happens only once during the employee's employment. The Judicial Review [69] Aggrieved, the applicant company commenced this judicial review application for an order of certiorari to quash the Award. The applicant also seeks for this Court to re-determine and re-consider all articles in the 2nd CA as handed down by the Industrial Court. [70] The application for judicial review is supported by the affidavit of Tan Ceng Hua in Encl 2 (“AIS-2”). Encik Tan is the human resources officer of the applicant company. The Preliminary Objection [71] In response to AIS-2, the Union filed an affidavit in reply through its general secretary, Gopal Kishnam a/l Nadesan, in Encl 11 (“AIR-11”). [72] In his AIR-11, Encik Gopal raised a preliminary issue that the applicant has failed to make a full and frank disclosure of all the materials placed before the Industrial Court before obtaining leave for the application for judicial review. [73] In para 8 of AIR-11, Encik Gopal affirmed as follows: Saya juga dinasihatkan oleh peguamcara Responden Ke-2 dan sesungguhnya percaya bahawa Pemohon hanya melampirkan dengan secara memilih (selectively) sebagai eksibit bersama Afidavit Sokongan sebahagian daripada dokumen-dokumen yang menyebelahi dan atau mengeratkan kes Pemohon tanpa membawa ke pengetahuan Mahkamah Yang Mulia ini dokumen-dokumen yang difailkan di Mahkamah Perusahaan oleh Responden Ke-2. The impugned documents left out in the AIS-2 are:

Statement of Case

Rejoinder

The 2nd respondent’s Bundle of Documents

The applicant’s Bundle of Documents

Encik Gopal’s witness statement made on behalf of the 2nd respondent. [74] I will deal with this preliminary objection in the later part of this judgment. The Applicant’s case [75] Learned counsel for the applicant submitted that the Industrial Court had failed to consider the applicant’s financial capacity in arriving at its decision. My attention was then drawn to s 30(4) of the IRA, which provides that: In making its award in respect of a trade dispute, the Court shall have regard to the public interest, the financial implications and the effect of the award on the economy of the country, and on the industry concerned, and also to the probable effect in related or similar industries. [76] Learned counsel for the applicant submitted that if the Applicant is forced to pay out amounts that it cannot afford in order to fulfil the terms of the disputed provisions of the 2nd CA, it will result in the Applicant being forced to close down its operations permanently due to financial incapacity or put into more financial difficulties. [77] According to learned counsel, the Industrial Court had ignored the applicant’s audited financial statements for the year ending 31.12.2019 and audited financial statements for the year ending 31.12.2020, both of which were tendered at the trial. [78] By ignoring the said statements, the Industrial Court had given disproportionate weightage towards the evidence of the Union. [79] Learned counsel then referred me to Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan Dan Kesihatan Swasta v Assunta Hospital [2020] ILJU 80, which made it very clear that the terms of any collective agreement must be made pursuant to the financial capacity of the Applicant. [80] The applicant also took umbrage in the manner the Industrial Court addressed the proposed art 8 on the increment for all categories of promotion and art 10 on the employee’s annual increment. [81] On art 8, learned counsel submitted that the Industrial Court had decided to maintain the increment for all categories of promotion at 8% without assigning any reason. The same applies to art 10 when the Industrial Court decided to retain the employee’s annual increment of 4% without considering the applicant’s financial ability. [82] Learned counsel also highlighted that Honda Malaysia Sdn Bhd (“Honda Malaysia”) is the sole customer of the applicant. In the circumstances, the applicant’s financial health is dependent on the orders from Honda Malaysia. The failure to consider the applicant's financial health amounts to a failure to consider a relevant material fact. According to learned counsel, this would leave the Award open to judicial review. [83] My attention was then drawn to Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 FC. It carries the proposition 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, such findings are always amenable to judicial review. [84] Further, learned counsel submitted that the Industrial Court had failed to consider the sudden outbreak of the Covid-19 pandemic. As a result of the movement control order (“MCO”), which took effect on 18.3.2020, the applicant company was compelled to cease all operations. The company came to a standstill in that there were no operations at the applicant’s plant until the MCO was lifted. [85] The MCO was followed by conditional movement control order (“CMCO”), which took effect from 4.5.2020 to 9.6.2020. According to the applicant, the long closure period had resulted in substantial mobilisation costs. In any event, the plant had to resume operation in stages with limited workers. [86] Relying on the judgment of the Federal Court in Crystal Crown Hotel & Resort Sdn Bhd (Crystal Crown Hotel Petaling Jaya) v Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia [2021] 3 MLJ 466 FC. The Federal Court observed that it would be impossible for this Court not to have noticed the pandemic or its effect on the industry as a whole. [87] Based on the aforesaid financial position of the applicant company, the applicant could not be expected to put into effect the salary increments to 6% as per disputed Art 40 and the increase of the benefits for prolonged illness as the disputed Art 21(i). [88] In any event, learned counsel attracted the Court’s attention to the fact that the applicant Company had complied with the Minimum Wages Order 2020 at all material times. [89] As to the disputed hours of work in Art 11, learned counsel for the applicant further submitted that the applicant Company had complied with the Employment Act at all material times. [90] As to Art 29, it is the submission of the applicant that the Industrial Court had exceeded its jurisdiction to make an award on check-off. Learned counsel for the applicant submitted that the Industrial Court had misdirected itself on the point of law. In Penang & S Prai Textile & Garment Industry Employees' Union v Dragon & Phoenix Bhd Penang & Anor [1989] 1 MLJ 481, the High Court held that the Industrial Court had no jurisdiction to decide on the issue of check off despite the 1980 amendments to the IRA. Hence, according to learned counsel, the Federal Court case of Non-Metallic Mineral Products Manufacturing Employees Union v Malaya Glass Factory Bhd [1985] 1 MLJ 129 FC is still good law and binding on the Industrial Court. [91] On the duration, termination, modification and of the CA, learned counsel submitted that the Industrial Court had committed a clear error of law in deciding that the 2nd CA should take into effect from 1.4.2019 and should remain in force for 3 years thereafter unless superseded by a new CA. [92] According to learned counsel, the Industrial Court had failed to consider that the terms of the CA were only finalised on 21.2.2021 and there can be no enforcement of an incomplete contract retrospectively. [93] For the aforesaid reasons, learned counsel further submitted that the Industrial Court, in arriving at its decision, had failed to comply with s 30(5) of the IRA, which made it amenable to judicial review. Analysis [94] The main argument raised by the applicant is that the Award is tainted with irrationality and unreasonableness since the Industrial Court had failed to consider the applicant company's financial ability. Reliance is placed on s 30(4) of the IRA. [95] In justifying its decision, the Industrial Court held that: The Company's finances since 2016 have been laid before the Court and the Court after studying them, is satisfied that the Company has the financial ability to pay as stated under section 30(4) of the Act. In making the finding, the Industrial Court accepted the Union's argument in determining the applicant company's true financial position in 2019. The approach of the Industrial Court is not purely to look into the declared loss of RM4,722,000 as reflected in the audited accounts of the applicant company for the financial year ending 31.12.2019. [96] The Industrial Court took cognisance that the applicant company had acquired property, plant and equipment worth an aggregate sum of RM9,074,000. In the same year, the applicant recorded a revenue of RM154,310,000 and made a provision for depreciation for RM6,754,000. [97] In determining the true financial position of the applicant company, the Industrial Court, in agreeing with the Union’s argument, took the following approach: Purchase of assets (“A”) + Provision for Depreciation (“B”) = (C) The true financial position of the applicant company is obtained by deducting (C) from the audited loss, which is

(D). The calculation would be as follows: RM9,074,000 (A) + RM6,754,000 (B) = RM15,828,00(C) - RM4,722,000(D) = RM11,106,000. [98] In short, the Industrial Court took into account other factors over and above the audited loss of the applicant company for the financial year ending 31.12.2019. [99] The approach, in my considered view, cannot be said to be incorrect. A company in distress cannot be acquiring property, plant and equipment worth a sum of RM9,074,000. In the first place, it has to be bankable to have raised that amount of fund. A bankable company can hardly be described as on the brink of financial incapacity, waiting, as it were, to close down its operations permanently. [100] As to the Covid-19 pandemic, the appellant company has to show that it had impacted the financial health of the company. While this Court cannot, as indicated by the Federal Court in Crystal Crown Hotel, ignore the impact of the pandemic, a general averment by the applicant company is insufficient. In what manner did the pandemic impact the sales of the company? Has Honda Malaysia reduced its order from the applicant company? If the answer is in the affirmative, to what extent was the reduction? These are the material that has to be put before the Industrial Court for its consideration. [101] The case of Chuah Seong Keat & Ors v Din Tan Yong Chia & Ors [2022] MLJU 455, cited by learned counsel for the applicant, is distinguishable. There the learned JC took judicial notice of the impact of the various ongoing Covid-19 induced MCO on many industries, including the health spa industry. With respect, without sufficient material, this Court cannot make the same judicial notice on the automotive industry. [102] In any event, the financial implication, as I can see it, is only limited to the following:

Art 12(f), where the overtime meal allowance was increased from RM2.00 to RM3.00.

Art 14, where the morning shift allowance was increased from RM1.50 to RM2.50 and the night shift from RM5.50 to RM6.50.

Art 40, where the salary adjustment was increased to 6% across the board despite the initial demand of the Union to increase it to 12%. In all other remaining clauses that involve grade and salary range, annual increment, gazetted public holiday, retirement and annual leave, the Industrial Court had retained the provisions as agreed by the parties in the 1st CA. As to the prolonged illness, the Industrial Court decided to maintain the 1st CA in part and adopt the company’s proposal in part. [103] The same applies to art 29 on check off. What the Industrial Court did was to retain the agreed provision in the 1st CA. [104] As to the preliminary objection, I accept Encik Tan’s explanation in his additional affidavit in Encl 12 (“AIS-12”) that he had inadvertently omitted the impugned documents. Although it was an ex parte application, I hold that there was no element of malice on the part of Encik Tan. [105] As to the commencement and duration of the 2nd CA, I respectfully agree with the finding of the Industrial Court that the parties’ joint application letter dated 26.8.2019 to the Minister listed art 41 as one of the Articles agreed upon by the parties. According to art 41, the duration of the 2nd CA is to commence on 1.4.2019 to 31.3.2022. Findings [106] For the aforesaid reasons, it is my finding that the Industrial Court had acted with equity and good conscience and regard to the public interest, the financial implications and the effect of the award on the economy of the country and on the industry concerned, and also to the probable effect in related or similar industries. [107] The award is not tainted with any illegality, procedural impropriety or otherwise suffers from Wednesbury unreasonableness or Anisminic error to make it amenable to judicial review. [108] The application for judicial review is dismissed with costs of RM7,000 subject to allocatur. Tarikh: 31st Oktober 2022 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. Pihak-pihak: Bagi Pihak Pemohon: Wee Choo Keong & Ms Yeo Wei Min PDK WEE CHOO KEONG & FAAIZ Bagi Pihak Responden 2: Chandrasegaran A/L Rajandran PREM & CHANDRA