THR Hotel (Selangor Berhad) v 1. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar dan Restoran (Permohonan Semakan Kehakiman No. WA-25-222-08/2017)

1.

… RESPONDEN-RESPONDEN [didengar bersama] PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO: WA-25-221-08/2017 2 Dalam perkara Permohonan oleh Pemohon untuk satu perintah Certiorari di bawah Aturan 53, Kaedah 3(2) Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara mengenai Seksyen 20(3), Akta Perhubungan Perusahaan 1967 Akta 177); Dan Dalam perkara Award Mahkamah Perusahaan No. 763 Tahun 2017 bertarikh 25 Mei 2017 yang diterima pada 1.6.2017 THR HOTEL (JOHOR) BERHAD … PEMOHON

1.

… RESPONDEN-RESPONDEN [didengar bersama] PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO: WA-25-220-08/2017 3 Dalam perkara Permohonan oleh Pemohon untuk satu perintah Certiorari di bawah Aturan 53, Kaedah 3(2) Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara mengenai Seksyen 20(3), Akta Perhubungan Perusahaan 1967 Akta 177); Dan Dalam perkara Award Mahkamah Perusahaan No. 762 Tahun 2017 bertarikh 25 Mei 2017 yang diterima pada 1.6.2017 THR HOTEL (LANGKAWI) BERHAD … PEMOHON

1.

… RESPONDEN-RESPONDEN Grounds of Decision Azizah Nawawi, J: Application [1] There are three (3) cases before this Court: 4

WA – 25 – 222 – 08/2017 (the “Present Application”);

(ii) WA – 25 – 221 – 08/2017 (“Suit 221”); and

(iii) WA – 220 – 08/2017 (“Suit 220”). [2] At the Industrial Court, parties in Suit 221 and Suit 220 had agreed that the decisions in the two suits are to be bound by the Award handed down by the Industrial Court in the Present Application, as the issues and subject matter in the Present Application are identical to Suit 221 and Suit 220. [3] This Court has directed that the Present Application be heard together with Suit 221 and Suit 220 on the basis that the issues and subject matter in all these cases are identical. For the purpose of this Judgment, I will only refer to the factual matrix of the Present Application, which is also similar to the factual matrix of Suit 221 and Suit 220. However, the findings of this Court will be common for all the three (3) cases. [4] In the Present Application for judicial review, the Applicant is seeking to quash the Industrial Court’s decision in the Industrial Court Case No. 761/2017, Industrial Court Case No. 763/2017 and Industrial Court Case No. 762/2017, dated 25.5.2017 (the “Award”). [5] The grounds of the application are essentially illegality, irrationality and procedural impropriety. 5 [6] Having considered the application and the submission of the parties, this Court has dismissed the application with costs. The Salient Facts [7] The Applicants are involved in the hotel industry (the “Hotels”) whilst the 1st Respondent is a trade union of employees (the “Union”) established and registered under the Trade Union Act 1959. [8] The crux of the dispute that lead to the filing of this judicial review application revolves around the terms and conditions on the restructuring of the wages of the employees in relation to the payment of basic wages and service point value which falls under the scope of the 7th Collective Agreement (the said “Collective Agreement”) entered between the Hotel and the Trade Union for the period of 1.10.2011 to 30.9.2014. [9] Under the said Collective Agreement, Article 10 and Appendix A provides for salary structure whilst Article 12 provides for the service charge remuneration. 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. 6 [10] Subsequently, due to the implementation of the MWO 2012 and the Guidelines issued by the National Wages Consultative Council, the Hotels were compelled to restructure the remuneration system by revising the monthly basic salary of all employees who were earning below the minimum wage level prescribed under the MWO 2012 to RM900.00. [11] On 29.7.2013, a meeting was convened between the Union and the Hotels regarding the implementation of minimum wages on the effective date. At the said meeting, the Hotels suggested that part of the employees’ service charge be converted to make up the RM900.00 a month as required under the MWO 2012. However, the Union did not agree to such suggestion. [12] Vide a letter dated 18.9.2013, the Hotels had informed their employees that part of their service charge would be converted to form part of the minimum wages of RM900.00 (the “Top Up Structure”). [13] On 11.10.2013, the Union sent a letter to the Hotels recording its objection to the Top Up Structure and informed the Hotels to pay the minimum wages from the Hotels’ own funds without recourse to the employees’ service charge under the Collective Agreement. [14] On 21.10.2013, the Hotel had filed a reference for trade dispute under Section 18 of the Industrial Relations Act 1967 (the “IRA 1967”) with the Industrial Relations Department. Since both parties 7 failed to reach an amicable settlement, the Minister of Human Resources referred the trade dispute to the 2nd Respondent for adjudication on 11.3.2014. [15] At the same time, the Hotels had unilaterally implemented the Top Up Structure, by converting a part of the employees’ service charge to meet the minimum wage payment of RM900.00 per month under the MWO 2012, which took effect on 1.10.2013. [16] In the Industrial Court, the Hotels were seeking an award on the following terms:

that the Hotels shall be entitled to restructure wages by converting part or whole of the service charge payable to comply with the Minimum Wages Order 2012; and

(ii) that the Collective Agreement in existence be varied by the inclusion of an addendum to the Collective Agreement to permit the conversion of the service charge to make up the minimum wages with effect from 1 October 2013. [17] Upon hearing both parties, the 2nd Respondent (the “Industrial Court”), by a unanimous decision, had dismissed the Hotel’s implementation of the Top Up Structure and ordered the Hotels:

to pay the minimum wages of RM900.00 to the Hotel’s employees earning less than RM900.00 a month with their 8 own funds without recourse to the service charge from 1.10.2013; and

(ii) that the Hotels are to refund the service charge adjustment which has been deducted to top up the basic wages from 1.10.2013 within one month from the date of the Award. [18] Being dissatisfied with the said Award, the Hotels filed the present judicial review application to challenge the said Award. The Findings of the Court [19] 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 decision has held that the decision of inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly 9 "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 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 10 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. (See Swedish Motor Assemblies Sdn Bhd v. Hj. Md Ison 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 11 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) [20] 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. [21] 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.” 12 [22] 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” [23] By procedural impropriety, it includes ‘failure by an administrative tribunal to observe procedural rules that are expressly laid out...” and “duty to act fairly”. [24] Bearing in mind the above principles, the core issues in these cases are:

whether the Hotels’ ‘act of converting 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 in accordance with the MWO 2012 and the Guidelines” is legal; and

(ii) whether the Industrial Court erred when she decided that the Hotels cannot unilaterally vary the terms of the Collective Agreement and thereby failed to take into consideration Section 30(5) of the IRA 1967. (see paragraph 7.1 of the Hotels’ Written Submission) 13 Issue (i) whether the Hotels’ act of converting 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 in accordance with the MWO 2012 and the Guidelines is legal [25] Service charges are 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. [26] 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. [27] 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 14 MWO 2012 was issued. Therefore, in the hotel industry, the minimum wages of RM900.00 takes effect from 1.10.2013. [28] With the implementation of the minimum wages, the Hotels are now seeking to use the service charges to meet its obligation under the MWO 2012 (the “Top Up Structure”). 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 Hotels meet the minimum wages payment. [29] 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. [30] Section 2 of the Employment Act 1955 defines wages as “..... basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service...” [31] 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 15 “minimum wages” – means the basic wages to be or as determined under section 23 [32] 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) [33] The same position was taken by Justice Asmabi in the Crystal Crown Hotel & Resorts Sdn Bhd (Crystal Crown Hotel Petaling Jaya) v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia [2017] 9 MLJ, where Justice Asmabi Mohamad held as follows: “[35] What amounts to the "basic wages " had been illustrated in the case of Décor Wood Industries 16 (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 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 mean 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 17 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 excludes the additional emoluments from connotation of the 'basis wage'." (emphasis added) [34] I am also of the considered opinion that since the service charge fund does not belong to the Hotels, therefore the Hotels are 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 Hotels as it is not from the hotels themselves. 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) case, where 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 18 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). [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) [35] Added to that, I also agree with the Union that the employees of the Hotel are already entitled to a share of the service charge as the 19 same is a contractual entitlement under Article 12 of the Collective Agreement, which reads: “ARTICLE 12 SERVICE CHARGE Clause (a) The Hotel shall retain 10% of the 100% service charge imposed on all bills monthly. The remaining 90% service charge shall be fully distributed to all employees covered within the Scope of this Agreement as listed in Appendix A, except part-timers, temporary, casual, retired employees and foreign workers. … Clause (d) The service charge points shall on no circumstances whatsoever be deductible when an employee is on any type of paid leave.” [36] Further, 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 Top Up 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: “[37] For the purpose of implementing the MWO, the employer may, before the coming into force of the MWO, 20 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)). 21 [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) [37] However, it is the submission of the Hotels that the Top Up Structure that they are implementing 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.” [38] 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 Hotels cannot have proceeded to unilaterally implement the Top Up Structure. This is consistent with 22 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) [39] 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 23 where the service charge was 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) [40] In the Award, the Industrial Court made the following finding: “[22] Much as this court would like to promote industrial harmony by finding a solution to the issue confronting the hotel industry, this court is still bound by the decision of the High Court in Crystal Crown Hotel & Resort Sdn Bhd (Crystal Crown Hotel Petaling Jaya) and Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar dan Restoran Semenanjung Malaysia supra – the judgment in the Federal Court case in Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd [2006] 3 CLJ 177 on the doctrine of stare decisis is in point. Therefore, it is our decision that the Hotel is not entitled to restructure the employees’ wages by converting part or the whole of the service charge payable to them in order to comply with the Minimum Wages Order 2012.” 24 [41] 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 Hotels are 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 Industrial Court erred when she decided that the Hotels cannot unilaterally vary the terms of the Collective Agreement and thereby failed to take into consideration Section 30(5) of the IRA 1967 [42] The Hotels have referred on subsections 30(4), (5) and (5A) of the IRA 1967 in their Written Submission, which read as follows: “30. Awards ….

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 the probable effect in related or similar industries.

The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. 25

In making its award, the Court may take into consideration any agreement or code relating to employment practices between the organisations representative of employers and workmen respectively where such agreement or code has been approved by the Minister” [43] On this issue, the Industrial Court made the following findings: “[23] There was also a prayer by the Hotel that the Collective Agreement in existence be varied by the inclusion of an addendum to the Collective Agreement to permit the conversion of the service charge to make up the minimum wages with effect from 1 October 2013. Appreciating the fact that the parties have a binding CA between them and Article 12 which provides for the distribution of the service charge, the service charge could only be utilised if both parties consent to vary the terms and agree (as stated in Article 2.2 of the CA) to use the service charge to be converted to meet the difference in the minimum wages. Clearly, parties have not agreed to vary any of the terms in the CA, thus the trade dispute was referred to the Industrial Court. …. [25] In a recent Federal Court judgment dated 26 April 2017 in Case No. 02(f) – 69 – 10/2015 (W) between National Union of Hotel, Bar and Restaurant Workers 26 Peninsular Malaysia v. Shangri – La Hotels (Malaysia) Bhd [2017] 1 LNS 378, leave was granted to the Appellant to refer this question to the Federal Court: “Whether a collective agreement or terms and conditions of employment can be unilaterally imposed by an employer on a union without going through the collective bargaining process provided for in the Industrial Relations Act 1967 ...” [26] It was a unanimous decision of the Federal Court that the answer to the ‘Leave Question’ must be in the negative. Hence reverting to the case before their Lordships, it was held that the Respondent had no power to impose unilateral terms and conditions of employment on the employees represented by the Appellant if there still exist a valid collective agreement between the parties. The principle is equally applicable in the case before us.” [44] In the Award, the Industrial Court held that it is bound by the Decision of the Federal Court in National Union of Hotel, Bar and Restaurant Workers Peninsular Malaysia v. Shangri – La Hotels (Malaysia) Bhd (supra) which held that a collective agreement or terms and conditions of employment cannot be unilaterally imposed by an employer on a union without going through the collective bargaining process provided for in the IRA 1967. Therefore, as the Industrial Court had applied the principle of stare decisis, it cannot 27 be said that the decision was wrong on the allegation of noncompliance with subsections 30(4), (5) and (5A) of the IRA

Conclusion [45] 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 has 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: 28 June 2018 For the Applicant : A. Ramadass/M. Jothiletchimy Messrs Ramadass & Associates Kuala Lumpur. For the 1st Respondent : Shireen Selvaratnam/ Abraham Au Tian Hui Messrs Sreenevasan Kuala Lumpur. 28 Cases referred:

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

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.

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.

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

National Union of Hotel, Bar and Restaurant Workers Peninsular Malaysia v. Shangri – La Hotels (Malaysia) Bhd [2017] 1 LNS 378.