KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR DAN RESTORAN SEMENANJUNG MALAYSIA v CDL HOTELS (MALAYSIA) SDN BHD (GRAND MILLENNIUM KUALA LUMPUR)

Case Significance

Illustrates the limited supervisory role of the High Court over Industrial Court awards and the deference given to the specialist tribunal's findings of fact when it fixes the terms of a collective agreement.

This High Court decision at Kuala Lumpur concerns an application for judicial review by a trade union challenging an award of the Industrial Court that had settled the terms of a collective agreement between the union and a hotel operator. The dispute had a long history: a collective bargaining deadlock in 2013 became a trade dispute that was referred to the Industrial Court by Ministerial reference, producing a first award in 2017; that award was partially quashed on an earlier judicial review, and on appeal the Court of Appeal remitted the matter to the Industrial Court to determine the disputed Article 10 of the collective agreement. In the award now under challenge, the Industrial Court adopted the employer's proposal for Article 10. The union sought certiorari to quash that second award. The court's role on review was confined to the legality and rationality of the Industrial Court's decision rather than a rehearing on the merits, asking whether the tribunal's findings were tainted by error warranting intervention. The judge examined the union's contentions that the award was unreasonable and that the employer's financial capacity supported the union's proposal, but found them speculative and unsupported by compelling evidence. The court accepted the reasoning that guaranteeing an employee a fixed annual increment untethered to performance was counter-intuitive as a measure of skills and provided no incentive to earn the increment, and it found no basis to disturb the Industrial Court's findings of fact in formulating an equitable and reasonable collective agreement. Concluding that the application lacked merit, the court dismissed the judicial review with costs of RM20,000.00 payable within thirty days. The judgment is a useful illustration of the limited supervisory role of the High Court over Industrial Court awards and of the deference accorded to the specialist tribunal's findings of fact in fashioning the terms of a collective agreement.