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

WA-25-350-10/2023 Kand. 46 WA-25-350-10/2023 05/08/2025 15:19:54 5 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO: WA-25-350-10/2023 10 Dalam perkara Mahkamah Perusahaan Malaysia No. Kes 21(6)/2-3117/18 (asalnya difailkan di bawah Kes No.: 3/2-579/15) dan Awad No. 1706/2023 bertarikh 3.8.2023 dan diterima pada 17.8.2023 antara Kesatuan 15 Kebangsaan Pekerja-pekerja Hotel, Bar dan Restoran, Semenanjung Malaysia dan CDL Hotels (Malaysia) Sdn. Bhd. (Grand Millennium Kuala Lumpur) 20 Dan Dalam perkara Aturan 53 Kaedah Kaedah Mahkamah 2012 25 Dan Dalam perkara Seksyen 25 Akta Mahkamah Kehakiman 1964 dan Perenggan 1 Jadual kepada Akta Mahkamah Kehakiman 1964 30 ANTARA KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR DAN RESTORAN, SEMENANJUNG 35 MALAYSIA … PEMOHON DAN 1 CDL HOTELS (MALAYSIA) SDN BHD (GRAND MILLENNIUM KUALA LUMPUR) 40 2 MAHKAMAH PERUSAHAAN, MALAYSIA …RESPONDEN-RESPONDEN 45 JUDGMENT (Enclosure 1) 1 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 INTRODUCTION 50 [1] The Applicant sought to challenge the Industrial Court's (IC) decision in IC Award No: 1706/2023 (2nd IC Award 2023) by Judicial Review (JR) application. [2] On 17.06.2025: 55 (1) After considering all the cause papers and the respective written submissions of the parties, I hold that this JR Application has no merit, and it is dismissed with costs of RM20,000.00 payable within 30 days from the date of this order. 60 (2) Dissatisfied, the applicant filed this appeal, and my reasons are as follows: FACTS IN BRIEF [3] The Applicant and R1 were caught in a deadlock situation 65 concerning a collective bargaining negotiation in July 2013, where they could not come to terms, leading to an impasse constituting a trade dispute: The First IC Award 2017 and the First JR 2019 70 3.1 The Applicant referred the trade dispute to the Industrial Relations Department (IRD) in April 2015, where, via a Ministerial Reference (31.07.2015), the impugned trade dispute was referred to the Industrial Court (IC) for a resolution: (1) After a full trial, the IC handed down its IC Award 75 No.1148/2017 (1st IC Award 2017: L3, exh. RA-4, PDF pp.83-163). 2 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 (2) Dissatisfied, R1 challenged the 1st IC Award 2017 by Judicial Review (JR) in 2018. The High Court on 28.5.2019 agreed with R1 partially by allowing R1’s challenge (L3, exh.RA-5, PDF pp.164-185) 80 (3) Both parties felt aggrieved by that decision, appealed to the Court of Appeal, which remitted the matter back to the IC to determine the disputed Article 10 of the Collective Agreement. The Second IC Award 2023 and the Second JR 2023 85 3.2 The IC in 2023, in its decision in the IC Award No: 1706/2023 (2nd IC Award 2023: L3, PDF pp.195-244), adopted R1’s proposal for Article 10 to be incorporated into the First Collective Agreement. The IC find that it was a trade dispute reference (16.08.2018) under section 26(2) of the IRA 1967: 90 (1) The issue was ventilated before a three-member panel comprising the IC Chairman, a representative each from the applicant and R1. (2) It was a unanimous decision by the IC Panel that R1’s proposal concerning Article 10 on Salary Structure is to be adopted and 95 included in the parties' Collective Agreement. (3) It was established that: (1) It is trite Industrial law that when there have been adjustments in the past years, before the start of the Collective Agreement, there shall be no salary adjustment 100 for the First Collective Agreement seen in Baxter Healthcare S.A. (Malaysia Operations) (Pulau Pinang) 3 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 v Kesatuan Pekerja-Pekerja Baxter Healthcare S.A. (Malaysia Operations) [1995] 2 ILR 534 (2) The IC in that case find that in deciding on salary 105 adjustments, the IC needed to factor the increments given before the coming into force of the new Collective Agreement. (3) That decision was affirmed by the High Court in Tri Wall (Malaysia) Sdn Bhd v Paper And Paper Products 110 Manufacturing Employees’ Union And Mahkamah Perusahaan Malaysia [R2-25-115-2011]. (4) It was also affirmed by the Court of Appeal in Paper & Paper Products Manufacturing Employees’ Union v Tri-Wall (Malaysia) Sdn Bhd 254 [2015] 2 ILR 254, CA, 115 and (5) By the Federal Court in Federal Court Civil Appeal No: 02(f)-85-11/2014(W). The IC Panel therefore found: 120 3.3 The applicant’s witness (COW-1) confirms that between 2012 and 2014, R1 had provided salary increments for its employees. (1) It was also found that R1 should consider potential salary adjustments based on its Return on Investment (ROI) to ensure its ability to remain a going concern and mitigate an 125 extensive increase in operating costs. (2) It was decided that it was fair and equitable to adopt R1’s performance-related assessment proposal regarding annual 4 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 salary increments for employees and rejected the applicant’s proposal for an immediate adjustment. 130 (3) The IC made a finding that there was no compelling evidence of the alleged unfairness as alleged by the applicant in adopting R1’s proposal herein. (4) The IC also made a finding that the list of hotels (Holiday Inn Glenmarie, New York Hotel Johor Bahru, Primula Beach Hotel 135 and Crystal Crown Hotel Petaling Jaya) named by the applicant was not comparable to R1, which is a five-star rated hotel in the Golden Triangle. 3.4 Aggrieved with the above decision in the 2nd IC Award 2023 (L3, PDF pp.195-244), the applicant sought to challenge it in the present 140 JR proceedings 2023. In a nutshell, the 2nd IC Award is briefed as follows: (1) Currently, the only article which remains in dispute between the parties in respect of the proposed 1st. Collective Agreement is Article 10, which relates to the Salary Structure 145 that was remitted back to the IC by the Court of Appeal to be canvassed and ventilated before being admitted into the Collective Agreement. In addressing the issue of salary structure (immediate adjustment and annual increment), it is incumbent on the IC to consider the following: 150 (a) Wages and salaries prevailing in comparable establishments in the same region. (b) Any rise in the cost of living since the existing wages or salaries were last revised. (c) The financial capacity of the company to pay the higher 155 wages/increase. (d) The legitimate desire of the employer to make a reasonable profit. 5 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 (refer: Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan Alat- Alat Pengangkutan Dan Sekutu v Oriental Summit Industries Sdn 160 Bhd [2019] 3 ILR 175; & Arab Malaysian Development Bhd and Perak Textile & Garment Manufacturing Employees’ Union [1987] 1 ILR 118) (2) In addressing salary revision or increments across the board 165 to assist the employees in dealing with the cost of living and inflation: (a) Is generally guided by the Consumer Price Index (CPI). Within the hotel industry, the courts have accepted that salary revision and the salary structure post minimum 170 wage should be implemented in a graduated fashion with adjustments in a way that maintains the job hierarchy and reflects seniority by maintaining a salary gap. (b) This is to preserve industrial harmony. (c) It is an accepted principle that annual increment 175 represents the added value of the employee in terms of skill and experience to the employer. The Courts have generally accepted the position that the quantum of the added value should not exceed 5% of the salary per annum. 180 (d) The industrial court held that an annual increment should not be based on the Company’s profits. (refer: Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung Malaysia v Primula Beach Hotel Sdn Bhd [2020] 1 LNS 609), HC., New York Hotel Johor Bahru v 185 Kesatuan Kebangsaan Pekerja-Pekerja Hotel Bar Dan Restoran Semenanjung Malaysia [2018] 1 LNS 1389), HC). 6 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 190 (3) The contents of ARTICLE 10 & APPENDIX A are as follows: ARTICLE 10 SALARY STRUCTURE Clause (a) With effect from 1st February 2015, every employee 195 whose basic salary is less than RM900.00 shall be entitled to a salary revision as follows: (i) An employee who has served less than 5 years shall be paid a basic salary of RM900.00 (ii) An employee who has served 5 years and more, 200 but less than 10 years, shall be paid a basic salary of RM900.00 + 2%. (iii) An employee who has served 10 years and more shall be paid a basic salary of RM900.00 + 4%. 205 (iv) An employee, irrespective of years of service, drawing a basic salary of RM900.00 and more, shall be paid 7% on the existing basic salary. Clause (b) With effect from 1st February 2015, every employee shall follow the salary structure as per Appendix A. 210 Clause (c) In the event of the creation of a new position which is within the Scope of this Agreement, the Hotel, together with the Union, shall negotiate on the salary and service charge points pertaining to such position. Clause (d) Annual Increment 215 An employee shall be entitled to his annual increment on the anniversary date of employment as follows: (i) An employee drawing less than RM1200 basic salary per month shall be entitled to RM60.00 annually. 220 (ii) An employee drawing RM1200 basic salary per month or more but less than RM1400 basic salary per month shall be entitled to RM70.00 annually. (iii) An employee drawing RM1400 basic salary per 225 month or more but less than RM1600 basic salary per month shall be entitled to RM80.00 annually. (iv) An employee drawing RM1600 basic salary per month or more but less than RM1800 basic 230 salary per month, shall be entitled to RM90.00 annually. (v) An employee drawing RM1800 basic salary per month or more shall be entitled to RM100.00 annually. 235 7 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 APPENDIX A SALARY STRUCTURE OF EMPLOYEES WITHIN THE SCOPE OF THE AGREEMENT Department Position Minimum Maximum Salary Salary Stewarding Steward 900 +20 steps Steward Supervisor 1160 +20 steps Kitchen Kitchen Helper 900 +20 steps Commis 3 900 +20 Steps Commis 2 950 +20 Steps Commis 1 1035 +20 Steps Demi Chef 1035 +20 Steps Chef De Partie 1100 +20 Steps Senior Chef De Partie 1310 +20 Steps Assistant Chef Baker 1400 +20 Steps F&B Waiter 900 +20 Steps Waitress 900 +20 Steps Bartender 940 +20 Steps F & B cashier 910 +20 Steps Hostess 950 +20 Steps F & B captain 950 +20 Steps Bar Captain 955 +20 Steps Engineering Air Con Technician 1160 +20 Steps Electrician 1160 +20 Steps Painter 1160 +20 Steps Carpenter 1160 +20 Steps Varnisher 1160 +20 Steps Plumber 1160 +20 Steps AV Technician 1160 +20 Steps Chargeman 1410 +20 Steps Housekeeping Room Attendant 900 +20 Steps Public Area Attendant 900 +20 Steps Linen Attendant 900 +20 Steps Public Area Supervisor 1160 +20 Steps Floor Supervisor 1160 +20 Steps Housekeeping 1135 +20 Steps Coordinator Laundry Valet Runner 900 +20 Steps Washer 900 +20 Steps Presser 900 +20 Steps Checker Marker 910 +20 Steps 8 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 Dry Cleaner 940 +20 Steps Desk Clerk 940 +20 Steps Front Office Doorman 900 +20 Steps Bellman 900 +20 Steps Front Office Cashier 910 +20 Steps Guest Service Assistant 1035 +20 Steps Concierge 1000 +20 Steps Bell Captain 950 +20 Steps Reservation Sales 1075 +20 Steps Agent Airport Representative 990 +20 Steps Reservation Supervisor 1160 +20 Steps Recreation Club Attendant 900 +20 Steps Club Ambassador 1035 +20 Steps Club Ambassador 1160 +20 Steps Supervisor Accounts Despatch Clerk 1010 +20 Steps Accounts Assistant 1410 +20 Steps 240 (4) Grounds of contention: (a) It was pointed out by the IC in the 2nd IC Award that while R1 took the position that it had its proposals for the 1st. 245 CA, provide for fair, reasonable, and equitable terms and conditions of employment, taking into account the current terms and conditions of employment. (b) The Applicant, on the other hand, is seeking an immediate adjustment, at the following rates: Years of Service Proposed Adjustment Less than 5 years 900 5 years and more but less than 10 years 900+2% 10 years or more 900+4% Irrespective of years of service, earning 900+4% 900 or more 250 (5) In considering the weightage of the parties' respective arguments, the IC, amongst other things, determined: 9 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 (a) The IC Panel unanimously found in favour of R1 in that Article 10 accords the employees the necessary salary 255 revision, under the relevant Minimum Wages Order applicable and ordered for adoption in the 1st CA between the parties. (b) It is established in industrial adjudication that there should not be salary adjustments for First Collective Agreements 260 (as is the case here) if there had been adjustments in the past years, before the commencement of the First Collective Agreement: (refer: Baxter Healthcare s.a. (Malaysia Operations) (Pulau Pinang) v. Kesatuan Pekerja-Pekerja Baxter Healthcare s.a. 265 (Malaysia Operations) [1995] 2 ILR 534; Kesatuan Eksekutif RHB Bank Berhad vs RHB Bank Berhad [Industrial Court Award 223 of 2023) (c) The IC Panel was satisfied that the increment granted by 270 the Hotel to the unionised employees was, in fact, consistent with the principle of the Harun Formula, devised by Justice Harun, whereby salary adjustments under the CA should: (i) Not be less than 60% of the Consumer Price Index 275 (CPI) increase over the 3 years preceding the CA, and (ii) Not more than 2/3 of the CPI increase over a corresponding period. (refer: Malaysian Commercial Banks Association v. National 280 Union of Bank Employees [industrial court award 117 of 82) (d) The IC Panel agrees that, based on the data available before the IC, the Company had granted salary increments slightly over the Harun Formula. Be that as it 10 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 may, the Hotel has nevertheless proposed to incorporate 285 another component in respect of a salary adjustment of 2/3 of the Annual CPI at the end of the financial year, subject to the return on investment of 4% for the same period (Genting Berhad v. Genting Berhad Employees' Union [1982] 2 ILR 228) 290 The IC Panel agrees that it is vital for the Company to tie any potential salary adjustment to its ROI, ensuring the Hotel’s survivability and avoiding an extensive increase in the Hotel’s costs. (e) The IC Panel observed that the Union’s proposal for the 295 Annual Increment is a contractual annual increment of a fixed rate dependent on the respective employees’ salary range, without consideration of their performance. In contrast, the Hotel proposes an Annual Increment based on achieving performance for the calendar year. The IC 300 Panel disagreed with the Applicant's argument, presuming that for each year of service, an employee will be more skilled: (i) The IC cited Association of Bank Officers Peninsular Malaysia v Malayan Commercial Banks Association 305 [1981] 1 ILR 136, where the IC found that the basis for the provision of annual increments is premised on the added value of the employees, in terms of skill and experience, to the employer. (ii) The IC Panel also cited Kesatuan Pegawai-Pegawai 310 Standard Chartered Bank Malaysia Berhad, Semenanjung Malaysia v Standard Chartered Bank Malaysia Berhad [2017] 2 ILR 176, which observed that the rates cannot 11 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 be increased arbitrarily and must be commensurate with the value of the job. 315 (f) The IC Panel found that the issues raised by the Applicant/Union were inconsistent with comparable hotels, namely Holiday Inn Glenmarie, New York Hotel JB, Primula Beach Hotel, Crystal Crown Hotel PJ, and Datai Hotel Langkawi. The hotels named by the Applicant 320 are four-star hotels, which are not comparable to R1, a five-star hotel in the Klang Valley. (6) The IC Panel unanimously concluded that, with due regard to the public interest, the financial implications and the effect of the Award on the economy of the country and of the industry 325 concerned and also its probable effect in related or similar industries, as required by Section 30(4) of the Industrial Relations Act, 1967, the IC Panel orders that R1’s proposals for the 1st CA, which provide for fair, reasonable and equitable terms and conditions of employment having regard to the 330 current terms and conditions of employment, they are hereby adopted and incorporated in the 1st CA together with other Articles that had been agreed upon by both parties. THE PARTIES ARGUMENTS 335 [4] I have duly observed and considered the parties' arguments vis-à- vis the findings of the learned Chairman in the 2nd IC Award as follows (briefly): (A) The Applicant’s arguments. 340 4.1 The applicant argued that: 12 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 (1) That the High Court should not interfere in the findings of the IC Award 2023 save where it can be established that the impugned award was based on grounds of illegality or 345 irrationality, or because of procedural impropriety. The Courts can now scrutinise the impugned award on the substance and merits. (2) That in arriving at its decision, the IC must consider salaries in 350 comparable establishments, the rise in cost of living since it was last revised, and the financial capacity of the employer (R1). (3) It was argued that in the hotel industry, the Courts have 355 accepted that salary revision and structure post minimum wage should be implemented gradually to maintain job hierarchy and seniority, as proposed by the applicant, which the IC rejected: (a) The applicant proposal contains a 20-step salary structure 360 for increments, which means that an employee will only be entitled to a maximum of 20 increments in a particular position since R1 has been in operation for 33 years. (b) R1, being a 5-star Hotel located in the Golden Triangle in Kuala Lumpur, should be able to at least match, if not 365 exceed, what is being given by Holiday Inn Glenmarie, New York Hotel Johor Bahru, Primula Beach Hotel and Crystal Crown Hotel Petaling Jaya (which, in their words, are of a lesser standard). 13 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 370 (4) The applicant argued that the IC erroneously adopted the R1’s argument that there should be no salary adjustment for First Collective Agreements: (a) The IC erroneously relied on the decisions of Baxter and Triwall when these cases do not stand for the principle 375 that there should be no salary revision for the first collective agreements if there were previous revisions before the commencement of the collective agreement. (b) Therefore, the impugned IC Award 2023 is unreasonable as it did not reflect seniority or job hierarchy. 380 (c) It incorporated a flat minimum wage to employees that would lead to workplace disharmony. Baxter and Triwall were legal determinations below the minimum wage before the implementation of the minimum wage standard in Malaysia. These decisions are therefore irrelevant. 385 In the circumstances, the applicant pray that an order for certiorari is warranted to quash the 2nd IC Award. (B) The First Respondent’s (R1) Arguments. 390 [5] In a nutshell, R1 argued as follows: (1) It is trite law that a JR proceeding is not an appeal process and cannot be used for such a purpose. It is trite law that it operates as a review in the manner in which the decision was arrived at. The findings of fact are not susceptible to challenge by way of 395 JR: William Jacks (M) Sdn Bhd v. Balasingham [1997] 3 CLJ 235. 14 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 (2) It is argued that in light of the foregoing, the IC had not committed any error of law in arriving at its decision, and there 400 is no evidence to support any proposition that it is supposedly so. (3) R1 argued that the present JR must be dismissed because: (a) The IC had not committed any error of law in the IC Award 2023. 405 (b) It correctly construed and applied the law as it is to the facts of the case. (c) The award was reasonable and correct in the circumstances of the facts before the IC. (d) It was a unanimous decision of the panel of three 410 members that comprised a representative of each of the parties, based on the irrefutable evidence before them. Therefore, R1 prays that the JR application be dismissed with costs. 415 THE LAW [6] Judicial Review Generally 6.1 Lord Diplock set out the legal principle regarding judicial review in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374, which the Federal Court has applied 420 in the case of R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, FC, briefly as follows: (1) Lord Diplock defined the three grounds of review: (a) illegality, (b) irrationality, and (c) procedural impropriety: 425 15 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 (a) ‘Illegality’: (i) The decision maker must understand directly the law 430 that regulates his decision-making power and must give effect to it. (ii) Whether he has or not is, par excellence, a justiciable question to be decided. 435 (b) ‘Irrationality: (i) ‘Wednesbury unreasonableness’: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. (ii) It applies to a decision so outrageous in its defiance of 440 logic or of accepted moral standards that no sensible person who had used his mind to decide the question could have arrived at it. (iii) Whether a decision falls within this category is a question that judges by their training and experience 445 should be well equipped to answer. (iv) ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. 450 (c) ‘Procedural impropriety’: (i) Failing to observe basic rules of natural justice. (ii) Failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is 455 conferred, even where such failure does not involve any denial of natural justice. (d) Lord Diplock also mentioned ‘proportionality’ as a possible fourth ground of review, which called for 460 development. 6.2 The Federal Court in Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1, FC observed as follows: 16 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 (1) The foregoing Rama Chandran decision by the FC has given 465 the reviewing court a license to review decisions without restraint for substance, even when the decision is based on a finding of fact. (2) The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 470 11, FC 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. (3) The Federal Court, in Petroliam National Bhd v. Nik Ramli 475 Nik Hassan [2004] 2 MLJ 288; [2003] 4 CLJ 625, FC also observed 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. (4) A reviewing judge ought not to disturb the findings of the 480 Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion. 6.3 In a nutshell, judicial review is not an appeal of a decision, but a 485 review of how the decision was made. The Supreme Court in Harpers Trading (M) Sdn Bhd V National Union of Commercial Workers [1991] 1 MLJ 417, SC held as follows: (1) A judicial review is not an appeal of a decision, but a review of how the decision was made. The High Court is not entitled to 490 an application for judicial review to consider whether the decision was fair and reasonable on the merits of the facts. 17 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 (2) The Industrial Court, in this case, had heard evidence from both sides and decided to exculpate Tan Seng Khow. It is not the High Court's function to exercise its supervisory jurisdiction 495 to hear a dispute de novo and decide on its merits. This is not a case where the Industrial Court acted on no evidence or came to a conclusion that it could not reasonably have reached. (3) There is no basis for concluding that the decision of the 500 Industrial Court, in this case, was in excess of jurisdiction or unreasonable and, therefore, a nullity. The court also rejected the contention that the decision of the Industrial Court was so manifestly unreasonable that nobody could have reached it because there was no basis for the court to reach such a 505 conclusion. The Industrial Court had acted within the four corners of the dispute, and in arriving at its decision, it did not reach an absurd conclusion. [7] Collective Agreement 510 7.1 Section 2 of the Industrial Relations Act 1967 (IRA) provides briefly: (a) Defines this engagement as “collective bargaining”, which denotes the “negotiating” process that the trade union of workmen concerned enters into with the employer or the trade union of the employer, with a view to the conclusion of 515 a collective agreement. (b) A collective agreement is understood to mean an agreement in writing that is entered into by an employer or a trade union of employers on the one hand and a trade union of workmen on the other hand. 18 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 520 (c) The contents of this collective agreement relate to the terms and conditions of employment and work of the workmen concerned, or it can set out the relations between the two parties involved. (d) The general principle is that the terms of each new Collective 525 Agreement shall not be less favourable than the existing terms, as it was held in National Union of Hotel, Bar & Restaurant Workers v Kuala Lumpur Hilton [1981] 1 ILR 219. 530 7.2 The IRA provides that: (1) Once the Industrial Court makes a decision and hands down an award concerning the trade dispute and this includes an award made concerning a collective agreement, then such award will be binding upon all members of a trade union, 535 including the trade union of workmen, employer or trade union of employers who were a party to the trade dispute concerned. This award will also be binding on their successors, assignees and transferees: Section 32 (1)(d). 540 (2) A collective agreement which has been taken cognisance of by the Industrial Court shall be considered as an award and it will be binding upon all the parties to the collective agreement. This includes the employer (or trade union of employers as the case may be), all the union members of the workmen or class 545 of workmen whom the collective agreement relates to and extends to include their respective successors, assignees or transferees. The collective agreement is also binding upon the workmen who are currently employed by the employer (or 19 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 trade union of employers) as well as those subsequently 550 employed: Section 17(1)(a) and (b). (3) From the date that is specified in the collective agreement, the terms and conditions contained in the collective agreement shall be taken and considered to be an implied term of the 555 contract between the workmen and the employers (including where relevant, the trade union of employers) and the terms and condition shall bind both reflected therein unless such terms a subsequently varied either by mutual agreement or through an award handed down by the Industrial Court: 560 Section 17(2). FINDINGS OF THIS COURT [8] In coming to my conclusion, I have examined and duly considered all-cause papers, the evidence at the trial, the parties' submissions, 565 and the findings of facts and evidence by the learned Chairman contained in the 2nd IC Award. 8.1 In examining and considering the evidence by the parties: (1) I am guided by the Federal Court in Berjaya Times Square 570 Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC, which observed, amongst other things, that in coming to this determination, a Court interpreting the facts is entitled to look at the facts forming the background of the transaction which includes all material reasonably available to the parties. 575 20 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 8.2 In this context: (1) Looking at the facts and background of the present case, I am 580 also guided by the Court of Appeal in Guan Teik Sdn Bhd v Hj Mohd Noor bin Hj Yakob & Ors [2000] 4 MLJ 433, CA in observing that the Court must not only weigh such evidence on a balance of probabilities but must also consider the surrounding circumstances and evaluate contemporary 585 documents that may tend to establish the truth or otherwise of a given fact. (2) In my overall observation: (a) I find that there is no error of law or fact to warrant judicial 590 intervention in the 2nd IC Award by the IC Panel in its determination on the facts and the law. (b) It is trite law that a reviewing judge ought not to disturb the findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing 595 judge might not have come to the same conclusion. I find no such elements or circumstances in the present case. 8.3 By and large, it is my considered judgment that: (1) I agree with the arguments put forth by R1 that the applicant’s 600 case is merely speculative without compelling evidence to support its arguments. (2) I find factual basis in the submissions of R1 that, in the Applicant’s proposal, guaranteeing an employee a fixed 605 annual increment (contractual) with no reference to their performance is counter-intuitive in assessing their skills. It 21 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-25-350-10/2023 provides no impetus for them to work for the increment, as they will be entitled to it regardless. 610 (3) Similarly, I am not convinced by the Applicant’s arguments on the financial capacity of R1 vis-à-vis the Applicant's proposal put forward before the Court. (4) I find no issue to disturb the findings of fact by the IC to 615 formulate an equitable and reasonable Collective Agreement between the Applicant and R1 in the circumstances. CONCLUSION [9] By and large, on a balance of probabilities, I find no merit in the 620 Applicant’s L1, and I dismissed it with costs of RM20,000.00 to be paid within 30 days from the date of this order, subject to the allocator's fee. Dated 05.08.2025. 625 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 630 Counsel for the Applicant: Shireen Selvaratnam, together With Gokul Radhakrishnan Messrs. Sreenevasan 635 Counsel for the First Respondent: Vijayan Venugopal, together with Wong Kian Jun Messrs. Shearn Delamore & CO 22 S/N NBZg6d9NQkC9l1SP5I5jOA **Note : Serial number will be used to verify the originality of this document via eFILING portal