Malaysia Case Law: Decisions & Judgments

Topic

Service charge

Legal area

Court

30 Mar 2021

PALMCO HOTELS SDN BHD 1. MAHKAMAH PERUSAHAAN, MALAYSIA 2. KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR DAN RESTORAN, SEMENANJUNG MALAYSIA

Citation

PA-25-31-07/2020 (Mahkamah Tinggi)
Court

High Court
Case number

PA-25-31-07/2020 (Mahkamah Tinggi)

The High Court held that under NWCCA 2011 and MWO 2012 the statutory minimum wage refers to basic wages and excludes service charge; accordingly the Industrial Court correctly held that service charge cannot be used to top up the minimum wage, the Award was consistent with binding Federal Court authority (Crystal Crown) and was not vitiated by procedural irregularity, so the judicial review application was dismissed.
24 Mar 2021

CRYSTAL CROWN HOTEL & RESORT SDN BHD (CRYSTAL CROWN HOTEL PETALING JAYA) KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR & RESTORAN SEMENANJUNG MALAYSIA

Citation

02(f)-4-01/2018 (Mahkamah Persekutuan)
Court

f
Case number

02(f)-4-01/2018 (Mahkamah Persekutuan)

Service charge collected from customers is not part of 'basic wages' as defined by the NWCCA 2011 and MWO 2012 and is held for eligible employees (trust/fiduciary relationship); therefore hoteliers are not entitled to appropriate service charge monies to satisfy statutory minimum wage obligations and the Industrial Court cannot use IRA powers to override or read down clear parliamentary minimum wage legislation; accordingly service charge cannot be incorporated into a clean wage or used to top up the minimum wage.
10 Mar 2020

NATIONAL UNION OF HOTEL, BAR & RESTAURANT WORKERS PENINSULAR MALAYSIA 1. GOLDEN SANDS BEACH RESORT SDN BHD 2. INDUSTRIAL COURT OF MALAYSIA

Citation

WA-25-386-08/2019 (Mahkamah Tinggi)
Court

High Court
Case number

WA-25-386-08/2019 (Mahkamah Tinggi)

The High Court held the Industrial Court erred in law and acted irrationally by permitting the Hotel’s Top-Up Structure that uses employee service charges to form part of basic wages for minimum wage compliance; this approach conflicts with binding superior court authorities which exclude service charge from basic wages and with the Minimum Wages Order 2012; therefore the Industrial Court award on Articles 10.2, 10.4 and 12.1 was set aside and the Union’s proposals (which comply with MWO 2012) were ordered incorporated into the 12th Collective Agreement.
16 Jan 2020

PRIMULA BEACH HOTEL SDN BHD 1. KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR DAN RESTORAN, SEMENANJUNG MALAYSIA. 2. MAHKAMAH PERUSAHAAN MALAYSIA.

Citation

WA-25-348-07/2019 (Mahkamah Tinggi)
Court

High Court
Case number

WA-25-348-07/2019 (Mahkamah Tinggi)

The High Court refused the Hotel’s judicial review and upheld the Industrial Court’s incorporation of Articles 10 and 12: salary revision based on seniority percentages and CPI was reasonable; the Hotel could not unilaterally abolish the service charge as it is a contractual term and the clean wage system was less favourable and unsupported by evidence of employee agreement. The High Court allowed the Union’s judicial review in relation to Article 24(c): the Industrial Court erred by incorporating an unpleaded monetary capping for outpatient treatment and that cap was unreasonable and caused…
EMKO PROPERTIES SDN. BHD. V. LEE CHOONG KHENG

Citation

EMKO PROPERTIES SDN. BHD. V. LEE CHOONG KHENG
Court

Malaysian court

Emko failed to prove entitlement to charge a flat RM60 per month because clauses 14 and 22 required evidence of total maintenance costs and an apportionment by a licensed surveyor; Emko produced no adequate quantification or proper apportionment and thus its claim for RM60 per month up to the originating summons filing date (6 December 1990) fails and must be dismissed.

Malaysia Case Law

PALMCO HOTELS SDN BHD 1. MAHKAMAH PERUSAHAAN, MALAYSIA 2. KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR DAN RESTORAN, SEMENANJUNG MALAYSIA

CRYSTAL CROWN HOTEL & RESORT SDN BHD (CRYSTAL CROWN HOTEL PETALING JAYA) KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR & RESTORAN SEMENANJUNG MALAYSIA

NATIONAL UNION OF HOTEL, BAR & RESTAURANT WORKERS PENINSULAR MALAYSIA 1. GOLDEN SANDS BEACH RESORT SDN BHD 2. INDUSTRIAL COURT OF MALAYSIA

PRIMULA BEACH HOTEL SDN BHD 1. KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR DAN RESTORAN, SEMENANJUNG MALAYSIA. 2. MAHKAMAH PERUSAHAAN MALAYSIA.

EMKO PROPERTIES SDN. BHD. V. LEE CHOONG KHENG