collective agreements

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INDUSTRIAL COURT OF MALAYSIA

CASE NO: 26(1)(4)/2-100/08

BETWEEN

KESATUAN PEKERJA-PEKERJA KELAB SEMENANJUNG MALAYSIA

AND

TROPICANA GOLF AND COUNTRY RESORT BHD

AWARD NO : 1081 OF 2011

Before : AHMAD TERRIRUDIN BIN MOHD SALLEH

- CHAIRMAN

Venue : Industrial Court Malaysia, Kuala Lumpur

Panel Members : Mr. Nesan a/l S.V. Thangavelu - Employer's PanelMr. Alaku a/l S.P. Viswanathan - Employee's Panel

Date Reference : 19.12.2007

Dates of Mention: 21.02.2008, 31.03.2008, 11.04.2008, 25.04.2008,20.06.2008, 21.07.2008, 25.08.2008, 13.10.2008,13.11.2008, 05.12.2008, 16.12.2008, 05.01.2009,07.07.2009, 16.09.2009, 08.03.2011, 13.04.2011,

& 03.05.2011

Dates of Hearing : 12.01.2009, 14.01.2009, 04.03.2009, 11.03.2009,06.05.2009 & 30.03.2010

Representation : Mr. S. Muhendaranfrom Messrs Muhendaran SriCounsel for the Union

Mr. Frank C.H. Lohfrom Messrs Stanley Chang & PartnersCounsel for the Respondent / Company

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Reference:

This is a reference made on 19.12.2007 under section 26(2) of the

Industrial Relations Act, 1967 pertaining to the trade dispute involving

the first Collective Agreement between Kesatuan Pekerja-Pekerja Kelab

Semenanjung Malaysia (the Union) and Tropicana Golf & Country Resort

Bhd (the Club).

AWARD

(NO. 1081 OF 2011)

This trade dispute was over the Collective Agreement between Kesatuan

Pekerja-Pekerja Kelab Semenanjung Malaysia (the Union) and

Tropicana Golf And Country Resort Bhd (the Club). This is the first

Collective Agreement (the CA) between the parties.

Background

In this case it is to be noted that the said proposed CA contains 43 articles

and initially all are in dispute. However, after few mentions the parties

informed the court that out of 43 articles in the Union's Statement Of

Case, 12 articles were fully agreed upon by the parties, leaving 31

articles in dispute. As for the agreed articles the parties have tendered in

court List of Agreed Articles and Disputed Articles and marked it as

Exhibit U1. Therefore, the following articles needs to be resolved :

Article 1(b) and (c) : Parties To The Agreement

Article 2 : Title

Article 4 : Duration, Modification and Termination of Agreement

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Article 5 : Scope and Interpretation of Agreement

Article 7 : Grievance Procedure

Article 9 : Recognition of Union

Article 11: Union Subscription

Article 12 : Leave on Trade Union Business

Article 13 : Probation

Article 15 : Promotion

Article 16(d) : Recruitment, Termination and Vacancies

Article 17 : Annual Bonus

Article 18 : Housing Allowance

Article 19 : Acting Allowance

Article 20 : Duty Meal

Article 21 : Cost of Living Allowance

Article 24 : Transport Pick-Up Location

Article 25 :Working Hours and Split Shift Allowance

Article 26 : Rest Day

Article 28 :Overtime

Article 29 : Medical Leave

Article 30 :Medical Benefit

Article 32 : Annual Leave

Article 33 :Haj Leave

Article 35 : Special Paid LeaveArticle 36 : Group Term Life

Article 37 :Employee's Provident Fund

Article 38 : Retirement Age

Article 39 :Existing Benefit

Article 40 :Job Grades, Salary Scales and Annual Increment

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Article 41 :Funeral Expenses

Article 42 : Industrial Accident

The Union and the Club had both filed their respective pleadings. As for

other documents there were tendered as follows:

(a) Comparative Table of the Disputed Articles;

(b) List of Agreed and Disputed Article (U1);

(c) Working Hours (U2);

(d ) Job Grade, Wage Structure and Annual Increment (U3);

(e) Job Grade & Salary Structure For Non Executive Position

(U4);

(f) Comparative Table of Job and Salary Structure (U5);

and

(g) Union's Bundle of Documents (UBD).

It is pertinent to note that apart from the Statement In Reply (SIR), the

Club did not submit any exhibits.

In this case, the parties did not call any witnesses. The court proceeded

to hear oral submissions from the counsels representing the respective

parties. At that same time also the parties did submit their written

submissions.

The Law

In dealing with CA the court is well aware that CA is not a commercial

agreement. Thus, the court is of the view that a reasonable and

pragmatic approach, shown of an excess of legal learning is therefore

called for when construing a CA (see: Kesatuan Pekerja-Pekerja

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Perkayuan v. Syarikat Jengka Sdn Bhd[1997] 2 CLJ 276). For the second

point, the court refers to the case of PIHP (Selangor) Bhd v. Kesatuan

Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung

Malaysia & Anor[2005] 2 MLJ 769 at page 775 where the High Court held

as follows:

It is significant to note that by convention and practice,

proceedings on collective agreements in the Industrial Court

are fairly informal. There is one cardinal rule however, that is

the party that proposes a change must prove his case.

In addition, the court is of the view that a CA should be a speaking CA.

In other words the articles in the CA should be able not only to deliver

the needs of the disputed parties but also to strike the balance between

them. The court is also aware that in handing down a CA this court must

have regard to the public interest, the financial implication 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

(section 30(4) of the Industrial Relations Act 1967 (the Act). The court

further notes that in dealing with trade dispute the court must act

according to equity, good conscience and the substantial merits of the

case (section 30(5) of the Act).

Evaluation and Findings

Before proceeding further, it is appropriate at this juncture to highlight

that the Club in disputing all the proposals made by the Union did state

that one of the major reasons that the company unable to accede to therequests or proposals made by the Union is because it will burden the

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company financially. Therefore, it is vital for the company to tender

documentary evidence at least on the financial situation of the Club at

the material time and the impact on the company financially after the

implementation of the CA (see : PIHP (Selangor) Bhd v. Kesatuan

Kebangsaan Pekerja-Pekerja Hotel, Bar & Restoran Semenanjung

Malaysia and Anor (supra) and Holiday Villages of Malaysia Sdn Bhd v.

Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bar and Restoran

Semenanjung Malaysia [2011] 1 ILR page 394). However, the court finds

that Club has omitted to do this. Thus, the court has no choice but to rule

that the Club cannot use financial reason as an argument to reject or

decline the proposals made by the Union in this CA.

Bearing the above in mind, the court after having carefully perused the

evidence tendered and submissions by the parties unanimously decided as

follows:

Article 1 (b) and (c) : Parties To The Agreement

As for this proposed Article 1(b), the Club contends that the

wordings of this proposed Article should be worded as

follows:

.......shall continue to cover the employees who

are members of the Union to whom this Agreement

was applicable..

The Union also proposed a similar wordings for Article 1(c).

In this matter, the court agrees with the contention put up bythe counsel for the Union that section 17 and section 32 of

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the Act clearly states that the agreement or terms of the CA

will be applicable to all workmen covered under the CA. Thus,

the proposal by the Union should be adopted.

Article 2 : Title

Both parties agreed that Article 2 should be worded as

follows:

This Agreement shall be known as the Tropicana

Golf and Country Resort Berhad and Club

Employees Union Peninsular Malaysia..

Article 4 : Duration, Modification and Termination of

Agreement

In this proposal the club is requesting that the effective date

should be the date the dispute was referred to the court or

later.

The court disagrees with the Club's contention and rules that

the award to be backdated 6 months from the date on whichthe dispute was referred to the court (see: National Union Of

Hotel, Bar & Restaurant Workers v. Casuarina Beach Hotel

Sdn Bhd, Penang [1981] 1 MLLR 233). As for the duration, the

court is of the view that the CA is to be in force for period of

three years.

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Article 5: Scope and Interpretation of Agreement

(i) Article 5 (c)

As for this Article, the court agrees with the Union's

proposal. The court does not think that by having this

Article the Union is usurping the prerogrative of the

company to decide on the new job category and the

salary scale. This is because the court is of the view that

the proposal merely says in the event the category of

employees is created. Thus, it still depends very much

on the Club on the creation of new category of

employees.

Pertaining to the determination of the salary scale for

the new category of employees (if any), the court is of

opinion that the proposal is fair since it does make sense

that if the company decides to have it, it is reasonable

for them to discuss with the Union because it might

determine the other salary scales in the other

categories of employees.

(ii) Article 5 (h)

In view of the decision in the case of Rheem Hume

(Malaysia) Sdn Bhd Banting v. Metal Industry Employees

Union (1984) 1 ILR 175, the court agrees with the

Union's proposal.

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Article 7 (b): Grievance Procedure

After weighing the matter, the court finds that although the

period or number of days taken by the company to resolve

matter under this proposal is longer but the court feels that it

will not cause injustice to the employees. This is because at

the end of the day if the matter is not resolved the Union or

the Club can still raise the matter to the Ministry of Human

Resources for reconciliation. The court is further of the view

that the parties should try their best settle the matter

internally. However to compensate the Union, the court

decides that the proposed step 1, 2 and 3, the period should

be 5 days and for step 4 the period should 7 days instead of 14

days.

Article 9: Recognition of Union

(i) Article 9(a) (v)

In court's view, it is only fair if for this purpose the

employees who are in the employment of the Club for

continuous period should be included. The court agreeswith the following wordings:

Temporary employees are those employed

in such capacity for a continuous period of

not more than 3 months (employees with

more than 3 months of service shall comewithin the ambit of the scope)..

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(ii) Article 9(c)

The court agrees with the Union that there may be

instances whereby the Union may have to call for an

emergency meeting. Thus, the court agrees with the

Union's proposal but with at least 3 days notice to the

company.

(iii) Article 9(d)

The court agrees with the Union since there should not

be any discrimination in relation to the terms and

conditions of employment. The court does not think this

proposal will diminish the power of the Club to reward

its employees because this proposal is relating to the

standard conditions of service.

(v) Article 9(e)

Pertaining to the Club's proposal to insert the new

article 9(e), the court finds that sections 4, 5 and 7 of

the Act has taken the reservations posed by the Club.Thus, this proposal is not necessary.

Article 11: Union Subscription

The court based on the case ofHoliday Villages Of Malaysia

Sdn Bhd v. Kesatuan Kebangsaan Pekerja-Pekerja Hotel, Bardan Restoran Semenanjung Malaysia (supra) at page 408, the

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court is of the view that this proposed article should not be

included.

Article 12 : Leave On Trade Union Business

(i) Article 12 (a)

The court agrees with the Union's proposal since this is in

line with section 6 of the Act.

(ii) Article 12 (b)

The court finds that there is no need for this proposed

article since it has been addressed by section 6 of the

Act.

Article 13: Probation

(i) Article 13 (a)

The court is of the view that it is fair that at the

discretion of the Club the probationary period may beextended before the completion of the 3 months.

However as to the proposal that the extension of the

probation should be a further period of three (3)

months, the court is of the view that the probationary

period of 3 + 1 months is sufficient for the company to

evaluate and to guide the employees. In this matter thecourt refers to the case ofDaikoku Company Sendirian

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Berhad v. National Union of Hotel, Bar & Restaurant

Workers (1986) 1 ILR 1144 and Kesatuan Kebangsaan

Pekerja-Pekerja Hotel, Bar dan Restoran Semenanjung

Malaysia v. Perangsang Hotel & Properties Sdn Bhd

(Quality Hotel Shah Alam (Award No. 1278 of 2010)).

(ii) Article 13 (b)

After having read the submission rendered by the

parties, the court is of the view that it is appropriate

not to have this proposed article as it might lead to

discontent among the newly confirmed employees when

it comes to implementation.

(iii) Article 13 (c)

The Court agrees with the Union's proposal based on the

reason forwarded in the Union's written submission.

Article 15: Promotion

(i) Article 15 (a)

The court agrees with the Union's proposal as the

wording is clearer and unambiguous.

(ii) Article 15 (c) and (e)

It is the contention of the Club that the proposed point

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of entry into appropriate salary for promoted employees

by the Union is not suitable. This is because the Club has

its own entry point and therefore should be allowed to

continue with the present practice. Secondly, Article

15(c) has covered the salary for the promoted

employees.

For this proposed article, the court after having the

opportunity to read and scrutinize the evidence tendered

decided that it was reasonable, fair and equitable to

grant the Union's request. This is because the proposed

provision is similar to the provision used in the collective

agreements of the Berjaya Golf Resort Berhad and Club

Employees Union Peninsular Malaysia (Berjaya Golf

Resort) and Bukit Kiara Resort Berhad and Club

Employees Union Peninsular Malaysia (Bukit Kiara Resort

Berhad) (pages 8 of Tab 3 of UBD) and other clubs cited

in the UBD. As for the Club's contention that the present

practice is sufficient to cover the proposed article, the

court finds that the club did not produce any evidence to

support this.

(iii) Article 15 (f)

The court did not find this practice has been adopted by

the some clubs in the similar industry. Thus, the court

has to decline the Union's proposal.

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Article 16 (d) : Recruitment, Termination and Vacancies

The court did not agree with this proposal since the Club has

the prerogative on how to run its business (see: Kesatuan

Pekerja-Pekerja Felda Plantations Sdn Bhd v. Felda

Plantations Sdn Bhd[2009] 3 ILR 294).

Article 17 : Annual Bonus

(i) Article 17 (a), (b) and (c)

In court's view the Club should have the discretion on

whether or not to give bonus to its employees but

taking into account the practice of other clubs in the

Klang Valley, the court agrees with the Union's proposal

but the annual bonus should be only for one month. The

granting of annual should not include those who resigns

voluntarily for the company.

(ii) Article 17 (d)

The court did not see this has been the practice of other

clubs in the Klang Valley. Therefore, the court has to

reject this proposal.

Article 18 : Housing Allowance

The court notes that other clubs in the Klang Valley did give

Housing Allowance. As such, the court did not find the

demand is unreasonable but the amount should be RM100.00.

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Article 19: Acting Allowance

The court discovers that the Club is willing to give RM2.00 per

day for Acting Allowance. However, the court agrees that the

amount is too low and having regards to the other clubs in

Klang Valley, the court feels that the amount of RM5.00 per

day is reasonable.

Article 20: Duty Meal

(i) Article 20(a)

As for this Article the club is willing to give RM2.80 but it

was rejected by Union because of the rising cost of food

items. The court agrees with the argument put

forward by the Union but the amount should be

RM3.50.

(ii) Article 20 (b)

The court did not find this practice has been adopted by

the some clubs in the similar industry. Thus, the courthas to decline the Union's proposal.

Article 21: Cost Of Living Allowance

The court notes that other clubs did give Living Allowance. As

such, the court did not find the demand is unreasonable butjustified. As such, the amount should be RM150.00 per month.

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Article 24: Transport Pick-Up Location

(i) Article 24 (a)

The court agrees with the Union's proposal. However,

the court is of the view that the Club should be allowed

to vary the pre-destined pick-up location /and or

schedule after discussing with Union.

(ii) Article 24 (b)

As for the transport for employees who do not use the

club's transport the court finds RM100.00 per month is

reasonable.

(iii) Article 24 (c)

The Union has withdrawn the proposal.

(iv) Article 24 (d)

In court's view this proposal is fair because the

employees might move from their residential location toanother area where there is no free transport.

Article 25: Working Hours and Split Shift Allowance

In deciding this, the court is of the view that in determining

the working hours the interest of the company should beconsidered together with the interest of the employees. At

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the same time, based on the UBD, the court also considers the

practice of the other clubs in Klang Valley in this matter.

(i) Article 25(a)

In this matter the Union is proposing the normal

working hours per week as follows:

(a) Office and Administration employees - 40 hours

per week

(b) Operation employees - 48 hours per week

The other clubs in the Klang Valley are as follows:

(i) Article 23.01 of the CA of the Kelab Taman

Perdana DiRaja, Kuala Lumpur and Club

Employees Union Peninsular Malaysia (page 11

Tab 1 of UBD) has stated as follows:

(a) Office and Administration employees:

39 hours

(b) Operation employees : 42 hours

(ii) Article 24(A) of Berjaya Golf Club (page 10 of Tab

2 of UBD) as follows:

(a) Office and Administration employees : 46.5

hours

(b) Operation employees : 48 hours

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(iii) Article 26(a) of Bukit Kiara Resort Berhad (page 12

of Tab 3 of UBD):

(a) Office and Administration employees : 46.5

hours

(b) Operation employees: 48 hours

(iv) Article 23 of the CA of Kelab Golf Negara Subang

and Employees (KGNS) (page 12 of Tab 4 of

UBD):

(a) Office and Administration employees: 44

hours

(b) Operation employees: 48 hours

(v) Article 14 of the CA of Royal Selangor Golf Club

(RSGC) (page 11 of Tab 5 of UBD):

(a) Administration employees: 44 hours

(b) Field employees : 45 hours

(c) Operation Department : 48 hours.

Having the above in mind, the court finds that working

hours per week shall be as follows:

(a) Office and Administration employees : 44 hours

(b) Operation Employees : 48 hours

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(ii) Article 25(b)

In term of daily working hours, taking into account the

practice of other clubs in the Klang Valley, the court

agrees with the Club's contention that similar provisions

adopted by the other Clubs within the Klang Valley may

not be necessary right for the Club and the nature of the

business and the needs of the customers/members who

have gotten very used to the manner and operation of

the business/service. Therefore, the court accepts the

Club's proposal except for office employees whereby

their working hours shall be from 8.30 am to 5.30 pm

(Monday to Friday).

(iii) Article 25(c)

As for this article the court agrees to adopt wordings as

stated in Article 25 of the club's proposal (C1).

(iv) Article 25(d)

The court finds this proposed article not in any othercollective agreements cited by the Union. Secondly,

the court is of the view that if at all the employees are

required to work beyond working hours or call back to

work the company will have to pay them overtime. As

such, this proposed article should be removed.

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(v) Article 25(e)

This proposed article has been Agreed in the UBD.

(vi) Article 25(f) and (g)

Pertaining to this proposed article, the court agrees with

Union's proposal of RM4.00 for the allowance only for

employees who have to perform split shift duty (see:

Daikoku Company Sendirian Berhad v. National Union of

Hotel Bar & Restaurant Workers [1986] 1 ILR December

(A) 1144 at page 1153).

Article 26(a) : Rest Day

In this matter, the court is of the view that the Club be

allowed to maintain that all employees are to be given only

one rest day and other operational employees be given one

(1) rest day in each week which in turn shall be determined in

accordance with the company's roster.

Article 28: Overtime

(i) Article 28(a)

As for this proposed article, the court notes that the

only disagreement between the parties is the fact that

the Union suggested that the overtime should be donewith the consent of the employees whilst the company

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on the other hand suggested that the employee shall not

refuse to work overtime. In order to strike the

balance between the parties the court is of the opinion

that the following wordings should be adopted in the CA:

Overtime is work done in excess of the

normal hours of work. Overtime shall be at

the request of the Club with the consent of

the employees but such consent shall be not

unreasonably withheld.

(ii) Article 28 (c)

Taking into account the practice of other clubs in the

Klang Valley in particular the CA of Kelab Taman

Perdana DiRaja Kuala Lumpur (page 15 of Tab1 of UBD),

the court agrees with formula proposed by the Union.

Article 29 : Medical Leave

(i) Article 29(d)

It is the Union's contention that paid leave benefits may

be used for an employee's own illness or injury or for the

purpose of receiving medical care, treatment or

diagnosis. Further, the Union contends that these type

of illness take most amount of time for recovery and

healing. Thus, it is not logical neither reasonable to

expect employees to shoulder both the cost of medical

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treatment and family commitments without their

monthly earnings. To counter the Union's request, the

Club contends that the proposed article will burden the

Club financially. However, as stated in the earlier part

of this award, the Club is not in position to plead

financial incapability since it has not been proved.

In deciding this, the court after comparing with the

other clubs in the Klang Valley (as stated in the UBD)

agrees with the Union's request that this proposed

article should be inserted in the CA. However, the

employees are granted leave are as follows:

(a) three (3) months on full pay;

(b) four (4) months on half pay; and

(c) ......... four (4) months on no pay.

Article 30: Medical Benefit

(i) Article 30(a)

The club's proposal is to limit the proposed benefits toRM360.00 per annum, the employees are eligible for

medical treatment by the Club's panel of medical

doctors and no portion of the maximum medical fee

allowable for each year shall be carried over to the

following year. The court after comparing with the other

Clubs in the Klang Valley finds that these clubs did notput any capping for out-patient medical treatment. The

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court also believes that the key to retain the employees

in the company is to offer greater benefits. Thus, the

court is of the view that there should not be any

monetary capping for the medical examination and out-

patient treatment for the employees of the Club but the

said medical treatment and out-patient treatment must

be by the Club's Panel of Doctors, Government Hospitals

or by a Specialist recommended by the Club's doctors at

the expense of the Club, which shall include the cost of

consultation and prescribed medicine.

(ii) Article 30(b)

As for this proposed article, the court agrees with the

Union's proposal since it is consistent with other clubs in

the Klang Valley. Thus, the proposed article should be

read as follows:

Employees shall be entitled for

hospitalisation or in-patient treatment by the

Government Hospitals or on recommended by

the club's Panel of Doctors, by a specialist ora Private Hospital at the expense of the

Club subject to the limit prescribed below :

(a) Second class ward charges at

Government Hospital or a maximum of

seventy ringgit (RM70.00) per day

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towards room at any Club's Panel of

Hospitals or clinics;

(b) A maximum of one thousand five

hundred ringgit (RM1,500.00) per every

twelve months period commencing from

the first day of hospitalisation towards

cost of medicine;

(c) A maximum of three thousand ringgit

(RM3000.00) per every twelve month

period commencing from the first day

of hospitalisation towards the cost of

surgical operation, consultation,

investigation or other specialist fees

excluding cost of medicine provided

such hospitalised or in patient

treatment is recommended by the

Club's doctors or any Government

Medical Officer or any Specialist

recommended by them.

(iii) Article 30(c) : Maternity Benefit

The Union's proposal is to request the Club to pay for the

maternity costs for its female employees. However, the

court has to reject this proposal because the court did

not see that this benefit has been applied by other clubsin the Klang Valley.

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(iv) Article 30(d)

As for this article the court rules that other than in the

case of emergency the medical treatment must be bythe Club's Panel of Doctors Government Hospitals or by a

Specialist recommended by the Club's doctors.

(v) Article 30(e)

The court cannot accept the Club's proposal because the

Club cannot withdraw unilaterally the medical benefits

which has been mutually agreed by the parties.

(vi) Article 30(f)

The court agrees with the Club's proposal since it is a

basic rule that for any claim it has to supported byreceipts or bills.

(vii) Article 30(g)

The court is of the view all terms and conditions of the

Insurance Policy should be enclosed in the CA as an

appendix. In addition, the court is of the view there

should be no capping for hospitalisation.

Article 32: Annual Leave

(i) Article 32 (a)

The court accepts Union's proposal since it is true that

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the Union's proposal for paid leave is the lowest

compared to the rest of the clubs in the Klang Valley.

(ii) Article 32 (b)

The court has to decline this proposal. This is because

after taking into the practice of other clubs in the Klang

Valley the court notes that none of these clubs has this

provision.

(iii) Article 32(c), (f) and (g)

The court agrees with the Union's proposal since most

clubs have these provisions.

Article 33: Haj Leave

The court notes that based on the UBD only two clubs are

having this provision. In this matter, the court agrees with the

Union's proposal but the leave is unpaid leave. The court is also

of the view that in order to avoid the Club from having

problems to arrange suitable and knowledgeable replacement

during the Haj leave, a provision must be put the said proposed

article requiring the concerned employee should give a written

notice that he/she is going for a Haj to the company 2 months

before the pilgrimage leave together with documents of proof

issued by Lembaga Urusan Tabung Haji.

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Article 35: Special Paid Leave

(a) Article 35(a)

The court agrees with the Club's proposal but with

special paid leave.

(b) Article 35(b) and (c)

As for this proposed article, the court is of the view that

the Club may at its discretion grant paid leave to

employees who are selected to attend sports as National

Representative. In relation to the proposed Article 35

(c), the court finds that it is too wide and the Union

should have detailed the type of National Service

Programmes applicable to the employees of the Club.

Article 36: Group Term Life

The court finds that since the Club have a Group Personal

Accident Insurance policy for all it employees so it is

sufficient.

Article 37: Employee's Provident Fund

The court did not find this practice has been adopted by some

clubs in the similar industry. Thus, the court has to decline the

Union's proposal.

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Article 38: Retirement Age

The court agrees with Union's proposal since a similar provision

has adopted by the clubs in the Klang Valley.

Article 39: Existing Benefits

In this matter, the court notes that the parties only disputing

the second paragraph of the proposed Articles. The court sees

no harm for having this paragraph since it will encourage the

employees to enhance their career or skills .

Article 40 : Job Grades, Salary Scales and Annual Increment

The court notes that the Union's proposal on job grades is

based on the collective agreements of KGNS and RSGC

(Appendix 1, Tab 4 and Article 26 of pages 19 and 20 of TAB 5

UBD). The court after having the privilege to peruse the

Union's proposal (U5), the Club's proposal and salary scales

practised by the other clubs in the Klang Valley finds that

there is a need for the salary scales for the employees of the

Club to be revised. Thus, the court feels the minimum salaryfor each position in the Club should be increased by RM100.00.

Pertaining to the annual increment, the court notes that based

on the Union's proposal (U5), the union is demanding an

average increment of 7% from the minimum salary. In court's

view, the court finds the request is fair and reasonable. As for

the maximum salary, based on U5, the court notes that theemployee's will have an average of 10 annual increments from

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the minimum salary before reaching maximum salary. Thus,

the new maximum salary must be calculated based on the

increment of RM100.00 for the minimum salary and 10 annual

increments.

Article 41: Funeral Expenses

This proposed articles is not provided by other clubs in the

Klang Valley but the Club is willing to give RM300.00. Thus, the

court agrees with Club's proposal.

Article 42: Industrial Accident

The court discovers that there is no similar provision adopted

by the other clubs in the Klang Valley. Therefore, the court

agrees with the Club's proposal to limit the said period to a

maximum of two months.

Conclusion

In handing down its award this court reiterates that it did, as is required

by section 30(4) of Act, in its deliberations, "have regard to the publicinterest, the financial implication 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", and did also as required

by section 30(5) of Act, "act according to equity, good conscience and the

substantial merits of the case". For this court to be extravagant in its

awarding of increased monetary benefits to the employees of the Club itwould not only have a detrimental effect on the Club itself but also on its

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workers as well as on the club industry generally. However, the court at

the same time must also taken into consideration the public interest.

This court in deliberating on the award was unanimous in its decisions.

The parties may now draw up their CA incorporating the Articles that

were either not in dispute or which were agreed to by the parties

together with the Award of this court on the disputed Articles which has

been decided by the court and to present it for cognisance. The parties

are urged to take care to be consistent with regard to both terminologyas well as the numbering of the Articles and Clauses when drawing up the

new CA.

HANDED DOWN AND DATED THIS 27 th DAY OF JULY 2011

-signed-

AHMAD TERRIRUDIN BIN MOHD SALLEH

CHAIRMAN

MALAYSIA INDUSTRIAL COURT

KUALA LUMPUR