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

[2021] 2 MLRA 696

CRYSTAL CROWN HOTEL & RESORT SDN BHD (CRYSTAL CROWN HOTEL PETALING JAYA) v. KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR & RESTORAN SEMENANJUNG MALAYSIA
Federal Court, Putrajaya
Nallini Pathmanathan, Abdul Rahman Sebli, Mary Lim Thiam Suan FCJJ
[Civil Appeal No: 02(f)-4-01-2018]
24 March 2021

JUDGMENT

Nallini Pathmanathan FCJ:

Introduction

[1] The statutory stipulation of a "minimum wage" represents the lowest level below which wages cannot be allowed to decline. The fixing of a minimum wage by Parliament recognises that wages cannot be left solely to market forces. The underlying philosophy is the recognition that labour must be remunerated reasonably, and that exploitation of labour through the payment of low wages is unacceptable1.

[2] Hotel workers are recognised as one of the vulnerable groups requiring legislative protection (see Hansard on the second reading of the National Wages Council Consultative Act 2011 of 30 June 2011 at 12.48pm). In concluding that the introduction of a minimum wage was essential, the then Minister of Human Resources explained that the purpose was to alleviate the plight of low income workers so as to enable them to increase their purchasing power in view of the increase in the cost of living, as well as addressing the issue of poverty amongst the working poor.

[3] Where Parliament has fixed the minimum wage on a national basis, vide the National Wages Council Consultative Act 2011 ("NWCCA 2011") and the Minimum Wages Order(s) from 2012 - 2020 ("MWO 2012") consecutively, is it open to an industrial adjudicator to re-constitute it, or to rework such a minimum wage, notwithstanding that which Parliament has expressly legislated?

[4] The National Union of Hotel, Bar and Restaurant Workers ('the Union') maintains vigorously that any such reworking or modification of the minimum wage is not permissible. To this end the Union maintains that the utilisation of the service charge element of their remuneration, which employees receive as a separate benefit, to substitute (vide a clean wage system) or to supplement prevailing wage rates (vide a top up salary structure), so as to meet the statutory minimum wage is unacceptable.

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