Heatherly v. Hilton Hawaiian Village Joint Venture

893 P.2d 779, 78 Haw. 351, 1995 Haw. LEXIS 31

• Court: Hawaii Supreme Court
• Decided: April 26, 1995
• Docket: No. 16929
• Status: Published

Opinions

KLEIN, Justice.

The plaintiffs-appellants (the Bellhelp) are all bellhops of various hotels located throughout Hawaii, with the exception of Anthony Rutledge (Rutledge), who is the Financial Secretary/Treasurer of Hotel Employees and Restaurant Employees, Local 5 (Local 5). The defendants-appellees (the Hotels) are hotels, or companies that own the hotels, which employ the Bellhelp.

The Bellhelp appeal from the first circuit court judgment, filed February 16, 1993, granting the Hotels’ motion for summary judgment or in the alternative for partial summary judgment. The circuit court determined that porterage fees transmitted to the Bellhelp constitute wages within the meaning of Hawaii Revised Statutes (HRS) § 387-1 (1985 & Supp.1992);¹ therefore,, these amounts can be used to satisfy the Hotels’ obligation under HRS § 387-2 (Supp.1992)² to pay minimum wages.

On appeal, the Bellhelp claim that the circuit court erred in (1) determining that porterage fees are wages under HRS § 387-1 and (2) granting summary judgment where a genuine issue of material fact existed as to whether the term “gratuities of any kind,” as used in HRS § 387-1, includes porterage fees.

For reasons set forth below, we vacate the circuit court’s judgment.

I. BACKGROUND

The Hotels, through their bargaining representative; the Council of Hawaii Hotels, and Local 5 are parties to a collective bargaining agreement (Master Agreement), which establishes the wage rates for the Bell-help. According to the Bellhelp’s Opening Brief, the Bellhelp’s total income derives from three sources: (1) an hourly wage pursuant to the Master Agreement; (2) tips from hotel guests; and (3) “porterage,” a third category that is the subject of dispute in this case.

The Bellhelp brought this action on June 15,1992 seeking recovery of unpaid minimum wages pursuant to HRS § 387-12(b) (1985).³ It is undisputed that between the settlement of the Master Agreement, in 1990, and April 1, 1992, the Bellhelp’s wages, as set forth in the Master Agreement, exceeded both the federal and Hawaii minimum wage. On April 1,1992, however, the Hawaii minimum wage was raised from $3.85 to $4.75 per hour and, effective January 1, 1993, the minimum wage was raised to $5.25 per hour. HRS § 387-2. In their complaint, the Bellhelp asserted that as of April 1, 1992 the Hotels have not adjusted the Bellhelp’s wages to satisfy the Hawaii minimum wage requirement.

On July 6, 1992, the Hotels filed their answer; then, on November 9, 1992, the Hotels filed a motion for summary judgment or in the alternative for partial summary judgment. The Hotels asserted that they were entitled, as a matter of law, to count both the contractual hourly wages and the porterage to meet the minimum wage requirements of HRS chapter 387. In their memorandum opposing the Hotels’ motion, the Bellhelp claimed that pursuant to the Master Agreement, porterage could not be counted as wages because porterage fees are “not [the] employers’ money to award or allocate or pay” under HRS § 387-1. See also HRS § 387-2 (calling for “pay[ment]” of wages).

By order entered on January 28, 1993, the circuit court granted the Hotels’ motion for summary judgment or in the alternative for partial summary judgment. In this order, the circuit court stated: “The Court finds that the service charges are wages under H.R.S. § 387-1 and therefore can be used by Defendants in their entirety to satisfy their obligation to pay the minimum wage established by H.R.S. § 387-2.” The circuit court’s judgment was entered on February 16, 1993.

On March 15, 1993, the Bellhelp timely filed their notice of appeal.

II. STANDARD OF REVIEW

On appeal, an order of summary judgment is reviewed under the same standard applied by the circuit courts. Summary judgment is proper where the moving party demonstrates that there are no genuine issues of material fact and it is entitled to a judgment as a matter of law. Sentinel Ins. Co. v. First Ins. Co. of Hawai'i, 76 Hawai'i 277, 287, 875 P.2d 894, 904 (1994). In other words, “[s]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Pacific Int’l Services Corp. v. Hurip, 76 Hawai'i 209, 213, 873 P.2d 88, 92 (1994); Hawai'i Rules of Civil Procedure 56(c) (1990).

III. DISCUSSION

The essence of the Bellhelp’s argument is that, by contract, porterage fees cannot be considered wages paid by the Hotels because these monies represent a form of dual compensation, like gratuities, that are owned exclusively by the Bellhelp. The Bellhelp contend that because the Master Agreement § 38.5(A)(1) provides that “porterage ... shall be considered the exclusive property of the bargaining unit employees and are payable only to the appropriate bargaining unit employees,” the porterage fees never belonged to the Hotels. (Emphasis added.) Therefore, because the Hotels never owned the porterage fees, they could not “pay” these monies to the Bellhelp as wages in exchange for labor and services rendered under HRS § 387-2.

The Hotels respond that under the terms of the Master Agreement porterage is neither a tip nor a gratuity; therefore, these funds need not be excluded when determining whether the Bellhelp have been paid minimum wages as required by law. In support of their argument, the Hotels note that the Master Agreement defines porterage as “any service charge or pre-negotiated payment by a guest of [sic] a customer for service rendered.”⁴

A. Whether “porterage” constitutes “wages” or “gratuities of any kind” under HRS §§ S87-1 and 387-2 is a genuine issue of material fact.

Before we consider the parties’ apparently divergent interpretations of the Master Agreement, we must construe HRS §§ 387-1 and 387-2 to determine whether these provisions permit the parties to designate a particular source of income—e.g., “porterage”— as “wages” or “gratuities.” “[P]arties may not do by contract what is prohibited by statute.” Lerwill v. Inflight Servs., Inc., 379 F.Supp. 690, 696 (N.D.Cal.1974), aff'd, Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507 (9th Cir.1978).

The circuit court’s finding that porterage fees constitute wages under HRS § 387-1 is really a conclusion of law, and questions of statutory interpretation are reviewable de novo. Crosby v. State, 76 Hawai'i 332, 340, 876 P.2d 1300, 1308 (1994).

In Crosby, we summarized the applicable standards for statutory interpretation:

When construing a statute, our foremost obligation “is to ascertain and give effect to the intention of the legislature,” which “is to be obtained primarily from language contained in the statute itself.” Richardson v. City & County of Honolulu, 76 Hawai'i 46, 63, 868 P.2d 1193, 1210, reconsideration denied, 76 Hawai'i 247, 871 P.2d 795 (1994) (citations omitted). However,

we have rejected an approach to statutory construction which limits us to the words of a statute ... for when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination.

Id. at 68, 868 P.2d at 1215 (Klein, J., dissenting) (citing Treloar v. Swinerton & Walberg Co., 65 Haw. 415, 421, 653 P.2d 420, 424 (1982)).

Thus, the plain language rule of statutory construction,

does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.

Survivors of Medeiros v. Maui Land & Pineapple Co., 66 Haw. 290, 297, 660 P.2d 1316, 1321 (1983)[.]

Id. at 68-69, 868 P.2d at 1215-16 (Klein, J., dissenting).

Crosby, 76 Hawai'i at 340, 876 P.2d at 1308.

HRS § 387-1 initially defines “wage” as “legal tender of the United States ... and in addition thereto the reasonable cost ... to the employer of furnishing an employee with board, lodging, or other facilities if such board, lodging, or other facilities are customarily furnished by such employer to the employer’s employees.” See Williams v. Jacksonville Terminal Co., 315 U.S. 386, 408, 62 S.Ct. 659, 671-72, 86 L.Ed. 914 (analyzing a similar provision under federal law), reh’g denied, 315 U.S. 830, 62 S.Ct. 909, 86 L.Ed. 1224 (1942), HRS § 387-1 then expressly, but qualifiedly, excludes “tips” and “gratuities of any kind” from its definition of wages.

We are aware that the Department of Labor & Industrial Relations Regulations (DLIR) § 12-20-1 clearly distinguishes between the specific kind of gratuity called “tips” and service charges:

“Tip” means a sum of money determined solely by a customer and given in recognition of service performed by an employee who retains it as a gift or gratuity. It may be paid in cash, bank check, or other negotiable instrument payable at par as well as amounts transferred by employer to employee by direction of the credit customer who designates amounts to be added to the customer’s bill as tips. Compulsory or negotiated service charges and special gifts in forms other than described above are not counted as tips.

(Emphasis added.)⁵ Porterage clearly does not constitute tips under DLIR § 12-20-1. Because we must assume that the legislature would not enact superfluous language, see Methven-Abreu v. Hawaiian Ins. Guaranty Co., 73 Haw. 385, 392, 834 P.2d 279, 284 (1992) (citing Camara v. Agsalud, 67 Haw. 212, 215-16, 685 P.2d 794, 797 (1984)), “gratuities of any kind” must be something other than “tips.” The DLIR has not defined “gratuities of any kind.” In any event, the DLIR is only authorized to define the relevant terms as long as its definitions do not limit the generality of the terms. - HRS § 387-11, supra note 1.

The dispositive issue in this case, therefore, is whether porterage falls within the general category “gratuities of any kind” under HRS § 387-1. The legislative history of HRS chapter 387 does not provide any direct insights as to the meaning of “gratuities of any kind.” Pertinent rules of statutory construction in these circumstances are provided in In re Taxes, Hawaiian Pineapple Co., 45 Haw. 167, 363 P.2d 990 (1961).

There is a further principle in construing the language of a statute regulating a business it should be given the meaning as understood in the business rather than its ordinary meaning. In the absence of legislative intent to the contrary, the common meaning will prevail until the commercial or trade meaning is proved. The trade or commercial meaning is afoot to be proved in each case. Until such fact is proved, an alleged commercial or trade meaning of a common term is presumed to be the same as the common meaning.

Id. at 178-79, 363 P.2d at 997. The trade meaning of “gratuities of any kind” is clearly a “fact” that is material to whether the Hotels are entitled to summary judgment. See infra section III.B.⁶ Until this issue of fact is resolved at trial, it cannot be determined whether porterage fees are a kind of gratuity or wages within the meaning of HRS chapter 387.

Bearing in mind the admonition in Lerwill that “parties may not do by contract what is prohibited by statute[,]” 379 F.Supp. at 696, we find nothing in HRS chapter 387 to preclude the Hotels from agreeing—for the sole purposes of the minimum wage law—not to treat porterage as revenue.⁷ In other words, the Hotels are not prohibited by HRS chapter 387 from reaching an agreement with Local 5 to (1) collect “porterage” from hotel guests on behalf of the Bellhelp, and then (2) transmit this “exclusive property” of the Bellhelp as an addendum to their paid wages. Cf. Williams, 315 U.S. at 397-98, 62 S.Ct. at 666-67 (permitting the opposite arrangement, where gratuities in the form of tips are included in employee wages pursuant to an agreement between the parties); Hayden v. Bowen, 404 F.2d at 686 (inferring from Williams that tips should be excluded absent such an agreement).⁸

Furthermore, we conclude that the exclusion of porterage from wages under the Bell-help’s interpretation of the Master Agreement, see infra section III.B. and supra notes 6 and 7, is consistent with the state legislature’s intent to ensure that employers pay for labor primarily with their own money. See 1969 House Journal, at 703.

The Fair Labor Standards Act permits an employer of a “tipped employee” to claim up to fifty per cent of the employee’s minimum wage as coming from tips actually received by him. Your Committee, however, is not convinced that a credit to the extent permitted by the Federal law would be in the best interests of our workers. It feels that a tip credit should be permitted only where the employee is receiving a sum in combined wages and tips which is sizably more than the minimum hourly wage.

Hse.Stand.Comm.Rep. No. 195, in 1969 House Journal, at 703. Whereas the national tip credit can be as much as fifty percent of federal minimum wage,⁹ Hawaii law only permits a twenty cent tip credit, which amounts to roughly 3.8 percent of the state’s minimum wage requirement.¹⁰ See HRS § 387-2, supra note 2. In other words, the legislative history of HRS chapter 387 indicates that employers may satisfy minimum wage requirements by relying on outside sources only to a very limited extent.¹¹

In appropriate circumstances, therefore, we conclude that porterage may be considered in the nature of “gratuities” for the purposes of HRS § 387-1 and HRS § 387-2. See Hawaiian Pineapple, 45 Haw. at 179, 363 P.2d at 997. Consequently, we hold that the Hotels are not entitled to summary judgment as a matter of law.

B. The trade meaning of “gratuities of any kind” may include “porterage” in this case.

The Bellhelp argue that evidence in the record supports an inference that a trade meaning of “gratuities” exists and that it includes “porterage”—notwithstanding that porterage is currently collected by the Hotels from certain guests as a service charge or pre-negotiated payment. The Hotels do not contest the evidence provided by the Bell-help, but simply dismiss it as collectively irrelevant.¹² In other words, the Hotels essentially argue that Local 5 agreed to treat “porterage” as wages by defining the term as a service charge or pre-negotiated payment.

It is a fundamental rule in this jurisdiction that “[w]hen making a summary judgment determination, all evidence and inferences to be drawn must be construed in the light most favorable to the nonmoving party.” State Farm Mutual Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 555, 836 P.2d 1074, 1076 (1992). At first glance, the Master Agreement appears to differentiate between porterage and gratuities in a manner similar to DLIR § 12-20-1 and 29 C.F.R. § 531.55. See supra section III.A. Porterage includes “any service charge or pre-negotiated payment by a guest [or] customer for service rendered.” (Emphasis added.) Master Agreement § 38.6(B), supra note 3. Gratuities are defined as “any gift or payment given by a guest or customer for service rendered.” Id. § 38.6(A), supra note 3. Accordingly, upon superficial examination, it would seem logical to conclude that porterage payments are not gratuities because they are neither voluntary nor discretionary.

Nevertheless, the Bellhelp have offered uncontroverted evidence that porterage derives from gratuities and that this historical context was incorporated in relevant agreements after the term “porterage” was coined. For example, the 1976 Master Agreement used the term “porterage gratuities” to define what is now known simply as “porterage.” Earlier, section 42.7 of the 1973-75 Master Agreement provided “Bellmen’s Gratuity: Gratuities for handling of baggage by the bell staff for group movements shall be seventy-five cents (75 [cents]) per person checking in and seventy-five cents (75 [cents]) per person checking out. Any deviations shall require the prior approval of the Union.” (Emphasis added.) The Bellhelp also note that certain of their pay stubs list porterage as “GTR,” which they claim is a code for gratuities.

Furthermore, an uncontested affidavit submitted by Rutledge claims that porterage was designed to replace the tips and gratuities lost by the bellhelp with the advent of large tour groups. See, e.g., St. Paul Hilton, 298 Minn. at 204-05, 214 N.W.2d at 352 (“The purported distinction between discretionary ‘tips’ and mandatory ‘service charges’ squares neither with the statute nor familiar customary meaning in the market place ... [where] the mandatory service charge has evolved as a convenient substitute for the voluntary tip[.]”). Because porterage was intended to replace lost tips and gratuities, the Bellhelp conclude that porterage should be included in the category “gratuity of any kind” and should not be considered wages pursuant to HRS § 387-1.¹³

Given the uncontroverted evidence in this case, it is difficult for us to believe—as the Hotels implicitly argue and the dissent myopically proclaims, see Dissenting opinion at 363, 893 P.2d at 791 (stating that the Master Agreement “clearly set[s] forth” the trade meanings of gratuities and porterage as intended by the negotiating parties)—that collective bargaining between Local 5 and the Hotels could have resulted in an agreement to count porterage as part of the Bellhelp’s basic wages for the purposes of state minimum wage law. Construing the available evidence and drawing inferences in the light most favorable to the Bellhelp, see Fermahin, 73 Haw. at 555, 836 P.2d at 1076, we conclude that the Master Agreement was intended to ensure that porterage fees collected by the Hotels are distributed to the Bellhelp as a category separate from their basic wages. Consequently, we hold that the Hotels are not entitled to summary judgment because the Bellhelp have raised a genuine issue of material fact as to whether “porterage” is a “gratuity of any kind.”

IV. CONCLUSION

Based on the foregoing analysis, we vacate the circuit court’s judgment granting the Hotels’ motion for summary judgment and remand for further proceedings consistent with this opinion.

1 . HRS § 387-1 provides in pertinent part: Definitions. As used in this chapter:

"Wage” means (except as the department may provide under section 387-11) legal tender of the United States or checks on banks convertible into cash on demand at full face value thereof and in addition thereto the reasonable cost as determined by the department, to the employer of furnishing an employee with board, lodging, or other facilities if such board, lodging, or other facilities are customarily furnished by such employer to the employer’s employees. Except for the purposes of the last sentence of section 387-2, “wage” shall not include tips or gratuities of any kind.

(Emphasis added.) HRS § 387-11 (1985) permits the Department of Labor and Industrial Relations to promulgate rules and regulations defining terms used in this chapter; however, the department’s definitions may not be used to limit the generality of the terms.

2 . HRS § 387-2 provides:

Except as provided in section 387-9 and this section, every employer shall pay to each employee employed by the employer wages at the rate of not less than $3.85 per hour beginning January 1, 1988, $4.75 per hour beginning April 1, 1992, and $5.25 per hour beginning January 1, 1993. The hourly wage of a tipped employee may be deemed to be increased on account of tips if the employee is paid not less than twenly cents below the applicable minimum wage by the employee's employer and the combined amount the employee receives from the employee's employer and in tips is at least fifty cents more than the applicable minimum wage.

HRS § 387-9 (1985) concerns special minimum wage requirements for people such as students, apprentices, and those with handicaps and, therefore, is not applicable in this appeal.

3 .HRS § 387—12(b) (1985) provides:

Liability to employee. Any employer who violates any provision of sections 387-2 and 387-3 shall be liable to the employee or employees affected in the amount of their unpaid minimum wages or unpaid overtime compensation, and in case of wilful violation in an additional equal amount as liquidated damages.

4 . Relevant provisions of the Master Agreement concerning porterage include:

SECTION 38. SERVICE CHARGES AND GRATUITIES.

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PAYMENT OF GRATUITIES TO THE UNIFORMED SERVICES DEPARTMENT.

38.5General.

A. It is understood that the matter of the distribution of gratuities, porterage and charges is vested solely with the Union.

1. All gratuities, porterage and charges shall he considered the exclusive property of the bargaining unit employees and are payable only to the appropriate bargaining unit employees of the Uniformed Services Department, hereinafter referred to as “Bellhelp” unless otherwise indicated.

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38.6 Definitions.

A. Gratuity/Tip. A gratuity/tip is defined as any gift or payment given by a guest or a customer for service rendered.

B. Porterage. Porterage is defined as any service charge or pre-negotiated payment by a guest of [sic] a customer for service rendered. 38.7 Schedule of Porterage/Gratuities/Charges.

A. Porterage. All tours and groups where baggage is handled by Bellhelp as a group movement shall be guaranteed[] a porterage. ... Effective on March 1, 1992 the porterage amount shall be Two dollars ($2.00) per person for each check-in and Two dollars ($2.00) per person for each check-out.

(Emphasis added.)

5 . The Code of Federal Regulations (C.F.R.), Tide 29, § 531.55 (1994) provides in pertinent part:

(a) A compulsory charge for service, such as 10 percent of the amount of the bill, imposed on a customer by an employer’s establishment, is not a tip and, even if distributed by the employer to his employees, cannot be counted as a tip received in applying the provision of section 3(m) and 3(t).

Similarly, where negotiations between a hotel and a customer for banquet facilities include amounts for distribution to employees of the hotel, the amounts so distributed are not counted as tips received....

(b) As stated above, service charges and other similar sums which become part of the employer's gross receipts are not tips for the purposes of the Act. However, where such sums are distributed by the employer to his employees, they may be used in their entirety to satisfy the monetary requirements of the Act....

29 C.F.R. § 531.55 (1994) (emphasis added). See also Cuevas v. Monroe Street City Club, Inc., 752 F.Supp. 1405, 1417 n. 18 (N.D.Ill.1990) (noting that, pursuant to 29 C.F.R. § 531.55, service charges are considered wages for determining minimum wage).

6 . The dissent's conclusion that "the Bellhelp had the opportunity but failed to make a sufficient showing to defeat summary judgment!)]” Dissenting opinion at 22, ignores the uncontested affidavit of Local 5 representative Rutledge. Accepting Rutledge's assertions as true, which we must for the purposes of the Hotels’ summary judgment motion,, we are led to the conclusion that Local 5 negotiated with the Hotels to construe porterage in light of its historical development as a kind of gratuity—the advent of large group tours contributed to the replacement of tips and gratuities, which were previously provided to the Bellhelp by guests individually, with "Bellmen’s Gratuities]” or "porterage gratuities” furnished as a lump sum in recognition of the group service rendered by the Bellhelp for the Hotels' and their guests' convenience. Although the Bellhelp’s combined take home pay under the Master Agreement was initially to their satisfaction, circumstances changed when the Bellhelp did not realize expected benefits from the 1992 and 1993 increases in the mandatory minimum wage.

The dissent essentially supersedes the collective bargaining process by judicial flat, denying the benefits of minimum wage hikes to the Bell-help and indirectly granting a related benefit to the Hotels. The dissent seeks to justify its decision by attempting to undermine our reading of Williams v. Jacksonville Terminal Co., 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914, rehearing denied 315 U.S. 830, 62 S.Ct. 909, 86 L.Ed. 1224 (1942). See Dissenting opinion at -, 893 P.2d at 793. In doing so, however, the dissent implicitly suggests that we missed the fact that “the term ‘wages’ in the [pre-1966 version of the] FLSA ‘ha[d] no fixed meaning either including or excluding gratuitiesL]’" id. at -, 893 P.2d at 791, while simultaneously ignoring our citation to Hayden v. Bowen, 404 F.2d 682, 686 (5th Cir.1968), cert. denied, 395 U.S. 933, 89 S.Ct. 1995, 23 L.Ed.2d 448 (1969), which permitted the employer and its employees to decide how to allocate tips for minimum wage purposes notwithstanding the FLSA’s broad definition of “wages.” See infra note 8 & accompanying text.

7 . The dissent concludes that "there is no practical difference as to whom the parties designate as the owner of the porterage[.]" Dissenting opinion at 20. Although we recognize, without deciding, that this may be true with respect to other statutory purposes—for example, the amount of state and federal taxes collectively owed by the Hotels and the Bellhelp, an issue which is not presently before the court—the relevant terms of the Master Agreement as understood by Local 5 (and uncontested by the Hotels) have a very real impact on the amount of money taken home by the Bell-help. See supra note 6. Accordingly, we do not rely upon St. Paul Hilton Hotel v. Commissioner of Taxation, 298 Minn. 202, 214 N.W.2d 351 (1974), for the proposition that state taxes may not be imposed upon these porterage payments, or that such amounts may be deducted by the Hotels as paid wages. However, we do agree with the Minnesota Supreme Court to the extent that it recognizes the practice of negotiating employment agreements that provide for dual compensation in an attempt to reflect customary meaning in a changing marketplace, notwithstanding the superficially appealing distinction between the typical kind of gratuity known as "tips" and pre-negotiated service-charges. See infra section III.B. (quoting from St. Paul Hilton ); Dissenting opinion at 362 n. 3, 893 P.2d at 790 n. 3.

8 . Although Williams and Hayden are based on a Fair Labor Standards Act provision prior to the amendment that explicitly excluded tips from minimum wage calculations, the ability to contractually designate ownership of gratuities is consistent with currently applicable regulations. "In the absence of an agreement to the contrary between the recipient and a third party, a tip becomes the property of the person in recognition of whose service it is presented by the customer.” 29 C.F.R. § 531.52 (1994) (emphasis added).

9 . 29 U.S.C. § 203(m) provides in pertinent part:

[i]n determining the wage of a tipped employee, the amount paid such employee by his [or her] employer shall be deemed to be increased on account of tips by an amount determined by the employer, but not by an amount in excess of ... 50 percent of the applicable minimum wage rate ..., except that the amount of the increase on account of tips determined by the employer may not exceed the value of tips actually received by the employee.

10 . This figure was determined by dividing the twenty cent tip credit by the applicable minimum wage, which is currently $5.25 per hour.

11 . Among the various sources of authority cited by the dissent to support its conclusion that porterage constitutes wages, see Dissenting opinion at 360-362, 893 P.2d at 788-790, only Beaman v. Westward Ho Hotel Co., 89 Ariz. 1, 357 P.2d 327 (1960), and Cuevas do not involve the extraneous issue of taxation. Furthermore, both Beaman and Cuevas construed state statutes that define wages more broadly than HRS § 387-1: the Arizona minimum wage statute in Beaman defines wages as including "remuneration ... from whatever source [,]" see Dissenting opinion at 361 n. 2, 893 P.2d at 789 n. 2 (emphasis added); although the court in Cuevas did not directly address the Illinois minimum wage statute, it defines wages as “compensation due to an employee by reason of his employment, including allowances ... for gratuities and, when furnished by the employer, for meals and lodging actually used by the employee.” Ill.Ann.Stat. ch. 48, para. 1003 (Smith-Hurd 1991) (incorporating by reference the forty percent allowance for gratuities under Ill.Ann.Stat. ch. 48, para. 1004 (Smith-Hurd 1991)). We observe that our state legislature knows how to draft broader definitions of the term "wages” for purposes other than determining whether minimum wage requirements have been met. See, e.g., HRS § 383-10 (1992 Supp.) (“all remuneration for services from whatever source” for the purposes of the Hawai'i Employment Security Law); HRS § 386-1 (1985) (including "gratuities received in the course of employment from others than the employer to the extent that they are customary and expected in that type of employment" for the purposes of the Workers’ Compensation Law); HRS §§ 388-1 and 388-6 (1985) (including "tips or gratuities of any kind” as wages that may be withheld by employers for specified purposes); HRS § 393-3(9) (1985) ("all remuneration from whatever source" for the purposes of the Prepaid Health Care Act).

The dissent mistakenly believes that the Bell-help’s interpretation of the Master Agreement somehow circumvents Hawai'i minimum wage law by excluding porterage from consideration when computing the Bellhelp's earnings for purposes of HRS §§ 387-1 and 387-2. However, notwithstanding the fact that HRS § 387-4.5 prohibits the contravention or setting aside of the minimum wage law provisions through private agreement, HRS § 387-13 clearly permits employees to bargain collectively through their representatives to achieve total earnings "in excess of” the amount required under chapter 387. The Bellhelp's interpretation of the Master Agreement does not contravene or set aside any obligations under this chapter; it merely forces the Hotels to satisfy the minimum wage requirement without relying upon porterage fees collected from hotel guests.

12 . The Hotels submit that "questions of contract interpretation are for the arbitrator exclusively under both the contract and federal law. See generally Republic Steel Corp. v. Maddox, 379 U.S. 650 [85 S.Ct. 614, 13 L.Ed.2d 580] (1965).” The Hotels do not point to any express provision in the Master Agreement that requires arbitration prior to court action. In any event, federal case law and regulations, see supra note 8, as well as our decision in Hawaiian Pineapple, 45 Haw. at 179, 363 P.2d at 997, implicitly acknowledge the propriety of considering contractual terms in the instant context. We disagree with the dissent’s characterization of the Master Agreement as "unambiguous.” Dissenting opinion at 364, 893 P.2d at 792. Because we believe that (1) this contract is capable of being reasonably understood in more ways than one, and (2) the parties’ intent with respect to the treatment of "porterage” for minimum wage law purposes is a genuine issue of material fact, we conclude that the "extrinsic evidence” provided by the Bellhelp is admissible. DiTullio v. Hawaiian Ins. & Guar. Co., 1 Haw.App. 149, 156, 616 P.2d 221, 226 (1980). In questioning our reliance on DiTullio, the dissent starts with the proposition that " 'porterage' and ‘gratuity’ ... are unambiguously defined in the current Master Agreement.” Dissenting opinion at 364 n. 6, 893 P.2d at 792 n. 6. We are aware of the relevant definitions. See supra at 353, 893 P.2d at 781 and 781 n. 4. Nevertheless, "[i]n the context of this contracts]" DiTullio, 1 Haw.App. at 155, 616 P.2d at 226—which further establishes that "porterage” is “the exclusive property of the [Bellhelp] and [is] payable only to [them]," while also providing that “gra-tuit[ies]/tips” are, inter alia, "payment is] given[,]" see Master Agreement §§ 38-5(A)(l) and 38.6(A) (emphases added)—we cannot conclude, as a matter of law, that the parties mutually intended porterage to be considered wages paid to the Bellhelp by the Hotels pursuant to state minimum wage law. See supra notes 7 and 11. Because it would be inappropriate to decide this genuine issue of material fact, we merely hold that the Hotels are not entitled to summary judgment as a matter of law.

13 . In any event, the Master Agreement indicates that porterage retains an element of discretion or voluntariness, unlike typical service charges, because non-prearranged groups who visit the Hotels can choose for themselves whether to be handled as a group, with the convenience of porterage, or individually, under the tip system. Master Agreement § 38.7(A)(1) provides:

When a group arrives at a Hotel that is not a pre-arranged group movement sold by a Hotel, a designated representative of the Hotel or Bell Captain shall ascertain if the guests want to have their baggage handled in the established maimer for group movements. If yes, then the contractual handling guarantee shall apply. If not, then the Bellhelp will be notified and they will know that the guests will be handled in the same manner as individual check-ins.

Furthermore, Rutledge's uncontroverted affidavit contends that hotel guests occasionally demand group service, but nonetheless refuse to pay porterage. In addition to demonstrating the continued element of discretion associated with porterage, these "veiy rare” circumstances highlight the fact that the Master Agreement contractually obligates the Hotels to pay a guaranteed amount notwithstanding the customers' refusal to provide a gratuity. The resulting payment by the Hotels, which apparently is still called "porterage,” constitutes wages for the purposes of HRS §§ 387-1 and 387-2 because handling the baggage as a group movement rather than through individual service does not deprive the Bellhelp of potential tips or any other kind of gratuity in these circumstances.