Presentation Chapter 16

8/10/2019 Presentation Chapter 16

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CHAPTER 16 THE EMPLOYMENTACT AND SABAH AND SARAWAK

LABOUR ORDINANCES


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KEY CONCEPTS AND SKILLS

Categories of employees covered by theEmployment Act and the Sabah and SarawakLabour Ordinances

What is a contract of service and different ways acontract of service can be terminated Differences between a contract of service and a

contract for service Provisions for the protection of women under the

employment laws Minimum benefits provided for employees under

the employment laws


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CHAPTER OUTLINE

Application of the laws Contract of service Termination of contract

Termination due to misconduct Termination due to absence without prior leave Contract for service Probation Wages

Payment of wages Advances and deduction of wages Employment of women Maternity protection Conditions of service


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INTRODUCTION

Employment Act, Sabah Labour Ordinance, andSarawak Labour Ordinance

Laws which provide for protection of employees in

Malaysia Specify terms and conditions of service andprovide details of minimum fringe benefitentitlements

Employment Act covers employees in Peninsula

Malaysia Sabah and Sarawak Labour Ordinances cover

employees in Sabah and Sarawak respectively.


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APPLICATION OF THE LAWS

First Schedule of Employment Act specifiesclasses of people

Sabah and Sarawak Labour Ordinances, specified

in Subsection (2) of Section 2 of Schedule

Employment Act covers all employees, irrespectiveof occupation or job title, whose wages do notexceed RM1,500 per month

Sabah and Sarawak Labour Ordinances cover allemployees whose wages do not exceed RM2,500per month.


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Employment Act also covers followingclassifications of employees, irrespective of wages

1. Those engaged in manual work.

2. Those engaged in the operation or maintenance ofany mechanically propelled vehicle. This wouldinclude van and lorry drivers, and even pilots.

3. Those who supervise or oversee other employeesengaged in manual labour employed by same

employer in and throughout performance of theirwork

4. Those who are engaged in ships exceptcertificated officers.

5. Those engaged as domestic servants.


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Sabah and Sarawak Labour Ordinances coverfollowing classifications of employees, irrespectiveof wages

1. Those engaged in manual work.2. Those engaged in the operation or maintenance ofany mechanically propelled vehicle.

3. Those who supervise or oversee other employeesengaged in manual labour employed by the same

employer in and throughout the performance oftheir work.

4. Those engaged in recruiting employees.5. Those who are engaged in ships except

certificated officers.

6. Those engaged as domestic servants.


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Section 69B of Employment Act [Section 7CSabah Labour Ordinance and Section 8C ofSarawak Labour Ordinance] grant additional

powers to Director-General of Labour in PeninsulaMalaysia and Director of Labour for Sabah orSarawak to cover employees whose wages permonth do not exceed RM5,000

Extended power limited to disputes in respect of

wages or other payments in cash due to theemployee under the contract of service.


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Section 69C of Employment Act [Section 7DSabah Labour Ordinance and Section 8D ofSarawak Labour Ordinance],

Director-General of Labour or Director of Labourfor Sabah or Sarawak may inquire into and decideclaims for indemnity for termination of contractwithout notice


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CONTRACT OF SERVICE

An agreement, whether oral or in writing, andwhether express or implied, whereby one personagrees to employ another as an employee and that

other agrees to serve him. A contract of service for a specified period of timeexceeding one month shall be in writing.

Written contract of service shall also include aclause setting out manner in which such contract

may be terminated by either party. Terms and conditions in a contract of service

cannot be less favourable than those in the law


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CONTRACT OF SERVICE

Contract of service cannot restrict rights of anyemployee to join, participate or organise a tradeunion

However, Section 5 (2) of Industrial Relations Actstates that a person appointed or promoted to amanagerial position can be required not to be amember of a trade union catering for workmen

Also those employed in a confidential capacity in

matters relating to staff relations


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TERMINATION OF CONTRACT

Notice period for termination of contract shall besame for both employer and employee and shallbe in writing

If no provisions in writing then notice period shallfollow that specified in law Period can be less if written in contract of serviceYEARS OF SERVICE NOTICEless then two years' service 4 weeks

two to five years' service 6 weeksmore than five years' service 8 weeks If notice of termination due to reasons related to

redundancy, then notice of termination shall not beless than what is in the law


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Termination and Lay-Off BenefitsRegulations

Provides for following benefits in event oftermination or lay-off:

(a) ten days' wages for every year of employment

under a continuous contract of service if he hasbeen employed for a period of less than two years(b) fifteen days' wages for every year of employment if

he has been employed for two years or more butless than five years; and

(c) twenty days' wages for every year of employment ifhe has been employed for five years or more;

and pro-rata as respect an incomplete year,calculated to the nearest month.


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TERMINATION DUE TOMISCONDUCT

An employer may dismiss an employee ongrounds of misconduct after due inquiry

In such a case, no notice period is required and

employee may be dismissed immediately.


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TERMINATION DUE TO ABSENCEWITHOUT PRIOR LEAVE

An employee shall be deemed to have broken hiscontract of service with the employer if he hasbeen continuously absent from work for more than

two consecutive working days without prior leavefrom his employer, unless he has a reasonableexcuse for such absence and has informed orattempted to inform his employer of such excuseprior to or at the earliest opportunity during such

absence.


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TERMINATION DUE TO ABSENCEWITHOUT PRIOR LEAVE

An employee who is on medical leave but does notinform or attempt to inform his employer of suchleave within forty-eight hours of the

commencement thereof shall be deemed to absenthimself from work without the permission of hisemployer and without reasonable excuse for thedays on which he is so absent from work


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CONTRACT FOR SERVICE

Contract for service should not be confused withcontract of service

Contract for service defined as a contractualarrangement by which one person agrees toprovide workplace services to another and neitheris the employer or the employee


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PROBATION

No provision in Employment Act or Sabah orSarawak Labour Ordinances for probation period

Practice in most organisations that new employeesemployed initially on probation

Probation means a trial period where newemployee given opportunity to prove he is capableto satisfaction of employer before he can beconsidered for permanent employment.


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PROBATION

At end of probationary period employer can eitherconfirm or not confirm employee, or give employeean extension of probationary period

If no communication by employer, probationer willcontinue as probationer but employer cannotcontinue to extend his probationary periodindefinitely

Probationer still a workman under Industrial

Relations Act and entitled to protection from unfairdismissal under law

Except for misconduct, a probationer cannot beterminated before end of his probationary period.


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WAGES

Wages means basic wages and all other paymentsin cash payable

Includes all allowances that employee is entitled Annual bonus not part of wages.

Ordinary Rate of Pay Wages which an employee is entitled to receive for

the normal hours of work for one day.


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PAYMENT OF WAGES

Wages shall be paid in legal tender (i.e. cash) With employees written consent, employer may

pay wages into bank or by cheque Illegal for employer to impose condition as to place

or manner or person wages paid to be spent

No employer shall pay wages in taverns (pubs) orplaces of amusement or retail shops except in

cases of employees employed in such places.


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PAYMENT OF WAGES

Wage periods may not exceed one month Wages shall be paid not later than seven days

after last day of any wage period


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ADVANCES AND DEDUCTION OFWAGES

Except for certain specified advances or loans toemployees not to exceed what employee hasearned in previous month


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No deductions can be made from wages of anemployee except for

deductions to the extent of any overpayment ofwages made during the immediately precedingthree months from the month in which deductionsare to be made, by the employer to the employeeby the employers mistake

deductions for the indemnity due to the employer

by the employee deductions for the recovery of advances of wages

made provided no interest is charged deductions authorized by any other written law.


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Following deductions shall only be made at request inwriting of the employee:

deductions in respect of the payments to aregistered trade union or co-operative thrift andloan society of any sum of money due to the tradeunion or society by the employee on account ofentrance fees, subscriptions, instalments andinterest on loans, or other dues

deductions in respect of payments for any sharesof the employers business offered for sale by theemployer and purchased by the employee.


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Following deductions shall not be made except atrequest in writing of employee and with priorpermission of D G/Director of Labour:

deductions in respect of payments into anysuperannuation scheme, provident fund,employers welfare scheme or insurance scheme

deductions in respect of repayments of advancesof wages where interest is levied

deductions in respect of payments to a third party deductions in respect of payments for purchase of

any goods of employers business offered for sale deductions in respect of rental for accommodation

and cost of services, food and meals.


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Total deduction in any one month shall not exceed50 % of employees wages except:

cases of indemnity for termination of contractwithout notice

deductions from final payment of wages If employee has housing loan, then 50 % limit may

be raised to 75 % with prior written approval


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EMPLOYMENT OF WOMEN

Except with written approval of Labour, no femaleworker shall work in an industrial or agriculturalundertaking between 10.00 p.m. and 5.00 a.m.

Nor commence work for day without having had aperiod of 11 consecutive hours free from suchwork

No female employee shall be employed in anyunderground working.


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MATERNITY PROTECTION

Every female employee shall be entitled tomaternity leave of not less than 60 consecutivedays for each confinement

Except if at time of confinement she has five ormore surviving children

Employee on maternity leave who is given medicalleave shall not be entitled to sick leave


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Maternity leave not earlier than 30 days beforeconfinement or later than day immediatelyfollowing confinement

Employer may with approval of a doctor requireher to begin maternity leave at any time during aperiod of 14 days preceding her confinement

Any employee who at any time during 4 months

immediately preceding confinement was employedby an employer not less than 90 days during 9months preceding confinement shall be entitled formaternity leave


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A female employee who worked for more than oneemployer during 9 months preceding confinemententitled to maternity leave from last employer whois then entitled to claim as civil debt from otherprevious employers.

If employee dies during maternity leave, hernominee or legal representative will receivepayment up to day immediately preceding death.

Employee cannot be dismissed during period inwhich she is entitled to maternity leave If after 60 days maternity leave still medically unfit

for work, cannot be terminated until such absenceexceeds 90 days after end of maternity leave.


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CONDITIONS OF SERVICE

Rest Days Rest day of one whole day in each week Will not apply if employee on maternity leave, sick

leave, or temporary disablement leave underSOCSO or Workmens Compensation Act

If company works five-day week, then second offday is official rest day.

For shift work, rest day is any continuous period of

not less than 30 hours free from work. No employee shall be compelled to work on a rest

day unless engaged in work which needs to becarried on continuously or by succession of shifts

Exceptions are when there is an emergency


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Hours of Work No employee shall be required to work:(a) more than five consecutive hours without a period

of leisure of not less than thirty minutes duration;(b) more than eight hours in one day;(c) in excess of a spread over period of ten hours in

one day;(d) more than forty-eight hours in one week.


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Overtime Overtime is number of hours of work carried out in

excess of normal hours of work Work on rest days and public holidays not

construed as overtime. Maximum hours of overtime allowed determined by

Minister of Human Resources and currentmaximum is 104 hours per month

No employer shall require any employee to workfor more than 12 hours in any one day Only exception is during emergencies like accident

or urgent work to machinery


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Overtime For public holidays, an employee may be required

to work on public holidays and be paid atprescribed rates


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Holidays Employment Act = minimum of 10 paid public

holidays in one calendar year Sabah Labour Ordinance = minimum of 14 days Sarawak Labour Ordinance = minimum of 16 days Four of the public holidays are specified as follows:1. National Day2. Birthday of Yang di Pertuan Agong

3. Birthday of State Ruler (or Federal Territory Day)4. Workers Celebration Day.


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Holidays Also paid public holiday on any day declared public

holiday under Section 8 of Public Holidays Act 1951 If paid public holiday falls on rest day, then following

day shall be substituted paid public holiday. By agreement between employer and employee,

any other day or days may be substituted for one ofthe remaining paid public holidays.

If sick leave on paid public holiday, employer shallgrant another day as paid holiday in substitution. Any unexcused absence immediately before or after

a public holiday will result in loss of holiday pay foremployee


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Annual Leave Employee shall be entitled to paid annual leave as

follows:YEARS OF SERVICE LEAVE

ENTITLEMENTless then two years' service 8 daystwo to five years' service 12 daysmore than five years' service 16 days

If employee on annual leave given medical leaveor maternity leave, then annual leave deemed tohave not been taken


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Sick Leave Sick leave after employee has been examined at

expense of employer by registered medicalpractitioner appointed by employer

Exception is if company does not appoint doctor ordue to nature of illness, company doctors servicenot available within reasonable time or distance,then another doctor may be consulted

Employee also entitled to paid sick leave afterexamination by a qualified dental surgeon


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Sick Leave Sick leave entitlement where no hospitalisation is

necessary is as follows:YEARS OF SERVICE LEAVE

ENTITLEMENTless then two years' service 14 daystwo to five years' service 18 daysmore than five years' service 22 days

If employee is hospitalised, then maximum numberof days is 60 days less number of sick leave daystaken

If doctor certifies that employee is ill enough toneed to be hospitalised but is not hospitalised,

leave still considered hospitalisation leave.


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Sick Leave Employee who absents himself on sick leave is not

certified deemed to be absent without permissionand without reasonable excuse.

Even if sick leave obtained if employee does notinform or attempt to inform company within 48hours, will be deemed to be absent without

permission and without reasonable excuse.

Presentation Chapter 16

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