| 1. |
INTERPRETATION |
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"Act"
means the Employment Act 1955 |
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“contract of
service (cs)” means any agreement, whether oral in writing and
whether express or implied, whereby one person |
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agrees to employ another as an employee
and that other agrees to serve his employers as an employee
and includes an |
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apprenticeship
contract |
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"contractor"
means any person who contracts with a principal to carry out
the whole or any part of any work undertaken by the |
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principal |
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"domestic
servant" means a person employed in connection with
the work of a private dwelling-house |
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"day"
means a continuous period of 24 hours beginning at midnight or
in respect of shift work a continuous period of 24 hours |
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beginning at any point of time |
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"employee"
means |
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(a) any person,
irrespective of his occupation, whose wages do not
exceed RM1,500.00 per month |
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(b) any person,
irrespective of his wages, who is engaged in manual labour or
who supervises other employees engaged in |
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manual labour or engaged as a domestic servant |
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For the purpose of this
paragraph "wages" means wages as defined below
but shall not include any payment by way of commission,
subsistence allowance and overtime payment. |
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"employer"
means any person who has entered into a contract of service to
employ any other person as an employee and |
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included the agent
and manager |
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"foreign
employee" means an employee who is not a
citizen or permanent resident of Malaysia |
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"medical
officer" means a registered medical practitioner who is
employed in a medical capacity by the Government |
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"part-time
employee" means an employee whose average hours of
work do not exceed 70% of the normal hours of work of a |
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full-time employee employed in a similar
capacity |
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"principal"
means any person who contracts with a contractor for the
execution by the contractor of the whole or any part of
any |
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work undertaken by the principal |
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"registered
medical practitioner" means a medical practitioner registered
under the Medical Act 1971 |
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"spred over period
of ten hours" means a period of ten consecutive hours to
be reckoned from the time the employee commences |
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work for the
day, inclusive of any period or periods of leisure, rest or
break within such period of ten consecutive hours |
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"wage period"
means the period in respect of which wages earned by an
employee are payable |
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"wages" means
basic wages and all other payment in cash payable to an
employee for work done in respect of his contract of service |
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but does not include: |
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(a) accommodation, food,
fuel, light, water, medical attendance |
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(b) EPF contributon,
retrenchment, termination, lay-off or retirement scheme |
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(c) travelling
allowance |
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(d) sum payable to
defray expenses entailed by the nature of employment |
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(e) gratuity |
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(f) bonus |
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"week" means a
continuous period of seven days |
| 2. |
CONTRACTS OF SERVICE
("CS") |
|
2.1 |
Nothing in any CS shall in any
manner restrict the right of any employee to join or to
participate in the activities of a registered trade
union |
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2.2 |
A CS exceeding one month shall be in
writing |
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2.3 |
A clause shall be included in the
written CS setting out the manner in which such contract may
by terminated |
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2.4 |
The length of notice to terminate
the CS shall be determined in accordance with the notice
stated in the CS or in the absence of such provision, the
following shall apply: |
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(a) 4 weeks' notice if
the employee has been employed for less than 2 years |
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(b) 6 weeks' notice if
he has been employed for 2 years or more but less than 5
years |
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(c) 8 weeks' notice if
he has been employed for 5 years or more |
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2.5 |
The length of notice shall be the
same for both employer and employee |
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2.6 |
Either the employer or the employee
may terminate the CS without notice in the event of any wilful
breach by the other party of a condition of the
CS. |
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2.7 |
If notice has already been given,
either the employer or the employee may terminate the
CS without waiting for the expiry of that notice,
by paying the other party an indemnity of a sum equal to the
amount of wages which would have accrued to the employee
during the unexpired days of notice |
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2.8 |
An employer may, on the grounds of
misconduct inconsistent with the fulfilment of the express or
implied conditions of his services, after due enquiry - |
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(a) dismiss without
notice the employee; |
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(b) downgrade the
employee; or |
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(c) impose any other
lesser punishment as he deems just and fit, and where a
punishment of suspension without wages is |
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imposed, it shall not exceed a period of two weeks |
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2.9 |
For the purpose of an inquiry, the
employer may suspend the employee from work for a period not
exceeding two weeks but shall pay him not less than half his
wages for such period: |
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Provided that if the inquiry does
not disclose any misconduct the employer shall restore the
full amount of wages so withheld |
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2.10 |
An employee shall be deemed to have
broken his CS if he has been continuously absent from work for
more than two consecutive working days without prior leave
from his employer, unless he has a reasonable excuse for such
absence and has informed or attempted to inform his employer
of such excuse prior to or at the earliest opportunity during
such absence |
| 3. |
PAYMENT OF WAGES |
|
3.1 |
Every employer shall pay the wages
to his employee not later than the 7th day after the last day
of wage period |
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3.2 |
The wage period shall not exceed one
month |
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3.3 |
No employer shall make an advance of
wages which exceeds the amount earned in the preceding month
unless such advance is made to enable him: |
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(a) to buy or improve a
house |
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(b) to buy land |
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(c) to buy livestock |
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(d) to buy motorcar,
motorcycle or bicycle |
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(e) to buy shares in the
company |
| 4. |
DEDUCTIONS OF WAGES |
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4.1 |
The following deductions is
permissible: |
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(a) overpayment of wages
made during the immediately three months |
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(b) indemnity due to the
employer by the employee arising from the unexpired days of
notice terminating the CS |
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(c) recovery of advance
of wages |
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(d) authorised by law |
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(e) requested in writing
by the employee for union or co-operative society entrance
fee, subscription, instalments and interest |
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on loan or other dues and payment of shares in the company |
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4.2 |
The total deduction in respect of
any month shall not exceed 50% of the wages earned by the
employee in that month. This shall not apply to
deduction on the termination of CS |
| 5. |
MODE OF PAYMENT OF
WAGES |
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5.1 |
The wages payable to any employee
shall be paid to him in legal tender |
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5.2 |
With the employee's written payment
may be made through a bank or by cheque |
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5.3 |
Interest on advances is forbidden |
| 6. |
PRIORITY OF WAGES |
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6.1 |
The court shall not authorize
payment to secured creditor until the court have ascertained
and caused to be paid, out of the proceeds of sales, the wages
of any employee |
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6.2 |
In this paragraph "wages"
includes termination and lay-off benefits, annual leave pay,
sick leave pay, public holiday pay and maternity allowance |
| 7. |
CONTRACTORS AND
PRINCIPALS |
|
7.1 |
Where a principal contracts with a
contractor for the execution of the whole or any part of any
work and any wages are due to any employee by the contractor,
the principal and the contractor shall be jointly and
severally liable with the employer to pay such wages provided
that - |
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(a) in the case of a
contract for constructional work the principal shall not be
liable for the payment of wages unless he is |
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also a constructional contractor or a housing developer; |
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(b) the principal and
the contractor shall not be liable to any employee for wages
due for more than three months and |
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(c) the employee shall
have made a complaint to the labour office within 90 days from
the date such wages became due |
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7.2 |
Any person who has paid wages under
the above circumstance may institute civil proceedings against
such employer for the recovery of the wages so paid |
| 8. |
EMPLOYMENT OF WOMEN |
|
8.1 |
No employer shall require any female
employee to work in any industrial undertaking
between 10.00 p.m. and 5 a.m. |
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unless approved by the Labour Office |
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8.2 |
No female employee shall commence
work for the day without having had a period of 11 consecutive
hours from from such |
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work |
| 9. |
MATERNITY
PROTECTION |
|
9.1 |
Every female employee shall be
entitled to maternity leave for a period of not less
than 60 consecutive days ("eligible period") |
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9.2 |
Where she is entitled to maternity
leave but is not entitled to receive maternity allowance she
may, with the consent of the employer, commence work at any
time during the eligible period if she has been certified fit
by a registered medical practitioner |
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9.3 |
She shall be entitled to receive
maternity allowance for the eligible period if she has
been employed at any time in the four month immediately before
her confinement and not less than 90 days during the 9
months immediately before her confinement |
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9.4 |
Maternity allowance for each day
shall be equivalent to one day ordinary rate of pay |
| 10. |
REST DAYS, HOURS OR
WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE |
|
10.1 |
Rest Day |
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(a) Every employee shall
be allowed a rest day in each week; where there is more than
one rest day in a week the last of |
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such rest day shall be the rest day provided that this shall not
apply where an employee is on maternity leave or sick |
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leave or during temporary disablement under Workmen's Compensation Act
or Employees Social Security Act |
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(b) For an employee
engaged in shift work, any continuous period of not less
than 30 hours shall constitute a rest |
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(c) The employer shall
prepare a roster informing the employees of the rest
days |
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10.2 |
Work on Rest Day |
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(a) For daily or
hourly rated employee, he shall be paid : |
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Work which does not exceed half day : one day's wages at
the ordinary rate of pay |
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Work which exceeds half day but does not exceed one day
: two days' wages at the ordinary rate of pay |
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(b) For monthly rated
employee, he shall be paid : |
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Work which does not exceed half day : half day's wages at the
ordinary rate of pay |
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Work which exceeds half day but does not exceed one day : one
day's wages at the ordinary rate of pay |
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(c) For any work carried
out in excess of the normal hours of work by a daily rated,
hourly rated or monthly rated |
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employee, he shall be paid not less than two times his hourly rate of
pay |
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(d) For piece rated employee
he shall be paid two times his rate per piece |
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10.3 |
Hours of Work |
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(a) Except hereinafter
provided, an employee shall not be required to work : |
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(i) more than 5 consecutive
hours without a rest of not less than 30 minutes |
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(ii ) more than 8 hours a day |
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(iii) more than a spread over period of 10
hours a day |
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(iv) more than 48 hours a week |
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Provided that : |
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(i) where work requires
continual attendance, an employee may be required to work for
eight consecutive hours |
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inclusive of not less than 45 minutes of rest |
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(ii) where the numbers of working
hours in a day is less than 8, the limit of 8 hours may be
exceeded on the remaining |
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days of the week but so that no employee shall required to
work for more than 9 hours a day or 48 hours a week |
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(b) An employee may be
required to work on a rest day in access of the above
limit, in case of : |
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(i) accident in work place |
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(ii) work essential to life of
community |
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(iii) work essential to security of Malaysia |
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(iv) urgent work to machinery |
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(v) interruption to work |
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(vi) essential to Malaysia economy or
essential service |
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(c) "Overtime"
means work carried out in excess of the normal hours of
work per day |
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"normal hours of work" means the usual hour
of work per day |
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"hour of work" means the time during which an
employee is at the disposal of the employer |
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(d) For any overtime
work, an employee shall be paid at a rate not less than one
and half times his hourly rate of pay |
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(e) The limit of
overtime work shall be 104 hours in any one month provided
that work carried out on a rest day or public |
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holiday shall not be construed as overtime
work |
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10..4 |
Shift Work |
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(a) Notwithstanding the
above, an employee who is engaged in shift work may be
required to work more than 8 hours |
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a day or more than 48 hours a week but the average number of hours
worked over any period of 3 weeks shall |
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not exceed 48 hours per week |
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(b) Except in the
circumstance described in 10.3 (b) above, no employee
shall work for more than 12 hours a day |
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10.5 |
Holidays |
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(a) Every employee shall
be entitled to a paid holiday at his ordinary rate of pay on
10 gazetted public holidays in any one |
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year, 4 of which shall be - |
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(i) the National Day |
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(ii) Birthday of the Yang di-Pertuan
Agong |
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(iii) Birthday of the Ruler/Yang
di-Pertua Negeri/Federal Territory Day |
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(iv) the Workers' Day |
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Provided that if any of the said public holidays falls on a
rest day, the working day following immediately
thereafter shall |
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be a paid holiday in substitution therefor |
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(b) The employer shall
exhibit before the commencement of each year a notice
specifying the public holidays |
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(c) Where any of the
public holidays falls within the period during which an
employee is on sick leave or annual leave the |
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employer shall grant another day as a paid holiday in
substitution therefor |
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(d) An employee who
absents himself from work on the working day immediately
preceding or immediately succeeding a |
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public holiday(s) without the prior consent of his
employer shall not be entitled to any holiday pay for such
holiday(s) |
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unless he has a reasonable excuse for such absence |
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(e) An employee who
works on a holiday shall, in addition to the holiday pay he is
entitled to for that day, be paid two days |
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wages at the ordinary rate of
pay |
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(f) For overtime work
carried out in excess of the normal hours of work, he shall be
paid at a rate not less than 3 times his |
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hourly rate of pay |
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10.6 |
Annual Leave |
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(a) An employee shall be
entitled to annual leave on each anniversary of service as per
schedule below |
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Anniversary of Service |
Number of Days |
| 1st |
8 |
| 2nd |
8 |
| 3rd |
12 |
| 4th |
12 |
| 5th |
12 |
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6th and after |
16 |
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(b) At the time of terminating
the service, the entitlement to paid annual leave shall be in
direct proportion to the number of |
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completed months of services provided that any fraction
of a day so calculated which is less than half day shall
be |
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disregarded and where the fraction of a day is half or more it
shall be deemed to be one day |
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(c) Where an employee
who is on paid annual leave becomes entitled to sick leave or
maternity leave, the employee shall be |
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granted the sick leave or maternity, as the case may be, and
the annual leave shall be deemed not been taken |
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(d) The employer shall
grant and the employee shall take such leave not later than 12
months after the end of every 12 |
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months services and any employee who fails to take such leave
at the end of such period shall thereupon cease to be |
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entitled thereto |
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10.6 |
Sick Leave |
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(a) An employee shall,
after examination at the expenses of the employer - |
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(i) by a Company's doctor; or |
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(ii) if no such doctor is appointed or, if
having regard to the nature or circumstances of the illness,
the services of the |
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doctor are not obtainable within a reasonable time or
distance, by any other registered medical practitioner or by
a |
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medical officer |
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be entitled to paid sick leave - |
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(i) where no hospitalisation is necessary as
follow: |
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Number of years of service |
Number of days in each calendar year |
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less than 2 years |
14 |
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2 years or more but less than 5 years |
18 |
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5 years or more |
22 |
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(ii) 60 days in each calendar year where
hospitalisation is necessary |
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(b) An employee shall
also be entitled to paid sick leave after examination by
a dental surgeon |
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(c) The total number of
days of paid sick leave in a calendar year shall not exceed 60
days in the aggregate |
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(d) An employee who
absents himself on sick leave - |
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(i) which is not certified by a registered
medical practitioner or a medical officer or a dental surgeon;
or |
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(ii) which is certified but without informing or
attempting to inform his employer of such sick leave within 48
hours of the |
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commencement thereof
shall be deemed to absent himself from work without the
permission of his employer and |
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without reasonable excuse |
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(e) No employee shall be
entitled to paid sick leave while receiving maternity
allowance or while receiving compensation |
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for disablement under the Workman Compensation Act or under the
Employees Social Security Act |
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10.7 |
Interpretation |
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(a) "ordinary
rate of pay" means wages as defined above which an
employee is entitled to receive for one day but does |
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not include any payment made under an approved incentive scheme or
any payment for work done on rest day or |
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public holiday |
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(b) "hourly rate
of pay" means ordinary rate of pay divided by the
normal hours of work |
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(c) For monthly rated
employee, the ordinary rate of pay shall be calculated
according to the following formula: |
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monthly rate of pay |
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26 |
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(d) For weekly rated
employee, the ordinary rate of pay shall be calculated
according to the following formula: |
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weekly rate of pay |
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6 |
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(e) For daily rated or
piece rated employee, the ordinary rate of pay shall be
calculated by dividing the total wages
earned |
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during the preceding wage period (excluding any payment made
under an approved incentive scheme or any payment |
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for work done on rest day or public holiday) by the actual
number of days he had worked during that wage period |
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(excluding any rest day or public holiday); |
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Provided that for the purpose of payment of sick leave, the
ordinary rate of pay shall take account only the basic pay |
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he received or the rate per piece for work done in a day |
| 11 |
TERMINATION, LAY-OFF
AND RETIREMENT BENEFITS |
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Termination |
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11.1 |
An employer shall be liable to pay
termination or lay-off benefits to an employee who has been
employed for a period of not |
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less than 12 months |
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11.2 |
An employee shall be entitled
to termination benefits where his service is terminated for
whatever reason otherwise than - |
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(a) upon retirement |
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(b) on ground of
misconduct |
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(c) upon resignation |
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11.3 |
An employee shall not be entitled to
termination benefits |
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(a) if his
contract of service is renewed or re-engaged on terms not less
favourable |
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(b) if 7 days
before the service is terminated, the employer has
offered to renew his contract of services or to
re-engage |
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him under a new contract on terms not less favourable and
the employee has unreasonably refused that offer |
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(c) if he leaves
the service before the expiration of the notice - |
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(i) without the prior consent of the employer,
which consent shall not be unreasonably withheld; or |
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(ii) without having made payment to the employer
(indemnity accrued for unexpired days of notice) |
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Lay-off |
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11.4 |
An employee shall be
deemed to be laid-off if the employer does not provide work
for him and he receive no pay for 12 or |
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more working days within
4 consecutive weeks provided that which period shall not
include a rest day, public holiday, sick leave, maternity
leave and annual leave |
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Amount of termination
or lay-off benefits payment |
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11.5 |
The amount of
termination or lay-off benefits payment shall not be less
than: |
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Length of service |
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Number of days for each year of
service |
| Less than 2 years |
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10 days wages |
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2 years or more but less than 5 years |
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15 days wages |
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5 years or more |
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20 days wages |
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and pro-rata in respect
of an incomplete year, calculated to the nearest month |
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11.6 |
"wages" shall
have the meaning assigned in paragraph 1 above |
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"a day's
wages" shall be computed in such manner so as to give the
employee his average day's wages calculated over the period of 12 completed
months service immediately preceding the relevant date |
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11.7 |
The termination or
lay-off benefits payment shall be in addition to any payment
for indemnity accrued for any expired days of notice |
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11.8 |
Any such payment shall
be paid not later than 7 days after the relevant date |
| 12 |
EMPLOYMENT OF FOREIGN
EMPLOYEES |
|
12.1 |
An employer who employs
a foreign employee shall, within 14 days furnish his
particular to the nearest labour office |
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12.2 |
The labour office may
inquire into any complaint from either a local employee
or a foreign employee in respect of any discrimination in the
terms and conditions of employment |
|
12.3 |
An employer shall not
terminate the service of a local employee unless he has first
terminate the services of all foreign employees employed in a
capacity similar to that of the local employee |
| 13 |
REGISTERS, RETURNS
& INSPECTION |
|
13.1 |
Every employer shall
keep a register containing the particulars of each employee
and to preserve such register for a period of not
less than 6 years |
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13.2 |
An employer shall,
within 90 days of commencing of business, furnish the
nearest labour office with particulars of
the business undertaking |
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13.3 |
The Labour Officer shall
have power to enter any place of employment to make inquiry in
relation to any matter within |
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the provisions of
the Act |
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13.4 |
The Labour Officer may
examine any person whom he believes to be acquainted with the
facts of any matter within |
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the provisions of the
Act |
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13.5 |
The Labour Officer may
require the employer to produce any contracts of services,
books of accounts of wages, registers, |
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and any other documents
relating to employment |
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13.6 |
A Labour Officer
exercising the powers shall in possession of an official
identification card and shall produce such card |
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on demand to the
employer |
| 14 |
COMPLAINTS &
INQUIRES |
|
14.1 |
The Labour Officer may
inquire into and decide any dispute between an employee and
his employer in respect of wages |
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14.2 |
In addition he may
inquire into and confirm or set aside any decision made by an
employer under section 14(1) of the Act (paragraph 2.8 above)
provided the employee has made such complaint within 60 days
from the relevant date |
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14.3. |
Notwithstanding
the provisions of the Act, the Labour Officer may inquire into
any dispute involving employee whose wages exceedRM 1,500.00
but does not exceed RM 5,000.00 provided that such wages does
not include any payment of commission, subsistence
allowance or overtime |
