1 MALAYSIAN LABOUR LAW 1.

INTERPRETATION OF WORKMAN WITHIN THE SCOPE OF EMPLOYMENT ACT 1955 AND INDUSTRIAL ACT 1967 EMPLOYMENT ACT 1955 First Schedule Section 2(1) EA 19551] any person, irrespective of his occupation, ho has entered into a contract of service ith an e!ployer under hich such person"s a#es do not e$ceed %& 15'' per !onth 2] any person ho irrespective of the a!ount of a#es he earns in a !onth, has entered into a contract of service ith an e!ployer in pursuant of hich ((a) he is en#a#ed in !anual la)our includin# such la)our as an artisan or apprentice( provided that here a person is e!ployed )y one e!ployer partly in !anual la)our and partly in so!e other capacity, such person shall not )e dee!ed to )e perfor!in# !anual la)our unless the ti!e durin# hich he is re*uired to perfor! !anual la)our in anyone a#e period e$ceeds one-half of the total ti!e durin# hich he is re*uired to or+ in such a#e period , ()) he is en#a#ed in the operation or !aintenance of any !echanically propelled vehicle operated for the transport of passen#ers or #oods or for re ard or for co!!ercial purposes, (c) he supervises or oversees other e!ployees en#a#ed in !anual la)our e!ployed )y the sa!e e!ployer in and throu#hout the perfor!ance of their or+, (d) he is en#a#ed in any capacity in any vessel re#istered in &alaysia and ho(-] is not an officer certificated under the &erchant Shippin# Act of the .nited /in#do! as a!ended fro! ti!e to ti!e0 -i] is not the holder of a local certificate as defined in 1art 2-- of the &erchant Shippin# 3rdinance 19520 or -ii] has not entered into an a#ree!ent under 1art --- of the &erchant Shippin# 3rdinance, 19520 or (e) he is en#a#ed as a do!estic servant

2 A ne section ( section 495 ) provides protection for e!ployees hose !onthly a#es e$ceed %& 15'','' )ut do not e$ceed %&15,''' the 6irector- 7eneral of 8a)our is no e!po ered to hear co!plaints under section 49( 1 ) (a ) fro! this cate#ory of e!ployees, 9o ever, section 495 ( : ) stipulates that the rest of the provision of the Act do not apply to the!, ;he E!ploy!ent Act protects not only full-ti!e re#ular e!ployees )ut also part-ti!ers, te!porary < fi$ed ter! contract or+ers, = part-ti!e e!ployees are defined as e!ployees ho or+ >'? or less than the nor!al or+in# hours of a full-ti!e e!ployee in the sa!e co!pany carryin# out the sa!e or+, INDUSTRIAL RELATION ACT 1967 Section 2 -%A states that @ or+!anA !eans any person, includin# an apprentice, e!ployed )y an e!ployer under a contract of e!ploy!ent to or+ for hire or re ard, and for the purposes of any proceedin# in relation to a trade dispute, includes any such person ho has )een dis!issed, dischar#ed or retrenched in connection ith or as a conse*uence of that dispute, or hose dis!issal, dischar#e or retrench!ent has led to that dispute, = B thus the ter! @ or+!anA includes a ider ran#e of e!ployees than those covered )y the E!ploy!ent Act 1955, under the -ndustrial %elation Act, any person ho has a contract of e!ploy!ent ( ritten or oral ) is considered as a or+!an, ] 2] PROBATIONARY PERIOD ;he pro)ationary period is for the e!ployer to test the suita)ility of the e!ployee for the Co) assi#ned to hi!, ;he e!ployer !ay test the aptitude, attitude, a)ility or adapta)ility of the e!ployee for the Co), 9e !ay also ta+e into consideration other factors li+e )ehaviour, conduct, co-operation, and responsi)ility of the e!ployee, -f the e!ployee is found to )e lac+in# in a fe of the a)ove attri)utes, it is advisa)le for the e!ployer in a cordial !anner, ith a vie to i!provin# hi!, An e!ployer !ay e$tend the initial pro)ationary period to a further period of 1-: !onths, -n such an event, the e!ployee should )e infor!ed, in ritin#, )efore the end of the pro)ationary period, that his pro)ationary period is )ein# e$tended, 9e should also )e infor!ed of the specific areas here i!prove!ent is e$pected,

3 ;he e!ployer could ter!inate the services of an e!ployee on pro)ation, if the e!ployee does not !easure up to the e!ployer"s satisfaction, 5ut the satisfaction !ust )e reasona)le, -f an e!ployee on pro)ation has reasons to )elieve that ter!inations of his service as !ala fide, he !ay see+ reinstate!ent under Section 2' of the -ndustrial %elations Act, An e!ployee !ay also *uit the Co) if he dissatisfies ith the Co), even ithout aitin# for the end of the pro)ationary period, 3] HOURS OF WORK O!ERTIME Dor!al 9ours of Eor+ 1] not !ore than five consecutive hours less than :' !inutes ith a period of rest not

2] not !ore than F hours in one day :] not !ore than 1' hours in a @spread-overA period G] if the or+ is of a continuous nature, it can )e F consecutive hours ith a period of rest (paid) of not less than G5 !inutes, 5] not !ore than GF hours in a ee+, E!er#ency or+ allo ed only

1] in case of accident, actual or threatened, 2] ur#ent or+ to )e done to !achinery or plant :] an interruption of or+ i!possi)le to foresee 3verti!e -t !eans or+ done in e$cess of the @nor!al hours of or+A, 9o ever, it does not include or+ done on %est 6ays and 1u)lic 9olidays, 3verti!e on nor!al or+in# days- 1 H ti!e the nor!al hourly rate of pay 8i!itation(1] 1'G hours per !onth, unless e$e!pted )y the &inister under Section 25 2] Dot !ore than 12 hours of or+ (includin# nor!al hours in a day) Eor+ on %est 6ays 1] for daily-rated e!ployees(2 ti!es the daily a#es for daily-rated e!ployees, if or+ e$ceeds half the nor!al or+in# hours of or+s0 1 day"s daily a#es if the or+ is half or less than the nor!al hours of or+,

2] for !onthly-rated e!ployees(half the day"s a#es for a period not e$ceedin# half their nor!al hours of or+, 3ne day"s a#es for or+ not e$ceedin# their nor!al hours of or+, 3verti!e on %est 6ays Shall )e 2 ti!es the hourly rate of pay Eor+ on 1u)lic 9olidays

1] for !onthly-rated e!ployees 2 days a#es re#ardless that the the or nor!al hours of or+

or+ done on that day is less than

2] for daily-rated e!ployees 2 day"s a#es re#ardless that the or+ done on that day is less than their nor!al hours of or+ plus their pu)lic holiday pay, 3verti!e on 1u)lic 9olidays : ti!es the hourly rate of pay for hours of or+ ". LEA!E Annual leave An e!ployee is entitled to annual leave only after 12 !onths of continuous service as follo s( 1] 8ess than 2 years of service I F days for each year 2] 2 years or !ore )ut less than 5 years I 12 days for each year :] &ore than 5 years I 14 days for each year ;he paid annual leave does not include pu)lic holidays, An e!ployee !ust ta+e his annual leave not later 12 !onths after the end of every 12 !onths of continuous service, -f he fails to do so, his annual leave ill )e forfeited, ;he hole or part of the unta+en annual leave !ay )e su)stituted for pay!ent at the re*uest of the e!ployer and ith the ritten consent of the e!ployee, An e!ployee"s annual leave can )e forfeited if he a)sents hi!self fro! or+ ithout per!ission, or ithout any reasona)le e$cuse for !ore than 1'? of the total nu!)er of or+in# days durin# the t elve !onths of continuous service for hich his entitle!ent is accrued, -f an e!ployee"s service is ter!inated (for reasons other than !isconduct) or if he resi#ns )y #ivin# due notice, he is entitled to the ordinary rate of pay in lieu for the co!pleted !onths of service, or+ done in e$cess of nor!al

6 -f an e!ployee ho is on annual leave falls sic+, or is on !aternity leave, the e!ployee is entitled to sic+ leave or !aternity leave as the case !ay )e and the annual leave already ta+en )y hi!<her )eco!es cancelled, Sic+ leave An e!ployee is entitled to paid sic+ leave only under the follo in# circu!stances( 1, he has o)tained a certificate fro! a re#istered !edical practitioner duly appointed )y his e!ployer0 or 2, he has o)tained a certificate fro! a dental sur#eon0 or :, if no such !edical practitioner is appointed, or the services of such a practitioner are not o)taina)le ithin a reasona)le ti!e or distance, then other re#istered !edical practitioners or #overn!ent !edical officers ill )e accepted0 #$% G, he has infor!ed or has atte!pted to infor! the e!ployer of his sic+ leave ithin GF hours of the co!!ence!ent of the sic+ness, ;he nu!)er of days of paid sic+ leave hich an e!ployee is entitled to in each calendar year is as follo s( 1] 8ess than 2 years I 1G days 2] 2 years )ut less than 5 years I 1F days :] 5 years or !ore I 22 days -f hospitaliJation is necessary, the a!ount of paid sic+ leave can )e e$tended )y up to 4' days per calendar year, -f there is a co!pany appointed doctor or panel of doctors, the e!ployee should see+ !edical treat!ent fro! such doctors, 9o ever, in case of e!er#ency ( hen the co!pany appointed doctor is not readily availa)le or the clinic is too far a ay) the e!ployee can see+ treat!ent fro! any re#istered !edical practitioner, All such cases are to )e decided dependin# upon the circu!stances and nature of the illness or inCury,

5] PUBLIC HOLIDAYS Every e!ployee is entitled to 1' out of any of the follo in# #aJetted pu)lic holidays and any day declared as a pu)lic holiday )y the Federal or State 7overn!ent under section F of the 9olidays Act 1951 in any one calendar year(-

7 Federal 1u)lic 9oliday 9ari %aya 1uasa Khinese De Lear Eor+ers" 6ay Eesa+ 6ay 5irthday of L61A 9ari %aya 9aCi A al &uharra! Dational 6ay 5irthday of 1rophet &uha!!ad 6epavali Khrist!as 6ay State 1u)lic 9olidays De Lear"s 6ay Federal ;erritory 6ay ;haipusa! -sra+ M &i+raC DuJul Nuran 7ood Friday 1esta /ea!atan 9ari 6aya+ 5irthday of State"s Sultans < %ulers

Ko!pulsory #aJetted 1u)lic 9oliday Federal ;erritory 6ay Dational 6ay ;he /in#"s 5irthday 5irthday of Sultans< 9ead of State or Eor+ers" 6ay

- -f any of the ten chosen #aJetted pu)lic holidays falls ithin the period durin# hich the e!ployee is a)sent due to sic+ leave, annual leave, te!porary disa)le!ent under the Eor+!en"s Ko!pensation Act 1952 or under the E!ployees" Social Securities Act 1949 or !aternity leave, the e!ployee is entitled to another day as a paid holiday in su)stitution for such pu)lic holiday,

6] TERMINATION OF CONTRACT OF SER!ICE Either party to a contract of service !ay at anyti!e #ive to the other, notice of his intention to ter!inate such contract of service, ;he period of notice re*uired )y either party is usually in accordance ith the provision in the contract of e!ploy!ent, -n the a)sence of a provision for period of notice !ade in the contract, the period of notice of ter!ination shall )e )ased on the provision of the E!ploy!ent Act as follo s(1] less than 2 years- at least G ee+s 2] 2 years or !ore- at least 4 ee+s :] 5 years or !ore- at least F ee+s An e!ployer !ay ter!inate an e!ployee"s services for any of the follo in# reasons( %etire!ent Section 1G(1) -%A- !isconduct Eilful 5reach of Kontract %etrench!ent Kri!inal 3ffence Frustration of Kontract %epudiation of Kontract Efflu$ion of ti!e =contract of service for specific period] ;er!ination for poor perfor!ance For the e!ployee #overn )y the -%A 194>, the Act reco#niJes the !ana#e!ent"s prero#ative to e!ploy, ter!inate for reasons of redundancy or reor#aniJation or dis!iss an e!ployee ith proper cause or e$cuse, 9o ever, the -ndustrial Kourt also has @the ri#ht to interfere into any !ana#e!ent prero#atives and stri+e do n any unfair la)our practice or victi!iJationA, 5ut the Kourt ill not interfere ith the )ona fide e$ercise of po er hich is #iven to the !ana#e!ent )y the co!!on la and )y the contract of service hich is inherent in the !ana#e!ent, 3n the other hand, section 2'(1) of the -%A 194>, provides( here a or+!an ho is not a !e!)er of a trade union of or+!en considers that he has )een dis!iss ithout Cust cause or e$cuse )y his e!ployer, he !ay ithin 4' days of the dis!issal !a+e representation in ritin# to the 6irector-7eneral to )e reinstated in his for!er e!ploy!ent, the representation !ay )e filed at the office of the 6irector-7eneral nearest to the place of e!ploy!ent fro! hich the or+!en as dis!issed,

9 -f the or+!an is a !e!)er of a union, his union can file an appeal on his )ehalf for reinstate!ent =section 24 of -%A]

7] DISMISSAL AFTER DUE IN&UIRY An e!ployer !ay on the #round of !isconduct dis!iss an e!ployee, 9o ever, it should )e noted that the dis!issal is valid only after due in*uiry has )een done '] SE(UAL HARASSMENT AT THE WORKPLACE ;he ord @harassA includes *uite a )road spectru! of action0 distress, )ad#er, trou)le, ve$, plun#e, tor!ent, irritate, hec+le, )eset, orry, afflict, depress, sadden, annoy and distur), -n a or+place, se$ual harass!ent )eco!es a for! of se$ual discri!ination, hich is contrary to the principles of e*ual ri#hts for !en and o!en, 3n late, there has )een !uch e!phasis on the pro)le! of se$ual harass!ent at the or+place, so !ush so, the &inister of 9u!an %esource has introduced the Kode of 1ractice to 1revent and Eradicate Se$ual 9arass!ent at the @ or+placeA, hich includes a #uideline to )e follo ed in co!)atin# the pro)le! of se$ual harass!ent, ;he Kode provides practical #uide to e!ployees, or+ers, trade unions and other interested parties on ho to contain, and if possi)le, totally eradicate this social pro)le!,

10

Ehat constitutes Se$ual 9arass!ent O Se$ual harass!ent !ay ta+e !any for!s, so!e of hich !ay )e su)tle hile others !ay )e !ore e$plicit, )ut all of hich are )ound to cause !uch e!)arrass!ent to the victi!, ;he follo in# !ay )e considered as typical e$a!ples0 .nsolicited co!pli!ents re#ardin# a person"s fi#ure, dressin#, !a+e-up, style of !ove!ent, ay of tal+in#, etc Se$ually tainted Co+es, ru!ours, co!!ents, ne s ite!s, etc, !ade in the presence of a person of the opposite se$ 1hysically !olestin# fe!ale staff )y touchin# parts of their )odies 1ersistently tryin# to stri+e up a conversation, even after the other person has indicated that he<she is not +een to do so, 2er)al advances and su##estions of a le d and se$ual nature, .n arranted telephone calls, especially if such calls are !ade to the person"s office or ho!e at unearthly hours %epeatedly or persistently invitin# a person for lunch< dinner, dates, or for a drin+ or ride Sendin# love letters or postin# love notes on the -nternet Sendin# or sho in# porno#raphic !aterials to another person in order to e!)arrass hi!<her -nstructin# a su)ordinate e!ployee to stay )ac+ alone, after nor!al or+in# hours, on the prete$t of havin# ur#ent or+ to )e done, %e!edial &easures An individual victi! has every ri#ht to protect herself fro! any for! of harass!ent, 9o ever, in dealin# ith cases of se$ual harass!ent at the or+place, there are !any factors the victi! has to consider0one"s reputation, the fa!ily, opinion a!on# collea#ues, social relationship, and also the Co) itself, Any adverse pu)licity is )ound to )rin# irrepara)le psycholo#ical da!a#e to the victi!, ;herefore, #reat care and caution should )e ta+en in findin# solution to the pro)le!, -f the harasser is a collea#ue, the follo in# steps !ay )e ta+en )y the victi!(1, tell hi! at the very first instance that you are not a!used ith his )ehaviour and arn hi! not to repeat it0 )ut +eep your cool 2, avoid losin# control of your e!otions or te!per and do not thro tantru!s

11 :, should he repeat his action, #ive hi! a second and final arnin# in a plain and strai#htfor ard !anner G, do not sho hi! that you are afraid of or inti!idated )y hi! in any ay 5, if you +no others ho are also victi!s of this particular harasser, #et the! to#ether and #ive hi! a ton#uelashin#, outside office hours, 4, if his actions persist, ta+e up the !atter ith your )oss or report hi! to his )oss >, if the pro)le! still persists, !a+e a ritten co!plaint to the 1ersonnel &ana#er and at the sa!e ti!e refer the !atter to the union, if you are a union !e!)er, F, if as a last resort, the !atter is reported to the police, they can ta+e action a#ainst the harasser- 1EDA8 K36ESEK;-3D 5'9 -f the harasser is your o n )oss or a senior !e!)er of the !ana#e!ent staff, the situation !ay )e a )it !ore co!plicated and the hole !atter has to )e dealt ith delicately and diplo!atically, 9o ever, the preventive actions to )e ta+en are !ore or less the sa!e as stated a)ove, 1repared )y(1] Suria Fadhillah 5t, &d, 1auJi = 88,5 (9ons,) .-A&, 88,& ./& ] 2] Dadia 5t, 3!ar = 88,5 (9ons,) .-A&, 88,& ./& ]