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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 1955-

1] any person, irrespective of his occupation, who has entered

into a contract of service with an employer under which such
person’s wages do not exceed RM 1500 per month

2] any person who irrespective of the amount of wages he earns

in a month, has entered into a contract of service with an
employer in pursuant of which :-

(a) he is engaged in manual labour including such labour as an

artisan or apprentice: provided that where a person is employed
by one employer partly in manual labour and partly in some
other capacity, such person shall not be deemed to be
performing manual labour unless the time during which he is
required to perform manual labour in anyone wage period
exceeds one-half of the total time during which he is required to
work in such wage period .

(b) he is engaged in the operation or maintenance of any

mechanically propelled vehicle operated for the transport of
passengers or goods or for reward or for commercial purposes.

(c) he supervises or oversees other employees engaged in

manual labour employed by the same employer in and
throughout the performance of their work.

(d) he is engaged in any capacity in any vessel registered in

Malaysia and who:-
I] is not an officer certificated under the Merchant Shipping Act of
the United Kingdom as amended from time to time;
Ii] is not the holder of a local certificate as defined in Part VII of
the Merchant Shipping Ordinance 1952; or
Iii] has not entered into an agreement under Part III of the
Merchant Shipping Ordinance, 1952; or

(e) he is engaged as a domestic servant

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 A new section ( section 69B ) provides protection for employees

whose monthly wages exceed RM 1500.00 but do not exceed
RM15,000 the Director- General of Labour is now empowered to
hear complaints under section 69( 1 ) (a ) from this category of
employees. However, section 69B ( 3 ) stipulates that the rest of
the provision of the Act do not apply to them.

 The Employment Act protects not only full-time regular

employees but also part-timers, temporary / fixed term contract
workers.
[ part-time employees are defined as employees who work 70%
or less than the normal working hours of a full-time employee in
the same company carrying out the same work.

INDUSTRIAL RELATION ACT 1967

 Section 2 IRA states that “workman” means any person,

including an apprentice, employed by an employer under a
contract of employment to work for hire or reward, and for the
purposes of any proceeding in relation to a trade dispute,
includes any such person who has been dismissed, discharged or
retrenched in connection with or as a consequence of that
dispute, or whose dismissal, discharge or retrenchment has led
to that dispute.
 [ * thus the term “workman” includes a wider range of
employees than those covered by the Employment Act 1955.
under the Industrial Relation Act, any person who has a contract
of employment ( written or oral ) is considered as a workman. ]

2] PROBATIONARY PERIOD

 The probationary period is for the employer to test the suitability

of the employee for the job assigned to him. The employer may
test the aptitude, attitude, ability or adaptability of the employee
for the job. He may also take into consideration other factors like
behaviour, conduct, co-operation, and responsibility of the
employee. If the employee is found to be lacking in a few of the
above attributes, it is advisable for the employer in a cordial
manner, with a view to improving him.
 An employer may extend the initial probationary period to a
further period of 1-3 months. In such an event, the employee
should be informed, in writing, before the end of the
probationary period, that his probationary period is being
extended. He should also be informed of the specific areas where
improvement is expected.
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 The employer could terminate the services of an employee on

probation, if the employee does not measure up to the
employer’s satisfaction. But the satisfaction must be reasonable.
If an employee on probation has reasons to believe that
terminations of his service was mala fide, he may seek
reinstatement under Section 20 of the Industrial Relations Act.
 An employee may also quit the job if he dissatisfies with the job,
even without waiting for the end of the probationary period.

3] HOURS OF WORK, OVERTIME

 Normal Hours of Work

1] not more than five consecutive hours with a period of rest not
less than 30 minutes
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2] not more than 8 hours in one day

3] not more than 10 hours in a “spread-over” period
4] if the work is of a continuous nature, it can be 8 consecutive
hours with a period of rest (paid) of not less than 45 minutes.
5] not more than 48 hours in a week.

 Emergency work allowed only

1] in case of accident, actual or threatened.

2] urgent work to be done to machinery or plant
3] an interruption of work impossible to foresee

 Overtime

It means work done in excess of the “normal hours of work”.

However, it does not include work done on Rest Days and Public
Holidays. Overtime on normal working days- 1 ½ time the normal
hourly rate of pay

Limitation:-
1] 104 hours per month, unless exempted by the Minister under
Section 2B
2] Not more than 12 hours of work (including normal hours in a day)

 Work on Rest Days

1] for daily-rated employees:-

2 times the daily wages for daily-rated employees, if work
exceeds half the normal working hours of works; 1 day’s daily
wages if the work is half or less than the normal hours of work.

2] for monthly-rated employees:-

half the day’s wages for a period not exceeding half their normal
hours of work. One day’s wages for work not exceeding their normal
hours of work.

 Overtime on Rest Days

Shall be 2 times the hourly rate of pay

 Work on Public Holidays

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1] for monthly-rated employees

2 days wages regardless that the work done on that day is less than
the or normal hours of work

2] for daily-rated employees

2 day’s wages regardless that the work done on that day is less
than their normal hours of work plus their public holiday pay.

 Overtime on Public Holidays

3 times the hourly rate of pay for work done in excess of normal
hours of work

4. LEAVE

 Annual leave

- An employee is entitled to annual leave only after 12

months of continuous service as follows:
1] Less than 2 years of service – 8 days for each year
2] 2 years or more but less than 5 years – 12 days for each year
3] More than 5 years – 16 days for each year

- The paid annual leave does not include public holidays.

- An employee must take his annual leave not later 12

months after the end of every 12 months of continuous service.
If he fails to do so, his annual leave will be forfeited.

- The whole or part of the untaken annual leave may be

substituted for payment at the request of the employer and with
the written consent of the employee.

- An employee’s annual leave can be forfeited if he

absents himself from work without permission, or without any
reasonable excuse for more than 10% of the total number of
working days during the twelve months of continuous service for
which his entitlement is accrued.

- If an employee’s service is terminated (for reasons

other than misconduct) or if he resigns by giving due notice, he
is entitled to the ordinary rate of pay in lieu for the completed
months of service.
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- If an employee who is on annual leave falls sick, or is on

maternity leave, the employee is entitled to sick leave or
maternity leave as the case may be and the annual leave
already taken by him/her becomes cancelled.

 Sick leave

- An employee is entitled to paid sick leave only under the

following circumstances:
1. he has obtained a certificate from a registered
medical practitioner duly appointed by his employer; or
2. he has obtained a certificate from a dental
surgeon; or
3. if no such medical practitioner is appointed, or
the services of such a practitioner are not obtainable within a
reasonable time or distance, then other registered medical
practitioners or government medical officers will be accepted;
and
4. he has informed or has attempted to inform
the employer of his sick leave within 48 hours of the
commencement of the sickness.

- The number of days of paid sick leave which an employee

is entitled to in each calendar year is as follows:
1] Less than 2 years – 14 days
2] 2 years but less than 5 years – 18 days
3] 5 years or more – 22 days

- If hospitalization is necessary, the amount of paid sick

leave can be extended by up to 60 days per calendar year.

- If there is a company appointed doctor or panel of doctors,

the employee should seek medical treatment from such doctors.

- However, in case of emergency (when the company

appointed doctor is not readily available or the clinic is too far
away) the employee can seek treatment from any registered
medical practitioner. All such cases are to be decided depending
upon the circumstances and nature of the illness or injury.

5] PUBLIC HOLIDAYS

- Every employee is entitled to 10 out of any of the following

gazetted public holidays and any day declared as a public
holiday by the Federal or State Government under section 8 of
the Holidays Act 1951 in any one calendar year:-
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- Federal Public Holiday

 Hari Raya Puasa
 Chinese New Year
 Workers’ Day
 Wesak Day
 Birthday of YDPA
 Hari Raya Haji
 Awal Muharram
 National Day
 Birthday of Prophet Muhammad
 Depavali
 Christmas Day

State Public Holidays

 New Year’s Day

 Federal Territory Day
 Thaipusam
 Israk & Mikraj
 Nuzul Quran
 Good Friday
 Pesta Keamatan
 Hari Dayak
 Birthday of State’s Sultans / Rulers

Compulsory gazetted Public Holiday

 National Day
 The King’s Birthday
 Birthday of Sultans/ Head of State or
Federal Territory Day
 Workers’ Day

- If any of the ten chosen gazetted public holidays falls

within the period during which the employee is absent due to
sick leave, annual leave, temporary disablement under the
Workmen’s Compensation Act 1952 or under the Employees’
Social Securities Act 1969 or maternity leave, the employee is
entitled to another day as a paid holiday in substitution for such
public holiday.
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6] TERMINATION OF CONTRACT OF SERVICE

- Either party to a contract of service may at anytime give to

the other, notice of his intention to terminate such contract of
service. The period of notice required by either party is usually in
accordance with the provision in the contract of employment.

- In the absence of a provision for period of notice made in

the contract, the period of notice of termination shall be based
on the provision of the Employment Act as follows:-
1] less than 2 years- at least 4 weeks
2] 2 years or more- at least 6 weeks
3] 5 years or more- at least 8 weeks

- An employer may terminate an employee’s services for

any of the following reasons: -
 Retirement
 Section 14(1) IRA- misconduct
 Wilful Breach of Contract
 Retrenchment
 Criminal Offence
 Frustration of Contract
 Repudiation of Contract
 Effluxion of time [contract of service for specific period]
 Termination for poor performance

- For the employee govern by the IRA 1967, the Act

recognizes the management’s prerogative to employ, terminate
for reasons of redundancy or reorganization or dismiss an
employee with proper cause or excuse. However, the Industrial
Court also has “the right to interfere into any management
prerogatives and strike down any unfair labour practice or
victimization”. But the Court will not interfere with the bona fide
exercise of power which is given to the management by the
common law and by the contract of service which is inherent in
the management.
- On the other hand, section 20(1) of the IRA 1967, provides:
where a workman who is not a member of a trade union of
workmen considers that he has been dismiss without just cause
or excuse by his employer, he may within 60 days of the
dismissal make representation in writing to the Director-General
to be reinstated in his former employment, the representation
may be filed at the office of the Director-General nearest to the
place of employment from which the workmen was dismissed.
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- If the workman is a member of a union, his union can file

an appeal on his behalf for reinstatement [section 26 of IRA]

7] DISMISSAL AFTER DUE INQUIRY

An employer may on the ground of misconduct dismiss an employee.

However, it should be noted that the dismissal is valid only after due
inquiry has been done

8] SEXUAL HARASSMENT AT THE WORKPLACE

The word “harass” includes quite a broad spectrum of action; distress,

badger, trouble, vex, plunge, torment, irritate, heckle, beset, worry,
afflict, depress, sadden, annoy and disturb. In a workplace, sexual
harassment becomes a form of sexual discrimination, which is contrary
to the principles of equal rights for men and women. On late, there has
been much emphasis on the problem of sexual harassment at the
workplace, so mush so, the Minister of Human Resource has introduced
the Code of Practice to Prevent and Eradicate Sexual Harassment at
the “workplace”, which includes a guideline to be followed in
combating the problem of sexual harassment. The Code provides
practical guide to employees, workers, trade unions and other
interested parties on how to contain, and if possible, totally eradicate
this social problem.
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What constitutes Sexual Harassment ?

Sexual harassment may take many forms, some of which may be

subtle while others may be more explicit, but all of which are bound to
cause much embarrassment to the victim. The following may be
considered as typical examples;

 Unsolicited compliments regarding a person’s figure, dressing,

make-up, style of movement, way of talking, etc
 Sexually tainted jokes, rumours, comments, news items, etc.
made in the presence of a person of the opposite sex
 Physically molesting female staff by touching parts of their
bodies
 Persistently trying to strike up a conversation, even after the
other person has indicated that he/she is not keen to do so.
 Verbal advances and suggestions of a lewd and sexual nature.
 Unwarranted telephone calls, especially if such calls are made to
the person’s office or home at unearthly hours
 Repeatedly or persistently inviting a person for lunch/ dinner,
dates, or for a drink or ride
 Sending love letters or posting love notes on the Internet
 Sending or showing pornographic materials to another person in
order to embarrass him/her
 Instructing a subordinate employee to stay back alone, after
normal working hours, on the pretext of having urgent work to
be done.

Remedial Measures

An individual victim has every right to protect herself from any form of
harassment. However, in dealing with cases of sexual harassment at
the workplace, there are many factors the victim has to consider;-
one’s reputation, the family, opinion among colleagues, social
relationship, and also the job itself. Any adverse publicity is bound to
bring irreparable psychological damage to the victim. Therefore, great
care and caution should be taken in finding solution to the problem.
 If the harasser is a colleague, the following steps may be taken
by the victim:-
1. tell him at the very first instance that you are not amused
with his behaviour and warn him not to repeat it; but keep
your cool
2. avoid losing control of your emotions or temper and do not
throw tantrums
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3. should he repeat his action, give him a second and final

warning in a plain and straightforward manner
4. do not show him that you are afraid of or intimidated by
him in any way
5. if you know others who are also victims of this particular
harasser, get them together and give him a tongue-
lashing, outside office hours.
6. if his actions persist, take up the matter with your boss or
report him to his boss
7. if the problem still persists, make a written complaint to
the Personnel Manager and at the same time refer the
matter to the union, if you are a union member.
8. if as a last resort, the matter is reported to the police, they
can take action against the harasser- PENAL CODE-
SECTION 509

 If the harasser is your own boss or a senior member of the

management staff, the situation may be a bit more complicated
and the whole matter has to be dealt with delicately and
diplomatically. However, the preventive actions to be taken are
more or less the same as stated above.

Prepared by:-
1] Suria Fadhillah Bt. Md. Pauzi
[ LL.B (Hons.) UIAM, LL.M UKM ]

2] Nadia Bt. Omar

[ LL.B (Hons.) UIAM, LL.M UKM ]