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Cases - des

Labour Law (Multimedia University)

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Chapter 4: Individual Statutory Rights in Employment

Malayan Commercial Bank Association & Anor v Association of Bank officers, Peninsular
Malaysia & Anor [1996] 2 CLJ 31
Principle 1: Express term - non-monetary (rest day)
Facts: Section 60A(2)(f) of the Employment Act, 1955 inter alia stipulates that an employee
may be required to work on a rest day provided that such work as is to be performed is "work
in any industrial undertaking essential to the economy of Malaysia or any essential service as
defined in the Industrial Relations Act 1967". In this appeal the core issue that arose was
whether, bearing in mind the aforesaid provision, a bank employee could be required by his
employer to work on a rest day.
Held:
1. This appeal involves only one question of law - whether a bank employee could be
required by his employer to work on a rest day.
2. Section 60A(2)(f) of the Employment Act, 1955 reads as follows: An employee may
be required by his employer to exceed the limit of hours prescribed in subsection (1)
and to work on a rest day, in the case of -
(f) work to be performed by employees in any industrial undertaking essential to the
economy of Malaysia or any essential service as defined in the Industrial Relations
Act 1967.
3. It is plain under the above provision that an employee may be required to work on a
rest day where there is work to be performed by him in any essential service as
defined in the Industrial Relations Act 1967.
4. Section 2 of the Industrial Relations Act 1967 gives the definition of "essential
service". It says: In this Act, unless the context otherwise requires - 'essential service'
means any service specified in the Schedule;
5. In the schedule, "banking services" are one of the essential services specified.
6. A bank employee can be required by his employer to work on a rest day. This is
because the work to be performed by a bank employee is an essential service as
defined in the Industrial Relations Act.
Asia Motors (KL) S/B v Ram Raj [1985] 2 MLJ 202
Principle 1: Express term - monetary (wages)
Facts: The minimum wages is RM 250. The employees claim that employer paid less than
the statutory minimum remuneration (SMR).
Respondents where were sales representatives of Applicant. They made a complaint to the
Director of Labour stating that they were paid less than the statutory minimum remuneration
provided by the Para 4(i) of the Wages Regulations (shop Assistants) Order 1970. The
Director of Labour allowed the claims of the Respondents. The Director directed that the 2st
Respondent be paid $ 1400, and the 2nd Respondent $1440.
Issue: Whether Special Relief Allowance (SRA) and Additional Special Relief Allowance
(ASRA) is part of their wages as defined in Section 2.
Held:

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1. SRA and ASRA are not amongst the excluded item under the definition of wages in
Section 2 nor are they amongst the items of authorized deductions.
2. They are additional obligation which an employer has to pay to his employee. The list
of excluded items in EA is not closed/ exhausted.
3. The fact that they are not included in the list does not prevent an employer to pay his
employee sums other than those excluded without treating them as wages or
remuneration.
4. Allowance is given under contract of services but not for work done - not wages.
5. In other words, ASRA and SRA are not wages and hence the employer has failed to
pay according to statutory minimum remuneration of RM 250 to the employee.
6. Principle: Any other payment that was not stated under the excluded item in Section
2 is not part of the employee’s wages.
7. Although generally speaking the word “remuneration” has a wider meaning than they
word ‘wages’ in the context of WCA, these words seem to be used interchangeably
and thus, have the same meaning.
8. The concept of ‘remuneration’ used in WCA is the same as that of ‘wages’ used in the
EA. Under EA, wages mean all remunerations which is payable to an employee for
work done in respect of his contract of service.
9. The excluded items, under the definition of ‘wages’ in S2 of EA and excluded items
under S 15 of WCA which are not part of the amount of SMR. They are merely
additional sums of money which an employer is under obligation to pay in addition to
paying wages.
10. The court further said that the SRA, ASRA commission, and bonus are not amongst
the excluded items. They are additional obligations which an employer has to pay to
his employees. By their jurisdictional nature, they should be included amongst the
excluded items.
11. The fact that they are not so occluded does not means that an employer can no more
agree to pay additional items to his employee.
12. SRA, ASRA, commission and bonus are not regarded as part of the wages.
13. Whilst all those sums form part for any employee’s earnings, they are treated distinct
and separate from wages or remuneration.
Raymond Michael Ignatius v D & C Finance Bhd [1994] 2 MLJ 679
Principle 1: Express Term (monetary - wages - lawful deduction)
Facts: The employee was the guarantor of his friend for a loan given by the bank. His friend
defaulted in payment and the bank found the employee guarantor. The bank got order to
deduct the employee’s salary and the employer deducted his salary.
Employee claimed that the court has no power to order deduction of wages because the
Employment Act has no such provision.
Held:
1. Deduction of wages cannot be made because it was not provided in any provision
under the Employment Act 1955. Thus, because of this case, S.24(4)(c) was inserted,
but only in request in writing of the employee + permission in writing of the Director
General.

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Chin Swee Hin Sdn Bhd v. Mohamed Arif bin Khalid

Principle 1: Express term - monetary (wages)
Principle 2: Express Term (monetary - wages - truck system)
Issue: whether the food allowance had to be included as part of the R’s wages for purposes of
calculating his overtime pay.
Facts: A, employer, had excluded the food allowances from the R’s wages but the Labour
Officer had included it. The A appealed to HC against the order of the Labour Officer.
Held:
1. Definition of wages in S 2 of EA is clear and unambiguous.
2. The aim of the Act is to protect the labourers from exploitation and it could not
therefore be their intention of the legislature that substantial amount of remuneration
in cash paid to labourer could be excluded for purposes of calculating overtime pay by
just calling it food allowance.
3. As the food allowance paid to the R by A was part and parcel of the contract of
service, there is no reason why it should not also be included for purposes of
calculating overtime pay.
Viking Askim Sdn. Bhd. V National Union of Employees in Companies Manufacturing
Rubber Products & Anor
Principle 1: Express Term (monetary - wages - truck system)
Facts: The award of the Industrial Court, ordering full wages for Sundays and public
holidays, during the period of shutdown caused by a fall in orders, was challenged before HC,
which upheld the decision of the Industrial Court.
Held:
1. The collective agreement made provision for the payment of reduced wages where the
co was unable to provide work when production was stopped due to power failure,
boiler, or mechanical breakdown, but not otherwise.
2. There was no provision empowering the co to reduce the wages of its monthly rated
employees on the ground of shutdown as a result of fall in orders.
3. In the Employment Act 1955 also, there is no provision empowering an employer to
make any deduction from wages for periods of shutdown due to fall in orders.
Tara Singh v Seamens Union
Principle 1: Express Term (monetary - overtime - normal working days)
Facts: Swimming pool attendant who worked 12 hours 7 days a week. He applied for
overtime pay. The court had to determine whether he falls within the ambit of section 60A(8)
which provides that an employee who “is engaged in work which by its nature involves long
hours of inactive or stand-by employment” is not entitled to overtime pay on week days.
Held:

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1. In this case the court held that being a pool attendant, the nature of his work involved
long hours of inactive or stand-by, therefore he was not entitled to overtime pay on
weekdays, but entitled for overtime pay on his rest.
Eng Giap Motors v Gan Eng Keng
Principle 1: Express Term (monetary - overtime - normal working days)
Facts: This case involves bus drivers and conductor. They claimed for overtime pay for 4
hours on week days.
Held:
1. The court opted to break down the 4 hours, into 2 ie hours where they were actually
working and when they were on standby or inactive. The court decided that they were
on entitled to claim for 2 hours.
Union Carbide Singapore Pte Ltd v. Govindan Nair
Principle 1: Express Term (monetary - overtime - rest days)
Facts: MP Govindan was a monthly rated employee of As. In 1971, his salary was $645 per
month. Under Clause 26, the collective agreement provided that subject to the provisions of
S41 of EA, every employee shall be entitled to a paid holiday at his ordinary rate of pay on
such of the days specified in the Schedule to the Holidays Act. Under Cl 8(b) of the collective
agreement, the Respondent being a non- plant clerical employee, was not obliged to work on
Saturdays. He worked a 5-day week from Mondays to Friday and 44 hours per week from
Monday to Friday, he did not get the benefit of a paid holiday on those Saturdays which were
public holidays under the Holidays Act. Applicant’s argued that Respondent wasm onthrated
employee, his salary included the wages of all Saturdays even they were non-working days,
ie days on which he is not obliged to work.
Held:
1. S 41(1) EA, every employee is entitled not only to holidays under HA but also entitled
in respect of such public holidays to be paid at his ordinary rate of pay.
2. Respondent was monthly rated employee who paid a monthly salary. His contract
only required him to work 5 days.
3. Under S 38(1), he was not obligated to work in excess of 44 hours a week, thus
entitled both under contract and law to be paid extra salary.

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