AMJ40302

PROFESIONAL ENGINEER
Lecture W 13 – Law for Engineers

by
Ir. Ts. Dr. HAFIZI BIN ZAKARIA
INTELLECTUAL PROPERTY
Definition
Types of IP in Malaysia
Understanding IP
 The Laws for IP Protection
• Copyright Act 1987
• Trademarks Act 1976
• Patent Act 1983
• Industrial Design Act 1996
• Geographical Indications Act 2000
• Law of Tort
• -passing-off
• Confidential information
PATENT
 Patent – cont’d
• The Patents Act 1983 and the Patents Regulations
1996 govern patent protection in Malaysia. An
applicant may file a patent application directly if he is
domicile or resident in Malaysia. A foreign application
can only be filed through a registered patent agent in
Malaysia acting on behalf of the applicant.
 Patent – cont’d
• Similar to legislations in other countries, an invention
is patentable if it is new, involves an inventive step
and is industrially applicable. In accordance with
TRIPS, the Patent Act stipulates a protection period of
20 years from the date of filing of an application.
Under the Act, the utility innovation certificate
provides for an initial duration of ten years protection
from the date of filing of the application. The owner
of a patent has the right to exploit the patented
invention, to assign or transmit the patent, and to
conclude a licensed contract.
 Patent – cont’d
• Issues of patent valuation and exploitation are
gaining in importance in the public and private
sectors and will benefit from continued exchanges
among stakeholders from business, government and
academia.
 Patent – cont’d
• Efforts are needed to make the contribution of
patents to economic value more visible. As patents
are more frequently used as vehicles for transferring
information to markets, investors and customers seek
reliable and valid information regarding patent value
upon which to base decisions. Companies also need
reliable information in order to better manage their
patent portfolios.
 Patent – cont’d
• A patent is an exclusive right granted for an invention,
which is a product or a process that provides a new
way of doing something, or offers a new technical
solution to a problem.
 Patentable Inventions
• New, which means that the invention has not been
publicly disclosed in any form, anywhere in the
world;

• Involve an inventive step, that is to say the invention

must not be obvious to someone with knowledge
and experience in the technological field of the
invention; and

• Industrially applicable, meaning it can be mass

produced.
 Non-Patentable Inventions
• Discoveries, scientific theories and mathematical
methods;

• Plant or animal varieties or essentially biological

processes for the production of plants or animals,
other than man-made living microorganisms, micro-
biological processes and the products of such
microorganism processes;
 Non-Patentable Inventions – cont’d
• Schemes, rules or methods for doing business,
performing purely mental acts or playing games;

• Methods for the treatment of human or animal body

by surgery or therapy, and diagnostic methods
practiced on the human or animal body.
Importance of Patent Registration
• To exploit the patented invention

• To assign or transmit the patent

• To conclude license contracts

 Duration of Patent
• A patent is protected 20 years from the date of filing.
 Who May Apply?
• Any person may make an application for a patent or
for a utility innovation either alone or jointly with
another person. The word “person” is not limited to
natural persons and thus also includes, for example, a
company.
TRADEMARK
 Trademark – cont’d
• Trade mark protection is governed by the Trade
Marks Act 1976 and the Trade Marks Regulations
1997. The Act provides protection for registered
trade marks and service marks in Malaysia. Once
registered, no person or enterprise other than its
proprietor or authorised users may use them.
 Trademark – cont’d
• Infringement action can be initiated against abusers.
The period of protection is ten years, renewable for a
period of every ten years thereafter. The proprietor
of the trade mark or service mark has the right to
deal or assign as well as to license its use. In
accordance with TRIPS, Malaysia prohibits the
registration of well-known trade marks by
unauthorised persons and provides for border
measures to prohibit counterfeit trade marks from
being imported into Malaysia.
 Trademark – cont’d
• Trade mark is a sign which distinguishes the goods
and services of one trader from those of another.

• A mark includes a device, brand, heading, label,

ticket, name, signature, word, letter, numeral or any
combination of these.
Trademark – cont’d
 Non-Registrable Trademark
1. Prohibited Marks
• If the use of which is likely to confuse or deceive the
public or contrary to law.
2. Scandalous or Offensive Matter
• If it contains or comprises any scandalous or offensive
matter or would not otherwise be entitled to protection
in any court of law.

3. Prejudicial to the Interest or Security of the Nation

• Registrar bears the responsibility of determining the trade
mark, whether it might be prejudicial to the interest or
security of the nation. It may be that a mark contains an
inflammatory statement or words.
 Functions of Trademark
1. Origin – A trade mark helps to identify the source and those
linked for the products and services trade in the market.
2. Choice – A trade mark assists consumers to choose goods
and services with ease.
3. Quality – Consumers define a certain trade mark for its
known quality.
4. Marketing – Trade mark play a significant role in promoting.
It’s common for consumers to make purchases based on
continuous effect of advertising.
5. Economic – Recognized trade mark is a valuable asset. Trade
marks may be licensed or franchised.
Importance of Trademark Registration
• Intellectual Proprietary privileges in relation to a trade mark may be
established through actual use in the marketplace and registration
provides for:

1. Exclusive Rights – Registered trade marks owners have exclusive

right to use their marks in trading. They also have the rights to take
legal action for infringement under the Trade Mark Law against
others who use their marks without consent. They can either take
civil action or lodge complaints to Enforcement Division for
appropriate actions under the Trade Description Act 1972.

2. Legal Evidence – Registration certificate issued by Registrar Office is

a prima facie evidence of trade mark ownership. A certificate of
registration serves as an important document to establish the
ownership of goods exported to other countries.
 Duration of Registration
• Trade mark registration is valid for ten years from the
date of application and may be renewed every 10
years.
INDUSTRIAL DESIGN
 Industrial design – cont’d
• Industrial design protection in Malaysia is governed
by the Industrial Designs Act 1996 and Industrial
Designs Regulations 1999. The Act provides the rights
of registered industrial designs as that of a personal
property capable of assignment and transmission by
operation of the law.
 Industrial design – cont’d
• To be eligible for registration, industrial designs must
be new and do not include a method of construction
or design that is dictated solely by function. In
addition, the design of the article ust not be
dependent upon the appearance of another article of
which it forms an integral part.
 Industrial design – cont’d
• Local applicants can file registrations individually or
through a registered industrial designs agent.
However, foreign applicants will need to seek the
services of a registered industrial designs agent.
Registered industrial designs are protected for an
initial period of five years which may be extended for
another two 5-year terms, providing a total
protection period of 15 years.
Industrial design – cont’d
 Registrable Industrial Design
1. Fulfill the interpretation of Industrial design

2. New in Malaysia or elsewhere

3. Not contrary to public order or morality

Non-Registrable Industrial Design
1. A method or principle of construction

2. The designs of articles depend upon the appearance

of another article which forms an integral part of
the article

3. It differs only in immaterial details or features

4. The features of the article are dictated solely by

function
 Importance of Industrial Design
Registration
• Owner of a registered design has the exclusive right
to make, import, sell or hire out any article to which
the design has been applied.
 Period of Registration
1. A registered industrial design is given an initial
protection period of 5 years from the date of filing.

2. Extendable for a further four consecutive terms.

The maximum protection period is 25 years.
 Who May Apply?
1. Author
2. Company
3. Individual
GEOGRAPHICAL INDICATION
 Geographical Indication – cont’d
• The Geographical Indications Act 2000 provides
protection upon registration to goods following the
name of the place where the goods are produced.
This protection is applicable to goods such as wine,
agricultural products and handicraft. Geographical
indications which are contrary to public order or
morality shall not be protected under the Act.
Actions, penalties and remedies concerning
infringement of geographical indications are similar
to those applicable for trade marks.
 Geographical Indication – cont’d
• A sign used on products that have a specific
geographical origin and possess qualities or a
reputation that are due to that origin.
 Exclusion from Protection of
Geographical Indications
1. Geographical indications which are contrary to
public order or morality or territory of origin; or

2. Geographical indications which are not or have

ceased to be protected in their country.

3. Geographical indications which have fallen into

disuse in their country or territory of origin.
 Rights of Use
1. Only producers carrying on their activity in the
geographical area specified in the Register shall have
the right to use a registered geographical indication
in the course of trade.

2. The right of use be in respect of the products

specified in the Register in a accordance to the
qualify, reputation or characteristic specified in the
Register.
 Period of Protection
• A registered geographical indication is given 10 years
of protection from the date of filling and is
renewable for every 10 years.
 Who May Apply?
1. A person who is carrying on an activity as a
producer in the geographical area specified in the
application with respect to the goods specified in
the application, and includes with respect to the
such person.

2. A competent authority; or

3. A trade organization or association.

IC DESIGN
Definition of Layout-Design of an
Integrated Circuit
• A layout-design of an integrated circuit is the three-
dimensional disposition of the elements of an
integrated circuit and some or all of the
interconnections of the integrated circuit or such
three-dimensional disposition prepared for an
integrated circuit intended for manufacture.
 Qualification for Protection of
Layout-Design
1. It is original, i.e. the result of its creator’s own
intellectual effort and not commonplace among
creators and manufacturers of integrated circuit;

2. It has been fixed in a material form or incorporated

into an integrated circuit at the time of its creation;

3. The right holder of the layout-design is a qualified

person.
 Right Holder of Layout-Design
1. The creator;

2. The person who commissioned the layout-design if

it is created in pursuance of a commission;

3. The employer if the layout-design is created by an

employee in the course of his employment.
 Legal Rights of Right Holder of
Layout-Design
1. The right holder have rights to reproduce and to
authorize the reproduction of his protected layout-
design;
2. To commercially exploit and to authorize the
commercial exploitation of :
• His protected layout-design;
• An integrated circuit in which the layout-design is
incorporated; or
• An article that contains an integrated circuit in which
the layout design is incorporated.
 Period of Protection
• 8. (1) A layout-design shall be protected under this
Act for a period of 10 years from the date the layout-
design is first commercially exploited in Malaysia or
elsewhere.

• (2) Notwithstanding subsection (1), the protection

granted to a layout-design under this Act shall lapse
15 years after the date the layout-design is created.
COPYRIGHTS
 Copyright – cont’d
• The Copyright Act 1987 provides comprehensive
protection for copyrightable works. The Act outlines
the nature of works eligible for copyright (which
includes computer software), the scope of protection,
and the manner in which the protection is accorded.
There is no registration of copyright works.

• Copyright protection in literary, musical or artistic

works is for the duration of the life of the author and 50
years after his death. In sound recordings, broadcasts
and films, copyright protection is for 50 years after the
works are first published or made.
Copyright – cont’d
 Works Eligible for Copyright
Section 7(1) of the Copyright Act 1987 provides for
works eligible for copyright are:
1. Literary works;
2. Musical works;
3. Artistic works;
4. Films;
5. Sound recordings; and
6. Broadcasts
Works Eligible for Copyright – cont’d
 Duration of Copyright
1. Literary, Musical or Artistic Works
• Generally, this categories of copyright work reflects to the human beings
which shall subsist during the life of the author plus 50 years after his
death.

2. Film, Sound Recordings and Performer

• This categories of copyright work shall subsist for 50 years from the work
was published, fixed in a fixation for the film and sound recording. For
performer, the copyright work shall subsist from the performances was
perform or fixation in a sound recording.

3. Broadcasts
• For the copyright in broadcasts, it protection occurred in way of
transmission either by wire or wireless means, the period for 50 years
shall be computed from the which the broadcasts was first made.
 The Rights of Copyright Owners
1. Legal Rights
• Author, copyright owner and performer is given an
exclusive right to control under the copyright law.
Legal rights that are given to them includes the rights
to enforce their copyrighted works in cases for
infringement either by civil or criminal action. In term
of criminal prosecution, it is conducted by the
Enforcement Division of Ministry of Domestic Trade,
Cooperative and Consumerism (MTDCC) or Royal
Malaysian Police.
The Rights of Copyright Owners – cont’d
2. Economic Rights
• Economic rights that are given to right holders
includes rights of reproduction, rights of
communication to public, rights to perform, showing
or playing to the public, rights of distribution and
rights of commercial rental. This rights can be
exercised during the period of protection governed
under Copyright Act 1987. Economic rights allows the
owner of rights to derive financial reward from the
use of his works by the user or commercial purposes.
Form of economic rights can be by way of
assignment, licensing and testamentary disposition.
The Rights of Copyright Owners – cont’d
3. Moral Rights
• Paternity Rights
o This rights allows the author to claim the
originality rights of his or her creation.

• Integrity Rights
o This right authorizes the author to prevent any
users from distortion, mutilation or other
modifications of his or her works whereby the
result of the modification will significantly alter
the original work and adversely affect the
author’s honor or reputation.
 Copyright Infringements
• Whoever use any copyrighted works without consent or authorization from the
author, copyright owner and performer, it may constitute an infringement
under Copyright Act 1987. Amongst the act of infringement includes:
o reproduces in any material form, performs, shows or plays or distributes to
the public,
o imports any article into Malaysia for the purpose of trade or financial gains;
o makes for sale or rent any infringing copy;
o sells, rent or by way of trade, exposes or offers for sale or rent any
infringing copy;
o distributes infringing copies;
o possesses, otherwise than for his private and domestic use, any infringing
copy;
o exhibits in public any infringing copy by way of trade;
o makes or has in his possession any contrivance used or intended to be used
for the purpose of making infringing copies
Copyright Act 1987
Copyright: Ownership
 Copyright: Ownership – cont’d
• If you buy a book in a shop, if you buy a CD in a shop, once you have
paid your money legal title to that particular object changes hands
— it becomes your book or your CD; your possession and the
private enjoyment of it is protected by law and guaranteed by the
state.

• However, you do not own the intellectual property contained within

the book or the CD. The right to claim authorship, or the entirely
separate right, to reproduce or copy the book or CD, is not yours —
in the shop you bought the tangible thing, not the intangible
intellectual property.
 Copyright: Ownership – cont’d
• When somebody buys the copyright they purchase the right to
reproduce the specific arrangement of words or notes upon a page;
they purchase the right to copy the particular arrangement of
sounds or images upon a disc.

• However, they are not the outright owners of the intellectual

property because of what the lawyers call ‘moral right’. The sale of
the copyright by an author to a publisher or a distributor does not
undermine or abolish the author’s ‘moral right’. Thus the author
remains the author whether she has sold the copyright to her novel
or her research paper or not. She continues to have the right to be
acknowledged as the author and is protected from the mutilation or
alteration of her work by the publisher or distributor to whom she
sold the copyright.
 Copyright: Ownership – cont’d
• So, intellectual property has this threefold aspect:

1. The moral right of the author to protect the arrangement or

form of his work and to be identified as its creator.

2. The commercial right of the copyright-holder to reproduce and

distribute the work.

3. The right of those who have paid the copyright-holder for

permission to enjoy the work in private, or the special right of
those who have paid for permission use the work in public
performances.
TRADE SECRET
Trade Secret – cont’d
Trade Secret – cont’d
Trade Secret – cont’d
 Trade Secret – cont’d
For Example:
• Recipes, Marketing plans, financial projections, and methods of
conducting business can all constitute trade secrets There is no
requirement that a trade secret be unique or complex; thus, even
something as simple and nontechnical as a list of customers can
qualify as a trade secret as long as it affords its owner a competitive
advantage and is not common knowledge.

• If trade secrets were not protectable, companies would no incentive

to invest time, money and effort in research and development that
ultimately benefits the public Trade secret law thus promotes the
development of new methods and processes for doing business in
the marketplace.
 International Trademark
Association (INTA)
• Not-for-profit international association composed
chiefly of trademark owners and practitioners It is a
global association Trademark owners and
professionals dedicated in supporting trademarks and
related IP in order to protect consumers and to
promote fair and effective commerce
• More than 4000 companies and law firms
• More than 150 countries belong to INTA
 World Intellectual Property
Organization (WIPO)
• Agency of the United Nations whose purposes are to
promote intellectual property throughout the world
and to administer 26 treaties dealing with intellectual
property
• To encourage creative activity, to promote the
protection of Intellectual Property throughout the
world
• More than 191 nations are members of WIPO
 Paris Convention
• Paris convention for the protection of Industrial
Property
• One of WIPO-administered treaties
• of March 20, 1883,
as revised at Brussels on December 14, 1900,
at Washington on June 2, 1911,
at The Hague on November 6, 1925,
at London on June 2, 1934,
at Lisbon on October 31, 1958,
and at Stockholm on July 14, 1967,
and as amended on September 28, 1979
Intellectual Property Corporation
of Malaysia (MyIPO)
 Intellectual Property Corporation
of Malaysia (MyIPO) – cont’d
• Prior to 1983, intellectual property rights (IPR) in Malaysia was administered by Pejabat Cap
Dagangan dan Jaminhak. This Office changed its name to Pejabat Cap Dagangan dan Paten in
1983 and was placed under the jurisdiction of the then Ministry of Trade and Industry.
• On 27 October 1990, the Ministry was restructured and the Office was placed under the
Ministry of Domestic Trade and Consumer Affairs which is now known as Ministry of Domestic
Trade, Co-operative and Consumerism and changed its name to Intellectual Property Division.
The Division was tasked to administer Patents Act 1983, Trade Marks Act 1976, and Copyright
Act 1987.
• The Industrial Designs Act 1996 came into force in 1999, followed by the Layout-Designs of
Integrated Circuits Act 2000. In 2001, the Geographical Indications Act 2000 came into force.
• To respond to the development of intellectual property at domestic and global levels, the
Division was corporatized on 3 March 2003 and known as the Intellectual Property
Corporation of Malaysia (PHIM), with the enforcement of the Intellectual Property
Corporation of Malaysia Act 2002.
• The Corporation took an important first step of rebranding when the acronym PHIM became
MyIPO on 3 March 2005 at the inaugural National Intellectual Property Day.
Intellectual Property Corporation
of Malaysia (MyIPO) – cont’d
 Intellectual Property Corporation
of Malaysia (MyIPO) – cont’d
Application Registration
Local Foreign Local Foreign
Patent 17,550 140,294 4,165 60,127
Trademark 298,620 356,656 139,386 271,183
Industrial design 11,518 17,601 9,414 16,102
Geographical
108 9 72 7
indication
Trademark
EMPLOYMENT LEGISLATION
 Contents
• Employment Act 1955.

• Occupational Safety and Health Act 1994.

• Employer – employee

• The legal duties and responsibilities of employers and

employees.

• Matters pertaining to contracts of service and

contracts for service such as appointment,
termination etc.
 Laws Related to Employment
• Employment Act 1955, Labour Ordinance (Sabah), Labour
Ordinance (Sarawak)
• Industrial Relations Act 1967
• Minimum Standards of Housing and Amenities Act, 1990
• Children and Young Persons (Employment) Act 1966
• Malaysia - Private Employment Agencies Act 1981
• Anti-Trafficking in Persons Act 2007
• Employment (Restriction) Act 1968
• Employment Information Act 1953
• Act related to holidays (2 for peninsular, specific Ordinance for
Sabah, Sarawak)
EMPLOYER
 Employment Act 1955

Employer Employee
• means any person who has • means any person or class
entered into a contract of of persons—
service to employ any other
person as an employee and • (a) included in any category
includes the agent, manager in the First Schedule
or factor of such first
mentioned person, and the • (b) in respect of whom the
word ―employ with its
Minister makes an order
grammatical variations and
cognate expressions, shall under subsection (3) or
be construed accordingly section 2A
OSHA 1994: Immediate Employer
• in relation to employees employed by or through him, means
a person who has undertaken the execution at the place of
work where the principal employer is carrying on his trade,
business, profession, vocation, occupation or calling, or under
the supervision of the principal employer or his agent, of the
whole or any part of any work which is ordinarily part of the
work of the trade, business, profession, vocation, occupation
or calling of the principal employer or is preliminary to the
work carried on in, or incidental to the purpose of, any such
trade, business, profession, vocation, occupation or calling,
and includes a person by whom the services of an employee
who has entered into a contract of service with him are
temporarily lent or let on hire to the principal employer
OSHA 1994: Immediate Employer – cont’d
• Example of an immediate employer in the private
sector includes labour contractors in the workplace.
In the public sector or statutory body, the head of
department may depending on the facts of each case
be considered as an immediate employer.
 OSHA 1994: Principle Employer
• Means the owner of an industry or the person with whom
an employee has
• Entered into a contract of service and includes—
a) a manager, agent or person responsible for the
payment of salary or wages to an employee;
b) the occupier of a place of work;
c) the legal representative of a deceased owner or
occupier; and
d) any government in Malaysia, department of any such
government, local authority or statutory body
OSHA 1994: Principle Employer – cont’d
• Principal employer means the owner of an industry
or the person with whom an employee has entered
into a contract of service.

• Principal employer would include manager, agent or

person responsible for the payment of salary or
wages to an employee. An agent would be a person
authorized to act for another person in business etc.

• In the public sector, the government of Malaysia, can

be considered as principle employer
EMPLOYEE
 Employment Act 1955

Employer Employee
• means any person who has • means any person or class
entered into a contract of of persons—
service to employ any other
person as an employee and • (a) included in any category
includes the agent, manager in the First Schedule
or factor of such first
mentioned person, and the • (b) in respect of whom the
word ―employ with its
Minister makes an order
grammatical variations and
cognate expressions, shall under subsection (3) or
be construed accordingly section 2A
 EA 1955 - Employee: First Schedule
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 two thousand ringgit a 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
pursuance of which -
a. he is engaged in manual labour including such labour as an
artisan or apprentice:
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
EA 1955 - Employee: First Schedule – cont’d
3. He supervises or oversees other employees engaged in manual
labour employed by the same employer in and throughout the
performance of their work
4. He is engaged in any capacity in any vessel registered in Malaysia
and who—
a. is not an officer certificated under the Merchant Shipping Acts
of the United Kingdom as amended from time to time;
b. is not the holder of a local certificate as defined in Part VII of
the Merchant Shipping Ordinance 1952 [F.M. 70/1952]; or
c. has not entered into an agreement under Part III of the
Merchant Shipping Ordinance 1952; or
5. He is engaged as a domestic servant.
 EA 1955 – Employee: SS 2A
1. The Minister may by order prohibit the employment, engagement
or contracting of any person or class of persons to carry out work in
any occupation in any agricultural or industrial undertaking,
constructional work, statutory body, local government authority,
trade, business or place of work other than under a contract of
service entered into with—
a. the principal or owner of that agricultural or industrial
undertaking, constructional work, trade, business or place of
work; or
b. that statutory body or that authority.
he may specify but subject to such conditions as he may deem fit to
impose.
 EA 1955 – Employee: SS 2A – cont’d
2. Upon the coming into force of any such order, the person or class of
persons employed, engaged or contracted with to carry out the
work shall be deemed to be an employee or employees and—
a. the principal or owner of the agricultural or industrial
undertaking, constructional work, trade, business or place of
work; or
b. the statutory body or local government authority,
shall be deemed to be the employer for the purposes of such
provisions of this Act and any other written law as may be specified in
the order.
 EA 1955 – Employee: Subsection
(3) of SS 2
• The Minister may by order declare such provisions of this Act and
any other written law as may be specified in the order to be
applicable to any person or class of persons employed, engaged or
contracted with to carry out work in any occupation in any
agricultural or industrial undertaking, constructional work, statutory
body, local government authority, trade, business or place of work,
and upon the coming into force of any such order—
 EA 1955 – Employee: Subsection
(3) of SS 2 – cont’d
a. any person or class of persons specified in the order shall be
deemed to be an employee or employees;
b. the person, statutory body or local government authority
employing, engaging or contracting with every such person or class
of persons shall be deemed to be an employer;
c. the employer and the employee shall be deemed to have entered
into a contract of service with one another;
d. the place where such employee carries on work for his employer
shall be deemed to be a place of employment; and
e. the remuneration of such employee shall be deemed to be wages,
for the purposes of such specified provisions of this Act and any other
written law.
 OSHA 1994
• with the work of an industry to which this Act applies and—
a) who is directly employed by the principal employer on any work
of, or incidental or preliminary to or connected with the work of,
the industry, whether such work is done by the employee at the
place of work or elsewhere;
b) who is employed by or through an immediate employer at the
place of work of the industry or under the supervision of the
principal employer or his agent on work which is ordinarily part
of the work of the industry or which is preliminary to the work
carried on in or incidental to the purpose of the industry; or
c) whose services are temporarily lent or let on hire to the principal
employer by the person with whom the person whose services
are so lent or let on hire has entered into a contract of service;
 OSHA 1994 – cont’d
• Employees are workers who are directly employed by the principal
employer or through an immediate employer at the place of work
or whose services are let on hire under a contract of service.

• In Malaysia apprentices are to be considered as employees. No

mention has been made with regards to trainees. Hence trainee can
be considered as other persons at the work place.
TYPES OF EMPLOYMENT CONTRACT
 Contract of Service
• Means any agreement, whether oral or in writing and whether express or
implied, whereby one person agrees to employ another as an employee
and that other agrees to serve his employer as an employee and includes
an apprenticeship contract (CA 1955)
 Contract of Service – cont’d
• Ready Mixed Concrete (South East) Ltd. V. Minister of Pensions and
National Insurance [1968] 2 QB 497. The court held the contract of service
exists if these three conditions are fulfilled.
– (1) The servant agrees that, in consideration of a wage or other
remuneration, he will provide his own work and skill in the
performance of some service for his master.
– (2) He agrees, expressly or impliedly, that in the performance of that
service he will be subject to the other’s control in a sufficient degree
to make that the other as a master.
– (3) The other provisions of the contract are consistent with its being a
contract of service.

• As to (i). There must be a wage or other remuneration. Otherwise there

will be no consideration, and without consideration no contract of any
kind. The servant must be obliged to provide his own work and skill.
 Contract of Service – cont’d
• Is an agreement whereby a person is engaged as an independent
contractor, such as a self-employed person, vendor or freelancer carrying
out an assignment or a project for his establishment. For example, a house
owner engages services of a painter, a plumber or a grass-cutter for his
residence.
• (minimumwages.mohr.gov.my/questions/what-is-the-difference-between-a-contract-of-service-and-a-contract-for-service/)
 Contract of Service – cont’d
• Employer-Independent Contractor relationship.

• A relationship organised around the completion of a once-off piece of

work.

• A duty of care, arising from occupiers’ liability.

• The employer is generally not liable for the vicarious acts of independent
contractors.

• In general, protective legislation does not apply, except for certain Acts

• Various methods of payment, including lump sum per job.

• Subject of contract is once-off job.

 Contract of Service – cont’d
• Ready Mixed Concrete (South East) Ltd. V. Minister of Pensions and National
Insurance [1968] 2 QB 497. The court held the contract of service exists if these
three conditions are fulfilled.
– (1) The servant agrees that, in consideration of a wage or other remuneration,
he will provide his own work and skill in the performance of some service for
his master.
– (2) He agrees, expressly or impliedly, that in the performance of that service he
will be subject to the other’s control in a sufficient degree to make that the
other as a master.
– (3) The other provisions of the contract are consistent with its being a contract
of service.
• As to (i). There must be a wage or other remuneration. Otherwise there will be no
consideration, and without consideration no contract of any kind. The servant must
be obliged to provide his own work and skill.
• Freedom to do a job by one’s own hands or by another’s is inconsistent with a
contract of service, though a limited or occasional power of delegation may not
be….”