A.

Overtime Allowance

Whether an employee can claim overtime allowance if the letter of employment is silent about
it?

Pursuant to Section 2 of Employment Act 1955 (“EA 1955”), employee is defined as any
person or class of persons (a) included in any category in the First Schedule to the extent specified
therein or (b) in respect of whom the Minister makes an order under subsection (3) or section 2A. The
categories of employee under the First Schedule of EA 1955 are (1) any person who has entered into a
contract of service with an employer which such person’s wages are not more than RM2000 regardless
of his occupation, (2) any person regardless the amount of wages he earns in a month, has entered into
a contract of service with an employer in pursuance of which (1) he is engaged in manual labour
including such labour as an artisan or apprentice, (2) 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; (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 (5) he is engaged as a domestic servant. On the
other hand, employer is defined under Section 2 of EA 1955 as any person who has entered into a
contract of service to employ any other person as an employee and includes the agent, manager or
factor of such first mentioned person, and the word “employ”, with its grammatical variations and
cognate expression shall be construed accordingly.

According to Section 2 of EA 1955, wages is defined as basic wages and all other payments
in cash payable to an employee for work done in respect of his contract of service but does not include
(a) the value of any house accommodation or the supply of any food, fuel, light or water or medical
attendance, or of any approved amenity or approved service; (b) contribution paid by the employer on
his own account to any pension fund, provident fund, superannuation scheme, retrenchment,
termination, layoff or retirement scheme, thrift scheme or any other fund or scheme established for the
benefit or welfare of the employee; (c) any traveling allowance or the value of any traveling
concession; (d) any sum payable to the employee to defray special expenses entailed on him by the
nature of his employment; (e) any gratuity payable on discharge or retirement; or (f) any annual bonus
or any part of any annual bonus. According to the Subsection 2(1)(3) of First Schedule of EA 1955,
wages means wages as defined in Section 2 but shall not include any payment by way of commissions,
subsistence allowance and overtime payment. Section 6 of EA 1955 provides that for every agreement
lawfully entered into between an employer and an employee, the parties shall be subject to the
agreement and shall be entitled to the benefits of this act. According to Section 7 of EA 1955, any term
or condition of a contract of service or of an agreement that provides a term or condition of service
which is less favourable to an employee than a term or condition of service prescribed by this act or
any regulations, order or other subsidiary legislation made thereunder shall be void and no effect to the
extent and the more favourable provisions of this act or any other laws made under it shall be
substituted therefore. Pursuant to Section 60A(3)(a) of EA 1955, it provides that for any overtime work
carried out in excess of the normal hours of work, the employee shall be paid at a rate not less than one
and half times his hourly rate of pay irrespective of the basis on which his rate of pay is fixed. Pursuant
to Section 60D(3)(aa) of EA 1950, for any overtime work carried out by an employee referred to in
subparagraph (a)(i) in excess of the normal hours of work on a paid public holiday, the employee shall
be paid at a rate which is not less than three times his hourly rate of pay and (aaa) for any overtime
work carried out by an employee during the birthday of the Yang di-Pertuan Agong in excess of the
normal hours of work on any paid holiday, the employee shall be paid not less than three times the
ordinary rate per piece.

According to Section 19(2) of EA 1950, overtime wages referred in Section 60A of EA 1950
shall be paid not later than the last day of the next wage period. Pursuant to Section 100(2) of EA
1950, any employer who fails to pay to any of his employees any overtime wages commit an offence
and shall also, on conviction, be ordered by the court before which he is convicted to pay to the
employee concerned the overtime wages due, and the amount of overtime wages so ordered by the
court to be paid shall be recoverable as if it were a fine imposed by such court. Pursuant to Section
69(1) of EA 1955, the Director General (“DG”) have the powers to inquire and decide any disputes
between an employee and his employer regarding wages or any other payments disputes in cash due to
such employee under (a) any term of the contract of service between such employee and his employer;
(b) any of the provisions of this act or any subsidiary legislation made or (c) the provisions of the
Wages Councils Act 1947 and the DG may make an order for the payment by the employer of such
sum of money as he deems without limitation of the amount.

In the case of Md Zaini bin Abdullah & Ors v Panasonic Automotive Systems (2022) 10
MLJ 23, the Court decided that the appellants who comprised a supervisor storekeeper, two
engineering assistants and a maintenance technician were not entitled to overtime payment since the
appellants are not the employees covered under the EA 1955 as their works were not engaged in
manual labour. In the case of Colgate Palmolive Sdn Bhd v Cheong Foo Weng (2001) 1 LNS 394,
the Court decided that a senior craftsman, an electrical technician, an instrument technician, a
wastewater technician and a boiler attendant, were not engaged in manual labor and thus, the court held
that they were not entitled to overtime. However, in the case of Leighton Contractors (M) Sdn Bhd v
Gnanapgragasam a/l Arukiam & Ors (2016) 11 MLJ 559, the court decided that train assistants or
shunters were engaged in manual labour and hence, they were entitled to overtime even though there
was no evidence of their job description in order to describe their duties as shunter or train assistant but
the nature of work performed cannot be reasonably classified as anything other than manual labour
since no paperwork was involved and neither did such work require any exercise of an intellectual
nature as it was purely mechanical and physical in nature. In the case of Eng Giap Public Motor Bus
Co Ltd v Gan Eng Keng & 36 Ors (1975) 1 MLJ 106, the Federal Court decided that the respondents
who had been employed by the appellants as the bus drivers and conductors were entitled for overtime
payments even though there was no written contract of service between them since the overtime work
that the respondents did was clearly done at the request of the appellant. In the case of Acme Canning
Corporation Ltd v Lee Kim Seng (1977) 1 MLJ 252, the court allowed an appeal by the appellant
who was the employer of the respondent who was employed as a foreman in the factory on the ground
that even though there was no written contract of service, there was a well-defined and well-understood
oral contract of service between the parties in which the respondents had agreed to work for the
appellant to work as a monthly rated employee under the terms and conditions which provided no
limits in hours in return for such benefits as housing allowance, food allowance, bonus and incentive
payments and thus, by virtue of Section 6 and Section 7 of EA 1955, the respondent was not entitled to
overtime payment.

Now, it should be noted that as an employer, he cannot state to his employee that the overtime
wages are included in the employee’s wages as it is prohibited under Subsection 2(1)(3) of the First
Schedule in the EA 1955. In order to prove that the person is entitled to the overtime payment, the
person must first prove that he is an employee covered under the EA 1955 and that he belongs to any
category mentioned in the First Schedule of EA 1955. He also must show that the one that he brings the
case against which his employer falls under the definition of employer which is Section 2 of EA 1955.
This is important since if he is not an employee covered under the EA 1955, then he has no cause of
action to claim for the overtime wages provided under Section 60A and Section 60D of EA 1950 based
on Md Zaini bin Abdullah’s case and Colgate Palmolive’s case. One of the types of evidence to show
that the employee is covered under the EA 1955 other than the job description in the contract of service
is the nature of the work performed by the employee as stated in the case of Leighton Contractors. So,
if the person who claims overtime wages can prove that he is an employee covered under EA 1955, the
next condition he needs to prove in cases where there is no contract of service or the overtime clause
does not exist is to prove that the overtime work was the works requested by the employer and not
otherwise in order for the employee to entitled for the overtime wages as mentioned in the Eng Giap’s
case. It should be noted that the employee is not entitled to overtime wages if he already agreed with
the employer to pay him other benefits for the overtime work done by him since it will be considered
an oral contract and thus, Section 6 and Section 7 of EA 1955 will be applied to it as provided in the
case of Acme Canning Corporation. Now, if the claimant feels that he has fulfilled all the conditions
and that he is entitled to the overtime claim, he can bring the matter to the Director General as provided
under Section 69(1) of EA 1955 and if the DG finds the employee as guilty for not providing the
overtime wages to the claimant, then the DG may impose punishments as provided under Section
100(2) of EA 1955.

In conclusion, an employee can claim overtime allowance if the letter of employment is silent
about it provided that the employee can prove the conditions discussed above are fulfilled.
B. Meal Allowance

Whether an employee can claim meal allowance if the letter of employment is silent about it?

Pursuant to Section 2 of Employment Act 1955 (“EA 1955”), employee is defined as any
person or class of persons (a) included in any category in the First Schedule to the extent specified
therein or (b) in respect of whom the Minister makes an order under subsection (3) or section 2A. The
categories of employee under the First Schedule of EA 1955 are (1) any person who has entered into a
contract of service with an employer which such person’s wages are not more than RM2000 regardless
of his occupation, (2) any person regardless the amount of wages he earns in a month, has entered into
a contract of service with an employer in pursuance of which (1) he is engaged in manual labour
including such labour as an artisan or apprentice, (2) 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; (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 (5) he is engaged as a domestic servant. On the
other hand, employer is defined under Section 2 of EA 1955 as any person who has entered into a
contract of service to employ any other person as an employee and includes the agent, manager or
factor of such first mentioned person, and the word “employ”, with its grammatical variations and
cognate expression shall be construed accordingly.

According to Section 2 of EA 1955, wages is defined as basic wages and all other payments
in cash payable to an employee for work done in respect of his contract of service but does not include
(a) the value of any house accommodation or the supply of any food, fuel, light or water or medical
attendance, or of any approved amenity or approved service; (b) contribution paid by the employer on
his own account to any pension fund, provident fund, superannuation scheme, retrenchment,
termination, layoff or retirement scheme, thrift scheme or any other fund or scheme established for the
benefit or welfare of the employee; (c) any traveling allowance or the value of any traveling
concession; (d) any sum payable to the employee to defray special expenses entailed on him by the
nature of his employment; (e) any gratuity payable on discharge or retirement; or (f) any annual bonus
or any part of any annual bonus. According to the Subsection 2(1)(3) of First Schedule of EA 1955,
wages means wages as defined in Section 2 but shall not include any payment by way of commissions,
subsistence allowance and overtime payment. Section 6 of EA 1955 provides that for every agreement
lawfully entered into between an employer and an employee, the parties shall be subject to the
agreement and shall be entitled to the benefits of this act. According to Section 7 of EA 1955, any term
or condition of a contract of service or of an agreement that provides a term or condition of service
which is less favourable to an employee than a term or condition of service prescribed by this act or
any regulations, order or other subsidiary legislation made thereunder shall be void and no effect to the
extent and the more favourable provisions of this act or any other laws made under it shall be
substituted therefore.
 Pursuant to Section 24(4)(e) of EA 1955, it provides that the deduction of wages in respect for
food and meals provided by the employer to the employee is allowed provided that it is at the
employee’s request or under the terms of the employee’s contract of service and with prior permission
in writing of the Director General. According to Section 24(5) of EA 1955, the Director General shall
not permit any deduction mentioned in Section 24(4)(e) of EA 1950 unless he is satisfied that the
provisions for food or meals are for the benefit of the employee. Pursuant to Section 24(6) of EA 1955,
it provides that where an employee obtains foodstuff from a shop the business of which is carried on by
a co-operative society registered under the Co-operative Societies Act 1993, it shall be lawful for his
employer, at the request in writing of the employee and with the agreement of the manager of the co-
operative shop, to make deductions from the wages of the employee of an amount not exceeding the
amount of the credit and to pay the amount so deducted to the manager in satisfaction of the
employee’s debt. Pursuant to Section 29(1) of EA 1950, it provides that nothing in this part shall render
illegal a contract of service with an employee under which the employer agrees to provide the
employee with food in addition to wages. According to Section 60(D)(3)(b) of EA 1955, an employee
who works on a holiday shall be entitled to a traveling allowance for that day if payable to him under
the terms of his agreement with his employer but such employee shall not be entitled under this
subsection to receive an increased rate of food allowance.

In the case of Acme Canning Corporation Ltd v Lee Kim Seng (1977) 1 MLJ 252, the court
allowed an appeal from the appellant who is the employer to deny the respondent from being entitled to
overtime payment since the court found that even though there was no written contract of service but
there was a well-defined and well-understood oral contract between the parties where the respondent
has agreed to work with no limit in hours in return for the benefits such as food allowance. In the case
of Sunlight Inno Seafood Sdn Bhd v Joni Matakin & Ors (2021) 1 LNS 1695, the court held that even
though there is nothing in the employment contracts of the Respondents namely Roger, Joni & Nizam
that specifically states they are entitled to food allowance, the Respondents are still entitled for the food
allowance since there is evidence in their pay slips that showed that they have been given food
allowance as part of their contract of service before and thus, the meal allowance payments come
within the definition of the word ‘wages’ pursuant to Section 2 of EA 1955.
C. Travel Allowance