@MsiaEmployers

MALAYSIAN EMPLOYERS FEDERATION

HEAD OFFICE: 3A06 – 3A07, Block A, Pusat Dagangan Phileo Damansara II, No. 15, Jalan 16/11, Seksyen 16, 46350 Petaling Jaya, Selangor, Malaysia
www.mef.org.my Tel: 603-7955 7778 Fax: 603-7955 6808/7955 9008 E-mail: mef-hq@mef.org.my

MEF : 7/CR
9 July 2020

To : MEMBERS IN CENTRAL REGION

NOTICE OF MEETING

The next Central Regional Meeting will be held on WEDNESDAY, 15 JULY 2020
(Webinar) at 2.00 p.m.

AGENDA

1. To confirm Minutes of Meeting held on 10 June 2020

(Attached)

2. Presentation on “The Hiring Incentive Programmes Under PENJANA and

SOCSO JOB PORTAL” by Mr Andreas Charles Akobiarek (SOCSO/PERKESO)

3. Matters Arising

4. Current Negotiation & Dispute

5. Any Other Business

Saraswathi A/P Ravindran

for Executive Director

NORTHERN REGION – 379-D, Jalan Hajjah Rehmah, 11600 Jelutong, Penang Tel: 604 – 659 9236 / 604 – 659 6909 Fax: 604 - 6599 873 E-mail: mefpg@mef.org.my
SOUTHERN REGION – No. 17A & 17B Jalan Cantik 6, Taman Pelangi Indah, 81800 Ulu Tiram, Johor Tel: 607 – 862 4776 Fax: 607 – 862 4773 E-mail: mefjb@mef.org.my
EAST COAST REGION – B-8 & B-10, First Floor, Jalan Haji Ahmad 3, Sri Pahang Business Centre 25300 Kuantan, Pahang Darul Makmur Tel: 609 – 512 4373 Fax: 609 – 512 4251 E-mail: mefktn@mef.org.my
PERAK OFFICE – A-1-3, 1st Floor, Wisma MFCB, No.1, Persiaran Greentown 2, Green Town Business Centre, 30450 Ipoh, Perak Tel: 605 - 255 7778 / 605-255 9778 Fax: 605 - 255 2778 E-mail: mefip@mef.org.my
SARAWAK OFFICE – Lot No 95, Jalan Nyiur, 93200 Kuching, Sarawak Tel: 082 - 247 027 Fax: 082 – 247 028 E-mail: mefkch@mef.org.my
SABAH OFFICE – Lot No 1, Block A, 3rd Floor, Damai Point, Luyang, 88300 Kota Kinabalu, Sabah Tel: 088 – 210 579 Fax: 088 – 204 979 E-mail: mefkk@mef.org.my
 @MsiaEmployers
MALAYSIAN EMPLOYERS FEDERATION
HEAD OFFICE: 3A06 – 3A07, Block A, Pusat Dagangan Phileo Damansara II, No. 15, Jalan 16/11, Seksyen 16, 46350 Petaling Jaya, Selangor, Malaysia
www.mef.org.my
Tel: 603-7955 7778 Fax: 603-7955 6808/7955 9008 E-mail: mef-hq@mef.org.my

CONFIDENTIAL
(Private Circulation Only)

MINUTES OF THE MEETING FOR MEMBERS IN THE CENTRAL REGION,

10 JUNE 2020 AT 2.00 P.M.
(ONLINE)
_____________________________________________________________________

PRESENT

1. A. P. Search Mgmt. Recruitment SB - Tuan Haji Mohammed Amin Aziz (Chairman)

2. Agensi Pekerjaan ASK Resources SB - Karen Low

3. Agensi Pekerjaan HR FIRST Sdn Bhd - Miko Tan

4. Ahmad Zaki Resources Berhad - Izarina Zainal Nazeri

5. Airfoil Services Sdn. Bhd. - Yap Mei Fong

6. AJCAN Sdn. Bhd. - Ann Thomas

7. Ampang Hotel Sdn. Bhd. - Adrian Alaska

8. Behn Meyer Agricare (M) Sdn. Bhd. - Shahrul Sherrina Yanti Khairul Zaman

9. Boustead Holdings Bhd. - Mawarsari Khairul Bakri

10. Boustead Holdings Bhd. - Siti Syazwani Ahmad Zaki

11. Boustead Petroleum Marketing SB - Muhammad Nazree Ahmad

12. Bridgestone Tyre Sales (M) SB - Tennie Leong

13. Bumi Armada Berhad - Zacharias Rajagopal

14. Cargill Palm Products Sdn. Bhd. - Tengku Anita Tg. Baharin Shah

15. Cargotec Terminal Solutions (M) SB - Uvarani Nadaraja

16. CMA CGM Malaysia Sdn. Bhd. - Kathleen Rose De Costa

17. Commercial Circle (M) Sdn. Bhd. - Muhamad Sofian Abu Ruddin

18. Delfi Marketing Sdn. Bhd. - Chin Li Jun

19. Denso (M) Sdn. Bhd. - Muhammad Muizuddin Eamizan

20. Fair Consulting Malaysia Sdn. Bhd. - Chong Wei Pui

21. Foodpanda Malaysia Sdn. Bhd. - Cheryl Ann Smith

22. Foodpanda Malaysia Sdn. Bhd. - Ros Fariza Ariffin

NORTHERN REGION – 379-D, Jalan Hajjah Rehmah, 11600 Jelutong, Penang Tel: 604 – 659 9236 / 604 – 659 6909 Fax: 604 - 6599 873 E-mail: mefpg@mef.org.my
SOUTHERN REGION – No. 17A & 17B Jalan Cantik 6, Taman Pelangi Indah, 81800 Ulu Tiram, Johor Tel: 607 – 862 4776 Fax: 607 – 862 4773 E-mail: mefjb@mef.org.my
EAST COAST REGION – B-8 & B-10, First Floor, Jalan Haji Ahmad 3, Sri Pahang Business Centre 25300 Kuantan, Pahang Darul Makmur Tel: 609 – 512 4373 Fax: 609 – 512 4251 E-mail: mefktn@mef.org.my
PERAK OFFICE – A-1-3, 1st Floor, Wisma MFCB, No.1, Persiaran Greentown 2, Green Town Business Centre, 30450 Ipoh, Perak Tel: 605 - 255 7778 / 605-255 9778 Fax: 605 - 255 2778 E-mail: mefip@mef.org.my
SARAWAK OFFICE – Lot No 95, Jalan Nyiur, 93200 Kuching, Sarawak Tel: 082 - 247 027 Fax: 082 – 247 028 E-mail: mefkch@mef.org.my
SABAH OFFICE – Lot No 1, Block A, 3rd Floor, Damai Point, Luyang, 88300 Kota Kinabalu, Sabah Tel: 088 – 210 579 Fax: 088 – 204 979 E-mail: mefkk@mef.org.my
23. Foodpanda Malaysia Sdn. Bhd. - Siti Nur Aqilah

24. Foodpanda Malaysia Sdn. Bhd. - Yogeswari Balasubramaniam

25. Foodpanda Malaysia Sdn. Bhd. - Zulkifli Isa

26. Four Seasons Hotel Kuala Lumpur - Lim Ho Kee

27. Fraser & Neave (Malaya) Sdn. Bhd. - Leong Wai Fong

28. Furama Bukit Bintang - Cecilia Lui

29. Futuristic Store Fixtures Sdn. Bhd. - Oh Kok Chuan

30. Greif Malaysia Sdn. Bhd. - Wendy Lee

31. Halton Group Asia Sdn. Bhd. - V. P. Chacko

32. Hanson Building Materials Malaysia SB - Lim Siang Ghee

33. Hanson Quarry Products (EA) SB - Clare Rathanasamy

34. Hanson Quarry Products (EA) SB - Collin Liew Tuck Hui

35. HRcontract First Plt - Felicia Foo

36. Hyundai Elevator Malaysia Sdn. Bhd. - Mah Ai Lee

37. I-Chem Solution Sdn. Bhd. - Yee Siew Chin

38. Jacobs Engineering Group Malaysia SB - Kimberley Teh

39. Jentrakel Sdn. Bhd. - Phang Soo Fern

40. Kelly Services (M) Sdn. Bhd. - Nourulain

41. Kelly Services (M) Sdn. Bhd. - Suhermi Sofia

42. Kemaman Bitumen Company SB - Haliza Zainal Abidin

43. Kepong Industrial Park Sdn. Bhd. - Linda Yau

44. Kingsley International Sdn. Bhd. - Wong Wei Ling

45. Knight Frank Malaysia Sdn. Bhd. - Muhammad Fakhruddin Hadi Yusman

46. Knight Frank Malaysia Sdn. Bhd. - Wan Norhayati Jufri

47. KPMG - Theresa Wee

48. Malaysia Steel Works (KL) Bhd. - Cheong Soon Yuan

49. Malaysia Steel Works (KL) Bhd. - Khloe Ching Ching

50. Malaysia Steel Works (KL) Bhd. - Tan Poh Bee

51. Malaysian Tech. Dev. Corp. SB - Sirajul 'Adli Sahabudin

Page | 2
52. Mary Kay (Malaysia) Sdn. Bhd. - Sharon Liau

53. Maslow Trainers & Consultants SB - Ramanathan Maseelamani

54. Mechmar Boilers Sdn Bhd - Agnes Ang

55. Mechmar Boilers Sdn Bhd - Ashly Bain

56. Minetech Resources Berhad - Phoebe Chin

57. Ngai Cheong Metal Industries SB - Yee Fook Hing

58. Nippon Electric Glass (M) Sdn. Bhd. - Desiree

59. Ocean Network Express (M) SB - Poon Wan Kin

60. Parkson Credit Sdn. Bhd. - Lee Meng Fei

61. Parkson Credit Sdn. Bhd. - Vivian Siew

62. Pecca Leather Sdn. Bhd. - ST Chiam

63. Perpetual Memorial Park Bhd. - Joanna Tan

64. PET Payroll Outsourcing Sdn. Bhd. - Donny Loo

65. PET Payroll Outsourcing Sdn. Bhd. - Selina Lew

66. PET Payroll Outsourcing Sdn. Bhd. - Wilson Loo

67. Petrosains Sdn. Bhd. - Umikalsom Omar

68. Pintaras Jaya Bhd. - Patricia Khoo

69. Power Steel & Electro - Plating Works SB - Hang Siew Li

70. Puma Sports Goods Sdn. Bhd. - Ilango Santhana Krishnan

71. Puma Sports Goods Sdn. Bhd. - Lim Chia Jiun

72. Puma Sports Goods Sdn. Bhd. - Vivienne Cheng

73. Ranhill Bersekutu Sdn. Bhd.. - Rashidah Suleiman

74. Regal Marketing & Trading Sdn Bhd - Ong Suat Yean

75. Renesas Semiconductor KL Sdn. Bhd. - Maimudas Hussain

76. Richemont Luxury (Malaysia) SB - Kimberley Soh

77. Richemont Luxury (Malaysia) SB - Kimberley Soh

78. Richemont Luxury (Malaysia) SB - Subhasni Sandra Sakaran

79. RPM Engineers Sdn. Bhd. - Fatin Azida Wani Anuar

80. RPM Engineers Sdn. Bhd. - Khairun Darwina Khairuddin

Page | 3
81. Secret Recipe Cakes & Cafe Sdn. Bhd. - Allison Cheah

82. See Hoy Chan Management Services SB - Nicole Choe

83. SEG International Bhd. - Eugenie Ong

84. Sepakat Setia Perunding Sdn. Bhd. - Seow Siew Peng

85. Showa Denko Carbon Malaysia SB - Irene Cheah

86. Sime Kansai Paints Sdn. Bhd. - Syairah Saibol

87. Singapore Airlines Ltd - Justine Lai

88. Song Pang Seng Realty Sdn. Bhd. - Song Su-Yi

89. Steelcase Manufacturing (M) SB - Noorafizatun Mohamed Noordin

90. Stemlife Berhad - Wong Shu Yi

91. Sumber Engineering Trading (M) SB - Kezia Kok

92. Syarikat Takaful Malaysia Keluarga Bhd- Sabri Hamdan

93. Synergy Spectacular Sdn. Bhd. - Nazriatul Akma Zulkifli

94. Synergy Spectacular Sdn. Bhd. - Syahrul Niza Mohd Sharif

95. Taisei Lamick Malaysia Sdn Bhd. - Chong LP

96. Taisei Lamick Malaysia Sdn Bhd. - Yen WW

97. Takahata Precision Moulding Sdn. Bhd.- Grace Tay

98. Taylor's Education Bhd. - Chay Wai Ling

99. The Everly Group Sdn. Bhd. - Qila

100. The Uni. of Nottingham in Malaysia SB - Lizdawati Abdul Rahman

101. The Uni. of Nottingham in Malaysia SB - Michelle Pelly

102. The Uni. of Nottingham in Malaysia SB - Wan Nabila

103. Thong Sia Sdn. Bhd. - Stephanie Wong

104. Thriven Global Berhad - Nasni Rozana Nasroen

105. Thyssenkrupp Elevator Malaysia Sdn. Bhd. - Tracy Ting Hea Ing

106. Touch 'N Go Sdn. Bhd. - Jumirah Muen

107. Tune Hotels - Zailan Jaafar

108. Unit Concept Sdn. Bhd. - Norehan Ismail

109. United Parcel Service (M) Sdn. Bhd. - Dorairaj Subramaniam

Page | 4
110. Universiti Tunku Abdul Rahman - Alex We Chin Yong

111. Universiti Tunku Abdul Rahman - Marchie Lim Pin Sim

NON – MEMBER

112. Khind – Mistral Industries Sdn. Bhd. - Janet Yan

IN-ATTENDANCE

Prema Kesavan - Senior Consultant, Industrial Relations

Haji Zaikon Jaafar - Senior Consultant, Industrial Relations

Page | 5
MINUTES OF MEETING OF CENTRAL REGION HELD AT MEF VIA WEBINAR ON
10TH JUNE 2020 AT 2.15 P.M.

The meeting commenced at 2.00pm. Mr Chairman welcomed members to the online

MEF meeting.

1. MINUTES OF MEETING

Mr. Chairman went through the minutes held on 13th May 2020, item by item
and elaborated item 3 at page 9 wherein a company spoke about wage
increase for their collective agreement in particular on the point of Consumer
Price Index (CPI). Mr. Chairman referred to the often quoted Justice Harun
Award No 117 of 1982 on salary revision who was then the President of
Industrial Court, held as follows for purpose of reference an extract of the
judgment is reproduced;
"…………………

In the private sector, salaries are reviewed once every three years. Where the
increases sought are on grounds of an increase in the cost of living, the review
should be based on the increase that has actually taken place since the last
review in order to determine what salaries should be paid during the next
three years. In determining the new salaries, however, no account should be
taken of possible increases that might occur during the next three-year period.
There are two reasons why we should not take into account future
possibilities. Firstly, it is difficult to predict the future. If the practice is allowed,
it may well be argued that the economic forecast is a downward trend,
recession, even depression in which event, salaries should be reduced not
increased. Secondly if current salaries already include an element of inflation
in future, the salary levels of the past should be discounted to the extent of
the forecast.

We are of the view that salary increases based on the CPI should be an exercise
of looking back to see whether salaries determined three years ago

have been in any way affected by the CPI of to-day. The general practice is not
to match the full extent of the increase in the CPI. In some countries the
amount of increase allowed is 60%. In this country, we think, the general rule
should be that salary increases based purely on the increase in the CPI should

Page | 6
not be less than 60% or more than 2/3 of the average increase of the CPI over
the previous three-year period.

Salary increases in the private sector, however, are further subject to the
employer's ability to pay, the salary levels in related or similar industries and
its effect on the economy of the country as a whole. Taking all these factors
into account, the parties at the negotiating table should discuss in terms of a
percentage increase. Going through individual salary scales and rates of annual
increments, will only confuse the issue. Once the percentage increase is agreed
upon, it should be applied across the board, that is to say, if the increase
agreed upon is 20%, then everyone from top to bottom should get an increase
of 20%. Such a method would be fair to all and will not alter the existing salary
structure. Any other method will only widen the gap between the lowest paid
and the highest paid. The actual salaries to be paid and rates of increments are
then made to fit the percentage increase.

There are occasions, as in the present case, when it is necessary to re-structure

the salary scales on socioeconomic grounds.
…………………………."

Moving on to item 4 of the minutes, in particular on point "Frustration of

Contract".

Mr. Chairman explained that cases have gone both ways i.e. sometimes court
would consider the case to be frustration and yet in some cases it is not
frustration. Following are cases on the said subject. In the case of Sathiaval
Athiaval Maruthamuthu v. SHELL Malaysia Trading Sdn. Bhd., High Court,
1997. The Court held as follows:-
"……………….

[1] A contract which has been rendered physically impossible to fulfil by

change of circumstances after the formation of the contract may be discharged
by applying the doctrine of frustration in English law.

[2] Applying the rationale in Hare v. Murphy and Shepherd & Co. Ltd. v.
Jerrom and the test in Davis Contractors Ltd v. Fareham U.D.C. it is clear that
the inability of the plaintiff to continue his employment with the defendant
was not due to the default or fault of the defendant.

Page | 7
[Plaintiff’s application dismissed with costs.]
………………….."

However, in the case of Subramaniam Margiser v. ESSO (M) Bhd. High Court,
1990, The High Court held otherwise. The question for determination of the
Court is whether the termination of employment of the plaintiff in the
circumstances of the case is wrong in law. The Court held as follows:-
"…………………………….

[1] In their submission, the defendant raised the defense of frustration.

However since the service was terminated on the ground of being absent from
work on a specific date and since this absence was forcefully imposed by law,
the defense of frustration cannot be sustained at this later stage.
Consequently, the plaintiff was wrongfully dismissed and the employer was in
breach of contract.

[2] The amount of damages is confined to losses of earnings which plaintiff

would have earned but for the breach of contract, up until the time he found
other employment.

[Judgment for the plaintiff.]

In the above case, Court held the contract was not necessarily frustrated
immediately from date of sentence. The Court suggested before deciding on

the issue of frustration, one should look from the commercial point of view as
to whether a replacement has to be engaged, in view of the length of absence
from work. The Court went through the correspondence as agreed in the
bundle, defendant’s letter dated 30 August 1977 clearly stated that since the
plaintiff had failed to report for duty on 23 August 1977, which he was required
to do so by letter dated 12 July 1977, the contract was terminated. Nowhere
was there mention anything about “frustration”. Although in the statement of
defense it is averred as a ground to terminate. Since the service was
terminated on the ground of being absent from work on 23 August 1977 and
that his absence was not self - imposed but forcefully imposed by law, the
defense of “frustration” which was not the reason when the plaintiff’s
employment was terminated cannot be sustained at this late stage. The
defendant knew all along that the plaintiff simply could not be present.
Defendant knew plaintiff was under detention.

Page | 8
 The Court therefore rules that the ground (i.e., absence from duty) is not
tenable and hence the plaintiff was wrongfully dismissed and therefore the
defendant was in breach of contract.
………………………"

The minutes of the meeting held on 13th May 2020 was duly confirmed and
adopted subject to the necessary amendments made to the name list.

Mr Chairman then invited the consultant in attendance and the invited Senior
Consultant to do the presentation.

2. PRESENTATION "TERMINATION OF EMPLOYMENT"

The consultant in attendance briefed members on the topic of "Termination

of Employment".

Often queries are posed as to whether notice ought to be given prior to

termination. Members were briefed on the situations as to when notice ought

to be given. The presentation looked at the various forms of cessation of

employment amongst others retrenchment, non – confirmation of
employment, expiry of fixed term contract, frustration, termination vide
Section 13 (2) due to absence under Section 15 (2) of the Employment Act.

Members were also informed the difference between "Termination" and

"Dismissal" as per Section 12 and Section 14 of the Employment Act
respectively.

The presentation also included court cases on the common forms of cessation
of employment for instance KC Mathews v Kumpulan Guthrie Sdn. Bhd.
Federal Court on probationer, resignation as opposed to force resignation in
the case of Food Specialties (M) Sdn Bhd v M. Halim Manap, (Award No. 291
of 1992).

Members were also alerted on the usage of the term "Retirement" as in some
Collective Agreements included various forms of cessation of employment
under the category of "Retirement", reference was made to the case of Hong

Page | 9
 Kong Printing Co. Sdn. Bhd. Penang v Printing Industry Employees Union,
Award No 256 of 1987 where retirement is meant for employees who retire
from service upon attaining the retirement age.

Members were thereafter invited to ask questions.

3. MATTERS ARISING

NIL

4. CURRENT NEGOTIATION AND DISPUTE

NIL

5. ANY OTHER BUSINESS – ISSUES DISCUSSED AT THE MEETING

a) Termination Due to Redundancy

A member company shared that it recently carried out a termination

exercise by giving the employee one month notice. The company also
shared that the nature of the job that the employee carried out prior
to the termination was mainly manual and that during the Movement
Control Order (MCO) the company implemented its automatic system
of calculating leave and other pay roll features that previously had to
be done manually. The employee has since filed a claim at the
Industrial Relations department.

Members were advised as follows, proper notice according to the

Employment Act which is if more than 5 years of service will be 8 weeks
of notice and that in the event that the employee is outside the scope
of the Employment Act, then the notice as per the contract of
employment will need to be complied with. The member was also
advised on the Last In First Out (LIFO) principle. In the event that the
position has become redundant and company has offered
redeployment to other department however employee rejected the

Page | 10
 offer to be redeployed to other department the company may
terminate the contract of employment on grounds of redundancy.

b) Retrenchment Benefits

A member sought clarification that in its collective agreement, it has a

clause for retrenchment benefits, however there is no provision for
employees outside the scope of the Employment for such
retrenchment benefits.

Members were advised as per Section 20 of the Industrial Relations Act

1967 and Section 69 of the Employment Act as there are two

separate courts and separate remedies. The Industrial Court's remedies

are reinstatement and backwages of up to 24 months. In lieu of
reinstatement, compensation based on 1 month of wages for every
completed years of service as well as backwages of up to 24 months.

In the event that employees outside of the scope of the Act are
retrenched in the absence of any condition in their contract of
employment, company may use the Employment (Termination and Lay
– Off Benefits) Regulations 1980 as a guide.

On the payment of termination benefits, in the case of Tang Shipping

Agencies Sdn. Bhd. v. Wasli Abdullah & Anor. Award No.27 of 2001,
Yang Arif Lim Heng Seng the court found that there was indeed
breaches of the Code of Conduct for Industrial Harmony with regard to
the failure of the company to pay retrenchment benefits. The court
held as follows;
"…………………..

Held:

[1] An employer has the prerogative to organize and re-organize

his business to the end that he may optimize his factors of production
in the interests of the profitability of his business. Such an exercise may
involve the retrenchment of surplus staff owing to a severe cut-back in
business activities.

Page | 11
 [1a] There must be proof that firstly there was in fact a redundancy
situation, and secondly that the consequential retrenchment was made
compliance or in conformity with the principles contained in the
document intitule Areas for Co-operation and Agreed Industrial
Relations Practices annexed to the Code of Conduct for Industrial
Harmony.

[2] There was sufficient to prove that the company was facing a
severe cut-back in business due to low volume of shipping.

[3] Article 22(c)(ii) of the Agreed Practices under the Code provides
that should retrenchment be necessary, despite an employer having
taken appropriate means to avert or minimize the necessity for the
same, the employer should, inter alia, make provisions for the payment
of redundancy and retirement benefits.

[4] The company’s failure to make provisions for payment of

redundancy or retrenchment benefits tantamount to a breach of art.
22(c)(ii) of the Agreed Practices and also rendered the claimants’
termination of services unfair.

[Unjust dismissals.]
…………………………….."

c) Maternity Leave and Allowance Entitlement

A member inquired as to whether a female employee is entitled to

maternity benefits for a sixth child.

Members were advised as per Section 37 and Section 2 of the

Employment Act, a female employee is entitled to maternity benefits
subject to fulfilling the conditions such as parturition resulting after at
least 22 weeks, the employee has been employed at any time in the
four months immediately before her confinement, she has been
employed for a period or periods amounting in the aggregate to not
less than ninety days during the nine months immediately before her
confinement, not more than 5 children at point of confinement.
Pursuant to the amendments as of 1st April 2012, vide Section 44A,

Page | 12
 the maternity benefits now extends to every female employee
irrespective of her wages.

d) Fixed Term Contract and Notice Period

Member sought clarification of notice period in a fix term contract.

Members were advised that the notice of termination clause in

contracts is required as there are contracts that are project based,
therefore it will be advisable to have a clause to indicate the
commencement and expiry date of the contract and in the event of a
contract that is project base, company may also wish to include the
following phrase into its fixed term contract; "upon expiry or upon
completion of the project, which ever that comes first".

e) Termination Due to Performance

Member sought as to whether it needed to give notice prior to

terminating an employee on Performance Improvement Plan (PIP).

Members were advised that PIP is meant to help improve the

performance of employee and that in the terms of reference of the PIP
ought to have the possible actions that company may take in the event
that there is no improvement and notice needed to be given prior to
termination.

f) Duration of Probation Period

Member inquired as to the duration of probation period that could be

imposed on a probationer.

Members were advised though there is no specific law to govern

probationers per se, case laws are often referred to. The duration of

the probation period will depend upon the nature of industry and
nature of job. Though the law does not restrict the length of the
probation period nevertheless the probationer ought not to be on an
indefinite period of probation. Members were also advised that in the

Page | 13
 event that the court were to award in favour of the probationer, the
maximum backwages can be up till 12 months backwages as per the
Second Schedule of the Industrial Relations Act 1967.

g) Retrenchment and Pregnancy

A member inquired as to whether there is any law to prohibit company

from retrenching a pregnant employee.

Members were advise that there is no provision to prohibit retrenching

a pregnant employee and that the retrenchment ought not to be due
to the pregnancy.

As per Section 37 (4) and its proviso provides as follows;

"………………….

(4) Any employer who terminates the service of a female employee

during the period in which she is entitled to maternity leave commits an
offence:

Provided that for the purpose of this section, such termination shall not
include termination on the ground of closure of the employer’s
business.

h) Voluntary Separation Scheme (VSS), Mutual Separation Service (MSS)

Company sought clarification that in its collective agreement it has

retrenchment and lay off benefits, however, company is making losses

therefore wished to know if it could offer VSS or MSS instead of paying

the retrenchment or lay benefits.

Members were advised the differences between VSS and MSS.

VSS is an exercise open to the whole company whereas MSS is a

negotiated settlement.

The quantum may vary as some companies may pay up till 1.2 months
of wages for every completed years of service. There is no set formula

Page | 14
 for VSS or MSS and usually the amount is higher compared to
Regulation 6 of the Employment (Termination and Lay - Off Benefits)
Regulations 1980 that provides for:-

i) 10 days’ wages for every year of employment for a period of

less than 2 years;

ii) 15 days’ wages for every year of employment for 2 years or

more but less than 5 years;

iii) 20 days’ wages for every year of employment for five year or
more and pro-rata as respect an incomplete year, calculated to
the nearest month.

i) Maternity benefits for other than married female employees

A member inquired as to the maternity benefits for female employees

that are not married.

Members were advised that the law is fair to all and that the benefits
extends to all female employees subject to fulfilling the conditions.

j) Absent From Work For More Than Two Consecutive Days

A member sought clarification as to absence of more than two

consecutive days and which day it ought to be treated as absent.

Members were advised based on Section 15 (2) of the Employment Act

provides as follows;
"………………

(2) An employee shall be deemed to have broken his contract of service

with the employer if he has been continuously absent from work for
more than two consecutive working days without prior leave from his
employer, unless he has a reasonable excuse for such absence and has
informed or attempted to inform his employer of such excuse prior to
or at the earliest opportunity during such absence.
……………….."

Page | 15
 Members were also advised that Section 15 (2) ought to be read
together with Section 13 (2) and that these provisions ought to be used
cautiously. Section 15 (2) is a "deeming" section i.e. it is only deemed
that the contract is broken in the event that the employee is absent
from work for more than two consecutive working days.

Members were also reminded of the reciprocal duty of the employer.

Company may also write a letter to the employee instructing employee
to report to work by a particular date, in the event that the employee
fails to report to work by the said date, company will treat that the
employee has breached and abandoned the contract of employment
and left employment without giving proper notice to the company.

Company may subsequently claim vide section 69 (2) (iii) of the

Employment Act.

k) Conditional Movement Control Order (CMCO) & MySejahtera - QR

Code

Member sought clarification of the MySejahtera apps and the daily

reporting requirement to Ministry of Trade and Industry (MITI).

The OSHA Consultant in attendance advice members that the daily

reporting requirement is an initiative by the Department of Safety and
Health (DOSH) and the system migrated to MITI. Details of the Standard
Operating Procedure (SOPs) can also be obtained from Majlis
Keselamatan Negara (MKN) website.

The OSHA Consultant in attendance advice members that pursuant to

the expiration of the CMCO on 9th June 2020, we are now in the new
phase that is the Recovery Movement Control Order ( RMCO ) i.e. from
10th June 2020 till 31st August 2020, in recognizing the new normal and
in managing and mitigating the COVID-19 outbreak, MySejahtera is an
application developed by the government of Malaysia to assist in
monitoring COVID -19 outbreak in the country by empowering users to
assess their health risk against COVID – 19. This application also
provides the Ministry of Health (MOH) with the necessary information
to plan for early and effective counter measures.

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 l) SELangkah - QR Code

Members were informed of the initiative by Selangor state to help

business operators in the state comply with standard operating (SOPs)
for the reopening of the economy have introduced the SELangor QR
Code.

m) Process and Procedure in Taking Body Temperature

Members sought clarification on the taking of body temperature.

The OSHA Consultant advice the process and procedure to members as

to how and what to be done with the usage of the apps and taking of
body temperature.

Firstly, to take the body temperature which should be not more than
37.5 and if more to ask the person to rest for five minutes and take a
second reading, if the reading shows 37.5 and above, entry can be
refused and advise the person to seek medical assistance and if the
temperature shows below 37.5, the person will need to scan the QR
Code, enter name and telephone number. A log book of body
temperature readings members are required to maintain the records
temperature readings for 3 months as some may not have a
smartphone.

WE WOULD BE MOST GRATEFUL IF MEMBER COMPANIES COULD PROVIDE A COPY

OF THEIR COLLECTIVE AGREEMENT AND/OR EMPLOYEE HANDBOOK FOR OUR
LIBRARY

NEXT MEETING

The meeting was adjourned at 4.40 p.m with a vote of thanks to the Chairman. The
next meeting via Webinar will be held on 15th July 2020 at 2.00p.m

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