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, ho has entered into a
contract of service ith an e!ployer under hich such person"s a#es do
not e$ceed %& 15'' per !onth
2] any person ho irrespective of the a!ount of a#es he earns in a
!onth, has entered into a contract of service ith an e!ployer in pursuant
of hich (-
(a) he is en#a#ed in !anual la)our includin# such la)our as an artisan or
apprentice( provided that here a person is e!ployed )y one e!ployer
partly in !anual la)our and partly in so!e other capacity, such person
shall not )e dee!ed to )e perfor!in# !anual la)our unless the ti!e
durin# hich he is re*uired to perfor! !anual la)our in anyone a#e
period e$ceeds one-half of the total ti!e durin# hich he is re*uired to
or+ in such a#e period ,
()) he is en#a#ed in the operation or !aintenance of any !echanically
propelled vehicle operated for the transport of passen#ers or #oods or for
reard or for co!!ercial purposes,
(c) he supervises or oversees other e!ployees en#a#ed in !anual la)our
e!ployed )y the sa!e e!ployer in and throu#hout the perfor!ance of
their or+,
(d) he is en#a#ed in any capacity in any vessel re#istered in &alaysia and
ho(-
-] is not an officer certificated under the &erchant Shippin# Act of the
.nited /in#do! as a!ended fro! ti!e to ti!e0
-i] is not the holder of a local certificate as defined in 1art 2-- of the
&erchant Shippin# 3rdinance 19520 or
-ii] has not entered into an a#ree!ent under 1art --- of the &erchant
Shippin# 3rdinance, 19520 or
(e) he is en#a#ed as a do!estic servant

A ne section ( section 495 ) provides protection for e!ployees hose
!onthly a#es e$ceed %& 15'','' )ut do not e$ceed %&15,''' the
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6irector- 7eneral of 8a)our is no e!poered to hear co!plaints under
section 49( 1 ) (a ) fro! this cate#ory of e!ployees, 9oever, section 495
( : ) stipulates that the rest of the provision of the Act do not apply to
the!,
;he E!ploy!ent Act protects not only full-ti!e re#ular e!ployees )ut also
part-ti!ers, te!porary < fi$ed ter! contract or+ers,
= part-ti!e e!ployees are defined as e!ployees ho or+ >'? or less
than the nor!al or+in# hours of a full-ti!e e!ployee in the sa!e
co!pany carryin# out the sa!e or+,
INDUSTRIAL RELATION ACT 1967
Section 2 -%A states that @or+!anA !eans any person, includin# an
apprentice, e!ployed )y an e!ployer under a contract of e!ploy!ent to
or+ for hire or reard, and for the purposes of any proceedin# in relation
to a trade dispute, includes any such person ho has )een dis!issed,
dischar#ed or retrenched in connection ith or as a conse*uence of that
dispute, or hose dis!issal, dischar#e or retrench!ent has led to that
dispute,
= B thus the ter! @or+!anA includes a ider ran#e of e!ployees than
those covered )y the E!ploy!ent Act 1955, under the -ndustrial %elation
Act, any person ho has a contract of e!ploy!ent ( ritten or oral ) is
considered as a or+!an, ]
2] PROBATIONARY PERIOD
;he pro)ationary period is for the e!ployer to test the suita)ility of the
e!ployee for the Co) assi#ned to hi!, ;he e!ployer !ay test the aptitude,
attitude, a)ility or adapta)ility of the e!ployee for the Co), 9e !ay also
ta+e into consideration other factors li+e )ehaviour, conduct, co-operation,
and responsi)ility of the e!ployee, -f the e!ployee is found to )e lac+in#
in a fe of the a)ove attri)utes, it is advisa)le for the e!ployer in a cordial
!anner, ith a vie to i!provin# hi!,
An e!ployer !ay e$tend the initial pro)ationary period to a further period
of 1-: !onths, -n such an event, the e!ployee should )e infor!ed, in
ritin#, )efore the end of the pro)ationary period, that his pro)ationary
period is )ein# e$tended, 9e should also )e infor!ed of the specific areas
here i!prove!ent is e$pected,
;he e!ployer could ter!inate the services of an e!ployee on pro)ation, if
the e!ployee does not !easure up to the e!ployer"s satisfaction, 5ut the
satisfaction !ust )e reasona)le, -f an e!ployee on pro)ation has reasons
to )elieve that ter!inations of his service as !ala fide, he !ay see+
reinstate!ent under Section 2' of the -ndustrial %elations Act,
An e!ployee !ay also *uit the Co) if he dissatisfies ith the Co), even
ithout aitin# for the end of the pro)ationary period,
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3] HOURS OF WORK O!ERTIME
Dor!al 9ours of Eor+
1] not !ore than five consecutive hours ith a period of rest not less than :'
!inutes
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2] not !ore than F hours in one day
:] not !ore than 1' hours in a @spread-overA period
G] if the or+ is of a continuous nature, it can )e F consecutive hours ith a
period of rest (paid) of not less than G5 !inutes,
5] not !ore than GF hours in a ee+,
E!er#ency or+ alloed only
1] in case of accident, actual or threatened,
2] ur#ent or+ to )e done to !achinery or plant
:] an interruption of or+ i!possi)le to foresee
3verti!e
-t !eans or+ done in e$cess of the @nor!al hours of or+A, 9oever, it does
not include or+ done on %est 6ays and 1u)lic 9olidays, 3verti!e on nor!al
or+in# days- 1 H ti!e the nor!al hourly rate of pay
8i!itation(-
1] 1'G hours per !onth, unless e$e!pted )y the &inister under Section 25
2] Dot !ore than 12 hours of or+ (includin# nor!al hours in a day)
Eor+ on %est 6ays
1] for daily-rated e!ployees(-
2 ti!es the daily a#es for daily-rated e!ployees, if or+ e$ceeds half the
nor!al or+in# hours of or+s0 1 day"s daily a#es if the or+ is half or less
than the nor!al hours of or+,
2] for !onthly-rated e!ployees(-
half the day"s a#es for a period not e$ceedin# half their nor!al hours of
or+, 3ne day"s a#es for or+ not e$ceedin# their nor!al hours of or+,
3verti!e on %est 6ays
Shall )e 2 ti!es the hourly rate of pay
Eor+ on 1u)lic 9olidays
1] for !onthly-rated e!ployees
2 days a#es re#ardless that the or+ done on that day is less than the or
nor!al hours of or+
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2] for daily-rated e!ployees
2 day"s a#es re#ardless that the or+ done on that day is less than their
nor!al hours of or+ plus their pu)lic holiday pay,
3verti!e on 1u)lic 9olidays
: ti!es the hourly rate of pay for or+ done in e$cess of nor!al hours of or+
". LEA!E
Annual leave
- An e!ployee is entitled to annual leave only after 12 !onths of continuous
service as follos(
1] 8ess than 2 years of service I F days for each year
2] 2 years or !ore )ut less than 5 years I 12 days for each year
:] &ore than 5 years I 14 days for each year
- ;he paid annual leave does not include pu)lic holidays,
- An e!ployee !ust ta+e his annual leave not later 12 !onths after the end
of every 12 !onths of continuous service, -f he fails to do so, his annual
leave ill )e forfeited,
- ;he hole or part of the unta+en annual leave !ay )e su)stituted for
pay!ent at the re*uest of the e!ployer and ith the ritten consent of the
e!ployee,
- An e!ployee"s annual leave can )e forfeited if he a)sents hi!self fro!
or+ ithout per!ission, or ithout any reasona)le e$cuse for !ore than
1'? of the total nu!)er of or+in# days durin# the telve !onths of
continuous service for hich his entitle!ent is accrued,
- -f an e!ployee"s service is ter!inated (for reasons other than
!isconduct) or if he resi#ns )y #ivin# due notice, he is entitled to the
ordinary rate of pay in lieu for the co!pleted !onths of service,
- -f an e!ployee ho is on annual leave falls sic+, or is on !aternity leave,
the e!ployee is entitled to sic+ leave or !aternity leave as the case !ay
)e and the annual leave already ta+en )y hi!<her )eco!es cancelled,
Sic+ leave
- An e!ployee is entitled to paid sic+ leave only under the folloin#
circu!stances(
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1, he has o)tained a certificate fro! a re#istered
!edical practitioner duly appointed )y his e!ployer0 or
2, he has o)tained a certificate fro! a dental sur#eon0
or
:, if no such !edical practitioner is appointed, or the
services of such a practitioner are not o)taina)le ithin a reasona)le
ti!e or distance, then other re#istered !edical practitioners or
#overn!ent !edical officers ill )e accepted0 #$%
G, he has infor!ed or has atte!pted to infor! the
e!ployer of his sic+ leave ithin GF hours of the co!!ence!ent of the
sic+ness,
- ;he nu!)er of days of paid sic+ leave hich an e!ployee is entitled to in
each calendar year is as follos(
1] 8ess than 2 years I 1G days
2] 2 years )ut less than 5 years I 1F days
:] 5 years or !ore I 22 days
- -f hospitaliJation is necessary, the a!ount of paid sic+ leave can )e
e$tended )y up to 4' days per calendar year,
- -f there is a co!pany appointed doctor or panel of doctors, the e!ployee
should see+ !edical treat!ent fro! such doctors,
- 9oever, in case of e!er#ency (hen the co!pany appointed doctor is
not readily availa)le or the clinic is too far aay) the e!ployee can see+
treat!ent fro! any re#istered !edical practitioner, All such cases are to
)e decided dependin# upon the circu!stances and nature of the illness or
inCury,
5] PUBLIC HOLIDAYS
- Every e!ployee is entitled to 1' out of any of the folloin# #aJetted pu)lic
holidays and any day declared as a pu)lic holiday )y the Federal or State
7overn!ent under section F of the 9olidays Act 1951 in any one calendar
year(-
- Federal 1u)lic 9oliday
9ari %aya 1uasa
Khinese De Lear
Eor+ers" 6ay
Eesa+ 6ay
5irthday of L61A
9ari %aya 9aCi
Aal &uharra!
Dational 6ay
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5irthday of 1rophet &uha!!ad
6epavali
Khrist!as 6ay
State 1u)lic 9olidays
De Lear"s 6ay
Federal ;erritory 6ay
;haipusa!
-sra+ M &i+raC
DuJul Nuran
7ood Friday
1esta /ea!atan
9ari 6aya+
5irthday of State"s Sultans < %ulers
Ko!pulsory #aJetted 1u)lic 9oliday
Dational 6ay
;he /in#"s 5irthday
5irthday of Sultans< 9ead of State or Federal
;erritory 6ay
Eor+ers" 6ay
- -f any of the ten chosen #aJetted pu)lic holidays falls ithin the period
durin# hich the e!ployee is a)sent due to sic+ leave, annual leave,
te!porary disa)le!ent under the Eor+!en"s Ko!pensation Act 1952 or
under the E!ployees" Social Securities Act 1949 or !aternity leave, the
e!ployee is entitled to another day as a paid holiday in su)stitution for
such pu)lic holiday,
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6] TERMINATION OF CONTRACT OF SER!ICE
- Either party to a contract of service !ay at anyti!e #ive to the
other, notice of his intention to ter!inate such contract of service, ;he
period of notice re*uired )y either party is usually in accordance ith the
provision in the contract of e!ploy!ent,
- -n the a)sence of a provision for period of notice !ade in the contract, the
period of notice of ter!ination shall )e )ased on the provision of the
E!ploy!ent Act as follos(-
1] less than 2 years- at least G ee+s
2] 2 years or !ore- at least 4 ee+s
:] 5 years or !ore- at least F ee+s
- An e!ployer !ay ter!inate an e!ployee"s services for any of the
folloin# reasons( -
%etire!ent
Section 1G(1) -%A- !isconduct
Eilful 5reach of Kontract
%etrench!ent
Kri!inal 3ffence
Frustration of Kontract
%epudiation of Kontract
Efflu$ion of ti!e =contract of service for specific period]
;er!ination for poor perfor!ance
- For the e!ployee #overn )y the -%A 194>, the Act reco#niJes the
!ana#e!ent"s prero#ative to e!ploy, ter!inate for reasons of
redundancy or reor#aniJation or dis!iss an e!ployee ith proper cause
or e$cuse, 9oever, the -ndustrial Kourt also has @the ri#ht to interfere
into any !ana#e!ent prero#atives and stri+e don any unfair la)our
practice or victi!iJationA, 5ut the Kourt ill not interfere ith the )ona fide
e$ercise of poer hich is #iven to the !ana#e!ent )y the co!!on la
and )y the contract of service hich is inherent in the !ana#e!ent,
- 3n the other hand, section 2'(1) of the -%A 194>, provides( here a
or+!an ho is not a !e!)er of a trade union of or+!en considers that
he has )een dis!iss ithout Cust cause or e$cuse )y his e!ployer, he
!ay ithin 4' days of the dis!issal !a+e representation in ritin# to the
6irector-7eneral to )e reinstated in his for!er e!ploy!ent, the
representation !ay )e filed at the office of the 6irector-7eneral nearest to
the place of e!ploy!ent fro! hich the or+!en as dis!issed,
- -f the or+!an is a !e!)er of a union, his union can file an appeal on his
)ehalf for reinstate!ent =section 24 of -%A]
7] DISMISSAL AFTER DUE IN&UIRY
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An e!ployer !ay on the #round of !isconduct dis!iss an e!ployee, 9oever, it
should )e noted that the dis!issal is valid only after due in*uiry has )een done
'] SE(UAL HARASSMENT AT THE WORKPLACE
;he ord @harassA includes *uite a )road spectru! of action0 distress, )ad#er,
trou)le, ve$, plun#e, tor!ent, irritate, hec+le, )eset, orry, afflict, depress,
sadden, annoy and distur), -n a or+place, se$ual harass!ent )eco!es a for!
of se$ual discri!ination, hich is contrary to the principles of e*ual ri#hts for !en
and o!en, 3n late, there has )een !uch e!phasis on the pro)le! of se$ual
harass!ent at the or+place, so !ush so, the &inister of 9u!an %esource has
introduced the Kode of 1ractice to 1revent and Eradicate Se$ual 9arass!ent at
the @or+placeA, hich includes a #uideline to )e folloed in co!)atin# the
pro)le! of se$ual harass!ent, ;he Kode provides practical #uide to e!ployees,
or+ers, trade unions and other interested parties on ho to contain, and if
possi)le, totally eradicate this social pro)le!,
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Ehat constitutes Se$ual 9arass!ent O
Se$ual harass!ent !ay ta+e !any for!s, so!e of hich !ay )e su)tle hile
others !ay )e !ore e$plicit, )ut all of hich are )ound to cause !uch
e!)arrass!ent to the victi!, ;he folloin# !ay )e considered as typical
e$a!ples0
.nsolicited co!pli!ents re#ardin# a person"s fi#ure, dressin#, !a+e-up,
style of !ove!ent, ay of tal+in#, etc
Se$ually tainted Co+es, ru!ours, co!!ents, nes ite!s, etc, !ade in the
presence of a person of the opposite se$
1hysically !olestin# fe!ale staff )y touchin# parts of their )odies
1ersistently tryin# to stri+e up a conversation, even after the other person
has indicated that he<she is not +een to do so,
2er)al advances and su##estions of a led and se$ual nature,
.narranted telephone calls, especially if such calls are !ade to the
person"s office or ho!e at unearthly hours
%epeatedly or persistently invitin# a person for lunch< dinner, dates, or for
a drin+ or ride
Sendin# love letters or postin# love notes on the -nternet
Sendin# or shoin# porno#raphic !aterials to another person in order to
e!)arrass hi!<her
-nstructin# a su)ordinate e!ployee to stay )ac+ alone, after nor!al
or+in# hours, on the prete$t of havin# ur#ent or+ to )e done,
%e!edial &easures
An individual victi! has every ri#ht to protect herself fro! any for! of
harass!ent, 9oever, in dealin# ith cases of se$ual harass!ent at the
or+place, there are !any factors the victi! has to consider0- one"s reputation,
the fa!ily, opinion a!on# collea#ues, social relationship, and also the Co) itself,
Any adverse pu)licity is )ound to )rin# irrepara)le psycholo#ical da!a#e to the
victi!, ;herefore, #reat care and caution should )e ta+en in findin# solution to
the pro)le!,
-f the harasser is a collea#ue, the folloin# steps !ay )e ta+en )y the
victi!(-
1, tell hi! at the very first instance that you are not a!used ith his
)ehaviour and arn hi! not to repeat it0 )ut +eep your cool
2, avoid losin# control of your e!otions or te!per and do not thro
tantru!s
:, should he repeat his action, #ive hi! a second and final arnin# in
a plain and strai#htforard !anner
G, do not sho hi! that you are afraid of or inti!idated )y hi! in any
ay
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5, if you +no others ho are also victi!s of this particular harasser,
#et the! to#ether and #ive hi! a ton#ue-lashin#, outside office
hours,
4, if his actions persist, ta+e up the !atter ith your )oss or report
hi! to his )oss
>, if the pro)le! still persists, !a+e a ritten co!plaint to the
1ersonnel &ana#er and at the sa!e ti!e refer the !atter to the
union, if you are a union !e!)er,
F, if as a last resort, the !atter is reported to the police, they can ta+e
action a#ainst the harasser- 1EDA8 K36E- SEK;-3D 5'9
-f the harasser is your on )oss or a senior !e!)er of the !ana#e!ent
staff, the situation !ay )e a )it !ore co!plicated and the hole !atter
has to )e dealt ith delicately and diplo!atically, 9oever, the preventive
actions to )e ta+en are !ore or less the sa!e as stated a)ove,
1repared )y(-
1] Suria Fadhillah 5t, &d, 1auJi
= 88,5 (9ons,) .-A&, 88,& ./& ]
2] Dadia 5t, 3!ar
= 88,5 (9ons,) .-A&, 88,& ./& ]
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