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, who has entered into a contract of
service with an employer under which such person’s wages do not exceed RM
1500 per 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 pursuant of which : -
(a) he is engaged in manual labour including such labour as an artisan or
apprentice: provided that where a person is employed by one employer partly
in manual labour and partly in some other capacity, such person shall not be
deemed to be performing manual labour unless the time during which he is
required to perform manual labour in anyone wage period exceeds one-half of
the total time during which he is required to work in such wage period .
(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.
(c) he supervises or oversees other employees engaged in manual labour
employed by the same employer in and throughout the performance of their
(d) he is engaged in any capacity in any vessel registered in Malaysia and who: -
I] is not an officer certificated under the Merchant Shipping Act of the United
Kingdom as amended from time to time;
Ii] is not the holder of a local certificate as defined in Part VII of the Merchant
Shipping Ordinance 1952; or
Iii] has not entered into an agreement under Part III of the Merchant Shipping
Ordinance, 1952; or
(e) he is engaged as a domestic servant
A new section ( section 69B ) provides protection for employees whose monthly
wages exceed RM 1500.00 but do not exceed RM15,000 the Director - General
of Labour is now empowered to hear complaints under section 69( 1 ) (a ) from
this category of employees. However, section 69B ( 3 ) stipulates that the rest of
the provision of the Act do not apply to them.
The Employment Act protects not only full-time regular employees but also
part-timers, temporary / fixed term contract workers.
[ part-time employees are defined as employees who work 70% or less than the
normal working hours of a full-time employee in the same company carrying
out the same work.
INDUSTRIAL RELATION ACT 1967
Section 2 IRA states that “workman” means any person, including an
apprentice, employed by an employer under a contract of employment to
work for hire or reward, and for the purposes of any proceeding in relation to a
trade dispute, includes any such person who has been dismissed, discharged or
retrenched in connection with or as a consequence of that dispute, or whose
dismissal, discharge or retrenchment has led to that dispute.
[ * thus the term “workman” includes a wider range of employees than those
covered by the Employment Act 1955. under the Industrial Relation Act, any
person who has a contract of employment ( written or oral ) is considered as a
2] PROBATIONARY PERIOD
The probationary period is for the employer to test the suitability of the
employee for the job assigned to him. The employer may test the aptitude,
attitude, ability or adaptability of the employee for the job. He may also take
into consideration other factors like behaviour, conduct, co-operation, and
responsibility of the employee. If the employee is found to be lacking in a few of
the above attributes, it is advisable for the employer in a cordial manner, with
a view to improving him.
An employer may extend the initial probationary period to a further period of
1-3 months. In such an event, the employee should be informed, in writing,
before the end of the probationary period, that his probationary period is being
extended. He should also be informed of the specific areas where improvement
The employer could terminate the services of an employee on probation, if the
employee does not measure up to the employer’s satisfaction. But the
satisfaction must be reasonable. If an employee on probation has reasons to
believe that terminations of his service was mala fide, he may seek
reinstatement under Section 20 of the Industrial Relations Act.
An employee may also quit the job if he dissatisfies with the job, even without
waiting for the end of the probationary period.
3] HOURS OF WORK, OVERTIME
Normal Hours of Work
1] not more than five consecutive hours with a period of rest not less than 30
2] not more than 8 hours in one day
3] not more than 10 hours in a “spread-over” period
4] if the work is of a continuous nature, it can be 8 consecutive hours with a period
of rest (paid) of not less than 45 minutes.
5] not more than 48 hours in a week.
Emergency work allowed only
1] in case of accident, actual or threatened.
2] urgent work to be done to machinery or plant
3] an interruption of work impossible to foresee
It means work done in excess of the “normal hours of work”. However, it does not
include work done on Rest Days and Public Holidays. Overtime on normal working
days- 1 ½ time the normal hourly rate of pay
1] 104 hours per month, unless exempted by the Minister under Section 2B
2] Not more than 12 hours of work (including normal hours in a day)
Work on Rest Days
1] for daily-rated employees:-
2 times the daily wages for daily-rated employees, if work exceeds half the
normal working hours of works; 1 day’s daily wages if the work is half or less than
the normal hours of work.
2] for monthly-rated employees:-
half the day’s wages for a period not exceeding half their normal hours of work.
One day’s wages for work not exceeding their normal hours of work.
Overtime on Rest Days
Shall be 2 times the hourly rate of pay
Work on Public Holidays
1] for monthly-rated employees
2 days wages regardless that the work done on that day is less than the or normal
hours of work
2] for daily-rated employees
2 day’s wages regardless that the work done on that day is less than their normal
hours of work plus their public holiday pay.
Overtime on Public Holidays
3 times the hourly rate of pay for work done in excess of normal hours of work
- An employee is entitled to annual leave only after 12 months of continuous
service as follows:
1] Less than 2 years of service – 8 days for each year
2] 2 years or more but less than 5 years – 12 days for each year
3] More than 5 years – 16 days for each year
- The paid annual leave does not include public holidays.
- An employee must take his annual leave not later 12 months after the end of
every 12 months of continuous service. If he fails to do so, his annual leave will be
- The whole or part of the untaken annual leave may be substituted for
payment at the request of the employer and with the written consent of the
- An employee’s annual leave can be forfeited if he absents himself from work
without permission, or without any reasonable excuse for more than 10% of the
total number of working days during the twelve months of continuous service
for which his entitlement is accrued.
- If an employee’s service is terminated (for reasons other than misconduct) or if
he resigns by giving due notice, he is entitled to the ordinary rate of pay in lieu
for the completed months of service.
- If an employee who is on annual leave falls sick, or is on maternity leave, the
employee is entitled to sick leave or maternity leave as the case may be and
the annual leave already taken by him/her becomes cancelled.
- An employee is entitled to paid sick leave only under the following
1. he has obtained a certificate from a registered medical practitioner duly
appointed by his employer; or
2. he has obtained a certificate from a dental surgeon; or
3. if no such medical practitioner is appointed, or the services of such a
practitioner are not obtainable within a reasonable time or distance, then
other registered medical practitioners or government medical officers will be
4. he has informed or has attempted to inform the employer of his sick leave
within 48 hours of the commencement of the sickness.
- The number of days of paid sick leave which an employee is entitled to in each
calendar year is as follows:
1] Less than 2 years – 14 days
2] 2 years but less than 5 years – 18 days
3] 5 years or more – 22 days
- If hospitalization is necessary, the amount of paid sick leave can be extended by
up to 60 days per calendar year.
- If there is a company appointed doctor or panel of doctors, the employee
should seek medical treatment from such doctors.
- However, in case of emergency (when the company appointed doctor is not
readily available or the clinic is too far away) the employee can seek treatment
from any registered medical practitioner. All such cases are to be decided
depending upon the circumstances and nature of the illness or injury.
5] PUBLIC HOLIDAYS
- Every employee is entitled to 10 out of any of the following gazetted public
holidays and any day declared as a public holiday by the Federal or State
Government under section 8 of the Holidays Act 1951 in any one calendar year:-
- Federal Public Holiday
Hari Raya Puasa
Chinese New Year
Birthday of YDPA
Hari Raya Haji
Birthday of Prophet Muhammad
State Public Holidays
New Year’s Day
Federal Territory Day
Israk & Mikraj
Birthday of State’s Sultans / Rulers
Compulsory gazetted Public Holiday
The King’s Birthday
Birthday of Sultans/ Head of State or Federal Territory Day
- If any of the ten chosen gazetted public holidays falls within the period during
which the employee is absent due to sick leave, annual leave, temporary
disablement under the Workmen’s Compensation Act 1952 or under the
Employees’ Social Securities Act 1969 or maternity leave, the employee is
entitled to another day as a paid holiday in substitution for such public holiday.
6] TERMINATION OF CONTRACT OF SERVICE
- Either party to a contract of service may at anytime give to the other, notice of
his intention to terminate such contract of service. The period of notice required
by either party is usually in accordance with the provision in the contract of
- In the absence of a provision for period of notice made in the contract, the
period of notice of termination shall be based on the provision of the
Employment Act as follows:-
1] less than 2 years- at least 4 weeks
2] 2 years or more- at least 6 weeks
3] 5 years or more- at least 8 weeks
- An employer may terminate an employee’s services for any of the following
Section 14(1) IRA- misconduct
Wilful Breach of Contract
Frustration of Contract
Repudiation of Contract
Effluxion of time [contract of service for specific period]
Termination for poor performance
- For the employee govern by the IRA 1967, the Act recognizes the management’s
prerogative to employ, terminate for reasons of redundancy or reorganization
or dismiss an employee w ith proper cause or excuse. However, the Industrial
Court also has “the right to interfere into any management prerogatives and
strike down any unfair labour practice or victimization”. But the Court will not
interfere with the bona fide exercise of power which is given to the
management by the common law and by the contract of service which is
inherent in the management.
- On the other hand, section 20(1) of the IRA 1967, provides: where a workman
who is not a member of a trade union of workmen considers that he has been
dismiss without just cause or excuse by his employer, he may within 60 days of
the dismissal make representation in writing to the Director-General to be
reinstated in his former employment, the representation may be filed at the
office of the Director-General nearest to the place of employment from which
the workmen was dismissed.
- If the workman is a member of a union, his union can file an appeal on his
behalf for reinstatement [section 26 of IRA]
7] DISMISSAL AFTER DUE INQUIRY
An employer may on the ground of misconduct dismiss an employee. However, it
should be noted that the dismissal is valid only after due inquiry has been done
8] SEXUAL HARASSMENT AT THE WORKPLACE
The word “harass” includes quite a broad spectrum of action; distress, badger, trouble,
vex, plunge, torment, irritate, heckle, beset, worry, afflict, depress, sadden, annoy and
disturb. In a workplace, sexual harassment becomes a form of sexual discrimination,
which is contrary to the principles of equal rights for men and women. On late, there
has been much emphasis on the problem of sexual harassment at the workplace, so
mush so, the Minister of Human Resource has introduced the Code of Practice to
Prevent and Eradicate Sexual Harassment at the “workplace”, which includes a
guideline to be followed in combating the problem of sexual harassment. The Code
provides practical guide to employees, workers, trade unions and other interested
parties on how to contain, and if possible, totally eradicate this social problem.
What constitutes Sexual Harassment ?
Sexual harassment may take many forms, some of which may be subtle while others
may be more explicit, but all of which are bound to cause much embarrassment to the
victim. The following may be considered as typical examples;
Unsolicited compliments regarding a person’s figure, dressing, make-up, style of
movement, way of talking, etc
Sexually tainted jokes, rumours, comments, news items, etc. made in the
presence of a person of the opposite sex
Physically molesting female staff by touching parts of their bodies
Persistently trying to strike up a conversation, even after the other person has
indicated that he/she is not keen to do so.
Verbal advances and suggestions of a lewd and sexual nature.
Unwarranted telephone calls, especially if such calls are made to the person’s
office or home at unearthly hours
Repeatedly or persistently inviting a person for lunch/ dinner, dates, or for a
drink or ride
Sending love letters or posting love notes on the Internet
Sending or showing pornographic materials to another person in order to
Instructing a subordinate employee to stay back alone, after normal working
hours, on the pretext of having urgent work to be done.
An individual victim has every right to protect herself from any form of harassment.
However, in dealing with cases of sexual harassment at the workplace, there are many
factors the victim has to consider;- one’s reputation, the family, opinion among
colleagues, social relationship, and also the job itself. Any adverse publicity is bound to
bring irreparable psychological damage to the victim. Therefore, great care and
caution should be taken in finding solution to the problem.
If the harasser is a colleague, the following steps may be taken by the victim:-
1. tell him at the very first instance that you are not amused with his
behaviour and warn him not to repeat it; but keep your cool
2. avoid losing control of your emotions or temper and do not throw
3. should he repeat his action, give him a second and final warning in a
plain and straightforward manner
4. do not show him that you are afraid of or intimidated by him in any
5. if you know others who are also victims of this particular harasser, get
them together and give him a tongue-lashing, outside office hours.
6. if his actions persist, take up the matter with your boss or report him to
7. if the problem still persists, make a written complaint to the Personnel
Manager and at the same time refer the matter to the union, if you are
a union member.
8. if as a last resort, the matter is reported to the police, they can take
action against the harasser- PENAL CODE- SECTION 509
If the harasser is your own boss or a senior member of the management staff,
the situation may be a bit more complicated and the whole matter has to be
dealt with delicately and diplomatically. However, the preventive actions to be
taken are more or less the same as stated above.
1] Suria Fadhillah Bt. Md. Pauzi
[ LL.B (Hons.) UIAM, LL.M UKM ]
2] Nadia Bt. Omar
[ LL.B (Hons.) UIAM, LL.M UKM ]