MALAYSIAN INDUSTRIAL RELATIONS & EMPLOYMENT LAW Author: Maimunah Aminuddin

1. MALAYSIAN INDUSTRIAL RELATIONS & EMPLOYMENT LAWAuthor: Maimunah Aminuddin Chapter Two The Employment Act and Related Acts Malaysian Industrial Relations & Employment Law

2. Preview • Defining who is an employee • Types of employment contract • Terms and conditions of employment • Common express terms • Implied terms • Provisions of the Employment Act • Provisions of the Children & Young Persons (Employment) Act Malaysian Industrial Relations & Employment Law

3. Employees receive protection from employment laws • Employees are employed under a contract of employment, aka contract of service. • Self-employed persons are not within the scope of most employment laws. Malaysian Industrial Relations & Employment Law

4. Tests to determine whether a worker is an employee or not The Control Test is the most commonly applied test. Questions asked by the courts include: • How much control is imposed by the employer on the worker? • Who provides the tools, raw materials and equipment needed to do the work? • How is payment made? Malaysian Industrial Relations & Employment Law

5. Tests to determine whether a worker is an employee or not, cont. • Are contributions made to statutory funds such as EPF & SOCSO? • Is there a written contract, and if so, what are its terms? • Is the worker required to comply with organisational rules? Malaysian Industrial Relations & Employment Law

6. Contracts of employment A contract of employment can be: • Temporary or for an indefinite period (permanent) • Part-time or full-time Malaysian Industrial Relations & Employment Law

7. Terms and conditions of employment Express terms & conditions of employment are usually written into: • a letter of appointment; • a company handbook; or • a collective agreement. Malaysian Industrial Relations & Employment Law

8. Common express terms & conditions Malaysian Industrial Relations & Employment Law

9. Common express terms & conditions, cont. • Requirement of confidentiality • Requirement to give exclusive service • Transfer • Requirement to comply with company rules Malaysian Industrial Relations & Employment Law

10. Terms and conditions of service Implied terms= obvious terms that courts assume exist in every employment contract,including: Employee’s obligation to work: • with due care • obediently • Faithfully Employer’s obligation to: • Provide safe work • Maintain relationship of mutual respect Malaysian Industrial Relations & Employment Law

11. Terms and Conditions of Service, cont. • Terms and conditions must comply with the relevant employment laws. • Terms and conditions can only be changed by mutual consent between employer and employee. Malaysian Industrial Relations & Employment Law

12. The Employment Act Coverage of Act Employees earning not more than RM1,500 per month who: • work in the private sector, and • work in Peninsular Malaysia. Malaysian Industrial Relations & Employment Law

13. The Employment Act, cont. Exceptions to RM1,500 Wage Ceiling • Employees engaged as manual workers • Supervisors of manual workers • Employees who operate or maintain a vehicle for transport of passengers or goods • Domestic servants Malaysian Industrial Relations & Employment Law

14. The Employment Act, cont. Domestic Servants are NOT entitled to the minimum benefits provided for under the Act. Malaysian Industrial Relations & Employment Law

15. Sabah & Sarawak Employees working in Sabah or Sarawak are protected by the: • Sabah Labour Ordinance, or the • Sarawak Labour Ordinance. The contents of the SLOs are similar to the Employment Act. Malaysian Industrial Relations & Employment Law

16. The Employment Act - wages Wages are defined as basic wages and all other payments due under the contract of service, but excluding: Malaysian Industrial Relations & Employment Law

17. The Employment Act – wages, cont. Advances on wages limited to one month’s wage unless for purpose of: • Buying land or house, or renovating a house • Buying a bicycle or car • Buying livestock • Buying shares in employer’s business Any other purpose, requires permission from DG of Labour. Malaysian Industrial Relations & Employment Law

18. The Employment Act – wages, cont. • Wages must be paid at least once a month. • Wages must be paid either in cash, cheque or direct credit to bank account. Malaysian Industrial Relations & Employment Law

19. The Employment Act – wages, cont. • Deduction from wages strictly controlled. • Deductions only possible without permission from employee for: • Recovery of overpaid wages • Payments to agencies as required by law • Recovery of advance where no interest imposed Malaysian Industrial Relations & Employment Law

20. The Employment Act – wages, cont. Non-payment of wages Employees earning up to RM5,000 pm who do not receive their wages or other payments due, can lodge a complaint at the Department of Labour. Malaysian Industrial Relations & Employment Law

21. Employment Act – female employees • Women and night work • Women and underground work • Maternity protection Malaysian Industrial Relations & Employment Law

22. Employment Act – working hours • Minimum of one rest day per week • Maximum hours per day = 8 • Maximum hours per week = 48 • Overtime payment required for work done outside normal working hours • Maximum overtime per month = 108 hours Malaysian Industrial Relations & Employment Law

23. Employment Act – leave • Public holidays – minimum of 10 per year. Four compulsory; six more chosen by employer. • Premium rate of pay due if employee required to work on a public holiday. • Annual leave increases with length of service ranging from 8-16 days. Malaysian Industrial Relations & Employment Law

24. Employment Act – leave, cont. • Sick Leave increases with service ranging from 14-22 days per year. • Employees only entitled to paid sick leave if certified ill by registered medical practitioner. (No self-certification) • If employer appoints panel doctors, employee must use their services, failing which only entitled to unpaid sick leave. Malaysian Industrial Relations & Employment Law

25. Employment Act – termination benefits Malaysian Industrial Relations & Employment Law

26. Children and Young Persons (Employment) Act Children and Young Persons (Employment) Act controls employment of these employees but does not prohibit it. • Children = persons aged under 15 yrs • Young persons = persons aged 15-18 yrs Malaysian Industrial Relations & Employment Law

27. Children and Young Persons (Employment) Act, cont. • Hours of work of children and young persons limited • Type of work that may be carried out by children and young persons limited Malaysian Industrial Relations & Employment Law

28. Review • Defining who is an employee • Types of employment contract • Terms and conditions of employment • Common express terms • Implied terms • Provisions of the Employment Act • Provisions of the Children & Young Persons (Employment) Act Malaysian Industrial Relations & Employment Law