Malaysia legislation
Section 102
Section 102
[Deleted by Act A1237.]
Limitation on advances to employees 103.—
(1)
No employer shall during any one month make to an employee an advance or advances of wages not already earned by such employee which exceeds in the aggregate the amount of wages which the employee earned in the preceding month from his employment with such employer, or if he has not been so long in the employment of such employer, the amount which he is likely to earn in such employment during one month, unless such advance is made to the employee—
(a)
to enable him to purchase a house or to build or improve a house;
(b)
to enable him to purchase land;
(c)
to enable him to purchase livestock;
(d)
to enable him to purchase a motorcar, a motorcycle or a bicycle;
(e)
to enable him to purchase shares of the employer’s business offered for sale by the employer;
(f)
for any other purpose—
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(i)
in respect of which an application in writing is made by the employer to the Director;
(ii)
which is, in the opinion of the Director, beneficial to the employee; and
(iii)
which is approved in writing by the Director, provided that in granting such approval, the Director may make such modifications or impose such conditions as he may deem proper;
(g)
for such other purpose as the Minister may, from time to time, by notification in the Gazette, specify either generally in respect of all employees, or only in respect of any particular employee, or any class, category or description of employees.
[Sub. Act A1237.]
Holidays 104.—
(1)
Every employee shall be entitled to a paid holiday at his ordinary rate of pay on the following days in any one calendar year:
(a)
on sixteen gazetted public holidays as specified [Cap.
(1958 Ed.)] under the Public Holidays Ordinance
(Sarawak), four of which shall be—
(i)
the National Day;
(ii)
the Birthday of the Yang di-Pertuan Agong;
(iii)
the Birthday of the Yang di-Pertua Negeri of
Sarawak; and
(iv)
the Workers’ Day:
Provided that the other twelve public holidays referred to in this paragraph be fixed with regard to the religion and customs of the employees; and
(b)
on any day in addition to the gazetted public holidays referred to in paragraph (a) declared as a public holiday by the Government of the State:
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Provided that if any of the public holidays referred to in paragraphs (a) and (b) falls on a rest day, the working day following the rest day shall be a paid holiday in substitution of that public holiday.
(2)
The employer shall exhibit conspicuously at the place of employment before the commencement of each calendar year a notice specifying the remaining twelve gazetted public holidays in respect of which his employees shall be entitled to paid holidays under paragraph
(a)
of subsection (1):
Provided that by agreement between the employer and an employee any other day or days may be substituted for one or more of the remaining twelve gazetted public holidays provided for in paragraph (a) of subsection (1):
And provided further that the employer may grant the employee any other day as a paid public holiday in substitution for any of the public holidays referred to in paragraph (b) of subsection (1).
(3)
Where any of the said public holidays or any other day substituted therefor as provided in subsection (1) or (2) falls within the period during which an employee is on sick leave or annual leave to which the employee is entitled under this Ordinance, or falls during the period of temporary disablement under the Workmen’s
Compensation Act 1952 [Act 273], or under the Employees’ Social
Security Act 1969 [Act 4], the employer shall grant another day as a paid holiday in substitution for such public holiday or the day substituted therefore.
(4)
Any employee who absents himself from work on the working day immediately preceding or immediately succeeding a public holiday or two or more consecutive public holidays or any day or days substituted therefor under this section without the prior consent of his employer, shall not be entitled to any holiday pay for such holiday or consecutive holidays unless he has a reasonable excuse for such absence.
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(5)
An employee on a monthly rate of pay shall be deemed to have received his holiday pay if he receives from his employer his monthly wages, without abatement (other than as provided under subsection (4)) in respect of the holiday, for the month in which the holiday falls.
(6)
Notwithstanding subsections (1), (2) and (3), any employee may be required by his employer to work on any paid holiday to which he is entitled under those subsections, and in such event he shall, in addition to the holiday pay he is entitled to for that day—
(a)
in the case of an employee employed on a monthly, weekly, daily, hourly, or other similar rate of pay, be paid two days’ wages at the ordinary rate of pay; or
(b)
in the case of an employee employed on piece rate, be paid twice the ordinary rate per piece, regardless that the period of work done on that day is less than the normal hours of work.
(7)
For any overtime work carried out by an employee referred to in paragraph (a) of subsection (6) 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.
(8)
For any overtime work carried out by an employee referred to in paragraph (b) of subsection (6) 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.
(9)
An employee who works on a holiday shall be entitled to a travelling allowance for that day if payable to him under the terms of his contract of service with his employer but such employee shall not be entitled under this subsection to receive an increased rate of any housing allowance or food allowance.
(10)
For the purposes of this section if any such holiday falls on a half working day, the ordinary rate of pay payable shall be that of a full working day.
[Sub. Act A1237.]
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Hours of work 105.—
(1)
Except as provided in this section, an employee shall not be required under his contract of service to work:
(a)
more than five consecutive hours without a period of leisure of not less than thirty minutes duration;
(b)
more than eight hours in one day;
(c)
in excess of a spread over period of ten hours in one day;
(d)
more than forty-eight hours in one week:
Provided that—
(aa) for the purpose of paragraph (a), any break of less than thirty minutes in the five consecutive hours shall not break the continuity of that five consecutive hours;
(ab) an employee who is engaged in work which must be carried on continuously and which requires his continual attendance may be required to work for eight consecutive hours inclusive of a period or periods of not less than forty-five minutes in the aggregate during which he shall have the opportunity to have a meal; and
(ac) where, by agreement under the contract of service between the employee and the employer, the number of hours of work on one or more days of the week is less than eight, the limit of eight hours may be exceeded on the remaining days of the week, but so that no employee shall be required to work for more than nine hours in one day or forty-eight hours in one week.
(2)
The Director may, on the written application of an employer, grant permission to the employer to enter into a contract of service with any one or more of his employees, or with any class, category or description of his employees, requiring the employee or employees, or the class, category or description of employees, as the case may be, to work in excess of the limit of hours prescribed under paragraphs (a), (b), (c) and (d) of subsection (1) but subject to such conditions, if any, as the Director may deem proper to impose, if he is satisfied that there are special circumstances pertaining to the business
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or undertaking of the employer which renders it necessary or expedient to grant such permission; and the Director may at any time revoke the approval given under this subsection if he has reason to believe that it is expedient to do so.
(3)
Any person who is dissatisfied with any decision of the
Director under subsection (2) may, within thirty days of such decision being communicated to him, appeal in writing to the Minister.
(4)
On an appeal made to him under subsection (3), the
Minister may make such decision or order as appears just, and such decision or order shall be final.
(5)
An employee may be required by his employer to exceed the limit of hours prescribed in subsection (1) and to work on a rest day in the case of—
(a)
any accident, actual or threatened, in or with respect to his place of work;
(b)
any work, the performance of which is essential to the life of the community;
(c)
work essential for the defence or security of Malaysia;
(d)
urgent work to be done to machinery or plant;
(e)
any interruption of work which was impossible to foresee; or
(f)
work to be performed by employees in any industrial undertaking essential to the economy of Malaysia or any essential service as defined in the Industrial Relations Act 1967 [Act 177]:
Provided that the Director shall have the power to enquire into and decide whether or not the employer is justified in calling upon the employee to work in the circumstances specified in paragraphs (a) to
(f)
.
(6)
For any overtime work carried out in excess of the normal hours of work, the employee shall be paid at a rate which is not less than one and a half times his hourly rate of pay irrespective of the basis on which his rate of pay is fixed.
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(7)
No employer shall require or permit an employee to work overtime exceeding such limit as may be prescribed by the Minister from time to time by rules made under this Ordinance and the rules so made may provide different limits for different classes, categories or descriptions of employees, and such rules may also provide for such classes, categories or description of employees, as may be specified, to be excluded from their application:
Provided that any work carried out on a rest day, or any of the gazetted public holidays referred to in subsection (1) of section 104, or on any paid holiday substituted therefor under subsection 104, shall not be construed as overtime work for the purposes of this subsection:
And provided further that the Director may, on application made to him in writing by an employer or by an employee or a group of employees, permit any particular employee, or any group, class, category or description of employees in any particular industry, undertaking or establishment to work overtime in excess of the limit of hours so prescribed, subject to such conditions, if any, as he may deem proper to impose.
(8)
Any person who is dissatisfied with any decision of the
Director made under subsection (7) may, within thirty days of such decision being communicated to him, appeal in writing to the
Minister.
(9)
In deciding any appeal made to him under subsection (8), the Minister may make such decision or order as appears just and such decision or order shall be final.
(10)
The Minister may make rules for the purpose of calculating the payment due for overtime to an employee employed on piece rates.
(11)
Except in the circumstances described in paragraphs (a),
(b)
, (c), (d) and (e) of subsection (5), no employer shall require any employee under any circumstances to work for more than twelve hours in any one day.
(12)
This section shall not apply to employees engaged in work which by its nature involves long hours of inactive or stand-by employment.
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(13)
For the purposes of this Chapter, “hours of work” means the time during which an employee is at the disposal of the employer and is not free to dispose of his own time and movements.
[Sub. Act A1237.]
Shift work 105A.—
(1)
Notwithstanding paragraphs (b), (c) and (d) of subsection (1) of section 105, but subject to paragraph (a) of subsection (1) of that section, an employee who is engaged under his contract of service in shift work may be required by his employer to work more than eight hours in any one day or more than forty-eight hours in any one week but the average number of hours worked over any period of three weeks, or over any period exceeding three weeks as may be approved by the Director, shall not exceed forty-eight hours per week.
(2)
The approval of the Director in subsection (1) may be granted if the Director is satisfied that there are special circumstances pertaining to the business or undertaking of the employer which render it necessary or expedient for him to grant the permission subject to such conditions as he may deem fit to impose.
(3)
The Director may revoke the approval given under subsection (2) at any time if he has reason to believe that it is expedient so to do.
(4)
Except in the circumstances described in paragraphs (a),
(b)
, (c), (d) and (e) of subsection (5) of section 105, no employer shall require any employee who is engaged under his contract of service in shift work to work for more than twelve hours in any one day.
Rest day 105B.—
(1)
Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week, the last of such rest days shall be the rest day for the purposes of this Chapter:
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Provided that this subsection shall not apply during the period in which the employee is on maternity leave as provided under section 84, or on sick leave as provided under section 105E, or during the period of temporary disablement under the Workmen’s Compensation
Act 1952 [Act 273], or under the Employees’ Social Security Act 1969
[Act 4].
(2)
Notwithstanding subsection (1) and the interpretation of the expression “day” in section 2, in the case of an employee engaged in shift work any continuous period of not less than thirty hours shall constitute a rest day.
(3)
Notwithstanding subsection (1), the Director, on a written application by an employer and subject to any conditions he may deem fit to impose, may permit the employer to grant the rest day for each week on any day of the month in which the rest days fall and the day so granted shall be deemed to be the employee’s rest day for the purposes of this section.
(4)
The employer shall prepare a roster before the commencement of the month in which rest days fall informing the employee of the days appointed to be his rest days therein, and where the same day in each week has been appointed as the rest day for all employees in the place of employment, the employer may, in lieu of preparing a roster, display a notice at a conspicuous place in the place of employment informing the employees of the fixed rest day so appointed.
(5)
Every such roster and every particular recorded therein shall be preserved and shall be made available for inspection for a period not exceeding six years from the last day of the month in respect of which the roster was prepared or cause to be prepared.
Work on rest day 105C.—
(1)
Except as provided in subsection (5) of section 105, no employee shall be compelled to work on a rest day unless he is engaged in work which by reason of its nature requires to be carried on continuously or continually by two or more shifts:
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Provided that in the event of any dispute the Director shall have power to decide whether or not an employee is engaged in work which by reason of its nature requires to be carried on continuously by two or more shifts.
(2)
An employee employed on a daily, hourly or other similar rate of pay who works on a rest day shall be paid for any period of work—
(a)
which does not exceed half his normal hours of work, one day’s wages at the ordinary rate of pay; or
(b)
which is more than half but does not exceed his normal hours of work, two days’ wages at the ordinary rate of pay.
(3)
An employee employed on a monthly rate of pay who works on a rest day shall be paid for any period of work—
(a)
which does not exceed half his normal hours of work, wages equivalent to half the ordinary rate of pay for work done on that day; or
(b)
which is more than half but which does not exceed his normal hours of work, one day’s wages at the ordinary rate of pay for work done on that day.
(4)
For any work carried out in excess of the normal hours of work on a rest day by an employee mentioned in subsection (2) or (3), he shall be paid at a rate which is not less than two times his hourly rate of pay.
(5)
An employee employed on piece rates who works on a rest day shall be paid twice his ordinary rate per piece.
Annual leave 105D.—
An employee shall be entitled to paid annual leave of—
(a)
eight days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of less than two years;
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(b)
twelve days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of two years or more but less than five years; and
(c)
sixteen days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of five years or more, and if he has not completed twelve months of continuous service with the same employer during the year in which his contract of service terminates, his entitlement to paid annual leave shall be in direct proportion to the number of completed months of service:
Provided that any fraction of a day of annual leave so calculated which is less than one-half of a day shall be disregarded, and where the fraction of a day is one-half or more it shall be deemed to be one day:
And provided further that where an employee absents himself from work without the permission of his employer and without reasonable excuse for more than ten per centum of the working days during the twelve months of continuous service in respect of which his entitlement to such leave accrues he shall not be entitled to such leave.
(2)
The paid annual leave to which an employee is entitled under subsection (1) shall be in addition to rest days and paid holidays.
(3)
Where an employee who is on paid annual leave becomes entitled to sick leave or maternity leave while on such annual leave, the employee shall be granted the sick leave or maternity leave, as the case may be, and the annual leave shall be deemed to have not been taken in respect of the days for which sick leave or maternity leave is so granted.
(4)
The employer shall grant and the employee shall take such leave not later than twelve months after the end of every twelve months continuous service and any employee who fails to take such leave at the end of such period shall thereupon cease to be entitled thereto:
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Provided that an employee shall be entitled to payment in lieu of such annual leave if, at the request of his employer, he agrees in writing not to avail himself of any or all of his annual leave entitlement.
(5)
Notwithstanding subsection (4), upon the termination of an employee’s contract of service, the employee shall be entitled to take before such termination takes place the paid annual leave due to be taken in the year in which the termination takes place in respect of the twelve months of service preceding the year in which the termination takes place, and, in addition, the leave accrued in respect of the completed months of service during the year in which the termination takes place.
(6)
The employer shall pay the employee his ordinary rate of pay for every day of paid annual leave, and an employee on a monthly rate of pay shall be deemed to have received the annual leave pay if he receives his monthly wages, without abatement in respect of such annual leave, for the month in which he takes such annual leave.
(7)
If the contract of service has been terminated by either party before an employee has taken the paid annual leave to which he is entitled under this section, the employer shall pay the employee his ordinary rate of pay in respect of every day of such leave:
Provided that this subsection shall not apply where an employee is dismissed under paragraph (a) of subsection (1) of section 14.
(8)
Where an employee is granted leave of absence without pay by his employer during any period of twelve months and the period of absence exceeds in the aggregate thirty days, that period of leave of absence shall be disregarded for the purpose of computing his length of service with the employer under this section.
(9)
The Minister may, by notification in the Gazette, fix the periods when and prescribe the manner in which annual leave shall be granted to employees in different types of employment or in different classes of industries.
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Sick leave 105E.—
(1)
An employee shall after examination at the expense of the employer—
(a)
by a registered medical practitioner duly appointed by the employer; or
(b)
if no such registered medical practitioner is appointed or, if having regard to the nature or circumstances of the illness, the services of the registered medical practitioner so appointed are not obtainable within a reasonable time or distance, by any other registered medical practitioner or by a medical officer, be entitled to paid sick leave—
(aa) where no hospitalization is necessary—
(i)
of fourteen days in the aggregate in each calendar year if the employee has been employed for less than two years;
(ii)
of eighteen days in the aggregate in each calendar year if the employee has been employed for two years or more but less than five years;
(iii)
of twenty-two days in the aggregate in each calendar year if the employee has been employed for five years or more; or
(ab) of sixty days in the aggregate in each calendar year if hospitalisation is necessary, as may be certified by such registered medical practitioner or medical officer:
Provided that the total number of days of paid sick leave in a calendar year which an employee is entitled to under this section shall be sixty days in the aggregate:
And provided further that if an employee is certified by such registered medical practitioner or medical officer to be ill enough to need to be hospitalised but is not hospitalised for any reason, the employee shall be deemed to be hospitalised for the purposes of this section.
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(2)
An employee shall also be entitled to paid sick leave under paragraphs (aa) and (ab) of subsection (1) after examination by a dental surgeon as defined in the Dental Act 1971 [Act 51]:
Provided that the entitlement for such sick leave shall be inclusive of the number of days provided for under paragraphs (aa)
and (ab) of subsection (1).
(3)
An employee who absents himself on sick leave—
(a)
which is not certified by a registered medical practitioner or a medical officer or a dental surgeon as provided under subsections (1) and (2); or
(b)
which is certified by such registered medical practitioner or medical officer or dental surgeon but without informing or attempting to inform his employer of such sick leave within forty-eight hours of the commencement thereof, shall be deemed to absent himself from work without the permission of his employer and without reasonable excuse for the days on which he is so absent from work.
(4)
The employer shall pay the employee his ordinary rate of pay for every day of such sick leave, and an employee on a monthly rate of pay shall be deemed to have received his sick leave pay if he receives from his employer his monthly wages, without abatement in respect of the days on which he was on sick leave, for the month during which he was on such sick leave.
(5)
No employee shall be entitled to paid sick leave for the period during which the employee is entitled to maternity allowance under section 84 or for any period during which he is receiving any compensation for temporary disablement under the Workmen’s
Compensation Act 1952 [Act 273], or any periodical payments for temporary disablement under the Employees’ Social Security Act 1969 [Act 4].
Termination, lay-off and retirement benefits 105F.—
(1)
The Minister may by rules made under this
Ordinance provide for the entitlement of employees to, and for the payment by employers of—
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(a)
termination benefits;
(b)
lay-off benefits; or
(c)
retirement benefits.
(2)
Without prejudice to the generality of subsection (1), rules made by virtue of subsection (1) may provide—
(a)
for the definition of the expressions “termination benefits”, “lay-off benefits”, or “retirement benefits”, as the case may be, and for the circumstances in which the same shall be payable;
(b)
for the application thereof to employees who were in employment under a contract of service immediately before the commencement of such rules and who continue in such employment after such commencement;
(c)
for the application thereof to all employees generally or to any particular class, category or description of employees;
(d)
for the exclusion from the application thereof of any particular employee or employees or any class, category or description of employees; and
(e)
for the payment of different rates or amounts of termination benefits, lay-off benefits or retirement benefits, as the case may be, to different classes, categories or descriptions of employees.
[Ins. Act A1237.]
Task Work 106.—
(1)
[Deleted by Act A1237.]
(2)
Nothing in this Chapter contained shall prevent any employer from agreeing with any employee in his employment that the wages of such employee shall be paid at an agreed rate in accordance with the task, that is, the specific amount of work to be performed, and not by the day or by the piece.