Malaysia legislation
Section 116
Section 116
Except where otherwise expressly permitted by the provisions of this Ordinance or any rule made hereunder, no employer shall make any deduction or make any contract of service with an employee for any deduction from wages to be paid by the employer to the employee or for any payment to the employer by the employee for or in respect of any fine, or of bad or negligent work or of injury to the materials or other property of the employer.
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Remuneration other than wages 117.—
(1)
Nothing in this Chapter shall render illegal a contract of service with an employee under which the employer agrees to provide the employee with house accommodation, food, fuel, light, water, medical attendance, or any approved amenity or approved service in addition to wages but no employer shall provide any employee with any intoxicating liquor as part of the terms of a contract of service.
(2)
The Director may, on application made to him in writing by an employer, approve in writing any amenity or service as an approved amenity or approved service, and in granting such approval the Director may make such modifications or impose such conditions as he may deem proper.
(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 any 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.
Priority of wages over other debts 117A.—
(1)
Where by order of a court made upon the application of any person holding a mortgage, charge, lien or decree
(in this section referred to as “the secured creditor”) or in the exercise of rights under a debenture the property of any person (in this section referred to as “the person liable”) liable under any of the provisions of this Ordinance to pay the wages due to any employee or to pay money due to any subcontractor for labour is sold, or any money due to the person liable is attached or garnished, the Court or the receiver or manager shall not authorize payment of the proceeds of the sale, or of the money so attached or garnished, to the secured creditor or the debenture holder until the Court or the receiver or manager has ascertained and caused to be paid, out of such proceeds or money, the wages of such employee, or the money due to any subcontractor for labour under a contract between him and the person liable, which the person liable was liable to pay at the date of such sale, attachment or garnishment:
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Provided that this section shall only apply to the sale of a place of employment on which—
(a)
any employee to whom wages are due as aforesaid;
(b)
any employee to whom wages are due by such subcontractor for labour as aforesaid;
(c)
any subcontractor for labour to whom money is owed on account of the subcontract by the subcontractor for labour as aforesaid, was employed or worked at the time when such wages were earned or such money accrued due, and to the proceeds of the sale of any products of such place of employment and of any movable property therein used in connection with such employment and to any money due to the person liable on account of work performed by such employee or subcontractor for labour or derived from the sale of the products of such work:
Provided further that—
(a)
where the person liable is an employer, the total amount of the wages of any employee to which priority over the claim of a secured creditor is given by this section shall not exceed the amount due by the employer to the employee as wages for any four consecutive months’ work;
(b)
where the person liable is a principal and where the wages are claimed from such principal under section 117C, the total amount of the wages of any employee to which priority over the claim of a secured creditor is given by this section shall not exceed the amount due by the principal to the contractor at the date of the sale, attachment or garnishment unless the contractor is also a subcontractor for labour;
(c)
where the person liable is a contractor or subcontractor who owes money to a subcontractor for labour, the total amount due to such subcontractor for labour to which priority over the claim of a secured creditor is given by this section shall not exceed the amount due by such subcontractor for labour to his
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employees (including any further subcontractors for labour under such first-mentioned subcontractor for labour) for any four consecutive months’ work.
(2)
In this section, except for the second proviso to subsection
(1)
, “wages” includes termination and lay-off benefits, annual leave pay, sick leave pay, public holiday pay and maternity allowance.
Reference by the Court to Director 117B.—
(1)
For the purposes of ascertaining the amount due to any employee or subcontractor for labour under section 117A, the court or the receiver or manager may refer the question to the Director with a request that he hold an inquiry into the matter and forward his findings to the court or the receiver or manager, and the Director shall comply with any such request.
(2)
For the purpose of any inquiry under subsection (1), the
Director shall have all the powers conferred upon him by paragraph (f)
of section 8F and section 8O shall have effect as if the inquiry were being held under section 8A.
Liability of principals and contractors for wages 117C.—
Where a principal in the course of or for the purposes of his trade or business, contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, and any wages are due to any employee by the contractor or any subcontractor under the contractor for work done in the course of the performance of the contract, the principal and the contractor and any such subcontractor (not being the employer) shall be jointly and severally liable with the employer to pay such wages as if that employee had been immediately employed by the principal and by the contractor and any such subcontractor:
Provided that—
(a)
in the case of a contract for constructional work, the principal shall not be liable for the payment of wages under this subsection unless he is also a constructional contractor or a housing developer;
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(b)
the principal, and the contractor and any subcontractor
(not being the employer), shall not be liable to any employee under this subsection for more than the wages due to him for any three consecutive months; and
(c)
the employee shall have instituted proceedings against the principal for the recovery of his wages or made a complaint to the Director under Chapter IIA within ninety days from the date on which such wages became due for payment by his employer in accordance with the provisions for the payment of wages contained in Part IV.
(2)
Any person, other than the employer, who has paid wages under this section to the employee of any employer may institute civil proceedings against such employer for the recovery of the amount of wages so paid.
CHAPTER XIVA
EMPLOYMENT OF NON-RESIDENT EMPLOYEE
[Ins. Act. A1237.]