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WORKER RIGHTS IN MALAYSIA – BASIC QUESTIONS

WORKER RIGHTS IN MALAYSIA – BASIC QUESTIONS

Are you an employee who is covered under the Employment Act 1955 ?

Workers covered under the Employment Act 1955 are all workers whose earnings do not exceed RM1,500.00 a month and all manual workers irrespective of their earnings.
If you are a foreign worker legally employed in this country, you are also covered under the Employment Act 1955.

 

 

What is a contract of service ?

A contract of service is an agreement whereby a person agrees to employ another as an employee and the employee agrees to serve his employer as an employee;
A contract of service can be either oral or writing;
Any contract of service for a specified period of time exceeding one month must be in writing.
The terms and conditions of service must be made in writing and be given to all employees on or before the commencement of his employment.

These terms cannot be less favourable than the terms stipulated under the Employment Act 1955.

 

 

Under what circumstances is a contract of service deemed to be broken ?

A contract of service is deemed to be broken under the following circumstances: An employer fails to pay wages within seven days after the wages period. An employee has been absent from work for more than two consecutive working days without prior leave from his employer.

 

 

What is the meaning of  "normal hours of work"?

“Normal hours of work” means the hours of work as agreed between an employer and an employee in the contract of service to be the usual hours of work per day. The normal hours of work should not exceed :
i. 8 hours a day excluding a period of rest;
ii. 5 consecutive hours of work without a period of rest of not less than thirty minutes; and
iii. 48 hours in a week.
Upon mutual agreement, hours of work can exceed 9 hours a day but it cannot exceed 48 hours in a week.

 

 

What does it mean by ‘overtime’?

Overtime means the hours of work carried out in excess of the normal hours of work per day.

 

 

At what rate should an employee who work overtime be paid?

Overtime rate should not be less than the following: On normal day's work, 1 1/2 times the hourly rate of pay. On rest day's work, 2 times the hourly rate of pay. On public day's work, 3 times the hourly rate of pay.

 

 

Is there any restriction on the overtime hours that an employee could work in one month?

An employee should not be required to work overtime exceeding a total of 104 hours in a month.

 

 

Is it compulsory for a contract of service to specify a wage period? What should be the length of the wage period?

A contract of service shall specify a wage period not exceeding one month. If the contract does not specify this, the wage period would be deemed to be one month.

 

 

When should wages be paid to employees?

  • Wages (less any lawful deductions) are payable not later than the seventh day after the end of wage period.
  • The employer may apply for extension of  payment of wages time from the Director General of Labour Department.

 

 

When should wages be paid to an employee upon a normal termination of contract of service?

Wages should be paid to an employee not later than the day when the contract of service is terminated.

 

 

When should wages be paid in situation where a contract of service is terminated by an employee without giving notice in accordance with either Section 13(1) or (2) or Section 14(3) of the Act?

When employee terminates his service without notice in such situation, wages (less any lawful deductions) are payable not later than the third day after the day when the contract is terminated.

 

 

When should wages be paid in situation where a contract of service is terminated by an employer without giving notice in accordance with either Section 13(1), 2 or Section 14(1)(a) of the Act? 

Wages should be paid not later than the day when the contract of service is terminated.

 

 

Is it lawful for an employer to make deductions from his employee’s wages?

An employer may deduct the following items from employee’s wages without the employee’s permission:
Overpayments made by mistake during the immediate preceding three months from the month in which deductions are to be made;
Indemnity due to the employer by the employee under Section 13(1) Recovery of advances of wages provided no interest is charged on the advances;
and EPF, social security contributions, income tax and etc as authorised by law.

 

 

What are the types of work that women are prohibited from doing under the Act?

The types of work that women are prohibited are: underground work, industrial and agricultural undertaking between 10.00 pm – 5.00 am without exemption from the Director General of Labour.

 

 

Generally, what are the maternity benefits provided for female employees under the Act?

Generally, every female employee is entitled to maternity leave for a period of not less that 60 consecutive days (“the eligible period”) and maternity allowance in respect of the eligible period.

 

 

When should the maternity leave commence?

Maternity leave may commerce anytime within 30 days before her confinement but should not be later than the day immediately following her confinement.

 

 

What are the conditions to be fulfilled before an employee qualifies for maternity allowance?

The following conditions must be fulfilled: She has less than 5 surviving children; She has been employed for at least 90 days in the four months immediately before her confinement.

 

 

How is maternity allowance calculated?

Maternity allowance is based on her monthly wages if she is employed on a monthly rated of pay.  Otherwise the maternity allowance is the ordinary rate of pay for one day or RM6.00 per day whichever is higher for 60 consecutive days.

 

 

When should maternity allowance be paid?

Maternity allowance shall be paid in the same manner as if such allowance were wages and are payable not later than the seventh day after the last day of any wage period.

 

 

How many rest days should an employee be entitled to under the Act?

An employee should be entitled to one whole day of rest day in each week.

 

 

Is an employee entitled to rest day benefit during maternity leave or temporary disablement (under SOCSO)?

An employee shall not be entitled to rest day benefit during maternity leave or temporary disablement under the Workmen's Compensation Act, 1952 or under the Employees Social Security Act, 1969.

 

 

Is it lawful for an employer to require his employee to work on a rest day?

An employee can be required by his employer to work on a rest day under the following circumstances: accident, actual or threatened in the workplace; work which is essential to the life of the community; work which is essential to the defence or security of the country; urgent work need to be done to the machinery or plant; an interruption of work which was impossible to foresee; 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.

 

 

How should an employee who is required to work on a rest day be paid?

An employee who is required to work on a rest day shall be paid one additional day wages at his ordinary rate of pay.

 

 

How many paid holidays should an employee be entitled to in one year?

An employee should be entitled to paid holidays of not less than 10 days in a year.

 

 

How should an employees who are required to work on holidays be paid?

An employee who is required to work on holiday shall be paid two additional days wages at his ordinary rate of pay.

 

 

How many days of annual leave should an employee be entitled to?

An employee should be entitled to annual leave of not less than the following: less than 2 years service - 8 days for each year of service more than 2 years but less than 5 years  - 12 days for each year of service 5 years or more  - 16 days for each year of service.

 

 

Under what circumstances should an employee not be entitled to his annual leave?

An employee is not entitled to annual leave due to the following: if he/she absents himself/herself from work without the permission of the 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/her  entitlement to such leave accrues. if he/she is dismissed after due inquiry.

 

 

How many days of paid sick leave is an employee entitled to in one year?

An employee should be entitled to paid sick leave of not less than the following: less than 2 years service - 14 days in each calendar year. more than 2 years but less than 5 years - 18 days in each calendar year. 5 years or more  - 22 days in each calendar year.

 

 

What are the circumstances under which an employee is not entitled to sick leave pay?

An employee is not entitled to paid sick leave during maternity leave or for any period during which he/she is receiving periodical payments under Workmen's Compensation or SOCSO.

 

 

How long should the notice of termination of contract of service be given to an employer/ employee?

If the contract of service does not specify the period of notice, the notice shall be as follows: 4 weeks notice – has been employed for less than 2 years; 6 weeks notice – has been employed for 2 years or more but less than 5 years; or 8 weeks notice – has been employed for 5 years or more.

 

 

Is it possible for either an employer or an employee to terminate the contract of service without giving notice?

It is possible to terminate the contract of service without notice: by paying to the other party an indemnity in lieu of notice. if there is a willful breach by the other party of a condition of the contract of service. 

 

 

What is the regulation made pursuant to the Act that  provides for the entitlement of termination and lay-off benefits?

The Employment (Termination and Lay-off Benefits) Regulations 1980.

 

 

What are the circumstances under which an employee is not entitled to termination/ lay-off benefits?

An employee is not entitled to termination/lay-off  benefits in the following circumstances: employed for less than 12 months on date of termination; or the contract of service is renewed or the employee re-engaged on terms and conditions not less favourable than his previous contract; or where the employer has offered to renew the contract on no less favourable terms 7 days before the date of termination; and  where, after receiving due notice of termination of contract the employee leaves the services without employer's prior consent or without paying the employer the indemnity due contract of service.

 

 

What is the quantum of lay-off benefits payable?

An employee is entitled to lay-off benefits not less than the following: 1 to 2 years service  - 10 days wages for each year service. more than 2 years but less 5 years service - 15 days wages for each year service. 5 years service or more - 20 days wages for each year service

 

 

When should payment of termination/lay-off benefits be made?

Termination/lay-off benefits payment shall be paid not later than seven days after the termination.

 

 

 

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