norhayati mohd salleh ads 465 1 topic 8… cont’d the employment act 1955 upon completing this...

Norhayati Mohd Salleh ADS 465

1

TOPIC 8… cont’dTHE EMPLOYMENT ACT 1955

UPON COMPLETING THIS TOPIC, STUDENT SHOULD BE ABLE TO:

• Identify groups of workers covered under the Employment Act 1955

• Explain the term contract of service and ways of terminating the contract of service.

• Identify the proper way to conduct due inquiry.• Describe the important matters on hours of work.• Discuss the types of paid leave.• Explain on protection for female workers.


2

8.3 HOURS OF WORK

8.3.1 Definition

• The ‘ 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. – workers must do their work at the workplace.


3

8.3.2 THE NORMAL HOURS OF WORK

• It means the number of hours of work as agreed between an employer and an employee in the employment contract to be the usual hours of work per day but, not exceed the limits of hours as prescribed in Sec. 60 A (1): (Sec. 60A(3)

Therefore the employer cannot require an employee to work:

i. More than five consecutive hours without a period of rest/ leisure of not less than 30 minutes duration.

ii. More than eight hours in one day.iii. In excess of a spread over period of ten hours in

one day.iv. More than 48 hours in one week.


4

8.3.3 OVERTIME WORK AND PAY

• ‘Overtime’ means the number of hours of work carried out in excess of the normal hours of work per day. (the employee will get extra pay on hourly basis)

Limitationsi. The rate for overtime payment shall not be less than 1

½ times the hourly rate of pay. (Sec. 60 A (3), EA)ii. The maximum hours of overtime a month shall not

exceed those currently specified by the Minister or approved by the DGL (Sec. 60A(4), EA)

iii. In any case, the total number of hours worked (normal + overtime) per day shall not exceed 12 hours, except in the special circumstances described in Sec. 60A (2), EA.


5

8.3.4 SHIFT WORKDefinition It means work by reason of its nature requires to be carried on

continuously or continually, as the case may be, by two or more shifts.

Interpretation:An employee who is engaged under his contract of service in shift

work may be required by his employer to work more than 8 hours in any one day or more than 48 hours in any one week.

Limitation:• But, the average number of hours worked over any period of

three weeks shall not exceed 48 hours per week. (Sec. 60C (1), EA)

• No employer shall require any employee who is engaged under his contract of service to work more than 12 hours in any one day except in circumstances described in Sec. 60A (2): (Sec.60C (2), EA)


6

8.4 PAID LEAVE AND LEAVE BENEFITS

Introduction

• A leave refers to a situation whereby an employee is absent from work or duty with permission. An employer must provide such benefit for his workers.

• Paid leave refers to a situation whereby an employee is permitted to be absent from work/ duty and be paid.


7

Types of paid leave

• Rest day

• Public holiday

• Annual leave

• Sick leave

• Maternity leave, and

• Other leave


8

8.4.1 THE REST DAY

Introduction• It refers to a continuous period of 24 hours whereby an employee

is free from his normal duty.

An employer must:i. Allow an employee to have a rest day of one whole day in each

week.ii. Determine a rest day (Sec.59 (1), EA)iii. Prepare roster that informs each employee of the days

determined by the employer to be the rest days of the employee in the coming month.

iv. Display a notice at a suitable place in the place of employment. (Sec.59 (2).

v. Keep the roster for a period not exceeding 6 years from the last day the roster was prepared. (Sec. 59 (3), EA)

vi. Any violation of the provisions of this section will be fined- not exceeding RM2, 000/- (Sec. 59 (4), EA)


9

THE REST DAY … cont’d

Other matters related to rest daya. Rest days do not apply during the period the employee

is:i. on maternity leave or sick leave (as provide for in the EA), orii. on temporary disablement Act 1952 or the Employee Social Security Act 1969: (Sec. 59(1)

b. An employee cannot be compelled to work on the rest day except:i. in the circumstances outlined in Sec. 60 A(2) a,b,c,d,e & f, EA orii. if he is engaged in shift work. (Sec. 60(1), EA)

c. If an employee works on a rest day the rate of pays are as in Sec. 60(3) a, b, c & d, EA.


10

8.4.2 PUBLIC HOLIDAYSIntroduction• Public holidays refer to 10 gazatted days

whereby an employee is permitted to be absent from work at his ordinary rate of pay.

• Four of them are as follows:i. The National Dayii. The birthday of the YDPAiii. The birthday of the Ruler/ YDP Negeri of the states or the Federal Territory Day (the place where the employee works)iv. The worker’s Celebration Day.(Sec. 60D(1), EA)


11

PUBLIC HOLIDAYS … cont’d

The remaining 6 days can be substituted for any other day or days (Sec. 60D (1A), EA):i. Hari Raya Aidilfitriii. Chinese New Yeariii Christmas Dayiv. Deepavaliv. Awal Muharramvi. Hari Raya Aidil Adhaor Good Friday


12

PUBLIC HOLIDAYS … cont’d

Rate of payment• Any employee who is required by his employer

to work on any paid holiday must be given twice at the ordinary rate of pay (daily, hourly or piece of work).

• Any overtime work carried out in excess of the normal hours of work on a paid holiday …the rate is not less than three times his hourly rate of pay; or three times the ordinary rate per piece of work.

(Sec. 60D (3), EA)


13

8.4.3 ANNUAL LEAVE

Introduction• It refers to a period during which an employee is

permitted to be absent from work at his ordinary rate of pay annually. It is an addition to rest days and public holidays.

Entitlement i. 8 days if his service is less than 2 yearsii. 12 days if his service is more than 2 years but less than 5 yearsiii.16 days if his service is more than 5 years.(Sec. 60E(1), EA)


14

ANNUAL LEAVE … cont’dOther matters

i. the paid annual leave must be taken by an employee not later than 12 months after the 12 months continuous service. (Sec. 60E(2), EA)ii. any employee on paid annual leave who becomes entitled to sick leave or to maternity leave must be granted sick leave or maternity leave. (Sec. 60(1B), EA)iii. upon the termination of his employment contract, an employee is entitled to take all the paid annual leave he is entitled to. (Sec. 60E(2A), EA)iv. upon the termination of an employment contract (by any party), before the employee has taken the paid annual leave to which he is entitled to, the employer must pay the employee his ordinary rate of pay for every day of such leave. (Sec. 60E(3A), EA)


15

8.4.4 SICK LEAVEIntroduction• It refers to a period during which an employee is

permitted to be absent from work due to any disablement whereby he cannot perform his work.

Conditions• He is entitled to such paid leave only after an

examination (medical exam.):i. at the expense of his employer (by the doctor or a dentist appointed by the employer)ii. by any doctor or dentist if such doctor or dentist are not obtainable (within reasonable time or distance in a particular case) (Sec. 60F(1) & (1A), EA).


16

SICK LEAVE … cont’dEntitlementa. Where no hospitalization is necessary:

i. 14 days for less than 2 years serviceii. 18 days for more than 2 years service but less than 5 yearsiii. 22 days for more than 5 years service (Sec. 60F(aa), EA)

b. Where hospitalization is necessary:– 60 days as certified by a registered doctor or a dentist.

(Sec. 60F(bb), EA)

Payment for sick leavei. an employee on a monthly rate of pay is considered to have received his sick leave pay if he receives his monthly wages from his employer without abatement for that particular days and month. (Sec. 60F(3), EA)

ii. an employer must pay an employee his ordinary pay for everyday of such pay.


17

8.4.5 OTHER TYPES OF LEAVE

Other types of leave include:

• Maternity leave (for female employees only)

• Union leave, emergency leave etc.


18

Maternity leavea. Definition

• This refers to a period of not less than 60 consecutive days whereby a female worker abstain from work in the issuance of a child or children resulting after that at least 28 weeks of pregnancy.


19

Maternity leave … cont’d

b. Length of eligible period– Not less than 60 consecutive days in respect of

each confinement. (Sec. 37(1)(a), EA)– She can commence this leave at any time

during the period between 30 days preceding her confinement and the day following the confinement.

– An employer can require any female worker to commence her maternity leave at any time during the period 14 days preceding her confinement. (Sec.37 (1)(b), EA)


20


c. Maternity allowance

Definition

• This is an amount of payment received by female employees for each day of their maternity leave at their ordinary pay or at the rate prescribed by the Minister of Human Resources whichever is greater.


21


d. Rate of maternity allowances• at her ordinary rate of pay• she must be employed by her employer in the

4 months preceding her confinement or for at least 90 days in the 9 months preceding the confinement.

• She is deemed to have received her maternity allowance if she continues to receive her monthly wages during her abstention from work on maternity leave without any abatement in respect of such abstention. (Sec. 37(2), EA)


22

Maternity leave … cont’de. Qualifying conditions• This refers to conditions that make a female worker

entitles to receive a maternity allowance for each day of her maternity leave.i) Her confinement of 1 to 5 natural children ii) 4 months service preceding her confinement or for at least 90 days in the 9 months preceding her confinement.iii) Must notify her employer that she will confined (within 60 days before her confinement) and the date from which she intends to commence it. (Orally or in writing)iv) Expected confinement and confinement must be certified by a registered medical practitioner or any medical practitioner appointed by the employer.v) She is entitled to receive such allowance from one employer only. (Sec. 40, EA)


23

Maternity leave … cont’df. Payment of maternity allowances

i. the payment of such allowances is the same as that for payment of wages.

ii. the wage must be paid not later than the seventh day after the last day of that wage period. (Sec. 38, EA)

iii. if an employee (after giving such notice and commencing her leave) dies from any cause during her maternity leave, the employer must pay an allowance at the appropriate rate (from the date she commenced her leave to the day preceding her death) i.e. to the person nominated by her or to her legal personal representatives. (Sec. 39, EA)


24


g. Suspension or loss of maternity allowances

A maternity allowance can be suspended if:

i) she does not notify her employer about her confinement (within 60 days before her confinement until such notice is given). (Sec. 40(2), EA)

ii) an employee who leaves her employment without giving such notice to her employer is not entitled to receive any maternity allowance from her employer. (Sec. 40(1), EA)


25

Maternity leave … cont’dh. Restriction on dismissal and terminationIt is an offence for an employer:

i. to dismiss an employee at any time during the period in which she is entitled to maternity leave or,ii. to terminate her service if she remains absent from work after her maternity leave due to pregnancy or confinement and make her unfit for her work (as certified by doctor) until her absence exceeds 90 days after the expiration of her maternity leave. (Sec. 42, EA)


26

8.5 PROHIBITION OF NIGHT WORKFemale employees cannot be required by their employer(s):

i. to work in any industrial or agricultural undertaking between the hours of 10.00 o’clock in the evening and 5.00 o’clock in the morning. E.g. plantation sector

ii. Or commence work for the day without having had a period of eleven consecutive hours free from such works (2 shift works). (Sec.34 (1), EA)

• However, the DGL can exempt in writing any female employee or class of female employees from any restriction in this subsection (upon application made to him in any particular case) i.e. subject to any condition he may impose. E.g. hospitals, factories


27

8.6 PROHIBITION OF UNDERGROUND WORK

• Female employees cannot be employed in any underground working. (Sec. 35, EA)

• E.g. mines


28

8.7 TERMINATION, LAY-OFF AND RETIREMENT

Termination• It refers to termination of employment contract

other than the following reasons:i. upon the employee attaining the age of

retirement (by employer)ii upon the ground of misconduct after due

inquiry (by employer)iii. voluntary resignation other than:

– termination without notice– termination for special reason


29

TERMINATION, LAY-OFF AND RETIREMENT … cont’d• Lay-off is situation whereby an employee is not

provided with work by his employer for a period of at least a total of 12 normal working days within a period of 4 consecutive weeks (not inclusive any leave authorized by written law).

• Amount of payment for termination and lay-off benefits

i. 10 days' wages – for employees with less than two years service.

ii. 15 days’ wages – for employees with more than 2 years but less than 5 years service.

iii. 20 days’ wages – for employees with more than 5 years service (The Employment Regulations 1980)


30

TERMINATION, LAY-OFF AND RETIREMENT … cont’dRetirement• This is situation whereby employees are

separated from their services because of age or incapacity to work on medical grounds.

• The employer’s contribution to the EPF is in fact retirement benefits.

• Amount of payment refers to employee’s contribution + employer’s contribution + dividend given by the EPF.

• Methods of payment – a lump sum or staggered.

Discussion Questions1. Explain the requirements that qualify a

female worker to claim for maternity benefits.

2. Elaborate on the restrictions imposed on employers in terms of rest day.

3. Explain the responsibilities of employers and employees in terms of sick leave.

4. Explain the responsibilities of employers and employees in terms of annual leave.

5. Describe four (4) types of termination of service as you have studied.


31

norhayati mohd salleh ads 465 1 topic 8… cont’d the employment act 1955 upon completing this...

Documents

normal hours of work

usual hours of work

overtime work

maximum hours

consecutive hours

limits of hours

work duty

leave slide