TOPIC 8 ADS 465 (ii) Employment Act

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TOPIC 8… cont’d
THE 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.
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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.
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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.
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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)
Limitations
i.
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.
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8.3.4 SHIFT WORK
Definition
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)
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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.
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Types of paid leave
•
Rest day
•
Public holiday
•
Annual leave
•
Sick leave
•
Maternity leave, and
•
Other leave
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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)
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THE REST DAY … cont’d
Other matters related to rest day
a. Rest days do not apply during the period the
employee is:
i. on maternity leave or sick leave (as provide for in the
EA), or
ii. 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 or
ii. 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.
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8.4.2 PUBLIC HOLIDAYS
Introduction
• 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 Day
ii. The birthday of the YDPA
iii. 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)
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PUBLIC HOLIDAYS … cont’d
The remaining 6 days can be substituted for
any other day or days (Sec. 60D (1A), EA):
i. Hari Raya Aidilfitri
ii. Chinese New Year
iii Christmas Day
iv. Deepavali
v. Awal Muharram
vi. Hari Raya Aidil Adha
or Good Friday
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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)
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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 years
ii. 12 days if his service is more than 2 years but
less than 5 years
iii.16 days if his service is more than 5 years.
(Sec. 60E(1), EA)
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ANNUAL LEAVE … cont’d
Other 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)
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8.4.4 SICK LEAVE
Introduction
• 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).
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SICK LEAVE … cont’d
Entitlement
a. Where no hospitalization is necessary:
i. 14 days for less than 2 years service
ii. 18 days for more than 2 years service but less than 5 years
iii. 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 leave
i. 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.
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8.4.5 OTHER TYPES OF LEAVE
Other types of leave include:
• Maternity leave (for female employees
only)
• Union leave, emergency leave etc.
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Maternity leave
a. 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.
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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)
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Maternity leave … cont’d
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.
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Maternity leave … cont’d
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)
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Maternity leave … cont’d
e. 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)
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Maternity leave … cont’d
f. 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)
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Maternity leave … cont’d
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)
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Maternity leave … cont’d
h. Restriction on dismissal and termination
It 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)
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8.5 PROHIBITION OF NIGHT WORK
i.
ii.
•
Female employees cannot be required by their
employer(s):
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
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
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8.6 PROHIBITION OF UNDERGROUND WORK
• Female employees cannot be employed in
any underground working. (Sec. 35, EA)
• E.g. mines
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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
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TERMINATION, LAY-OFF AND
RETIREMENT … cont’d
•
•
i.
ii.
iii.
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 layoff benefits
10 days' wages – for employees with less than
two years service.
15 days’ wages – for employees with more than
2 years but less than 5 years service.
20 days’ wages – for employees with more than
5 years service (The Employment Regulations
1980)
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ADS 465
TERMINATION, LAY-OFF AND
RETIREMENT … cont’d
Retirement
•
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.
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Discussion Questions
1. 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.
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