Chapter 5: Holidays and Leave PDF

CHAPTER 5: HOLIDAYS AND LEAVE  1. REST DAY Section 59 (1): requires all employees to be permitted one rest day per week. Where an employee is allowed more than one rest day in a week, the last of such rest days shall be the rest day. Section 59(1A): in the cas...

CHAPTER 5: HOLIDAYS AND LEAVE  1. REST DAY Section 59 (1): requires all employees to be permitted one rest day per week. Where an employee is allowed more than one rest day in a week, the last of such rest days shall be the rest day. Section 59(1A): in the case of an employee engaged in shift work any continuous period of not less than thirty hours shall constitute a rest day. For example, shift workers working in second shift from 3pm to 11 pm, their rest day should be at least 30 hours starting from the last working hours at 11pm.  1. REST DAY Section 59(2): The employer shall prepare a roster before the commencement of the month in which the 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 employee of the fixed rest day so appointed. Section 59(3): 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.  1. REST DAY Section 60(1):Except as provided in subsection 60A(2), 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: Provided that in the event of any dispute the Director General 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 or continually by two or more shifts.  1. REST DAY Malayan Commercial Banks Association & Anor v Association of Bank Officers, Peninsular Malaysia & Anor 1 MLJ 174 The issue is whether a bank employee could be required by his employer to work on a rest day, under the Employment Act 1955. The court stated that the bank workers can work during rest day as banking service is one of the services listed under Essential Service under the Industrial Relations Act 1967. (Section 60A (2)(f) Employment Act 1955.  1. REST DAY Section 60(3)(a): In the case of an employee employed on a daily, hourly or other similar rate of pay who works on a rest day, he shall be paid for any period of work- (i) which does not exceed half his normal hours of work, one day’s wages at the ordinary rate of pay; or For example; daily wages for worker A is RM30 and the normal working hours starting from 8 am to 4pm. If worker A working during rest day from 8am to 12pm, the wages for that day is RM30.  1. REST DAY (ii) which is more than half but does not exceed his normal hours of work, two days’ wages at the ordinary rate of pay. For example, if worker A working during rest day from 8 am, past 12pm but not more than 4pm, wages for that day would be RM60.  1. REST DAY Section 60(3)(b):In the case of an employee employed on a monthly or weekly rate of pay who works on a rest day, he shall be paid for any period of work- (i) 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; For example, worker A monthly wage is RM650 (daily wages is RM650/26 days = RM25). Normal working hours for worker A starting from 8 am until 4pm. If worker A working during rest day from 8am to 12pm, wages for that day is RM 12.50.  1. REST DAY (ii) 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. For example, worker A working from 8 am past 12pm but not more than 4pm, the wages for that day is RM25.  1. REST DAY Section 60(3)(c):For any work carried out in excess of the normal hours of work on a rest day by an employee, he shall be paid at a rate which is not less than two times his hourly rate of pay. E.g: A worker monthly wages is RM572. If he worked during rest day from 8am until 6pm(10 hours), the overtime payment will be calculated as follows: Monthly wages = RM 572 per month Daily wages =RM572/26 = RM22 per day Hourly wages =RM22/8 = RM 2.75 per hour Therefore, total wages for working during rest day = normal hour wages + overtime work = RM 22 + (RM2.75 x 2 hours x 2) = RM33  1. REST DAY Section 60(3)(d): In the case of an employee employed on piece rates who works on a rest day, he shall be paid twice his ordinary rate per piece. Payment per unit= RM5 Unit produced per day = 100 unit Total wages for the day= RM5 x 100 unit x 2 = RM 1,000  2. PUBLIC HOLIDAY Section 60D (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 eleven of the gazetted public holidays, five of which shall be— (i) the National Day; (ii) the Birthday of the Yang di-Pertuan Agong; (iii) the Birthday of the State Ruler; (iv) the Workers’ Day; and (v) Malaysia Day; and (b) on any day appointed as a public holiday for that particular year under section 8 of the Holidays Act 1951  2. PUBLIC HOLIDAY The employer is required to choose six more public holidays for his employees. Section 60D(1A): The employer shall exhibit conspicuously at the place of employment before the commencement of each calendar year a notice specifying the remaining six gazetted public holidays in respect of which his employees shall be entitled to paid holidays. When a public holiday falls on worker’s rest day, the next day will automatically be considered his public holiday.  2. PUBLIC HOLIDAY By mutual agreement between the employer and an employee, a public holiday to which the employee is entitled can be substituted with any other day. For example, if Deepavali is a public holiday to which the employee is entitled, the employer may request him to work on Deepavali but give him an extra day off at Hari Raya.  2. PUBLIC HOLIDAY Section 60D(1B): Where any of the public holidays falls within the period during which an employee is on sick leave or annual leave or falls during the period of temporary disablement under the Workmen’s Compensation Act 1952, or under the Employees Social Security Act 1969, the employer shall grant another day as a paid holiday in substitution for such public holiday. Section 60D(2A): 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.  2. PUBLIC HOLIDAY Section 60D(3)(a): if a worker is requested to work on one of the public holidays to which he is entitled, he must be paid at premium rates, i.e., he is entitled to two days’ extra wages over and above his holiday pay, even if he works less than his normal daily hours. For example, Worker A monthly wages is RM1200. If he works during Independence Day, employer have to pay: Daily wages = RM1200/26 days = RM 46 Wages for working during public holiday = RM 46 x 2 = RM 92 A’s wages for public holiday = RM 138  2. PUBLIC HOLIDAY Oriental Star Lumut Park Resort Sdn Bhd v Mansor Daoh (1996) 2 ILR 1065 Facts: worker been asked to work on 31 August 1994 but the worker refused to come to work. The issue is whether employer can instruct employee to work during public holiday? Decision: Yes, employer can order employee to work during public holiday, but must pay wages according to the Act. Lion Metal Industries Sdn Bhd v Metal Industry Employees’ Union (No. Award 267/1993); court decided that employer can order employees to work on public holiday without the consent of employee.  2. PUBLIC HOLIDAY Section 60D(3)(aa): overtime work on a public holiday is paid at the rate of three times the worker’s hourly rate of pay. Worker A is instructed to work from 8 am until 6pm on Independence day. His normal working hours is from 8 am until 4pm. Therefore, the work done from 4pm to 6pm is considered overtime. If his monthly wages if RM1,200, he will entitled to: Daily wages = RM1,200/26 days = RM46 Wages for working during public holiday = RM 46 x 2 = RM92 Wages for overtime work = RM 46/8 hours x 2 hours x 3 = RM34.50 Total wages for public holiday = RM 172.50  3. ANNUAL LEAVE Section 60E EA 1955 The duration of annual leave granted to workers depends on their length of service with their employer. (a) workers with less than two years’ service are entitled to 8 days per year (b) workers with two to five years of service can take 12 days per year (c) those with more than five years of seniority have a right to 16 days of annual leave per year. Employees are required to apply to their employers when they want to take leave. Any employee who absents himself and has not been granted permission to take leave commits misconduct for which he may be punished.  3. ANNUAL LEAVE Section 60E (1A): The paid annual shall be in addition to rest days and paid holidays. Section 60E(1B): 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 the 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.  3. ANNUAL LEAVE Section 60E (2): Any employee who does not apply for leave during the year forfeits that leave, he loses the right to the leave. On the other hand, if the employee applies for leave and his application is rejected, at the end of the year the employer is required to pay the employee one day’s pay for every day of leave still due to him. Section 60E (2A): 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. (Worker can offset notice period from remaining annual leave.)  3. ANNUAL LEAVE Section 60E (3): 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. Section 60E (3A): 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 section 14 (1) (a).  4. SICK LEAVE Section 60F(1): An employee shall, after examination at the expense of the employer be entitled to paid sick leave. Before they can avail themselves of this privilege, they must undergo an examination by a registered medical practitioner duly appointed by the employer (panel doctor) and be certified unfit for work by the doctor. The employer is required to pay for this medical examination. If in medical emergency and worker is unable to seek treatment from his company’s panel doctor, the employer can accept the medical certificate from non-panel doctor. Section 60F(1A): An employee shall also be entitled to paid sick leave after examination by a dental surgeon as defined in the Dental Act 1971.  4. SICK LEAVE Section 60F(2) 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 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. SICK LEAVE Section 60F(aa): where no hospitalisation is necessary, -- (i) less than two years of service, he is entitled to 14 days of sick leave per year. (ii) if he has two to five years of service, he can take up to 18 days sick leave per year. (iii) if he has served his employer for five years or more, then he is entitled to 22 days sick leave per year. Section 60F(bb): if hospitalisation is necessary, as may be certified by such registered medical practitioner, the employee is entitled to up to 60 days’ paid medical leave per year inclusive of any sick leave entitlement.  5. PATERNITY LEAVE Section 60 FA (1) Subject to subsection (3), a married male employee shall be entitled to a paid paternity leave at his ordinary rate of pay for a period of seven consecutive days in respect of each confinement. (2) The paternity leave under subsection (1) shall be restricted to five confinements irrespective of the number of spouses. (3) A married male employee shall be entitled to paternity leave from his employer if— (a) he has been employed by the same employer at least twelve months immediately before the commencement of such paternity leave; and (b) he has notified his employer of the pregnancy of his spouse at least thirty days from the expected confinement or as early as possible after the birth