JUDGMENT

1. This is an appeal against the decision of the Director General of Labour, Wilayah Persekutuan and Selangor (hereinafter referred to as "Director General of Labour") in a claim arrears of overtime payments pursuant to Section 60A(3) of the Employment Act 1955 (hereinafter referred to as "the said Act"). The claim was commenced under Section 69 of the said Act. It is not disputed that the Respondents were at all material times receiving a salary of more than RM1,250.00 and were on that basis not covered by the said Act. (See section 2(1) of the said Act read with Para 2, First Schedule of the said Act.) The said Act has since been amended and the base figure is now RM1,500.00. It is also not disputed that the Respondents were required to perform overtime work and did in fact do so. They were paid for their overtime work and the overtime payments they received from the Appellant were based on the mutually agreed and accepted ceiling of RM1,325.00. This ceiling is found in the Collective Agreement between the Appellant and the National Union of Petroleum and Chemical Industry Workers, [Page 2] who represent the Respondents. It is pertinent to note that the Respondents did not at any material time or at all dispute the basis upon which their overtime wage was computed nor the quantum of overtime payments they received, before they instituted the claim against the Appellants. However, in their claim the Respondents contend that they should have been paid overtime wages in accordance with Section 60A(3) of the said Act, which requires the quantum of the overtime wage to be computed on the actual monthly wage earned by the Respondents as opposed to the agreed ceiling of RM1,325.00. In this regard, it may be noted that the Respondents stand is that they are covered by the said Act, notwithstanding their monthly salary being in excess of RM1,250.00, by virtue of Section 2(1) of the said Act read with the exceptions found in para 2(1), the First Schedule to the said Act, which reads as follows:

"2. Any person who, irrespective of the amount of wages he earns in a month, has entered into a contract of service with an employer in pursuance of which:

(1) he is engaged in manual labour including such [Page 3] labour as an artisan or apprentice (hereinafter referred to as "the First Exception").

Provided that where a person is employed by one employer partly in manual labour and partly in some other capacity such person shall not be deemed to be performing manual labour unless the time during which he is required to perform manual labour in any one wage period exceeds one-half of the total time during which he is required to work in such wage period (hereinafter referred to as "the Proviso to the First Exception").

2. The Appellants case before the Director General of Labour was that the Respondents cannot invoke the provisions of the said Act as they are outside the statutory wage limit of RM1,250.00 under the said Act and further they do not fall under either the First Exception and/or the Proviso to the First Exception to the said Act. It is trite that "manual labour" involves physical exertion as opposed to mental/intellectual [Page 4] effort. Thus, it is not manual labour if "the real labour involved is a labour of the brain and intelligence: (per Warrington J. in Re Lithographic Artist (1918) 108 LT 894 at 896.) Further, a distinction must be drawn between manual labour and manual work. Manual labour is manual work which requires toil and effort. This distinction was made by Lord Esher M.R. in Bound v Lawrence (1892) 1 QB 226 as follows:

"There can be no manual labour without the use of the hands; but it does not follow that every use of the hands is manual labour, so as to make the person who does it a manual labourer."

Thus, whilst all manual labour would entail some manual work, it cannot be readily assumed that the person performing the manual work is a manual labourer and further it can not also be accepted that the per