EMPLOYMENT ACT 1955 (REVISED - 1981)
(1) This Act may be cited as the Employment Act 1955 .
(2) This Act shall apply to West Malaysia only.
(1) In this Act, unless the context otherwise requires:
"agricultural undertaking" means any work in which any employee is employed under a contract of service for the purposes of agriculture, horticulture or silviculture, the tending of domestic animals and poultry or the collection of the produce of any plants or trees;
" apprentice " means any person who has entered into an apprenticeship contract; [Ins. by Act A1651]
"apprenticeship contract" means a written contract entered into by a person with an employer who undertakes to employ the person and train or have him trained systematically for a trade for a specified period which shall be for a minimum period of six months and a maximum period of twenty four months in the course of which the apprentice is bound to work 2A PART I PRELIMINARY-2A. Minister may prohibit employment other than under contract of service.
(1) The Minister may by order prohibit the employment, engagement or contracting of any person or class of persons to carry out work in any occupation in any agricultural or industrial undertaking, constructional work, statutory body, local government authority, trade, business or place of work other than under a contract of service entered into with:
(a) the principal or owner of that agricultural or industrial undertaking, constructional work, trade, business or place of work; or
(b) that statutory body or that authority.
(2) Upon the coming into force of any such order, the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and:
(a) the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or
(
2B PART I PRELIMINARY-2B. General power to exempt or exclude.
The Minister may by order exempt or exclude, subject to such conditions as he may deem fit to impose, any person or class of persons from all or any of the provisions of this Act.
3 PART I PRELIMINARY-3. Appointment of officers.
(1) The Yang di-Pertuan Agong may appoint an officer to be styled the Director General of Labour, in this Act referred to as "the Director General".
(2) The Yang di-Pertuan Agong may appoint, to such number as he considers necessary for carrying out the provisions of his Act, officers of the following categories, that is to say:
(a) Deputy Directors General of Labour;
(b) Directors of Labour, Deputy Directors of Labour, Senior Assistant Directors of Labour and Assistant Directors of Labour; and
(c) Labour Officers.
(3) Subject to such limitations, if any, as may be prescribed by regulations made under this Act, any officer appointed under subsection (2) shall perform all the duties imposed and may exercise all the powers conferred upon the Director General by this Act, and every duty so performed and power so exercised shall be deemed to have been duly perform
4 PART I PRELIMINARY-4. Appeals.
Any person affected by any decision or order, other than an order or decision under section 69 or 73 or subsection 81D(4) given or made by an officer appointed under subsection 3(2), may, if he is dissatisfied with such decision or order, within twenty-one days of such decision or order being communicated to him appeal in writing therefrom to the Director General.
[Am. by Act A1419; Am. by Act A1651]
5 PART I PRELIMINARY-5. Effect on Act of other written laws.
Nothing in this Act shall be construed as relieving any person who has entered into a contract of service, either as the employer or as the person employed, of any duty or liability imposed upon him by the provisions of any other written law for the time being in force in Malaysia or any part thereof or to limit any power which may be exercised by any public officer or any right conferred upon any such person as aforesaid under or by virtue of any such written law.
6 PART II CONTRACTS OF SERVICE-6. Saving of existing contracts.
Every agreement lawfully entered into between an employer and an employee before the coming into force of this Act shall if it is still legally binding upon the parties continue in force for such period as may be specified in the agreement and the parties thereto shall be subject to, and shall be entitled to the benefits of, this Act.
7 PART II CONTRACTS OF SERVICE-7. More favourable conditions of service under the Act to prevail.
Subject to section 7A, any term or condition of a contract of service or of an agreement, whether such contract or agreement was entered into before or after the coming into force of this Act, which provides a term or condition of service which is less favourable to an employee than a term or condition of service prescribed by this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder shall be void and of no effect to that extent and the more favourable provisions of this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder shall be substituted therefor.
7A PART II CONTRACTS OF SERVICE-7A. Validity of any term or condition of service which is more favourable.
Subject to any express prohibition under this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder, nothing in section 7 shall be construed as preventing an employer and an employee from agreeing to any term or condition of service under which an employee is employed, or shall render invalid any term or condition of service stipulated in any collective agreement or in any award of the Industrial Court, which is more favourable to the employee than the provisions of this Act or any regulations, order, or other subsidiary legislation whatsoever made thereunder.
7B PART II CONTRACTS OF SERVICE-7B. Removal of doubt in respect of matters not provided for by or under this Act.
For the removal of doubt it is hereby declared that if no provision is made in respect of any matter under this Act or any subsidiary legislation made thereunder, or if no regulations, order or other subsidiary legislation has been made on any matter in respect of which regulations, or an order or other subsidiary legislation may be made under this Act, it shall not be construed as preventing such matter from being provided for in a contract of service, or from being negotiated upon between an employer and an employee.
8 PART II CONTRACTS OF SERVICE-8. Contracts of service not to restrict rights of employees to join, participate in or organize trade unions.
Nothing in any contract of service shall in any manner restrict the right of any employee who is a party to such contract:
(a) to join a registered trade union;
(b) to participate in the activities of a registered trade union, whether as an officer of such union or otherwise; or
(c) to associate with any other persons for the purpose of organising a trade union in accordance with the Trade Unions Act 1959.
9 PART II CONTRACTS OF SERVICE-9. [Deleted by Act 40 of 1966].
[Deleted by Act 40 of 1966]
10 PART II CONTRACTS OF SERVICE-10. Contracts to be in writing and to include provision for termination.
(1) A contract of service for a specified period of time exceeding one month or for the performance of a specified piece of work, where the time reasonably required for the completion of the work exceeds or may exceed one month, shall be in writing.
(2) In every written contract of service a clause shall be included setting out the manner in which such contract may be terminated by either party in accordance with this Part.
11 PART II CONTRACTS OF SERVICE-11. Provision as to termination of contracts.
(1) A contract of service for a specified period of time or for the performance of a specified piece of work shall, unless otherwise terminated in accordance with this Part, terminate when the period of time for which such contract was made has expired or when the piece of work specified in such contract has been completed.
(2) A contract of service for an unspecified period of time shall continue in force until terminated in accordance with this Part.
12 PART II CONTRACTS OF SERVICE-12. Notice of termination of contract.
(1) Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service.
(2) The length of such notice shall be the same for both employer and employee and shall be determined by a provision made in writing for such notice in the terms of the contract of service, or, in the absence of such provision in writing, shall not be less than:
(a) four weeks' notice if the employee has been so employed for less than two years on the date on which the notice is given;
(b) six week's notice if he has been so employed for two years or more but less than five years on such date;
(c) eight week's notice if he has been so employed for five years or more on such date:
Provided that this section shall not be taken to prevent either party from waiving his right to a notice under this subsection.
(3)
13 PART II CONTRACTS OF SERVICE-13. Termination of contract without notice.
(1) Either party to a contract of service may terminate such contract of service without notice or, if notice has already been given in accordance with section 12, without waiting for the expiry of that notice, by paying to the other party an indemnity of a sum equal to the amount of wages which would have accrued to the employee during the term of such notice or during the unexpired term of such notice.
(2) Either party to a contract of service may terminate such contract of service without notice in the event of any wilful breach by the other party of a condition of the contract of service.
14 PART II CONTRACTS OF SERVICE-14. Termination of contract for special reasons.
(1) An employer may, on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry:
(a) dismiss without notice the employee;
(b) downgrade the employee; or
(c) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.
(2) For the purposes of an inquiry under subsection (1), the employer may suspend the employee from work for a period not exceeding two weeks but shall pay him not less than half his wages for such period:
Provided that if the inquiry does not disclose any misconduct on the part of the employee the employer shall forthwith restore to the employee the full amount of wages so withheld.
(3) An employee may terminate his contract of service with his employer without
15 PART II CONTRACTS OF SERVICE-15. When contract is deemed to be broken by employer and employee.
(1) An employer shall be deemed to have broken his contract of service with the employee if he fails to pay wages in accordance with Part III.
(2) An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.
16 PART II CONTRACTS OF SERVICE-16. Employees on estates to be provided with minimum number of days' work in each month.
(1) Where an employee is employed in any agricultural undertaking on an estate on a contract of service under which he earns wages calculated by reference to the number of days' work performed in each month of his service, his employer shall be bound either to provide him with work suitable to his capacity on not less than twenty-four days in each month during the whole of which he is so employed, or if the employer is unable or fails to provide work on twenty-four days in each month whereon the employee is willing and fit to work, the employer shall nevertheless be bound to pay to the employee in respect of each of such days wages at the same rate as if such employee had performed a day's work:
Provided that any dispute as to whether an employee was willing or fit to work shall be referred to the Director General for his decision:
Provided further that in computing twenty-four days for the purposes of this subsection account shall not
17 PART II CONTRACTS OF SERVICE-17. [Omitted].
[Omitted]
17A PART II CONTRACTS OF SERVICE-17A. Apprenticeship contracts excluded from sections 10 to 16.
Sections 10 to 16 shall not apply to apprenticeship contracts which are in a form approved by and of which a copy has been filed with the Director General.
18 PART III PAYMENT OF WAGES-18. Wage period.
(1) A contract of service shall specify a wage period not exceeding one month.
(2) If in any contract of service no wage period is specified the wage period shall for the purposes of the contract be deemed to be one month.
18A PART III PAYMENT OF WAGES-18A. Calculation of wages for incomplete month's work.
Notwithstanding section 60I, an employee who is employed on a monthly rate of pay and has not completed a whole month of service:
(a) where he commenced employment after the first day of the month;
(b) where his employment was terminated before the end of the month;
(c) where he took leave of absence without pay for one or more days of the month; or
(d) where he took leave of absence by reason of having been called up for national service under the National Service Act 1952 [ Act 425 ], to present himself for national service training as required under the National Service Training Act 2003 [ Act 628 ] or to comply with any other written law relating to national service, shall be paid wages due to him for that month calculated according to the following formula:
19 PART III PAYMENT OF WAGES-19. Time of payment of wages.
(1) Subject to subsection (2), every employer shall pay to each of his employees not later than the seventh day after the last day of any wage period the wages, less lawful deductions earned by such employee during such wage period.
(2) Wages for work done on a rest day, gazetted public holiday referred to in paragraphs 60D(1) (a) and (b) and overtime referred to in section 60A shall be paid not later than the last day of the next wage period.
(3) Notwithstanding subsections (1) and (2), if the Director General is satisfied that payment within such time is not reasonably practicable, he may, on the application of the employer, extend the time of payment by such number of days as he thinks fit.
[Subs. by Act A1419 of the year 2012]
20 PART III PAYMENT OF WAGES-20. Payment on normal termination of contract.
The wages, less lawful deductions, earned by but not yet paid to an employee whose contract of service terminates in accordance with section 11(1) or of section 12 shall be paid to such employee not later than the day on which such contract of service so terminates.
21 PART III PAYMENT OF WAGES-21. Payment on termination of contract in special circumstances and on breach of contract.
(1) Where an employer terminates the contract of service of an employee without notice in accordance with section 13(1) or (2) and section 14(1) (a) :
(a) the wages, less any deductions which the employer is entitled to make under section 24, earned by such employee up to and including the day immediately preceding the day on which the termination of the contract of service takes effect; and
(b) in addition, where the employer terminates the contract of service under section 13(1), the indemnity payable to the employee under that subsection,
shall be paid by the employer to the employee not later than the day on which such contract of service is so terminated.
(2) Where an employee terminates his contract of service with an employer without notice in accordance with section 13(1) or (2) or section 14(3), the wages, less any deductions which the employer is entitled to m
22 PART III PAYMENT OF WAGES-22. Limitation on advances to employees.
(1) No employer shall during any one month make to an employee an advance or advances of wages not already earned by such employee which exceeds in the aggregate the amount of wages which the employee earned in the preceding month from his employment with such employer, or if he has not been so long in the employment of such employer, the amount which he is likely to earn in such employment during one month, unless such advance is made to the employee:
(a) to enable him to purchase a house or to build or improve a house;
(b) to enable him to purchase land;
(c) [Deleted by Act A1419 of the year 2012] ;
(d) to enable him to purchase a motorcar, a motorcycle or a bicycle;
(da) to enable him to purchase shares of the employer's business offered for sale by the employer;
(db) to enable him to purchase a computer;
[Ins.
23 PART III PAYMENT OF WAGES-23. Wages not due for absence from work through imprisonment or attendance in court.
Wages shall not become payable to or recoverable by any employee from his employer for or on account of the term of any sentence of imprisonment undergone by him or for any period spent by him in custody or for or on account of any period spent by him in going to or returning from prison or other place of custody or for or on account of any period spent by him in going to, attending before or returning from a court otherwise than as a witness on his employer's behalf.
24 PART IV DEDUCTIONS FROM WAGES-24. Lawful deductions.
(1) No deductions shall be made by an employer from the wages of an employee otherwise than in accordance with this Act.
(2) It shall be lawful for an employer to make the following deductions:
(a) deductions to the extent of any overpayment of wages made during the immediately preceding three months from the month in which deductions are to be made, by the employer to the employee by the employer's mistake;
(b) deductions for the indemnity due to the employer by the employee under section 13(1);
(c) deductions for the recovery of advances of wages made under section 22 provided no interest is charged on the advances; and
(d) deductions authorized by any other written law.
(3) The following deductions shall only be made at the request in writing of the employee:
(a) deductions in respect of the payments to a regis
25 PART V SYSTEM OF PAYMENT OF WAGES-25. Wages to be paid through financial institution.
[Shoulder note. Am. Act A1651:s.6]
(1) The entire amount of wages earned by, or payable to, any employee in respect of any work done by him less any lawful deductions, shall be actually paid to him through payment into an account opened by a financial institution, being an account in the name of the employee or an account in the name of the employee jointly with one or more other persons as stipulated by the employee.
[Am. by Act A1651]
(2) Every employee shall be entitled to recover in the courts so much of his wages, exclusive of sums lawfully deducted under Part IV, as shall not have been actually paid to him in accordance with subsection (1).
[Subs. by Act A1419]
(3) For the purposes of this Part, "financial institution" includes:
(a) a licensed bank and an approved issuer of a designated payment instrument unde
25A PART V SYSTEM OF PAYMENT OF WAGES-25A. Payment of wages other than through financial institution.
(1) Notwithstanding subsection 25(1), an employer may, upon a written request of the employee and subject to subsection (2), make payment of his employee's wages:
[Am. by Act A1651]
(a) in legal tender; or
(b) by cheque made payable to or to the order of the employee.
(2) The employer shall, upon the written request of his employee under subsection (1), obtain approval from the Director General for the payment of wages to be paid in legal tender or by cheque.
[Subs. by Act A1651]
(2A) The Director General may impose any condition as he may deem fit on the approval granted under subsection (2).
[Ins. by Act A1651]
(3) The request by the employee under subsection (1) may be withdrawn by the employee at any time, by notice in writing, to the employer.
[Am
26 PART V SYSTEM OF PAYMENT OF WAGES-26. Conditions restricting place at which, manner in which and person with whom wages paid to be spent, illegal.
No employer shall impose any condition in any contract of service as to the place at which, or the manner in which, or the person with whom, any wages paid to the employee are to be expended and any such condition in a contract of service shall be void and of no effect.
27 PART V SYSTEM OF PAYMENT OF WAGES-27. Interest on advances forbidden.
No employer shall
(a) make any deduction; or
(b) receive any payment,
from any employee by way of discount, interest or any similar charge on account of any advance or advances of wages made to an employee in anticipation of the regular date for the payment of wages, where such advance or advances do not exceed in the aggregate one month's wages.
28 PART V SYSTEM OF PAYMENT OF WAGES-28. Restriction on places at which wages may be paid.
No employer shall pay wages to employees in taverns or other similar establishments or in places of amusement or in shops or stores for the retail sale of merchandise except in the case of employees employed therein.
29 PART V SYSTEM OF PAYMENT OF WAGES-29. Remuneration other than wages.
(1) Nothing in this Part shall render illegal a contract of service with an employee under which the employer agrees to provide the employee with house accommodation, food, fuel, light, water, medical attendance, or any approved amenity or approved service in addition to wages but no employer shall provide any employee with any intoxicating liquor as part of the terms of a contract of service.
(2) The Director General may, on application made to him in writing by an employer, approve in writing any amenity or service as an approved amenity or approved service, and in granting such approval the Director General may make such modifications thereto or impose such conditions thereon as he may deem proper.
(3) Any person who is dissatisfied with any decision of the Director General under subsection (2) may, within thirty days of such decision being communicated to him, appeal in writing therefrom to the Minister.
(4) On any appeal ma
30 PART V SYSTEM OF PAYMENT OF WAGES-30. [Deleted by Act A1026].
[Deleted by Act A1026]
31 PART VI PRIORITY OF WAGES-31. Priority of wages over other debts.
(1) Where by order of a court made upon the application of any person holding a mortgage, charge, lien or decree (hereinafter referred to as "the secured creditor") or in the exercise of rights under a debenture the property of any person (hereinafter referred to as "the person liable") liable under any of the provisions of this Act to pay the wages due to any employee or to pay money due to any contractor for labour is sold, or any money due to the person liable is attached or garnished, the court or the receiver or manager shall not authorize payment of the proceeds of the sale, or of the money so attached or garnished, to the secured creditor or the debenture holder until the court or the receiver or manager shall have ascertained and caused to be paid, out of such proceeds or money, the wages of such employee, or the money due to any contractor for labour under a contract between him and the person liable, which the person liable was liable to pay
32 PART VI PRIORITY OF WAGES-32. Reference by the court to Director General.
(1) For the purposes of ascertaining the amount due to any employee or sub-contractor for labour under section 31, the court or the receiver or manager may refer the question to the Director General with a request that he hold an inquiry thereinto and forward his findings in respect thereof to the court or the receiver or manager, and the Director General shall comply with any such request.
[Am. Act A1085]
(2) For the purpose of any inquiry under subsection (1) the Director General shall have all the powers conferred upon him by section 70 (f) and section 80 shall have effect as if the inquiry were being held under section 69.
33 PART VII PRINCIPALS, CONTRACTORS, SUB-CONTRACTORS AND CONTRACTORS FOR LABOUR-33. Liability of principals and contractors for wages.
[Heading Part VII Subs. Act A1651:s.8]
(1) Where a principal in the course of or for the purposes of his trade or business, contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, and any wages are due to any employee by the contractor or any sub-contractor under the contractor for work done in the course of the performance of the contract, the principal and the contractor and any such sub-contractor (not being the employer) shall be jointly and severally liable with the employer to pay such wages as if that employee had been immediately employed by the principal and by the contractor and any such sub-contractor:
Provided that:
(a) in the case of a contract for constructional work the principal shall not be liable for the payment of wages under this subsection unless he is also a constructional contract
33A PART VII PRINCIPALS, CONTRACTORS, SUB-CONTRACTORS AND CONTRACTORS FOR LABOUR-33A. Information relating to supply of employees.
(1) A contractor for labour who intends to supply or undertakes to supply any employee shall register with the Director General in the prescribed form within fourteen days before supplying the employee.
(1A ) A contractor for labour referred to in subsection (1) who supplies any employee to a principal, contractor or sub-contractor shall enter into a contract in writing and shall make such contract or any other document relating to such contract available for inspection.
[Ins. by Act A1651]
(2) If a contractor for labour referred to in subsection (1) supplies any employee, he shall keep or maintain one or more registers containing information regarding each employee supplied by him and shall make such registers available for inspection.
(3) A contractor for labour who:
(a) supplies his employee without registering with the Director General as required under subsection
34 PART VIII [DELETED]-34. [Deleted].
(Deleted by Act A1651)
35 PART VIII [DELETED]-35. [Deleted].
(Deleted by Act A1651)
36 PART VIII [DELETED]-36. [Deleted].
(Deleted by Act A1651)
37 PART IX PREGNANCY AND MATERNITY-37. Length of eligible period and entitlement to maternity allowance.
[Heading Part IX Subs. Act A1651]
(1) (a) Every female employee shall be entitled:
(i) to maternity leave for an eligible period in respect of each confinement; and
(ii) subject to this Part, she receive from her employer a maternity allowance to be calculated or prescribed as provided in subsection (2) in respect of the eligible period.
[(1)(a) Subs. by Act A1419 of the year 2012]
(aa) Where a female employee is entitled to maternity leave under subparagraph (a)(i), whether or not she is entitled to receive maternity allowance from her employer for the eligible period under paragraph (c), or whether or not she has fulfilled the conditions set out in paragraph (2)(a), she may, with the consent of her employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered me
38 PART IX PREGNANCY AND MATERNITY-38. Payment of maternity allowance.
The maternity allowance referred to in section 37(2) and accruing in each wage period under the contract of service of the female employee shall be paid in the same manner as if such allowance were wages earned during such wage period as provided in section 19.
39 PART IX PREGNANCY AND MATERNITY-39. Payment of allowance to nominee on death of female employee.
If a female employee, after giving notice to her employer that she expects to be confined, commences her maternity leave and dies from any cause during the eligible period, her employer or any employer who would have been, but for the death of the female employee, liable to pay any maternity allowance shall pay to the person nominated by her under section 41 or, if there is no such person, to her legal personal representative, an allowance at the rate calculated or prescribed as provided in section 37(2) from the day she commenced her maternity leave to the day immediately preceding her death.
40 PART IX PREGNANCY AND MATERNITY-40. Loss of maternity allowance for failure to notify employer.
(1) A female employee who is about to leave her employment and who knows or has reason to believe that she will be confined within four months from the date upon which she leaves shall before leaving her employment notify her employer of her pregnancy and if she fails so to do, she shall not be entitled to receive any maternity allowance from such employer.
(2) A female employee shall within a period of sixty days immediately preceding her expected confinement notify her employer of it and the date from which she intends to commence her maternity leave and if she commences such leave without so notifying her employer, the payment of maternity allowance to her may be suspended, notwithstanding section 38, until such notice is given to her employer.
(3) Any employer who dismisses a female employee from her employment during the period in which she is entitled to maternity leave commits an offence.
(4) Any female employee whose emp
41 PART IX PREGNANCY AND MATERNITY-41. Payment of allowance to nominee.
A female employee may nominate some other person to whom the maternity allowance may be paid on her behalf and any payment of the maternity allowance made to the person so nominated shall, for the purposes of this Act, be deemed to be a payment to the female employee herself.
41A PART IX PREGNANCY AND MATERNITY-41A. Restriction on termination of pregnant female employee.
(1) Where a female employee is pregnant or is suffering from an illness arising out of her pregnancy, it shall be an offence for her employer to terminate her services or give her notice of termination of service, except on the grounds of:
(a) wilful breach of a condition of the contract of service under subsection 13(2);
(b) misconduct under subsection 14(1); or
(c) closure of the employer's business.
(2) Where the service of a female employee under subsection (1) is terminated, the burden of proving that such termination is not on the ground of her pregnancy or on the ground of illness arising out of her pregnancy, shall rest on the employer.
[Ins. by Act A1651]
42 PART IX PREGNANCY AND MATERNITY-42. Restriction on termination of female employee after eligible period.
[Shoulder note Am. Act A1651:s.14]
(1) Where a female employee remains absent from her work after the expiration of the eligible period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement and to render her unfit for her work, it shall be an offence, until her absence exceeds a period of ninety days after the expiration of the eligible period, for her employer to terminate her services or give her notice of termination of service.
(2) Subject to subsection (1), where the services of a female employee is terminated from her employment with wages in lieu of notice at any time during the period of four months immediately preceding her confinement, she shall, in computing the period of her employment for the purposes of this Part, be deemed to have been employed as if she had been given due notice instead of wages in lieu thereof.
43 PART IX PREGNANCY AND MATERNITY-43. Conditions contrary to Part void.
Any condition in a contract of service whereby a female employee relinquishes or is deemed to relinquish any right under this Part shall be void and of no effect and the right conferred under this Part shall be deemed to be substituted for such condition.
44 PART IX PREGNANCY AND MATERNITY-44. Register of allowances paid.
Every employer shall keep a register, in a form to be prescribed by the Minister by regulations made under this Act, of all payments made to female employees under this Part and of such other matters incidental thereto as may be prescribed by such regulations.
44A PART IX PREGNANCY AND MATERNITY-44A. [Deleted].
(Deleted by Act A1651)
45-56 PART X EMPLOYMENT OF CHILDREN AND YOUNG PERSONS-45-56. [Deleted By Act 40 of 1966].
[Deleted By Act 40]
57 PART XI DOMESTIC EMPLOYEES-57. Termination of contract.
[Heading Part XI Am. Act A1651:s.16]
Subject to any express provision to the contrary contained therein, a contract to employ and to serve as a domestic employee may be terminated either by the person employing the domestic employee or by the domestic employee giving the other party fourteen days' notice of his intention to terminate the contract, or by the paying of an indemnity equivalent to the wages which the domestic employee would have earned in fourteen days:
[Am. by Act A1651]
Provided that any such contract may be terminated by either party without notice and without the paying of an indemnity on the ground of conduct by the other party inconsistent with the terms and conditions of the contract.
57A PART XI DOMESTIC EMPLOYEES-57A. Employment of foreign domestic employee.
[Shoulder note Am. Act A1651:s.18]
(1) An employer who employs a foreign domestic employee shall, within thirty days of the employment, inform the Director General of such employment in a manner as may be determined by the Director General.
[Am. by Act A1651]
(2) An employer who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit.
[57A. Ins. Act A1419:s.16; Am. Act A1651:s.18]
57B PART XI DOMESTIC EMPLOYEES-57B. Duty to inform Director General of termination of service of foreign domestic employee.
[Shoulder note Am. Act A1651:s.19]
(1) If the service of a foreign domestic employee is terminated:
[Am. by Act A1651]
(a) by the employer;
(b) by the foreign domestic employee;
[Am. by Act A1651]
(c) upon the expiry of the employment pass issued by the Immigration Department of Malaysia to the foreign domestic employee; or
[Am. by Act A1651]
(d) by the repatriation or deportation of the foreign domestic employee,
[Am. by Act A1651]
the employer shall, within thirty days of the termination of service, inform the Director General of the termination in a manner as may be determined by the Director General.
(2) For the purpose of paragraph (1)(b), the termination of service by a foreign domest
58 PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-58. [Omitted].
[Omitted] .
58A PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-58A. Non-application of Part XII.
This Part shall not apply to any term or condition of service which is provided for in any collective agreement entered into before the coming into operation of this Part and taken cognizance of by the Industrial Court or in any award made by the Industrial Court while such collective agreement or award remains in force.
59 PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-59. Rest day.
(1) Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week the last of such rest days shall be the rest day for the purposes of this Part:
Provided that this subsection shall not apply during the period in which the employee is on maternity leave as provided under section 37, or on sick leave as provided under section 60F, or during the period of temporary disablement under the Workmen's Compensation Act 1952 [Act 273] , or under the Employees' Social Security Act 1969.
[Proviso Am. Act A1419 of the year 2012]
(1A) Notwithstanding subsection (1) and the interpretation of the expression "day" in subsection 2(1), in the case of an employee engaged in shift work any continuous period of not less than thirty hours shall constitute a rest day.
(1B) Notwithst
60 PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60. Work on rest day.
(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.
(2) (Omitted) .
(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
(ii) which is more than half but does not exceed his normal hours of work, two days' wages at the ordinary rate of pay.
60A PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60A. Hours of work and working at night.
[Shoulder note Am. Act A1651:s.20]
(1)Except as hereinafter provided, an employee shall not be required under his contract of service to work:
(a) more than five consecutive hours without a period of leisure of not less than thirty minutes duration;
(b) more than eight hours in one day;
(c) in excess of a spread over period of ten hours in one day;
(d) more than forty-five hours in one week:
[Am. by Act A1651]
Provided that:
(i) for the purpose of paragraph (1) (a), any break of less than thirty minutes in the five consecutive hours shall not break the continuity of that five consecutive hours;
(ii) an employee who is engaged in work which must be carried on continuously and which requires his continual attendance may be required to work for eight consecutive hours i
60B PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60B. Task work.
Nothing contained in this Part shall prevent any employer from agreeing with any employee that the wages of such employee shall be paid at an agreed rate in accordance with the task, that is, the specific amount of work to be performed, and not by the day or by the piece.
60C PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60C. Shift work.
(1) Notwithstanding paragraph 60A(1) (b), (d) and (c), but subject to paragraph (1)(a)thereof, an employee who is engaged under his contract of service in shift work may be required by his employer to work more than eight hours in any one day or more than forty-five hours in any one week but the average number of hours worked over any period of three weeks, or over any period exceeding three weeks as may be approved by the Director General, shall not exceed forty-five per week.
[Am. Act A1026:s.12; Am. Act A1651:s.21]
(1A) The approval of the Director General in subsection (1) may be granted if the Director General is satisfied that there are special circumstances pertaining to the business or undertaking of the employer which render it necessary or expedient for him to grant the permission subject to such conditions as he may deem fit to impose.
(1B) The Director General may revoke the approval given unde
60D PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60D. Holidays.
(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:
[(1) Am. by Act A1419 of the year 2012]
(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 Ruler or the Yang di-Pertua Negeri, as the case may be, of the State in which the employee wholly or mainly works under his contract of service, or the Federal Territory Day, if the employee wholly or mainly works in the Federal Territory;
(iv) the Workers' Day; and
[(1)(a) Am. by Act A1419 of the year 2012]
(v) Malaysia Day; and
[(1)(a)(v) Ins. by Act A1419 of the year 2012]
(b) on any day appointed as a public holid
60E PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60E. Annual leave.
(1) An employee shall be entitled to paid annual leave of:
(a) eight days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of less than two years;
(b) twelve days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of two years or more but less than five years; and
(c) sixteen days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of five years or more,
and if he has not completed twelve months of continuous service with the same employer during the year in which his contract of service terminates, his entitlement to paid annual leave shall be in direct proportion to the number of completed months of service:
Provided that any fraction of a day o
60F PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60F. Sick leave.
(1) An employee shall, after examination at the expense of the employer:
(a) by a registered medical practitioner duly appointed by the employer; or
(b) if no such medical practitioner is appointed or, if having regard to the nature or circumstances of the illness, the services of the medical practitioner so appointed are not obtainable within a reasonable time or distance, by any other registered medical practitioner or by a medical officer,
be entitled to paid sick leave:
(aa) where no hospitalisation is necessary:
(i) of fourteen days in the aggregate in each calendar year if the employee has been employed for less than two years;
(ii) of eighteen days in the aggregate in each calendar year if the employee has been employed for two years or more but less than five years;
(iii) of twenty-two days in the aggregate in
60FA PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60FA. Paternity leave.
(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.
[Ins. Act A1651]
60G PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60G. [Omitted].
[Omitted] .
60H PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60H. [Omitted].
[Omitted] .
60I PART XII REST DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE-60I. Interpretation.
(1) For the purposes of this Part and Part IX:
(a)
"ordinary rate of pay" means wages as defined in section 2, whether calculated by the month, the week, the day, the hour, or by piece rate, or otherwise, which an employee is entitled to receive under the terms of his contract of service for the normal hours of work for one day, but does not include any payment made under an approved incentive payment scheme or any payment for work done on a rest day or on any gazetted public holiday granted by the employer under the contract of service or any day substituted for the gazetted public holiday; and(b)
"hourly rate of pay" means the ordinary rate of pay divided by the normal hours of work. (1A) Where an employee is employed on a monthly rate of pay, the ordinary rate of pay shall be calculated according
60J PART XIIA TERMINATION, LAY-OFF, AND RETIREMENT BENEFITS-60J. Termination, lay-off and retirement benefits.
(1) The Minister may, by regulations made under this Act, provide for the entitlement of employees to, and for the payment by employers of:
(a) termination benefits;
(b) lay-off benefits;
(c) retirement benefits.
(2) Without prejudice to the generality of subsection (1), regulations made by virtue of subsection (1) may provide:
(a) for the DEFINITION of the expression "termination benefits", "lay-off benefits", or "retirement benefits", as the case may be, and for the circumstances in which the same shall be payable;
(b) for the application thereof to employees who were in employment under a contract of service immediately before the commencement of such regulations and who continue in such employment after the commencement thereof;
(c) for the application thereof to all employees generally or to any part
60K PART XIIB EMPLOYMENT OF FOREIGN EMPLOYEES-60K. Employment of foreign employee.
(1) No employer shall employ a foreign employee unless prior approval has been obtained from the Director General.
(2) An application for the approval under subsection (1) shall be made in the form and manner as may be determined by the Director General.
(3) Upon approval of the Director General under this section, an employer shall, within fourteen days from the date of the employment of a foreign employee, furnish the Director General with the particulars relating to the foreign employee in such manner as the Director General may direct.
(4) The Director General may, subject to any written law, approve an application under this section if the employer complies with the following conditions:
(a) the employer satisfies the Director General that on the date on which he makes the application:
(i) he has no outstanding matter relating to any decision, order or directive issued unde
60KA PART XIIB EMPLOYMENT OF FOREIGN EMPLOYEES-60KA. Termination of employment of foreign employee, etc.
(1) If the service of a foreign employee is terminated:
(a) by his employer;
(b) by reason of the expiry of the employment pass issued by the Immigration Department of Malaysia to the foreign employee; or
(c) by reason of the repatriation or deportation of the foreign employee,
the employer shall, within thirty days of the termination of service, inform the Director General of the termination in the manner as may be determined by the Director General.
(2) If a foreign employee terminates his service or absconds from his place of employment, the employer shall, within fourteen days of the termination of service or after the foreign employee's absence, inform the Director General in the manner as may be determined by the Director General.".
[Ins. by Act A1651]
60L PART XIIB EMPLOYMENT OF FOREIGN EMPLOYEES-60L. [Deleted].
(Deleted by Act A1651:s.26)
60M PART XIIB EMPLOYMENT OF FOREIGN EMPLOYEES-60M. Prohibition on termination of local for foreign employee.
No employer shall terminate the contract of service of a local employee for the purpose of employing a foreign employee.
60N PART XIIB EMPLOYMENT OF FOREIGN EMPLOYEES-60N. Termination of employment by reason of redundancy.
Where an employer is required to reduce his workforce by reason of redundancy necessitating the retrenchment of any number of employees, the employer shall not terminate the services of a local employee unless he has first terminated the services of all foreign employees employed by him in a capacity similar to that of the local employee.
60O PART XIIB EMPLOYMENT OF FOREIGN EMPLOYEES-60O. Permanent resident exempted from this Part.
For the purposes of this Part, the term "foreign employee" shall not include a foreign employee who is a permanent resident of Malaysia.
60P PART XIIC FLEXIBLE WORKING ARRANGEMENT-60P. Flexible working arrangement.
(1) Subject to Part XII or anything contained in the contract of service, an employee may apply to an employer for a flexible working arrangement to vary the hours of work, days of work or place of work in relation to his employment.
(2) Where there is a collective agreement, any application made by the employee under subsection (1) shall be consistent with the terms and conditions in the collective agreement.
[Ins. by Act A1651]
60Q PART XIIC FLEXIBLE WORKING ARRANGEMENT-60Q. Application for flexible working arrangement.
(1) The employee shall make an application for flexible working arrangement under section 60p in writing and in the form and manner as may be determined by the Director General.
(2) Upon the application made under subsection (1), an employer shall, within sixty days from the date such application is received, approve or refuse the application.
(3) The employer shall inform the employee in writing of the employer's approval or refusal of the application under subsection (1) and in the case of a refusal, the employer shall state the ground of such refusal.
[Ins. by Act A1651]
61 PART XIII REGISTERS, RETURNS AND NOTICE BOARDS-61. Duty to keep registers.
(1) Every employer shall prepare and keep one or more registers containing such information regarding each employee employed by him as may be prescribed by regulations made under this Act.
(2) Every such register shall be preserved for such period that every particular recorded therein shall be available for inspection for not less than six years after the recording thereof.
(3) Notwithstanding subsections (1) and (2), the Director General, on a written application by an employer, may permit the employer to keep the information required under subsection (1) in any other manner as may be approved by the Director General subject to such conditions as he may deem fit to impose.
62 PART XIII REGISTERS, RETURNS AND NOTICE BOARDS-62. Power to make regulations requiring information as to wages.
The Minister may, by regulations made under this Act, provide that every employer or any specified class or classes of employers shall make available, in such form and at such intervals as may be prescribed, to every employee employed by him or them or to such class or classes of employees as may be specified such particulars as may be specified relating to the wages of such employees or any of them.
63 PART XIII REGISTERS, RETURNS AND NOTICE BOARDS-63. Duty to submit returns.
(1) The Director General may by notification in the Gazette or by notice in writing require every employer or such class or classes of employers as may be specified, and every owner or occupier of land upon which employees are employed or such class or classes of owners or occupiers as may be specified, to forward to the Director General at such times as he may direct a return or returns, in such form or forms as he may prescribe, giving such particulars relating to the employees of the employers, or to the employees employed on the land, as may be prescribed.
(2) Notwithstanding the provisions of this Act, the powers of the Director General under subsection (1) extends to every employee employed under a contract of service irrespective of the monthly wages of the employee.
63A PART XIII REGISTERS, RETURNS AND NOTICE BOARDS-63A. Duty to give notice and other information.
(1) Any person or employer who proposes:
(a) to operate any agricultural or industrial undertaking or any establishment where any commerce, trade, profession or business of any description is carried on; or
(b) to take over or commence business in such undertaking or establishment; or
(c) to change the name or the location of such undertaking or establishment,
in which any employee is employed or is likely to be employed shall, within ninety days of such commencing of operation, taking over or commencing of business, or changing the name or the location of the undertaking or establishment, as the case may be, give notice in writing thereof to the nearest office of the Director of Labour having jurisdiction for the area in which that undertaking or establishment is located and furnish such office of the Director of Labour with:
(i) the registered n
64 PART XIII REGISTERS, RETURNS AND NOTICE BOARDS-64. Duty to display notice boards.
The owner of any:
(a) estate of twenty hectares or more;
(b) mine;
(c) factory;
(d) trade, business or manufacturing activity carried on in any premises,
on or in which not less than five employees are employed shall, if such estate, mine, factory or premises is outside the limits of a City, Municipality, Town Council, Town Board or other local authority, cause to be erected where practicable in a conspicuous place at or adjacent to the place where the access road to such estate, mine, factory or premises joins the main road or a railway or river, as the case may be, a notice board on which shall be set out in the National Language the name of such estate, mine, factory, trade, business or manufacturing activity and the address of the registered or other office thereof.
65 PART XIV INSPECTION-65. Powers of inspection and inquiry.
The Director General shall have power to enter without previous notice at all times any place of employment where he has reasonable grounds for believing that employees are employed and to inspect any building occupied or used for any purpose connected with such employment and to make any inquiry which he considers necessary in relation to any matter within the provisions of this Act.
66 PART XIV INSPECTION-66. Inspecting officer to notify presence.
On the occasion of any inspection under this Part the Director General shall where practicable notify the owner or occupier of the place of employment, and the employer of any employees employed thereat, of his presence unless he has reasonable grounds for believing that such notification might be prejudicial to the performance of his duties.
67 PART XIV INSPECTION-67. Powers of inspecting officer.
(1) In the course of an inspection under this Part:
(a) the Director General may examine orally any person whom he believes to be acquainted with the facts and circumstances of any matter within the provisions of this Act;
(b) the person so examined shall be legally bound to answer truthfully all questions put to him;
(c) the Director General examining a person under paragraph (a) shall first inform that person of the provisions of paragraph (b) ;
(d) a statement made by a person under this section shall, whenever possible, be reduced into writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any correction he may wish; and
(e) any statement made and recorded under this section shal
68 PART XIV INSPECTION-68. Officers to be authorized by the Director General.
An officer appointed under section 3(2) shall not exercise any of the powers of the Director General under this Part unless he is in possession of an official identification card signed by the Director General authorizing him to exercise such powers, and any officer so authorized shall produce his official identification card on demand to the owner or occupier of the place of employment and to the employer of any employees employed thereat.
69 PART XV COMPLAINTS AND INQUIRIES-69. Director General's power to inquire into complaints.
(1) The Director General may inquire into and decide any dispute between an employee and his employer in respect of wages or any other payments in cash due to such employee under:
(a) any term of the contract of service between such employee and his employer;
(b) any of the provisions of this Act or any subsidiary legislation made thereunder; or
(c) the provisions of the Wages Councils Act 1947 [Act 195] or any order made thereunder,
and, in pursuance of such decision, may make an order in the prescribed form for the payment by the employer of such sum of money as he deems just without limitation of the amount thereof.
(2)The powers of the Director General under subsection (1) shall include the power to hear and decide, in accordance with the procedure laid down in this Part, any claim by:
(i) an employee against any person liable
69A PART XV COMPLAINTS AND INQUIRIES-69A. Limitation on power conferred by section 69.
Notwithstanding section 69, the Director General shall not inquire into, hear, decide or make any order in respect of any claim, dispute or purported dispute which, in accordance with the Industrial Relations Act 1967:
(a) is pending in any inquiry or proceedings under that Act;
(b) has been decided upon by the Minister under section 20(3) of that Act; or
(c) has been referred to. or is pending in any proceedings before, the Industrial Court.
69B PART XV COMPLAINTS AND INQUIRIES-69B. [Deleted].
(Deleted by Act A1651:s.29)
69C PART XV COMPLAINTS AND INQUIRIES-69C. [Deleted].
(Deleted by Act A1651:s.29)
69D PART XV COMPLAINTS AND INQUIRIES-69D. [Deleted].
(Deleted by Act A1651:s.29)
69E PART XV COMPLAINTS AND INQUIRIES-69E. [Deleted].
(Deleted by Act A1651:s.29)
69F PART XV COMPLAINTS AND INQUIRIES-69F. Discrimination in employment.
(1) The Director General may inquire into and decide any dispute between an employee and his employer in respect of any matter relating to discrimination in employment, and the Director General may, pursuant to such decision, make an order.
(2) An employer who fails to comply with any order of the Director General issued under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit; and shall also, in the case of a continuing offence, be liable to a daily fine not exceeding one thousand ringgit for each day the offence continues after conviction.
[Ins. by Act A1651]
70 PART XV COMPLAINTS AND INQUIRIES-70. Procedure in Director General's inquiry.
The procedure for disposing of questions arising under sections 69 and 69F shall be as follows:
[Am. Act A1026:s.31; Am. Act A1651:s.31]
(a) the person complaining shall present to the Director General a written statement of his complaint and of the remedy which he seeks or he shall in person make a statement to the Director General of his complaint and of the remedy which he seeks;
(b) the Director General shall as soon as practicable thereafter examine the complainant on oath or affirmation and shall record the substance of the complainant's statement in his case book;
(c) the Director General may make such inquiry as he deems necessary to satisfy himself that the complaint discloses matters which in his opinion ought to be inquired into and may summon in the prescribed form the person complained against, or if it appears to him without any inquiry that the
71 PART XV COMPLAINTS AND INQUIRIES-71. Director General's record of inquiry.
The Director General shall keep a case book in which he shall record the evidence of persons summoned or otherwise present and his decision and order in each matter in issue before him and shall authenticate the same by attaching his signature thereto and the record in such case book shall be sufficient evidence of the giving of any decision; and any person interested in such decision or order shall be entitled to a copy thereof free of charge and to a copy of the record upon payment of the prescribed fee.
72 PART XV COMPLAINTS AND INQUIRIES-72. Joinder of several complaints in one complaint.
Where it appears to the Director General in any proceedings under this Part that there are more employees than one having a common cause for complaint against the same employer or person liable, it shall not be necessary for each such employee to make a separate complaint under this Part, but the Director General may, if he thinks fit, permit one or more of them to make a complaint and to attend and act on behalf of and generally to represent the others, and the Director General may proceed to a decision on the joint complaint or complaints of each and all such employees:
Provided that, where the Director General is of opinion that the interests of the employer or person liable are likely to be prejudiced by the non-attendance of any employee, he shall require the personal attendance of such employee.
73 PART XV COMPLAINTS AND INQUIRIES-73. Prohibitory order by Director General to third party.
(1) Whenever the Director General shall have made an order under section 69 or 69F against any employer or any person liable for the payment of any sum of money to any employee or contractor for labour and the Director General has reason to believe that there exists between such employer or person liable and any other person a contract in the course of the performance of which the employee or sub-contractor performed the work in respect of which the order was made, the Director General may summon such other person and, if after enquiry he is satisfied that such a contract exists, may make an order in the prescribed form prohibiting him from paying to the employer or person liable and requiring him to pay to the Director General any money (not exceeding the amount found due to such employee or contractor for labour) admitted by him to be owing to the employer or person liable in respect of such contract:
[(1) Am. Act A1026:s.32
74 PART XV COMPLAINTS AND INQUIRIES-74. No fees for summons: service of summons.
(1) No fee shall be charged by the Director General in respect of any summons issued by him under this Part.
(2) Any such summons may be served by a Sessions Court or a Magistrates' Court on behalf of the Director General, or in such other manner, and by such person, as the Director General may deem fit.
75 PART XV COMPLAINTS AND INQUIRIES-75. Enforcement of Director General's order by Sessions Court.
Where any order has been made by the Director General under this Part, and the same has not been complied with by the person to whom it is addressed, the Director General may send a certified copy thereof to the Registrar of a Sessions Court, or to the Court of a First Class Magistrate, having jurisdiction in the place to which the order relates or in the place where the order was made, and the said Registrar or Court, as the case may be, shall cause the said copy to be recorded and thereupon the said order shall for all purposes be enforceable as a judgment of the Sessions Court, or of the Court of the First Class Magistrate, as the case may be, notwithstanding that the same may in respect of amount or value be in excess of the ordinary jurisdiction of the said Court:
Provided that no sale of immovable property shall for the purposes of such enforcement be ordered except by the High Court.
76 PART XV COMPLAINTS AND INQUIRIES-76. Submission by Director General to High Court of point of law.
(1) In any proceedings under this Part the Director General may, if he thinks fit, submit any question of law for the decision of a Judge of the High Court and if he does so he shall decide the proceedings in conformity with such decision.
(2) An appeal shall lie to the Court of Appeal from any decision of a Judge under subsection (1).
77 PART XV COMPLAINTS AND INQUIRIES-77. Appeal against Director General's order to High Court.
(1) If any person whose financial interests are affected is dissatisfied with the decision or order of the Director General under section 69, 69F or 73, or subsection 81D(4) such person may appeal to the High Court.
[(1) Am. Act A1026:s.34; Am. Act A1419:s.25; Am. Act A1651:s.33]
(2) Subject to any rules made under section 4 of the Subordinate Court Rules Act 1955 [Act 55] , the procedure in an appeal to the High Court shall be the procedure in a civil appeal from a Sessions Court with such modifications as the circumstances may require.
78 PART XV COMPLAINTS AND INQUIRIES-78. Employee's remedy when employer about to abscond.
(1) If any employee complains to a Magistrate that he has reasonable grounds for believing that his employer, in order to evade payment of his wages, is about to abscond, the Magistrate may summon such employer and direct him to show cause why he should not be required to give security by bond to remain in Malaysia until such wages are paid; and if, after hearing the evidence of such employer, the Magistrate decides that such bond shall be given the Magistrate may order such employer to give security by bond in such sum as to the Magistrate seems reasonable, that he will not leave Malaysia until the Magistrate is satisfied that all the just claims of such employee against him for wages have been paid or settled.
(2) If the employer fails to comply with the terms of such order to give security, he shall be detained in prison until arrangements have been made to the satisfaction of the Magistrate for settling the claims of such employee:
79 PART XV COMPLAINTS AND INQUIRIES-79. Powers of Director General to investigate possible offences under this Act.
(1) Whenever the Director General has reasonable grounds for suspecting that an offence under this Act has been committed, or wishes to inquire into any matter dealt with by this Act or into any dispute as to such matter or into the death of or injury to an employee (not the subject of an investigation under the Electricity Supply Act 1990 [Act 447] , or the Factories and Machinery Act 1967, or any written law relating to mining for the time being in force in Malaysia or any part thereof) or into any matter connected with the keeping of registers and other documents, or whenever any person complains to the Director General of any breach of any provision of this Act, the Director General may summon any person who he has reason to believe can give information respecting such offence or the subject matter of such inquiry or complaint.
[(1) Am. by Act A1419 of the year 2012]
(2) If upon inquiry as aforesaid th
80 PART XV COMPLAINTS AND INQUIRIES-80. Examination on summons by the Director General.
Any person summoned by the Director General under this Part shall be legally bound to attend at the time and place specified in the summons and to answer truthfully all questions which the Director General may put to him.
81 PART XV COMPLAINTS AND INQUIRIES-81. Right of employee to appear before the Director General.
No employer shall prevent or attempt to prevent any employee from appearing before the Director General in pursuance of this Part.
81A PART XVA SEXUAL HARASSMENT-81A. Interpretation.
For the purposes of this Part, "complaint of sexual harassment" means any complaint relating to sexual harassment made:
(i) by an employee against another employee;
(ii) by an employee against any employer; or
(iii) by an employer against an employee.
[Ins. by Act A1419 of the year 2012]
81B PART XVA SEXUAL HARASSMENT-81B. Inquiry into complaints of sexual harassment.
(1) Upon receipt of a complaint of sexual harassment, an employer or any class of employers shall inquire into the complaint in a manner prescribed by the Minister.
(2) Subject to subsection (3), where an employer refuses to inquire into the complaint of sexual harassment as required under subsection (1), he shall, as soon as practicable but in any case not later than thirty days after the date of the receipt of the complaint, inform the complainant of the refusal and the reasons for the refusal in writing.
(3) Notwithstanding subsection (2), an employer may refuse to inquire into any complaint of sexual harassment as required under subsection (1), if:
(a) the complaint of sexual harassment has previously been inquired into and no sexual harassment has been proven; or
(b) the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good fa
81C PART XVA SEXUAL HARASSMENT-81C. Findings of inquiry by employer.
Where the employer conducts an inquiry into a complaint of sexual harassment received under subsection 81B(1) and the employer is satisfied that sexual harassment is proven, the employer shall:
(a) in the case where the person against whom the complaint of sexual harassment is made is an employee, take disciplinary action which may include the following:
(i) dismissing the employee without notice;
(ii) downgrading the employee; or
(iii) imposing any other lesser punishment as he deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of two weeks; and
(b) in the case where the person against whom the complaint of sexual harassment is made is a person other than an employee, recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to.
81D PART XVA SEXUAL HARASSMENT-81D. Complaints of sexual harassment made to the Director General.
(1) If a complaint of sexual harassment is made to the Director General, the Director General shall assess the complaint and may direct an employer to inquire into such complaint.
(2) The employer shall inquire into the complaint of sexual harassment when directed to do so under subsection (1) and submit a report of the inquiry to the Director General within thirty days from the date of such direction.
(3) If a complaint of sexual harassment received by the Director General is made against an employer who is a sole proprietor, the Director General shall inquire into such complaint himself in a manner prescribed by the Minister.
(4) Upon inquiry by the Director General of the complaint of sexual harassment under subsection (3), the Director General shall decide if sexual harassment is proven or not and such decision shall be informed to the complainant as soon as practicable.
(5) Notwithstanding subsection (3), the Direct
81E PART XVA SEXUAL HARASSMENT-81E. Effects of decisions of the Director General.
(1) Where the Director General decides under subsection 81D(4) that sexual harassment is proven, the complainant may terminate his contract of service without notice.
(2) If the complainant terminates the contract of service under subsection (1), the complainant is entitled to:
(a) wages as if the complainant has given the notice of the termination of contract of service; and
(b) termination benefits and indemnity,
as provided for under the Act or the contract of service, as the case may be.
[Ins. by Act A1419 of the year 2012]
81F PART XVA SEXUAL HARASSMENT-81F. Offence.
Any employer who fails:
(a) to inquire into complaints of sexual harassment under subsection 81B(1);
(b) to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81B(2);
(c) to inquire into complaints of sexual harassment when directed to do so by the Director General under paragraph 81B(5)(a) or subsection 81D(2); or
(d) to submit a report of inquiry into sexual harassment to the Director General under subsection 81D(2);
commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit.
[81F. Ins. Act A1419:s.27; Am. Act A1651:s.34]
81G PART XVA SEXUAL HARASSMENT-81G. [Deleted].
(Deleted by Act A1651)
81H PART XVA SEXUAL HARASSMENT-81H. Notice on sexual harassment.
An employer shall, at all times, exhibit conspicuously at the place of employment, a notice to raise awareness on sexual harassment.".
[Ins. by Act A1651]
82 PART XVI PROCEDURE-82. Service of summons.
[Shoulder note Am. Act A1651:s.37]
(1) Any summons issued by the Director General may be served on any person by delivering or tendering to him a copy thereof signed by the Director General:
[Am. Act A1651:s.37]
Provided that:
(a) if the person to be summoned cannot be found and has an agent empowered to accept service of the summons on his behalf, service on such agent shall be sufficient;
(b) if the person to be summoned cannot be found and has no agent empowered to accept service of the summons on his behalf, service on any adult member, not being a domestic employee, of the family of the person to be summoned who is residing with him shall be deemed good and sufficient service.
[Am. Act A1419:s.28; (b) Am. Act A1651:s.37]
(2) When such summons is addressed to a corporation, it may
83 PART XVI PROCEDURE-83. Power to make reciprocal provisions between Malaysia and Singapore for the service, execution and enforcement of summones, warrants and orders.
If the Minister is satisfied that arrangements have been made by or under any legislation in force in the Republic of Singapore for the service, execution or enforcement in the Republic of Singapore of summonses, warrants or orders issued or made under this Act he may, by regulations made under this Act:
(a) prescribe the procedure for sending such summonses, warrants and orders to the Republic of Singapore for service, execution or enforcement, and specify the conditions under which any such summons shall be deemed to have been served; and
(b) make reciprocal provisions for the service, execution or enforcement in Malaysia of summonses, warrants or orders issued or made in the Republic of Singapore under any corresponding or similar legislation in force therein.
84 PART XVI PROCEDURE-84. Jurisdiction.
(1) Notwithstanding the provisions of the Subordinate Courts Act 1948 [Act 92] , all penalties for offences against this Act may be had and recovered in the Sessions Court or the Court of a First Class Magistrate on complaint by any person aggrieved or by the Director General or any person authorized by him in writing in that behalf.
[Renumbering by Act A1651:s.38]
(2) Notwithstanding the provisions of any written law to the contrary, the court of a First Class Magistrate shall have jurisdiction to try any offence under this Act and to award the full punishment for any such offence.
[(2) Ins. Act A1651:s.38]
85 PART XVI PROCEDURE-85. Prosecution.
No prosecution shall be instituted for an offence under this Act or any regulation made under this Act without the consent in writing of the Public Prosecutor.
85A PART XVI PROCEDURE-85A. Right of audience.
The Director General, or any officer authorized in writing by the Director General, shall have the right to appear and be heard before a Magistrate Court or a Sessions Court in any civil proceedings under or arising out of this Act, or any regulation made under this Act; and such right shall include the right to appear and represent an employee in any such proceedings.
86 PART XVI PROCEDURE-86. Saving clause as to civil jurisdiction of courts.
Nothing in this Act shall be construed as preventing any employer or employee from enforcing his civil rights and remedies for any breach or non-performance of a contract of service by any suit in court in any case in which proceedings have not been instituted before the Director General under section 69 or 69F, or subsection 81D(4) or, if instituted, have been withdrawn.
[Am. Act A1419:s.29; Am. Act A1651:s.39]
87 PART XVI PROCEDURE-87. Power of court imposing fine.
When under this Act any court imposes a fine or enforces the payment of any sum secured by bond, the court may, if it thinks fit, direct that the whole or any part of such fine or sum when recovered be paid to the party complaining.
87A PART XVI PROCEDURE-87A. Court order for payments due to employee.
(1) Where an employer has been convicted of an offence relating to the payment of wages or any other payments payable to an employee under this Act, the court before which he is convicted may order the employer to pay any payment due to the employee in relation to that offence.
(2) Where an employer fails to comply with an order made under subsection (1), the court shall, on the application of the employee, issue a warrant to levy the employer's property for any payments due under that subsection in the following manner:
(a) by way of distress and sale of employer's property in accordance with the same procedure of execution under the Rules of Court 2012 [ P.U. (A) 205/2012 ] and this execution shall apply mutatis mutandis notwithstanding the amount in the order; or
(b) in the same manner as a fine as provided under section 283 of the Criminal Procedure Code [ Act 593 ].".
88 PART XVI PROCEDURE-88. Effect of imprisonment.
From and after the determination of any imprisonment suffered under this Act for non-payment of the amount of any fine, together with the costs assessed and directed to be paid by any order of court, the amount so ordered shall be deemed to be liquidated and discharged, and the order shall be annulled.
89 PART XVI PROCEDURE-89. Incapacity of Director General hearing inquiry.
Where the Director General has, for the purpose of inquiring into any matter under this Act, taken down any evidence or made any memorandum and is prevented by death, transfer or other cause from concluding such inquiry, any successor to such Director General or other officer may deal with such evidence or memorandum as if he had taken it down or made it and proceed with the inquiry from the stage at which such Director General left it.
90 PART XVI PROCEDURE-90. Officers acting under Act deemed public servants.
For the purposes of this Act the Director General and any other officer appointed or acting under this Act shall be deemed to be public servants within the meaning of the Penal Code.
90A PART XVI PROCEDURE-90A. Protection of officers.
No action shall lie or be brought, instituted or maintained in any court against:
(a) the Director General, Deputy Director General or any other officer duly appointed under this Act for or on account of or in respect of any act ordered or done for the purpose of carrying this Act into effect; and
(b) any other person for or on account of or in respect of any act done or purported to be done by him under the order, direction or instruction of the Director General, Deputy Director General or any other officer duly appointed under this Act,
if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served by it.
[Ins. by Act A1419 of the year 2012]
90B PART XVI PROCEDURE-90B. Forced labour.
Any employer who threatens, deceives or forces an employee to do any activity, service or work and prevents that employee from proceeding beyond the place or area where such activity, service or work is done, commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.
[90B. Ins. Act A1651:s.41]
91 PART XVII OFFENCES AND PENALTIES-91. Under Parts III and IV.
Any employer who:
(a) fails to pay the wages or indemnity due to any employee within the time prescribed in sections 19, 20 and 21;
(b) makes to any employee any advance of wages in excess of that permitted under section 22; or
(c) makes deductions from the wages of an employee other than such deductions as are authorized by section 24,
commits an offence.
92 PART XVII OFFENCES AND PENALTIES-92. Under Part V.
Any employer who:
(a) pays wages, imposes any conditions in a contract of service or makes any deduction or receives any payment in contravention of section 25, 25A, 26, 27 or 28; or
(b) provides any employee as part of the terms of his contract of service with any amenity or service, or any intoxicating liquor in contravention of section 29,
(c) [Deleted by Act A1026]
commits an offence.
93 PART XVII OFFENCES AND PENALTIES-93. [Deleted].
(Deleted by Act A1651:s.42)
94 PART XVII OFFENCES AND PENALTIES-94. Under Part IX.
Any employer who:
(a) fails to grant maternity leave to a female employee employed by him and entitled thereto under Part IX;
(b) fails to pay the maternity allowance to a female employee employed by him and entitled thereto under Part IX, or to her nominee, or to her personal legal representative;
(c) fails to pay maternity allowance in the manner prescribed in section 38; or
(d) contravenes the provisions of section 42 or 44,
commits an offence, and shall also:
(aa) in the event of a conviction for an offence under paragraph (a), be ordered by the court before which he is convicted to pay to the female employee concerned the maternity allowance to which she may be entitled under Part IX in respect of every day on which the female employee had worked during the eligible period referred to in section 37(1) (a)
95 PART XVII OFFENCES AND PENALTIES-95. [Deleted].
[Deleted by Act 40]
96 PART XVII OFFENCES AND PENALTIES-96. [Deleted].
[Deleted by Act 40]
97 PART XVII OFFENCES AND PENALTIES-97. Under Part XIII.
An employer who:
(a) fails to keep a register required under section 61, or to preserve the register for a period of not less than six years;
(b) destroys, alters or mutilates the register referred to in paragraph (a), or causes or permits the register to be destroyed, altered or mutilated;
(c) fails to comply with any regulations made under section 62;
(d) fails, without reasonable cause (proof of which shall lie on him), to forward to the Director General such returns as are prescribed under section 63 or forwards any of the returns knowing that it contains any false particulars; or
(e) being an owner of any estate, mine or factory to which section 64 applies, fails to comply with the requirements of the section,
commits an offence.
98 PART XVII OFFENCES AND PENALTIES-98. Under Part XIV.
Any person who:
(a) refuses the Director General exercising his powers under Part XIV, access to any premises or part thereof;
(b) assaults, obstructs, hinders or delays the Director General in effecting any entrance into any premises or part thereof which he is entitled to effect;
(c) furnishes the Director General as true, information which he knows or has reason to believe to be false; or
(d) fails to produce, or conceals or attempts to conceal any document which he may be required to produce under Part XIV, or hinders or obstructs the Director General in effecting possession of the documents,
commits an offence.
99 PART XVII OFFENCES AND PENALTIES-99. Under Part XV.
Any employer who prevents or attempts to prevent any employee from appearing before the Director General under Part XV commits an offence.
99A PART XVII OFFENCES AND PENALTIES-99A. General penalty.
Any person who commits any offence under, or contravenes any provision of, this Act, or any regulations, order, or other subsidiary legislation whatsoever made thereunder, in respect of which no penalty is provided, shall be liable, on conviction, to a fine not exceeding fifty thousand ringgit.
[Am. Act A1026:s.44; Am. Act A1651:s.43]
100 PART XVII OFFENCES AND PENALTIES-100. Penalties for failure or non-compliance in relation to rest days, overtime, holidays, annual leave, and sick leave.
(1) Any employer who fails to pay any of his employees wages for work done by his employee on a rest day or pays wages less than the rate provided under section 60 commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the wages due for work done on every rest day at the rate provided under section 60, and the amount of such wages shall be recoverable as if it were a fine imposed by such court.
(2) Any employer who fails to pay to any of his employees any overtime wages as provided under this Act or any subsidiary legislation made thereunder commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the overtime wages due, and the amount of overtime wages so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court.
(3) Any employer who fails
101 PART XVII OFFENCES AND PENALTIES-101. Offence in connection with inquiry or inspection.
In any inquiry, investigation, entry or inspection made by the Director General, or by any officer lawfully exercising the powers of the Director General under this Act, any person committing with respect to such inquiry, investigation, entry or inspection any offence described in Chapter X of the Penal Code shall on conviction be punished as prescribed in such Chapter.
101A PART XVII OFFENCES AND PENALTIES-101A. Power to compound offences.
(1) The Director General, Deputy Director General or any officer authorized in writing by the Director General may, with the consent in writing of the Public Prosecutor, compound any offence committed by a person which is punishable under this Act or any regulation made under this Act.
(2) The Director General, Deputy Director General or any officer authorized in writing by the Director General may, in a case where he deems it fit and proper so to do, compound an offence by making a written offer to the person who has committed the offence to compound the offence on payment to the Director General, Deputy Director General or any officer authorized in writing by the Director General as the case may be, within such time as may be specified in the offer, of such sum of money, as may be specified in the offer, which shall not exceed fifty per centum of the amount of the maximum fine (including the daily fine, if any, in the case of a continuing off
101B PART XVII OFFENCES AND PENALTIES-101B. Offence by body corporate, etc.
Where an offence under this Act has been committed by a body corporate, partnership, society or trade union:
(a) in the case of a body corporate, any person who is a director, manager, or other similar officer of the body corporate at the time of the commission of the offence;
(b) in the case of a partnership, every partner in the partnership at the time of the commission of the offence; and
(c) in the case of a society or trade union, every office-bearer of the society or trade union at the time of the commission of the offence,
shall be deemed to have committed the offence and may be charged jointly or severally in the same proceedings as the body corporate, partnership, society or trade union.
[Ins. by Act A1419 of the year 2012]
101C PART XVII OFFENCES AND PENALTIES-101C. Presumption as to who is an employee and employer.
(1) In any proceeding for an offence under this Act, in the absence of a written contract of service relating to any category of employee under the First Schedule, it shall be presumed until the contrary is proved that a person is an employee:
(a) where his manner of work is subject to the control or direction of another person;
(b) where his hours of work are subject to the control or direction of another person;
(c) where he is provided with tools, materials or equipments by another person to execute work;
(d) where his work constitutes an integral part of another person's business;
(e) where his work is performed solely for the benefit of another person; or
(f) where payment is made to him in return for work done by him at regular intervals and such payment constitutes the majority of his income.
(2) For the purpos
102 PART XVIII REGULATIONS-102. Regulations.
(1) The Minister may from time to time make such regulations as may be necessary or expedient for giving full effect to the provisions of this Act, or for the further, better or more convenient implementation of the provisions of this Act.
[(1) Subs. Act A1026:s.47]
(2) Without prejudice to the generality of the foregoing the Minister may make regulations:
(a) limiting the powers of officers appointed under subsection 3(2);
(b) (Deleted by Act A1651:s.45) ;
(c) prescribing the rate of the maternity allowance to which female employees shall be entitled during the eligible period;
(d) prescribing the maximum period during which notice of dismissal given by her employer to a female employee who is absent from her work as a result of illness certified by a registered medical practitioner to arise out of her pregnancy or confinement shall n
103 PART XIX REPEAL AND SAVING-103. Repeal and saving.
The written laws specified in the first and second columns of the Second Schedule are hereby repealed to the extent set out in the third column of the said Schedule:
Provided that any appointment made under such written law hereby repealed shall be deemed to be made under this Act:
Provided further that references to any provision of any written law hereby repealed in any other written law or in any contract or other instrument in writing shall, in so far as such provision is not inconsistent with the corresponding provision of this Act, be construed as references to such corresponding provision.
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