SABAH LABOUR ORDINANCE - [SABAH CAP. 67]
This ordinance may be cited as the Labour Ordinance .
(1) In this Ordinance, unless the context otherwise requires-
"adopted" , in reference to any child, means-
(a) a child adopted, or whose adoption has been registered in accordance with the provisions of any written law relating to the adoption of children from time to time in force in Sabah; or
(b) where there is no such written law, a child whom the Director has certified as having been adopted in accordance with religion, custom or usage;
"agricultural undertaking" means any work in which any employee is employed under a contract of service for the purposes of agriculture, aquaculture, horticulture, silviculture or landscaping, fisheries, livestock husbandry, the rearing, hunting or capturing of wild animals, birds, insects, reptiles, amphibians or worms or the collection of the produce of 2A PART I LABOUR DEPARTMENT Chapter I Preliminary and Interpretation-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, forestry or industrial undertaking, constructional work, trade, business or place of work other than under a contract of service entered into with the principal or owner of that agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work.
(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 the principal or owner of the agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work, shall be deemed to be the employer for the purposes of such provisions of this Ordinance and any other written law as may be specified in the order.
(3) Notwithstanding
Legal Commentary on Sabah Labour Ordinance - Section 2A
Introduction
Section 2A of the Sabah Labour Ordinance (Cap. 67) grants the Minister the authority to regulate employment practices beyond contractual arrangements, aiming to control the employment of persons in various sectors such as agriculture, forestry, industry, construction, trade, and business. This section plays a pivotal role in shaping employment law by establishing the Minister's power to prohibit certain employment practices and define employer-employee relationships.
What does Section 2A Say
Section 2A empowers the Minister to:- Issue orders prohibiting employment, engagement, or contracting of persons outside a contract of service in specified sectors.- Deem persons employed under such orders as employees and the principal or owner as the employer.- Approve employment of certain persons by other entities under conditions set by the Minister.- Make it an offence to contravene any order issued under this section.
Essential Ingredients
- Minister’s Power: The authority to issue prohibitive orders regarding employment practices.
- Prohibition of Employment: Restriction on employment outside a contract of service in specified sectors.
- Deeming Clause: Persons engaged contrary to the order are deemed employees, and the principal is deemed an employer.
- Approval Mechanism: The Minister can authorize employment outside the standard contractual framework under certain conditions.
- Offence: Contravention of orders is criminalized, establishing liability.
Scope of Section 2A
- Applies to employment, engagement, or contracting in agricultural, forestry, industrial, construction, trade, business, or work sites.
- Covers persons employed in sectors where the Minister has issued prohibitive orders.
- Includes the power to approve alternative employment arrangements, subject to conditions.
- Extends to all persons engaged in the specified sectors, whether directly or indirectly.
Punishment for Contravention
- Contravention of orders made under Section 2A constitutes an offence.
- Penalties may include fines, imprisonment, or both, as per the penalties outlined in the Ordinance or related laws.
- Specific punishment details are referenced in Section 130K of the Ordinance, which prescribes offences and penalties.
Legal Comments
- Power of the Minister - Section 2A grants broad discretionary powers to the Minister to regulate employment, reflecting a strong regulatory approach to employment practices in Sabah [SABAH CAP. 67 ~2A].
- Deeming Clause - The provision that persons engaged contrary to orders are deemed employees simplifies enforcement and clarifies employment relationships for legal and administrative purposes [SABAH CAP. 67 ~2A].
- Scope of Regulation - The section’s scope covers multiple sectors, indicating a comprehensive approach to employment regulation in Sabah, especially in sectors prone to informal or unregulated employment [SABAH CAP. 67 ~2A].
- Offence and Penalty - Making contravention an offence underscores the seriousness of compliance, with penalties aligned with general enforcement provisions in the Ordinance [LAWS OF MALAYSIA].
- Approval Power - The Minister’s authority to approve employment arrangements outside standard contracts introduces flexibility but also raises concerns about potential abuse or circumvention of employment laws [SABAH CAP. 67 ~2A].
- Impact on Employers and Contractors - Employers must ensure compliance with Ministerial orders, failing which they risk criminal liability and penalties, emphasizing the importance of legal compliance [SABAH CAP. 67 ~2A].
- Legal Clarity - The deeming clause provides clarity in legal classification, facilitating enforcement and legal proceedings against violations [SABAH CAP. 67 ~2A].
- Policy Objective - The section aligns with broader policy objectives to regulate exploitative or informal employment practices in sensitive sectors [SABAH CAP. 67 ~2A].
- Potential for Overreach - The broad powers may lead to concerns about overreach or arbitrary enforcement, necessitating oversight mechanisms [SABAH CAP. 67 ~2A].
- Relation to Other Laws - The section interacts with other provisions of the Ordinance and Malaysian employment law, creating a layered legal framework for employment regulation [SABAH CAP. 67 ~2A].
- Amendments and Reforms - Recent amendments aim to extend the scope and clarify the powers under Section 2A, reflecting ongoing reforms to strengthen employment protections [Sources on amendments].
- Enforcement Challenges - Effective enforcement depends on clear guidelines and the capacity of authorities to monitor compliance with Ministerial orders [SABAH CAP. 67 ~2A].
- Legal Certainty - The section provides legal certainty by establishing clear consequences for violations, aiding in compliance and enforcement [SABAH CAP. 67 ~2A].
- International Standards - The section’s regulatory approach is consistent with international standards promoting fair employment practices and control over informal employment [ILO conventions and international labour standards].
Note: The analysis is based on available sources, with specific references to the Sabah Labour Ordinance and related legal commentary.
2B PART I LABOUR DEPARTMENT Chapter I Preliminary and Interpretation-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 Ordinance.
[Ins. by Act A1238]
3 Chapter II Officers-3. Commissioner of Labour and other officers.
(1) The Minister may appoint an officer to be styled the Director of Labour, hereinafter referred to as the "Director".
[Subs. by Act A1238]
(1A) The Minister may appoint, to such number as he considers necessary for carrying out the provisions of this Ordinance, officers of the following categories that is to say:
(a) Deputy Directors of Labour;
(b) Senior Assistant Directors of Labour;
(c) Assistant Directors of Labour; and
(d) Labour Officers and such other officers.
[Ins. by Act A1238]
(1B) Subject to such limitations, if any, as may be prescribed by rules made under this Ordinance, any officer appointed under subsection (1A) shall perform all the duties imposed and may exercise all the powers conferred upon the Director by this Ordinance, and every duty so performed and power s
3A Chapter II Officers-3A. Officers to be authorized by Director.
An officer appointed under subsection (1A) of section 3 shall not exercise any of the powers of the Director under this Ordinance unless he is in possession of an official identification signed by the Director authorizing him to exercise such powers, and any officer so authorized shall produce his official identification on demand to the owner or occupier of the place of employment and to the employer of any employees employed thereat.
[Ins. by Act A1238]
4 Chapter II Officers-4. Powers of inspection and inquiry.
(1) The Director shall have power to enter without prior notice at all times any place of employment where employees are employed or 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 Ordinance.
[Subs. by Act A1238]
(2) In the course of an inspection under subsection (1)-
(a) the Director may put questions concerning the employees to the employer or to any person who may be in charge of them, or to the employees themselves or any other person whom he believes to be acquainted with the facts and circumstances of any matter within the provisions of this Ordinance;
(b) the employer or such person, or any such employee, or any such other person shall b
5 Chapter II Officers-5. Inspection of documents.
(1) The Commissioner may-
[Am. by Act A1238]
(a) require the employer to produce before him all or any of the employees employed by him together with any contracts of service, books of account of wages, registers and other documents relating to the employees or their employment and to answer such questions in respect of the employees or their employment as he may think fit to ask;
[Subs. by Act A1238]
(b) take or remove for purposes of analysis samples of materials and substances used or handled, subject to the employer or his representative being notified of any samples or substances taken or removed for such purposes;
[Am. by Act A1238]
(c) copy or make extracts from the contracts of service, books of account of wages, registers and other documents relating to the employees or their employment;
6 Chapter II Officers-6. Power of summons and institution of proceedings.
(1) Whenever the Commissioner has reasonable grounds for suspicion that any offence under this Ordinance or any rule made hereunder has been committed or is about to be committed or wishes to enquire into any matter concerning terms and conditions of employment or any other matter relating to employer and worker dealt with under the provisions of this Ordinance, or any rules made hereunder the Commissioner may summon any person whom he has reason to believe can give information respecting the subject-matter of the enquiry, and the person so summoned shall be legally bound to attend at the time and place specified in the summons and to answer truthfully all questions which the Commissioner may put to him.
[Am. by Act A1238]
(1A) The Director may issue to the employer such order as may be necessary or expedient to resolve the matters dealt with under subsection (1).
[Ins. by Act A1238]
7 Chapter II Officers-7. [Deleted by Act A1238].
[Deleted by Act A1238] .
7A Chapter IIA Complaints And Inquiries-7A. Director's power to inquire into complaints.
(1) The Director may inquire into and decide any dispute between an employee and his employer in respect of wages or any other payment 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 Ordinance 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 of such sum of money.
(2) The powers of the Director under subsection (1) shall include the power to hear and decide, in accordance with the procedure laid down in this Chapter, any claim by-
(a) an employee against any person
7B Chapter IIA Complaints And Inquiries-7B. Limitation on power conferred by section 7A.
Notwithstanding section 7A, the Director 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 subsection (3) of section 20 of that Act; or
(c) has been referred to, or is pending in any proceedings before, the Industrial Court.
[Ins. by Act A1238]
7C Chapter IIA Complaints And Inquiries-7C. Additional powers of Director to inquire into complaints.
(1) Notwithstanding the provisions of this Ordinance, the powers of the Director under paragraph (a) of subsection (1) of section 7A shall extend to employees whose wages per month exceed two thousand five hundred ringgit but does not exceed five thousand ringgit.
(2) For the purposes of this section, the term
"wages" means wages as defined in section 2 but does not include any payment by way of commission, subsistence allowance or overtime payment. (3) Save for this Chapter and Chapter XVI which shall apply with the necessary modifications, the other provisions of this Ordinance shall not apply to the employees referred to in subsection (1).
[Ins. by Act A1238]
7D Chapter IIA Complaints And Inquiries-7D. Claims for indemnity for termination of contract without notice.
(1) In the exercise of his powers under subsection (1) of section 7C, the Director may inquire into and decide any claim concerning any indemnity due to the employer or the employee where the contract of service is terminated by either party without notice, or if notice was given, without waiting for the expiry of that notice.
(2) The indemnity due to the employer or employee under subsection (1) shall be a sum equal to the amount of wages which would have accrued to the employee during the term of the notice or during the unexpired term of the notice.
[Ins. by Act A1238]
7E Chapter IIA Complaints And Inquiries-7E. Order of Director may be in writing.
Notwithstanding subsection (1) of section 7A, an order of the Director made under subsection (1) of section 7C or subsection (1) of section 7D for the payment by or to the employer or employee of a sum of money as the Director deems just, without any limitation of amount, may be made in writing.
[Ins. by Act A1238]
7F Chapter IIA Complaints And Inquiries-7F. Procedure in Director's inquiry.
The procedure for disposing of questions arising under sections 7A, 7C and 7D shall be as follows:
(a) the person complaining shall present to the Director a written statement of his complaint and of the remedy which he seeks or he shall in person make a statement to the Director of his complaint and of the remedy which he seeks;
(b) the Director 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 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 complaint discloses matters which ought to be inquired into he may forthwith summon the person compl
7G Chapter IIA Complaints And Inquiries-7G. Director's record of inquiry.
The Director 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.
[Ins. by Act A1238]
7H Chapter IIA Complaints And Inquiries-7H. Joinder of several complaints in one complaint.
Where it appears to the Director in any proceedings under this Chapter 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 employee to make a separate complaint under this Chapter, but the Director 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 may proceed to a decision on the joint complaint or complaints of each and all such employees:
Provided that, where the Director is of the 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.
[Ins. by Act A1238]
7I Chapter IIA Complaints And Inquiries-7I. Prohibitory order by Director to third party.
(1) Whenever the Director shall have made an order under section 7A, 7C or 7D, against any employer or any person liable for the payment of any sum of money to any employee or subcontractor for labour and the Director has reason to believe that there exists between such employer or person liable and any other person a contract, not necessarily a contract as defined in section 2, in the course of the performance of which the employee or subcontractor performed the work in respect of which the order was made, the Director 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 any money (not exceeding the amount found due to such employee or subcontractor for labour) admitted by him to be owing to the employer or person liable in respect of such contract:
Provided th
7J Chapter IIA Complaints And Inquiries-7J. No fees for summons; service of summons.
(1) No fee shall be charged by the Director in respect of any summons issued by him under this Chapter.
(2) Any such summons may be served by a Sessions Court or a Magistrates' Court on behalf of the Director or in such other manner, and by such person, as the Director may deem fit.
[Ins. by Act A1238]
7K Chapter IIA Complaints And Inquiries-7K. Enforcement of Director's order by Sessions Court.
Where any order has been made by the Director under this Chapter, and the same has not been complied with by the person to whom it is addressed, the Director 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 Registrar or Court, as the case may be, shall cause the copy to be recorded and thereupon the 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.
[Ins. by Act A1238]
7L Chapter IIA Complaints And Inquiries-7L. Submission by Director to High Court on point of law.
(1) In any proceedings under this Chapter the Director 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).
[Ins. by Act A1238]
7M Chapter IIA Complaints And Inquiries-7M. Appeal against Director's order to High Court.
(1) If any person whose financial interests are affected is dissatisfied with the decision or order of the Director under section 7A, 7C, 7D or 7I, such person may appeal to the High Court.
(2) Subject to any rules made under section 4 of the Subordinate Courts 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.
[Ins. by Act A1238]
7N Chapter IIA Complaints And Inquiries-7N. 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 the State 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 the State 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:
<7O Chapter IIA Complaints And Inquiries-7O. Examination on summons by the Director.
Any person summoned by the Director under this Chapter shall be legally bound to attend at the time and place specified in the summons and to answer truthfully all questions which the Director may put to him.
[Ins. by Act A1238]
7P Chapter IIA Complaints And Inquiries-7P. Right of employee to appear before the Director.
No employer shall prevent or attempt to prevent any employee from appearing before the Director in pursuance of this Chapter.
[Ins. by Act A1238]
8 Chapter III Rules-8. [Deleted by Act A1238].
[Deleted by Act A1238] .
9 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-9. More favourable conditions of service under the Ordinance to prevail.
Subject to section 9A, any term or condition of a contract of service or of an agreement, whether such contract of service was entered into before or after the coming into force of this Ordinance, 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 Ordinance or any rules, order or other subsidiary legislation made thereunder shall be void and of no effect to that extent and the more favourable provisions of this Ordinance or any rules, order or other subsidiary legislation made thereunder shall be substituted therefor.
[Subs. by Act A1238]
9A PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-9A. Validity of any term or condition of service which is more favourable.
Subject to any express prohibition under this Ordinance or any rules, order or other subsidiary legislation made thereunder, nothing in section 9 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 Ordinance or any rules, order or other subsidiary legislation made thereunder.
[Ins. by Act A1238]
9B PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-9B. Removal of doubt in respect of matters not provided for by or under this Ordinance.
For the removal of doubt, it is hereby declared that if no provision is made in respect of any matter under this Ordinance or any subsidiary legislation made thereunder, or if no rules, order or other subsidiary legislation has been made on any matter in respect of which rules, or an order or other subsidiary legislation may be made under this Ordinance, 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.
[Ins. by Act A1238]
9C PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-9C. 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 organizing a trade union in accordance with the Trade Unions Act 1959 [Act 262] .
[Ins. by Act A1238]
10 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-10. Guaranteed week.
(1) In the case of an employee employed on a contract of service and paid according to to the number of days' work performed an employer shall provide work suitable to the capacity of such employee for not less than six days in every week with the exception of gazetted public holidays and Sundays (or such other rest day as may be substituted for a Sunday by agreement between the employer and the employee, entered into not less than three days before the rest is taken) and if he is unable or fails to provide such work on such number of days whereon the employee presents himself for work and is fit to work the employer shall nevertheless be bound to pay to the employee in respect of each of such days, wages, including cost of living allowance, if any, at not less than his ordinary rate of pay, or if the employee is on piece rates at not less than the average of his previous weeks' earnings or if he has not been working, at the average rate during the las
10A PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-10A. 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 Chapter, 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 Chapter.
[Ins. by Act A1238]
11 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-11. Termination of contract of service by notice.
[Am. by Act A1238]
(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;
[Subs. by Act A1238]
(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 weeks' notice if he has been so employed for two years or more but less than five years on such date;
(c) eight weeks' notice if he has been so employed for five years or more on such date:
Provided that this section shall not be taken to pr
12 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-12. Termination of contract without notice.
[Am. by Act A1238]
(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 11, 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.
[Subs. by Act A1238]
13 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-13. Termination of contract for special reasons.
[Am. by Act A1238]
(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 terminat
13A PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-13A. 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 this Ordinance.
(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 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.
[Ins. by Act A1238]
14 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-14. [Deleted by Act A1238].
[Deleted by Act A1238] .
15 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-15. [Deleted by Act A1238].
[Deleted by Act A1238] .
16 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-16. [Deleted by Act A1238].
[Deleted by Act A1238] .
17 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-17. [Deleted by Act A1238].
[Deleted by Act A1238] .
18 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-18. 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 and shall be signed by both parties:
Provided that an employee unable to sign may indicate his consent by affixing thereto the impression of his thumb.
(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 Ordinance.
(3) Such written contract of service shall contain such particulars necessary to define the rights and obligations of the parties thereto as may be prescribed by rules made under this Ordinance.
[Subs. by Act A1238]
19 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-19. [Deleted by Act A1238].
[Deleted by Act A1238] .
20 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-20. [Deleted by Act A1238].
[Deleted by Act A1238] .
21 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-21. [Deleted by Act A1238].
[Deleted by Act A1238] .
22 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-22. [Deleted by Act A1238].
[Deleted by Act A1238] .
23 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-23. [Deleted by Act A1238].
[Deleted by Act A1238] .
24 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-24. [Deleted by Act A1238].
[Deleted by Act A1238] .
25 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-25. [Deleted by Act A1238].
[Deleted by Act A1238] .
26 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-26. [Deleted by Act A1238].
[Deleted by Act A1238] .
27 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-27. [Deleted by Act A1238].
[Deleted by Act A1238] .
28 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-28. [Deleted by Act A1238].
[Deleted by Act A1238] .
29 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-29. [Deleted by Act A1238].
[Deleted by Act A1238] .
30 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-30. [Deleted by Act A1238].
[Deleted by Act A1238] .
31 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-31. [Deleted by Act A1238].
[Deleted by Act A1238] .
32 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-32. [Deleted by Act A1238].
[Deleted by Act A1238] .
33 PART II CONTRACTS OF SERVICE Chapter IV Terms And Conditions-33. [Deleted by Act A1238].
[Deleted by Act A1238] .
34 Chapter VI Apprenticeship Contracts-34. Apprenticeship contracts excluded from sections 10, 10A, 11, 12, 13, 13A and 18.
Sections 10, 10A, 11, 12, 13, 13A and 18 shall not apply to apprenticeship contracts which are in a form approved by and of which a copy has been filed with the Director.
[Subs. by Act A1238]
35 Chapter VI Apprenticeship Contracts-35. [Deleted by Act A1238].
[Deleted by Act A1238] .
36 Chapter VI Apprenticeship Contracts-36. [Deleted by Act A1238].
[Deleted by Act A1238] .
37 Chapter VI Apprenticeship Contracts-37. [Deleted by Act A1238].
[Deleted by Act A1238] .
38 Chapter VI Apprenticeship Contracts-38. [Deleted by Act A1238].
[Deleted by Act A1238] .
39 Chapter VI Apprenticeship Contracts-39. [Deleted by Act A1238].
[Deleted by Act A1238] .
40 Chapter VI Apprenticeship Contracts-40. [Deleted by Act A1238].
[Deleted by Act A1238] .
41 Chapter VI Apprenticeship Contracts-41. [Deleted by Act A1238].
[Deleted by Act A1238] .
42 Chapter VI Apprenticeship Contracts-42. [Deleted by Act A1238].
[Deleted by Act A1238] .
43 Chapter VI Apprenticeship Contracts-43. [Deleted by Act A1238].
[Deleted by Act A1238] .
44 PART III RECRUITING OF WORKERS-44. [Deleted by Act A1238].
[Deleted by Act A1238] .
45 PART III RECRUITING OF WORKERS-45. [Deleted by Act A1238].
[Deleted by Act A1238] .
46 PART III RECRUITING OF WORKERS-46. [Deleted by Act A1238].
[Deleted by Act A1238] .
47 PART III RECRUITING OF WORKERS-47. [Deleted by Act A1238].
[Deleted by Act A1238] .
48 PART III RECRUITING OF WORKERS-48. [Deleted by Act A1238].
[Deleted by Act A1238] .
49 PART III RECRUITING OF WORKERS-49. [Deleted by Act A1238].
[Deleted by Act A1238] .
50 PART III RECRUITING OF WORKERS-50. [Deleted by Act A1238].
[Deleted by Act A1238] .
51 PART III RECRUITING OF WORKERS-51. [Deleted by Act A1238].
[Deleted by Act A1238] .
52 PART III RECRUITING OF WORKERS-52. [Deleted by Act A1238].
[Deleted by Act A1238] .
53 PART III RECRUITING OF WORKERS-53. [Deleted by Act A1238].
[Deleted by Act A1238] .
54 PART III RECRUITING OF WORKERS-54. [Deleted by Act A1238].
[Deleted by Act A1238] .
55 PART III RECRUITING OF WORKERS-55. [Deleted by Act A1238].
[Deleted by Act A1238] .
56 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-56. [Deleted by Act A1238].
[Deleted by Act A1238] .
57 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-57. Duty to display notice board.
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 are 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 its registered or other office.
[Subs. by Act A1238]
58 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-58. 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 rules made under this Ordinance.
(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, 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 subject to such conditions as he may deem fit to impose.
[Subs. by Act A1238]
58A PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-58A. Power to make rules requiring information as to wages.
The Minister may, by rules made under this Ordinance, 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.
[Ins. by Act A1238]
59 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-59. Duty to submit returns.
(1) The Director 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 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 Ordinance, the powers of the Director under subsection (1) extend to every employee employed under a contract of service irrespective of the monthly wages of the employee.
[Subs. by Act A1238]
59A PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-59A. Duty to give notice and other information.
(1) Any person or employer who proposes-
(a) to operate any agricultural, forestry or industrial undertaking or any establishment where any commerce, trade, profession or business of any description is carried on;
(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 of the name or the location of the undertaking or establishment, as the case may be, give notice in writing of such proposal to the nearest office of the Director having administrative jurisdiction for the area in which that undertaking or establishment is located and furnish such office of the Director with-
(aa) the registered
60 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-60. [Deleted by Act A1238].
[Deleted by Act A1238] .
61 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-61. [Deleted by Act A1238].
[Deleted by Act A1238] .
62 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-62. [Deleted by Act A1238].
[Deleted by Act A1238] .
63 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-63. [Deleted by Act A1238].
[Deleted by Act A1238] .
64 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-64. [Deleted by Act A1238].
[Deleted by Act A1238] .
65 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-65. [Deleted by Act A1238].
[Deleted by Act A1238] .
66 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-66. [Deleted by Act A1238].
[Deleted by Act A1238] .
67 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-67. [Deleted by Act A1238].
[Deleted by Act A1238] .
68 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-68. [Deleted by Act A1238].
[Deleted by Act A1238] .
69 PART IV PROVISIONS RELATING TO EMPLOYMENT Chapter X Registers, Returns and Notice Board-69. [Deleted by Act A1238].
[Deleted by Act A1238] .
70 Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-70. [Deleted by Act A1238].
[Deleted by Act A1238] .
71 Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-71. Certificate of medical officer as to age.
Where, in any proceeding under this Ordinance, a person is alleged to be a child or young person, the Court may accept a certificate of a medical officer to the effect that, in his opinion, such person is or is not a child or young person.
[Subs. by Act A1238]
72 Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-72. Employment in which children and young persons may be engaged.
(1) No child or young person shall be, or be required or permitted to be, engaged in any employment other than those specified in this section.
(2) A child may be engaged in any of the following employment:
(a) employment involving light work suitable to his capacity in any undertaking carried on by his family;
(b) employment in any public entertainment, in accordance with the terms and conditions of a licence granted in that behalf under this Chapter;
(c) employment requiring him to perform work approved or sponsored by the Federal Government or the Government of any State and carried on in any school, training institution or training vessel; and
(d) employment as an apprentice under a written apprenticeship contract.
(3) A young person may be engaged in any of the following employment:
(a) any employment mention
73 Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-73. The Minister may prohibit any child or young person from engaging or being engaged in any employment.
Notwithstanding section 72, the Minister may, in any particular case, by order prohibit any child or young person from engaging or from being engaged in any of the employments mentioned in that section if he is satisfied that having regard to the circumstances such employment would be detrimental to the interests of the child or young person, as the case may be.
[Subs. by Act A1238]
73A Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-73A. Number of days of work.
No child or young person engaged in any employment shall in any period of seven consecutive days be required or permitted to work for more than six days.
[Ins. by Act A1238]
Legal Commentary on Sabah Labour Ordinance - Section 73A
Introduction
Section 73A of the Sabah Labour Ordinance [Sabah Cap. 67] pertains to the regulation of working days for children and young persons employed in Sabah. It aims to protect young workers from excessive working hours and ensure their well-being by limiting the number of days they can be required or permitted to work within a week.
What does Section 73A Say
Section 73A explicitly states that no child or young person engaged in employment shall be required or permitted to work for more than six days in any consecutive seven-day period. This provision sets a clear cap on weekly working days for young workers.
Essential Ingredients
- Targeted Group: Children and young persons engaged in employment.
- Limitation: Not more than six working days in any seven consecutive days.
- Prohibition: Employers cannot require or permit work beyond this limit.
- Time Frame: Applies to any period of seven consecutive days.
Scope of Section
- Coverage: The section applies specifically to children and young persons employed under the Ordinance.
- Employment Types: Encompasses all forms of employment involving children and young persons, including manual labor and other employment types covered under the Ordinance.
- Geographical Scope: Applies within the jurisdiction of Sabah.
- Operational Scope: The restriction pertains to the number of days, not hours per day, though other provisions may regulate daily working hours.
Punishment for Section
While the specific penalties for breaching Section 73A are not detailed in the provided sources, general enforcement mechanisms under the Sabah Labour Ordinance [Sabah Cap. 67] include fines and imprisonment for violations of employment laws, especially concerning children and young persons [SABAH CAP. 67, 130K]. Penalties for offences related to employment of minors can include fines up to RM 10,000, imprisonment, or both, upon conviction.
Legal Comments
- Protection of Young Workers - Section 73A safeguards children and young persons by limiting their working days, aligning with international standards on child labor [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-73A. Number of days of work.].
- Preventive Measure - The provision acts as a preventive measure against exploitation and overwork of minors [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-73A. Number of days of work.].
- Enforcement Challenges - Enforcement relies on inspections and compliance monitoring, which may require robust enforcement mechanisms to be effective [SABAH CAP. 67].
- Complementary Provisions - The section complements other provisions regulating working hours and conditions for young persons, such as rest days and paid holidays [labour ordinance 1950].
- Penalties and Deterrence - The absence of specific penalties in the section suggests reliance on general penalties under the Ordinance, which include significant fines and imprisonment for violations involving minors [130K].
- Scope Expansion - Amendments are extending coverage to all employees regardless of wage or employment type, which may impact enforcement of provisions like 73A [Amendments to Sabah Labour Ordinance 2024].
- Child Employment Regulation - The section aligns with broader legal frameworks that prohibit child labor and regulate employment conditions for young persons [SABAH CAP. 67].
- Limitations - The section does not specify daily working hours, which are likely covered under other provisions of the Ordinance [labour ordinance 1950].
- Legal Consistency - The provision is consistent with Malaysian labor reforms aimed at protecting minors and ensuring their right to education and rest [Malaysia: Key labour law reforms].
- Potential for Penalties - Violations may lead to prosecution and penalties, including fines up to RM 10,000 or imprisonment, emphasizing the seriousness of compliance [labour ordinance 1950].
- Policy Implication - The restriction on working days for children and young persons underscores Sabah’s commitment to safeguarding minors’ welfare in employment contexts [Tools for Transformation].
- Operational Enforcement - Effective enforcement may require employer registration, inspections, and penalties for non-compliance [labour ordinance 1950].
- Legal Consistency with International Standards - The provision aligns with International Labour Organization (ILO) standards on child labor, emphasizing limiting working days [ILO Standards].
- Legal Gaps - Lack of explicit penalties in the specific section suggests reliance on general penalties, which may need clearer articulation for effective enforcement [SABAH CAP. 67].
- Impact of Amendments - Recent amendments expanding coverage may increase the scope of enforcement and compliance obligations concerning young workers’ working days [Amendments to Sabah Labour Ordinance 2024].
- Overall Significance - Section 73A plays a vital role in the legal framework protecting young workers from overwork, ensuring their health, safety, and well-being are prioritized [labour ordinance 1950].
Note: The analysis is based on the provided sources and general legal principles. Specific penalties for breaches of Section 73A are inferred from related provisions and general enforcement mechanisms under the Sabah Labour Ordinance.
73B Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-73B. Hours of work of children.
(1) No child engaged in any employment shall be required or permitted-
(a) to work between the hours of 8 o'clock in the evening and 7 o'clock in the morning;
(b) to work for more than three consecutive hours without a period of rest of at least thirty minutes;
(c) to work for more than six hours in a day or, if the child is attending school, for a period which together with the time he spends attending school, exceeds seven hours; or
(d) to commence work on any day without having had a period of not less than fourteen consecutive hours free from work.
(2) Paragraph (a) of subsection (1) shall not apply to any child engaged in employment in any public entertainment.
[Ins. by Act A1238]
73C Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-73C. Hours of work of young person.
(1) No young person engaged in any employment shall be required or permitted-
(a) to work between the hours of 8 o'clock in the evening and 6 o'clock in the morning;
(b) to work for more than four consecutive hours without a period of rest of at least thirty minutes;
(c) to work for more than seven hours in any one day or, if the young person is attending school, for a period which together with the time he spends attending school, exceeds eight hours:
Provided that if the young person is an apprentice under paragraph (d) of subsection (2) of section 72, the period of work in any one day shall not exceed eight hours; or
(d) to commence work on any day without having had a period of not less than twelve consecutive hours free from work.
(2) Paragraph (a) of subsection (1) shall not apply to any young person engaged in employme
73D Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-73D. Employment connected with public entertainment.
(1) No child or young person shall take part or be required or permitted to take part in any public entertainment unless there has been issued by the Director or by such other officer as may be authorized in writing in that behalf by the Director to the person employing such child or young person a licence in that behalf; and the Director may, in addition to such conditions or restrictions as may be prescribed from time to time under Chapter XVIB impose in respect of such licence (whether at the time the licence is issued or thereafter from time to time) such conditions as he deems fit.
(2) No licence under subsection (1) shall be granted by the Director to any person where he is of the opinion that the employment is dangerous to the life, limb, health or morals of the child or young person.
(3) The Director may cancel any licence issued under this section on any ground for which he could refuse to issue a licence or on breach of any co
74 Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74. [Deleted by Act A1238].
[Deleted by Act A1238] .
74A Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74A. Power to prescribe minimum wages after inquiry.
(1) If representation is made to the Minister that the wages of children or young persons in any class of work in any area are not reasonable, having regard to the nature of the work and conditions of employment obtaining in such class of work, the Minister may, if he considers it expedient, direct an inquiry.
(2) For the purpose of such inquiry, the Minister shall appoint a Board consisting of an independent member who shall be chairman and an equal number of representatives of employers and employees.
(3) The Board shall, after holding the inquiry, report to the Minister its findings and recommendations; and the Minister may, after considering the report of the Board, make an order prescribing the minimum rates of wages to be paid to children or young persons or to both, employed in the class of work in the area.
(4) Upon publication of such order, it shall not be lawful for any employer to pay any child or young person to who
74B Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.
Notwithstanding anything to the contrary contained in the Contracts Act 1950 [Act 136] or the provisions of any other written law, any child or young person shall be competent to enter into a contract of service under this Ordinance otherwise than as an employer, and may sue as plaintiff without his next friend or defend any action without a guardian ad litem:
Provided that no damages and no indemnity under section 12 of this Ordinance shall be recoverable from a child or young person for a breach of any contract of service.
[Ins. by Act A1238]
Legal Commentary on Section 74B of the Sabah Labour Ordinance [Sabah Cap. 67]
Introduction
Section 74B of the Sabah Labour Ordinance addresses the contractual capacity of children and young persons in employment contexts. It clarifies their legal ability to enter into contracts of service and the implications thereof, diverging from general contract law principles.
What does Section 74B Say
Section 74B stipulates that children and young persons are competent to enter into contracts of service under this Ordinance, regardless of the Contracts Act 1950 or other laws. They can sue or defend actions related to employment without a guardian. However, no damages or indemnities are recoverable from them for breaches of such contracts [Source: "SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity."].
Essential Ingredients
- Competence of children and young persons to contract of service.
- Ability to sue or defend legal actions without a guardian.
- Exclusion of damages or indemnity recoverable from children or young persons for breaches.
- The provision overrides the Contracts Act 1950 and other laws.
Scope of Section
- Applies specifically to children and young persons engaged in employment under the Ordinance.
- Establishes their capacity to contract independently of general law.
- The section is limited to employment contracts and does not extend to other contractual contexts.
- It provides procedural rights such as suing or defending in court without guardianship.
Punishment for Section
The section itself does not specify punishments. However, violations relating to employment of children and young persons may attract penalties under other provisions of the Ordinance, such as offences and penalties outlined in Chapter XVIA [Source: "130K Chapter XVIA"].
Legal Comments
- Contractual Capacity - Recognizes children and young persons as capable of entering employment contracts, diverging from the general rule under the Contracts Act 1950. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Legal Standing - Grants children and young persons the capacity to sue and defend in employment-related matters without guardians, affirming their legal agency in employment disputes. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Exclusion of Damages - Provides that damages and indemnities are not recoverable from children or young persons for breach of employment contracts, protecting them from liability. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Override of General Law - The section explicitly states it overrides the Contracts Act 1950 and other laws concerning contractual capacity in employment contexts. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Protection of Minors - Balances the recognition of capacity with protections by restricting damages, indicating a legislative intent to safeguard minors from liability. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Procedural Rights - Children and young persons have the right to initiate or defend legal proceedings in employment disputes, emphasizing their legal recognition. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Scope Limitation - The provision applies solely within the employment framework under the Ordinance, not extending to other contractual relationships. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Legal Divergence - Highlights the unique approach of Sabah law in treating minors in employment contracts differently from general contract law. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Policy Implication - Reflects a policy to facilitate employment of minors while limiting their liability, possibly to encourage compliance and protect minors’ interests.
- Penalties for Violation - Though not specified in Section 74B, breaches of employment laws concerning minors may attract penalties under the Ordinance’s offence provisions. - [130K Chapter XVIA]
- Legal Certainty - Clarifies that minors’ contractual capacity is recognized explicitly, reducing ambiguity in employment contracts involving children and young persons. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Legal Reforms - The section exemplifies reforms aimed at balancing employment needs and minors’ protection, aligning with broader Malaysian labour law reforms. - [Malaysia: Key labour law reforms]
- Implementation - The section’s provisions facilitate minors’ employment while providing a clear legal framework for their contractual rights. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Limitations on Damages - The limitation on damages may serve to prevent exploitation and ensure minors are not unduly penalized for employment breaches. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Legal Recognition - The section affirms the capacity of minors to participate actively in employment contracts, promoting their legal agency. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Interplay with Other Laws - The explicit override indicates a legislative intent to prioritize employment-specific provisions over general contract law for minors. - [SABAH LABOUR ORDINANCE - [SABAH CAP. 67] : Chapter XI Special Provisions Relating to the Employment of Children and Young Persons-74B. Contractual capacity.]
- Overall Significance - Demonstrates Sabah’s approach to protecting minors’ employment rights while restricting their liability, fostering a balanced legal environment.
Note: The analysis is based on the provided sources, focusing on the key legal aspects of Section 74B of the Sabah Labour Ordinance.
75 Chapter XIA Employment of Women-75. Prohibition of night work.
(1) Except in accordance with rules made under this Ordinance or any exemption granted under the proviso to this subsection, no employer shall require any female employee to work in any agricultural, forestry or industrial undertaking between the hours of ten o'clock in the evening and five o'clock in the morning nor commence work for the day without having had a period of eleven consecutive hours free from such work:
Provided that the Director may, on application made to him in any particular case, exempt in writing any female employee or class of female employees from any restriction in this subsection, subject to any conditions he may impose.
(2) Any person-
(a) who is affected by any decision made or condition imposed under the proviso to subsection (1); and
(b) who is dissatisfied with such decision or condition,
may within thirty days of such decision or conditio
76 Chapter XIA Employment of Women-76. Emergencies.
In any serious emergency when the public interest demands it the Minister may by order suspend the operation of section 75 in so far as they affect women.
[Am. by Act A1238]
77 Chapter XIA Employment of Women-77. [Deleted by Act A1238].
[Deleted by Act A1238] .
78 Chapter XIA Employment of Women-78. Prohibition of underground work.
No female employee shall be employed in any underground work.
[Subs. by Act A1238]
78A Chapter XIA Employment of Women-78A. Prohibition of employment.
Notwithstanding the provisions of this Chapter, the Minister may by order prohibit or permit the employment of female employees in such circumstances or under such conditions as may be described in such order.
[Ins. by Act A1238]
79 Chapter XIA Employment of Women-79. [Deleted by Act A1238].
[Deleted by Act A1238] .
80 Chapter XIA Employment of Women-80. [Deleted by Act A1238].
[Deleted by Act A1238] .
81 Chapter XIA Employment of Women-81. [Deleted by Act A1238].
[Deleted by Act A1238] .
82 Chapter XIA Employment of Women-82. [Deleted by Act A1238].
[Deleted by Act A1238] .
83 Chapter XIB Maternity Protection-83. Length of eligible period and entitlement to maternity allowance.
(1) Every female employee shall be entitled to maternity leave for a period of not less than sixty consecutive days (also referred to in this Chapter as the "eligible period") in respect of each confinement and, subject to this Chapter, she shall be entitled to receive from her employer a maternity allowance to be calculated or prescribed as provided in subsection (2) in respect of the eligible period.
(2) Where a female employee is entitled to maternity leave under subsection (1) but is not entitled to receive maternity allowance from her employer for the eligible period under subsection (5), or because she has not fulfilled the conditions set out in subsection (6), she may, with the consent of the employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner.
(3) Subject to section 87, maternity leave shall not commence earlier than a period of thirty d
84 Chapter XIB Maternity Protection-84. [Deleted by Act A1238].
[Deleted by Act A1238] .
85 Chapter XIB Maternity Protection-85. Payment of maternity allowance.
The maternity allowance referred to in section 83 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 108.
[Subs. by Act A1238]
86 Chapter XIB Maternity Protection-86. Payment of allowance to nominee on death of a 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 90 or, if there is no such person, to her legal personal representative, an allowance at the rate calculated or prescribed as provided in subsection (7) of section 83 from the day she commenced her maternity leave to the day immediately preceding her death.
[Subs. by Act A1238]
87 Chapter XIB Maternity Protection-87. Loss of maternity allowance for failure to notify employer.
(1) A female employee who is about to leave her employer 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 85, until such notice is given to her employer.
(3) Any female employee whose employer provides free medical treatment for his employees and who, when she is pregnant, persistently refuses or fails to submit to such medical treatment offered
88 Chapter XIB Maternity Protection-88. [Deleted by Act A1238].
[Deleted by Act A1238] .
89 Chapter XIB Maternity Protection-89. [Deleted by Act A1238].
[Deleted by Act A1238] .
90 Chapter XIB Maternity Protection-90. 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 Ordinance, be deemed to be a payment to the female employee herself.
[Subs. by Act A1238]
91 Chapter XIB Maternity Protection-91. Notice of termination of employment.
When a female employee absents herself from work in accordance with the provisions of this Chapter her employer shall not give her notice of termination of employment during such absence or so that the notice will expire during such absence.
[Am. by Act A1238]
91A Chapter XIB Maternity Protection-91A. Restriction on dismissal of female employee after eligible period.
(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 a female employee is dismissed 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 Chapter, be deemed to have been employed as if she had been given due notice instead of wages in lieu thereof.
[Subs. by Act A1238]
92 Chapter XIB Maternity Protection-92. [Deleted by Act A1238].
[Deleted by Act A1238] .
93 Chapter XIB Maternity Protection-93. [Deleted by Act A1238].
[Deleted by Act A1238] .
94 Chapter XIB Maternity Protection-94. Conditions contrary to Chapter void.
Any condition in a contract of service whereby a female employee relinquishes or is deemed to relinquish any right under this Chapter shall be void and of no effect and the right conferred under this Chapter shall be deemed to be substituted for such condition.
[Subs. by Act A1238]
94A Chapter XIB Maternity Protection-94A. Register of allowances paid.
Every employer shall keep a register, in a form to be prescribed by the Minister by rules made under this Ordinance, of all payments made to female employees under this Chapter and of such other matters incidental thereto as may be prescribed by such rules.
[Ins. by Act A1238]
95 Chapter XIB Maternity Protection-95. [Deleted by Act A1238].
[Deleted by Act A1238] .
96 Chapter XII Repatriation-96. Rights and obligations of employee and employer in respect of repatriation.
(1) Every employee who is a party to an agreement or contract under this Ordinance shall have the right to be repatriated at the expense of the employer in the following cases-
[Am. by Act A1238]
(a) on the termination of the agreement of contract by expiry of the period for which it was made;
(b) on the termination of the agreement of contract by reason of the inability of the employer to fulfil the agreement or contract.
(c) on the termination of the agreement or contract by reason of inability of the employee fulfil the agreement or contract owing to sickness or accident;
(d) on the termination of the agreement or contract by notice or otherwise;
[Am. by Act A1238]
(e) upon cancellation by the Director or expiry of the Licence To Employ Non-Resident Employee;
[Subs.
97 Chapter XII Repatriation-97. Exemption from obligation to repatriate.
The Commissioner may exempt the employer from liability for repatriation expense in the following cases-
(a) when the Director is satisfied that the resident employee by a declaration before the Director has signified that he does not wish to exercise his right to repatriation;
[Subs. by Act A1238]
(i) that the resident employee by a declaration before the Commissioner has signified that he does not wish to exercise his right to repatriation; and
[Am. by Act A1238]
(ii) [Deleted by Act A1238]
(b) when the Commissioner is satisfied that the resident employee by his own choice has failed to exercise his right of repatriation before the expiry of six months from the date of termination of the agreement of contract;
[Am. by Act A1238]
(c) when the lia
98 Chapter XII Repatriation-98. Employer to provide transport.
The employer shall take all necessary measures to ensure the provision of a proper and safe mode of transport and, when it is necessary to break the journey for the night, a suitable accommodation and, in the course of the journey, suitable arrangements for medical assistance and for the welfare of the employees who are being repatriated.
[Subs. by Act A1238]
99 Chapter XII Repatriation-99. [Deleted by Act A1238].
[Deleted by Act A1238] .
100 Chapter XIII Domestic Service-100. Domestic servants.
The Minister may make rules applying all or any of the provisions of this Ordinance to all domestic servants or to any group, class or number of domestic servants and make rules to provide generally for the engagement, repatriation and working conditions of domestic servants.
101 Chapter XIV Contracts Of Service-101. [Deleted by Act A1238].
[Deleted by Act A1238] .
102 Chapter XIV Contracts Of Service-102. 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) to enable him to purchase livestock;
(d) to enable him to purchase a motorcar, a motorcycle or a bicycle;
(e) to enable him to purchase shares of the employer's business offered for sale by the employer;
(f) for any other purpose-
(i) in respect of which an appli
103 Chapter XIV Contracts Of Service-103. 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:
(a) on fourteen gazetted public holidays as specified under the Holidays Ordinance (Sabah) [Cap. 56] four of which shall be-
(i) the National Day;
(ii) the Birthday of the Yang di-Pertuan Agong;
(iii) the Birthday of the Yang di-Pertua Negeri of Sabah; and
(iv) the Workers' Day:
Provided that the other ten public holidays referred to in this paragraph be fixed with regard to the religion and customs of the employees;
(b) on any day in addition to the gazetted public holidays referred to in paragraph (a) declared as a public holiday by the Government of the State:
Provided that if any of the public holidays referred to in paragraphs (a) and (b) falls on a rest day, the
104 Chapter XIV Contracts Of Service-104. Hours of work.
(1) Except as provided in this section, 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-eight hours in one week:
Provided that-
(aa) for the purpose of paragraph (a), any break of less than thirty minutes in the five consecutive hours shall not break the continuity of that five consecutive hours;
(ab) 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 inclusive of a period or periods of not less than forty-five minutes in the aggregate during which he sha
104A Chapter XIV Contracts Of Service-104A. Shift work.
(1) Notwithstanding paragraphs (b) , (c) and (d) of subsection (1) of section 104, but subject to paragraph (a) of subsection (1) of that section, 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-eight 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, shall not exceed forty-eight hours per week.
(2) The approval of the Director in subsection (1) may be granted if the Director 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.
(3) The Director may revoke the approval given under subsectio
104B Chapter XIV Contracts Of Service-104B. 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 Chapter:
Provided that this subsection shall not apply during the period in which the employee is on maternity leave as provided under section 83, or on sick leave as provided under section 104E, or during the period of temporary disablement under the Workmen's Compensation Act 1952, or under the Employees' Social Security Act 1969.
(2) Notwithstanding subsection (1) and the interpretation of the expression "day" in section 2, in the case of an employee engaged in shift work any continuous period of not less than thirty hours shall constitute a rest day.
(3) Notwithstanding subsection (1), the Director, on a written application by an employer and subject to an
104C Chapter XIV Contracts Of Service-104C. Work on rest day.
(1) Except as provided in subsection (5) of section 104, 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 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 by two or more shifts.
(2) An employee employed on a daily, hourly or other similar rate of pay who works on a rest day shall be paid for any period of work-
(a) which does not exceed half his normal hours of work, one day's wages at the ordinary rate of pay; or
(b) which is more than half but does not exceed his normal hours of work, two days' wages at the ordinary rate of pay.
(3) An employee employed on a monthly rate of pay who wo
104D Chapter XIV Contracts Of Service-104D. 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
104E Chapter XIV Contracts Of Service-104E. 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 registered medical practitioner is appointed or, if having regard to the nature or circumstances of the illness, the services of the registered 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 hospitalization 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 aggre
104F Chapter XIV Contracts Of Service-104F. Termination, lay-off and retirement benefits.
(1) The Minister may by rules made under this Ordinance provide for the entitlement of employees to, and for the payment by employers of-
(a) termination benefits;
(b) lay-off benefits; or
(c) retirement benefits.
(2) Without prejudice to the generality of subsection (1), rules made by virtue of subsection (1) may provide-
(a) for the definition of the expressions "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 rules and who continue in such employment after such commencement;
(c) for the application thereof to all employees generally or to any particular class, cat
105 Chapter XIV Contracts Of Service-105. Task work.
(1) [Deleted by Act A1238] .
(2) Nothing in this Chapter contained shall prevent any employer from agreeing with any employee in his employment that the wages of suchemployee 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.
[Am. by Act A1238]
106 Chapter XIV Contracts Of Service-106. [Deleted by Act A1238].
[Deleted by Act A1238] .
107 Chapter XIV Contracts Of Service-107. Period for which wages payable.
Unless the agreement or contract otherwise stipulates, and subject to the provisions of section 104, wages shall only be payable for days actually worked, for paid holidays, for days other than Sundays or other rest days on which through no fault of the employee no work is provided by the employer and for time spent in attending before any Court if such Court certifies that his attendance was necessary for the ends of public justice.
[Am. by Act A1238]
107A Chapter XIV Contracts Of Service-107A. Wage period.
(1) A contract of service shall specify a wage period not exceeding one month.
(2) If in the contract of service no wage period is specified, the wage period shall, for the purposes of the contract of service, be deemed to be one month.
[Ins. by Act A1238]
107B Chapter XIV Contracts Of Service-107B. 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.
[Ins. by Act A1238]
108 Chapter XIV Contracts Of Service-108. Payment of wages.
(1) The wages of an employee shall be paid not later than seven days after the expiration of the wage period in respect of which they are due.
[Am. by Act A1238]
(2) All wages due to an employee whose agreement or contract is terminated by expiry of the period for which it was made shall be paid to him on the day on which such agreement or contract terminates:
[Am. by Act A1238]
Provided that if the Director 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.
[Am. by Act A1238]
(3) All wages due to an employee whose agreement or contract is terminated by his employer shall be paid to him on the day on which such agreement or contract is terminated or, if this is not possible, on the first day, not being a
109 Chapter XIV Contracts Of Service-109. 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 in such establishments, places, shops or stores.
[Subs. by Act A1238]
110 Chapter XIV Contracts Of Service-110. Wages to be paid in legal tender.
(1) Except where otherwise expressly permitted by this Ordinance the entire amount of the wages earned by, or payable to, any employee in respect of any work done by him shall be actually paid to him in legal tender and every payment of, or on account of, any such wages made in any other form shall be illegal, null and void.
[Am. by Act A1238]
(2) Every employee shall be entitled to recover in the courts or before the Director acting under section 7A so much of his wages, exclusive of sums lawfully deducted under section 113, as shall not have been actually paid to him in legal tender or paid to him by any of the ways under section 110A.
[Ins. by Act A1238]
(3) Where payment of wages is made in cash it shall be made on working days only and at or near the workplace.
[Ins. by Act A1238]
110A Chapter XIV Contracts Of Service-110A. Payment of wages through bank.
(1) Nothing in section 110 shall operate so as to render unlawful or invalid any payment of wages by the employer to the employee with the employee's written consent in any of the following ways:
(a) payment into an account at a bank or a finance company licensed under the Banking and Financial Institutions Act 1989 [Act 372] in any part of Sabah being an account in the name of the employee or an account in the name of the employee jointly with one or more other person, not being his employer;
(b) payment by cheque made payable to or to the order of the employee.
(2) The consent of the employee under this section may be withdrawn by him at any time by notice in writing given to the employer; and such notice shall take effect at but not before the end of the period of four weeks beginning with the day on which the notice is given.
(3) The consent of the employee to the
111 Chapter XIV Contracts Of Service-111. [Deleted by Act A1238].
[Deleted by Act A1238] .
112 Chapter XIV Contracts Of Service-112. Conditions restricting place at which, manner in which, and person with whom wages paid to be spent illegal.
[Am. by Act A1238]
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.
[Am. by Act A1238]
113 Chapter XIV Contracts Of Service-113. Lawful deductions.
[Am. by Act A1238]
(1) No deductions shall be made by an employer from the wages of an employee otherwise than in accordance with the provisions of this Ordinance.
[Am. by Act A1238]
(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 subsection (1) of section 12;
(c) deductions for the recovery of advances of wages made under section 102 provided no interest is charged on the advances; and
(d) deductions authorized by any other written law.
(3) The following deductions shal
114 Chapter XIV Contracts Of Service-114. 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.
[Subs. by Act A1238]
115 Chapter XIV Contracts Of Service-115. Deductions for fines, etc.
Except where otherwise expressly permitted by the provisions of this Ordinance or any rule made hereunder no employer shall make any deduction or make any agreement or contract with an employee for any deduction from wages to be paid by the employer to the employee or for any payment to the employer by the employee for or in respect of any fine, or of bad or negligent work or of injury to the materials or other property of the employer.
[Am. by Act A1238]
116 Chapter XIV Contracts Of Service-116. Remuneration other than wages.
(1) Nothing in this Chapter 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 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 may make such modifications or impose such conditions as he may deem proper.
(3) Any person who is dissatisfied with any decision of the Director under subsection (2) may, within thirty days of such decision being communicated to him, appeal in writing to the Minister.
(4) On any appeal made to him under subsection (3), the Minister ma
116A Chapter XIV Contracts Of Service-116A. 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 (in this section referred to as "the secured creditor") or in the exercise of rights under a debenture the property of any person (in this section referred to as "the person liable") liable under any of the provisions of this Ordinance to pay the wages due to any employee or to pay money due to any subcontractor 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 has ascertained and caused to be paid, out of such proceeds or money, the wages of such employee, or the money due to any subcontractor for labour under a contract between him and the person liable, which the person liable was l
116B Chapter XIV Contracts Of Service-116B. Reference by the Court to Director.
(1) For the purposes of ascertaining the amount due to any employee or subcontractor for labour under section 116A, the court or the receiver or manager may refer the question to the Director with a request that he hold an inquiry into the matter and forward his findings to the court or the receiver or manager, and the Director shall comply with any such request.
(2) For the purpose of any inquiry under subsection (1), the Director shall have all the powers conferred upon him by paragraph (f) of section 7F and section 7O shall have effect as if the inquiry were being held under section 7A.
[Ins. by Act A1238]
116C Chapter XIV Contracts Of Service-116C. Liability of principals and contractors for wages.
(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 subcontractor under the contractor for work done in the course of the performance of the contract, the principal and the contractor and any such subcontractor (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 subcontractor:
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 contractor or a housing developer;
(b) the principal, and the c
117 Chapter XIVA Employment of Non Resident Employee-117. [Deleted by Act A1238].
[Deleted by Act A1238] .
118 Chapter XIVA Employment of Non Resident Employee-118. Employment of non resident employee and priority for resident employee.
(1) No person shall employ any non-resident employee unless he has obtained from the Director a Licence to Employ Non-Resident Employee.
(2) The power of the Director to issue a Licence to Employ Non-Resident Employee shall be subject to the laws on immigration applicable to Sabah and such Licence shall be in such form and subject to such conditions as may be prescribed.
[Subs. by Act A1238]
118A Chapter XIVA Employment of Non Resident Employee-118A. Duty to furnish information and returns.
(1) An employer who employs a non-resident employee shall, within fourteen days of the employment, furnish the nearest office of the Director with the particulars of the non-resident employee in such manner as may be determined by the Director.
(2) An employer or any specified class or classes of employers, whenever required to do so by the Director, shall furnish returns of particulars relating to the employment of a non-resident employee in such manner and at such intervals as the Director may direct.
[Ins. by Act A1238]
118B Chapter XIVA Employment of Non Resident Employee-118B. Director may inquire into complaint.
The Director may inquire into any complaint from a resident employee that he is being discriminated against in relation to a non-resident employee, or from a nonresident employee that he is being discriminated against in relation to a resident employee, by his employer in respect of the terms and conditions of his employment; and the Director may issue to the employer such directives as may be necessary or expedient to resolve the matter.
[Ins. by Act A1238]
118C Chapter XIVA Employment of Non Resident Employee-118C. Prohibition on termination of resident employee for non-resident employee.
No employer shall terminate the contract of service of a resident employee for the purpose of employing a non-resident employee.
[Ins. by Act A1238]
118D Chapter XIVA Employment of Non Resident Employee-118D. 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 resident employee unless he has first terminated the services of all non-resident employees employed by him in a capacity similar to that of the resident employee.
[Ins. by Act A1238]
118E Chapter XIVA Employment of Non Resident Employee-118E. Permanent resident exempted from this Chapter.
For the purposes of this Chapter, the term "non-resident employee" shall not include a non-resident employee who is a permanent resident of Sabah.
[Ins. by Act A1238]
119 Chapter XIVA Employment of Non Resident Employee-119. [Deleted by Act A1238].
[Deleted by Act A1238] .
120 Chapter XIVA Employment of Non Resident Employee-120. [Deleted by Act A1238].
[Deleted by Act A1238] .
121 Chapter XIVA Employment of Non Resident Employee-121. [Deleted by Act A1238].
[Deleted by Act A1238] .
122 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-122. [Deleted by Act A1238].
[Deleted by Act A1238] .
123 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-123. [Deleted by Act A1238].
[Deleted by Act A1238] .
123A PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-123A. Prosecution.
No prosecution shall be instituted for an offence under this Ordinance or any rules made under this Ordinance without the consent in writing of the Public Prosecutor.
[Ins. by Act A1238]
123B PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-123B. Power of court imposing fine.
When under this Ordinance 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.
[Ins. by Act A1238]
123C PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-123C. Effect of imprisonment.
From and after the determination of any imprisonment suffered under this Ordinance 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.
[Ins. by Act A1238]
124 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-124. Right of audience.
The Director, or any officer authorized in writing by the Director, shall have the right to appear and be heard before a Magistrates' Court or a Sessions Court in any civil proceedings under or arising out of this Ordinance, or any rules made under this Ordinance; and such right shall include the right to appear and represent an employee in any such proceedings.
[Subs. by Act A1238]
125 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-125. Public servants.
For the purpose of this Ordinance and of the Penal Code, [Cap 96] the Commissioner and all officers duly appointed or authorised under this Ordinance shall be deemed to be public servants.
125A PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-125A. Protection of Director and officers.
No suit shall lie against the Director and all officers duly appointed or authorized under this Ordinance for anything done or omitted to be done by him in good faith without negligence and in the intended exercise of any power conferred or performance of any duty imposed by this Ordinance.
[Subs. by Act A1238]
126 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-126. [Deleted by Act A1238].
[Deleted by Act A1238] .
127 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-127. Saving clause as to civil jurisdiction of court.
Nothing in this Ordinance 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 under section 7A or, if instituted, have been withdrawn.
[Subs. by Act A1238]
128 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-128. Onus of proof.
(1) In all proceedings under this Ordinance the onus of proving that he is not the employer or the person whose duty it is under this Ordinance or under any rule made hereunder to do or abstain from doing anything shall be on the person who alleges that he is not the employer or other person as the case may be.
[Am. by Act A1238]
(2) A certificate purporting to be under the hand of the Commissioner stating that any return required under section 59 has not been forwarded or is incorrect shall be sufficient prima facie evidence of the truth of the facts stated in such certificate.
129 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-129. Service of summons.
(1) A summons issued by the Commissioner in accordance with section 6 and Chapter IIA may be served on any person by delivering or tendering to him a copy thereof signed by the Commissioner:
[Am. by Act A1238]
Provided that-
(a) if the person to be summoned has an agent authorised 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 authorised to accept service of the summons on his behalf, service on any adult male member (not being a domestic servant) of the family of the person to be summoned who is residing with him shall be sufficient.
[Am. by Act A1238]
(2) When such summons as aforesaid is addressed to a corporation it may be served-
(a) by leaving a copy thereof, signed by the
129A PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-129A. Incapacity of Director hearing inquiry.
Where the Director has, for the purpose of inquiring into any matter under this Ordinance, 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 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 left it.
[Ins. by Act A1238]
130 PART V PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS, REPEAL Chapter XVI General-130. [Deleted by Act A1238].
[Deleted by Act A1238] .
130A Chapter XVIA Offences and Penalties-130A. Under sections 3 to 6.
Any person who-
(a) refuses the Director exercising his powers under this Ordinance, access to any premises or any part thereof;
(b) assaults, obstructs, hinders or delays the Director in effecting any entrance into any premises or any part thereof which he is entitled to effect;
(c) furnishes the Director 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 this Ordinance or hinders or obstructs the Director in effecting possession of the documents,
commits an offence and shall on conviction be liable to a fine of ten thousand ringgit and in the case of a continuing offence, to a fine of one hundred ringgit for each day during which such offence is continued after conviction.
[Ins. by Act A1
130B Chapter XVIA Offences and Penalties-130B. Offence in connection with inquiry or inspection.
In any inquiry, investigation, entry or inspection made by the Director, or by any officer lawfully exercising the powers of the Director under this Ordinance, 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.
[Ins. by Act A1238]
130C Chapter XVIA Offences and Penalties-130C. Under Chapter IIA.
If-
(a) any person fails to comply with an order or decision of the Director made under subsection (1) of section 7A, subsection (1) of section 7C or subsection (1) of section 7D; or
(b) any employer prevents or attempts to prevent any employee from appearing before the Director under Chapter IIA,
he commits an offence and shall on conviction be liable, to a fine not exceeding ten thousand ringgit and in the case of a continuing offence, to a fine not exceeding one hundred ringgit for each day during which such offence is continued after conviction.
[Ins. by Act A1238]
130D Chapter XVIA Offences and Penalties-130D. Under Chapter IV.
Every employer who-
(a) fails to make payment in accordance with the provisions of section 10 or contravenes the provisions of section 13; or
(b) fails to comply with the provisions of Chapter IV (other than sections 10 and 13);
commits an offence, and shall on conviction be liable on conviction to a fine not exceeding ten thousand ringgit.
[Ins. by Act A1238]
130E Chapter XVIA Offences and Penalties-130E. Under Chapter X.
An employer who-
(a) being an owner of any estate, mine or factory to which section 57 applies, fails to comply with the requirements of that section;
(b) fails to keep a register required under section 58 or 94A, or to preserve the register for a period of not less than six years;
(c) destroys, alters or mutilates the register referred to in paragraph (a), or causes or permits the register to be destroyed, altered or mutilated;
(d) fails to comply with any rules made under section 58A;
(e) fails, without reasonable cause (proof of which shall lie on him), to forward to the Director such returns as are prescribed under section 59 or forwards any of the returns knowing that it contains any false particulars; or
(f) fails to give notice under section 59A or gives such notice containing any false particulars,
commits an
130F Chapter XVIA Offences and Penalties-130F. Under Chapter XI.
(1) Any person contravening any of the provisions of Chapter XI or of any rule or order made thereunder or who being the parent or guardian of a child or young person knowingly acquiesces in any such contravention in respect of such child or young person, commits an offence and shall be liable on conviction to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding two years or to both.
(2) On the conviction of any person for an offence under subsection (1) the Director shall, if the person convicted is the holder of a licence under any written law in force on entertainment, inform the licensing authority concerned of the particulars of such conviction and the licensing authority may take such action as it considers appropriate.
[Ins. by Act A1238]
130G Chapter XVIA Offences and Penalties-130G. Under Chapter XIA.
An employer of a female employee commits an offence if the female employee is employed contrary to sections 75, 78 or 78A and shall be liable on conviction to a fine not exceeding ten thousand ringgit.
[Ins. by Act A1238]
130H Chapter XVIA Offences and Penalties-130H. Under Chapter XIB.
Any employer who-
(a) fails to grant maternity leave to a female employee employed by him and entitled thereto under Chapter XIB;
(b) fails to pay the maternity allowance to a female employee employed by him and entitled thereto under Chapter XIB or to her nominee, or to her personal legal representative;
(c) fails to pay maternity allowance in the manner prescribed in section 85;
(d) dismisses a female employee from her employment during the period in which she is entitled to maternity leave; or
(e) contravenes the provisions of section 91A or 94A, commits an offence and shall be liable on conviction, to a fine not exceeding ten thousand ringgit 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 conce
130I Chapter XVIA Offences and Penalties-130I. Under Chapter XII.
Any employer who contravenes or fails to comply with the provisions of sections 96 and 98 commits an offence and shall be liable on conviction to a fine not exceeding ten thousand ringgit.
[Ins. by Act A1238]
130J Chapter XVIA Offences and Penalties-130J. Under Chapter XIV.
Any employer who-
(a) makes to any employee any advance of wages in excess of that permitted under section 102;
(b) contravenes any of the provisions of section 104B;
(c) fails to pay the wages or indemnity due to any employee within the time prescribed in section 108;
(d) pays wages, imposes any condition in a contract of service or makes any deduction or receives any payment in contravention of section 109, 110, 110A, 112 or 114;
(e) makes deductions from the wages of an employee other than such deductions as are authorized by section 113;
(f) gives any remuneration for services or receives any payment from an employer contrary to the provisions of this Ordinance;
(g) fails to comply with any order of the Director;
(h) provides any employee as part of the terms of his contract of service with any amenity
130K Chapter XVIA Offences and Penalties-130K. Penalties for failure or noncompliance in relation to rest days, overtime, holidays, annual leave and sick leave.
(1) Any employer who fails to pay to 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 104C, 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 104C, 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 Ordinance 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 emp
130L Chapter XVIA Offences and Penalties-130L. Under Chapter XIVA.
An employer who fails to comply with Chapter XIVA, or any person who forges, alters or tampers with a Licence To Employ Non-Resident Employee or any person in possession of a forged, altered or tampered Licence To Employ Non-Resident Employee, commits an offence and shall be liable on conviction to a fine not exceeding ten thousand ringgit or to imprisonment for six months or to both.
[Ins. by Act A1238]
130M Chapter XVIA Offences and Penalties-130M. General penalty.
Any person who commits any offence under this Ordinance or any rule, order or other subsidiary legislation made thereunder, in respect of which no penalty is provided, shall be liable, on conviction, to a fine not exceeding ten thousand ringgit.
[Ins. by Act A1238]
130N Chapter XVIA Offences and Penalties-130N. Power to compound offences.
(1) The Director, Deputy Directors of Labour or Senior Assistant Directors of Labour appointed under paragraph (a) or (b) of subsection (1A) of section 3 may, compound any offence committed by a person which is punishable under this Ordinance or any rule made under this Ordinance.
(2) The Director, a Deputy Director of Labour or a Senior Assistant Director of Labour 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, Deputy Director of Labour or Senior Assistant Director of Labour 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 offence) to which the person would have bee
130O Chapter XVIB Rules-130O. Power to make rules.
(1) The Minister may from time to time, after consultation with the State Authority, make such rules as may be necessary or expedient for giving full effect to the provisions of this Ordinance, or for the further, better or more convenient implementation of the provisions of this Ordinance.
(2) Without prejudice to the generality of the foregoing, the Minister may make rules-
(a) limiting the powers of officers appointed under subsection (1A) of section 3;
(b) prescribing the conditions under which female employees may work at night;
(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 a
131 Chapter XVIB Rules-131. Existing Ordinances not affected.
Nothing in this Ordinance shall operate to relieve any employer of any duty or liability imposed upon him by the provisions of any other written law for the time being in force or to limit any powers given to any Federal or State Government officer by any such Ordinance.
[Am. by Act A1238]
132 Chapter XVIB Rules-132. Saving and transitional of contracts, etc., entered into before this Ordinance.
Any contract of service lawfully entered into between any employer and any employee and any licence issued under section 118 valid and in force before the date of coming into force of this Ordinance shall, if it is still legally binding upon the parties, continue to be in force after such date and, subject to the express provisions contained in such contract or licence, the parties thereto shall be subject and entitled to the benefit of the provisions of this Ordinance within six months from the date of coming into operation of this section.
[Subs. by Act A1238]
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