Malaysia - Employment Act,
1955
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LAW S OF MALAYSIA Act 265 EMPLOYMEN T ACT 1955 ARRANGEMEN T OF SECTIONS P AR T I
PRELIMINAR Y
Sectio n
1 . Short title and application
2 . Interpretation
2 A . Minister may prohibit employment other than under contract of service
2 B . General power to exempt or exclude
3 . Appointment of officers
4 . Appeals
5 . Effect on Act of other written laws
P AR T I I CONTRACTS OF SERVICE 6 . Saving of existing contracts
7 . More favourable conditions of service under the Act to prevail
7 A . Validity of any term or condition of service which is more favourable
7 B . Removal of doubt in respect of matters not provided for by or under this Act
8 . Contracts of service not to restrict rights of employees to join, participate in or organize trade unions
9 . (Deleted) 10 . Contracts to be in writing and to include provision for termination
11 . Provision as to termination of contracts 4 Laws of Malaysia A C T 26 5
`Sectio n
12 . Notice of termination of contract
13 . Termination of contract without notice
14 . Termination of contract for special reasons
15 . When contract is deemed to be broken by employer and employee
16 . Employees on estates to be provided with minimum number of days’ wor k in each month
17 . (Omitte d)
1 7 A . Apprenticeship contracts excluded from sections 10 to 16
P AR T II I PAYMENT OF WAGES 18 . Wage period
19 . Time of payment of wages
20 . Payment on normal termination of contract
21 . Payment on termination of contract in special circumstances & on breach of contract
22 . Limitation on advances to employees
23 . Wages not due for absence from work through imprisonment or attendance in court
P AR T I V DEDUCTIONS FROM WAGES 24 . Lawful deductions
P AR T V
RELATIN G TO THE TRUCK SYSTEM
25 . Wages to be paid in legal tender
2 5 A . Payment of wages through bank
26 . Conditions restricting place at which, manner in which and person with whom wages paid to be spent, illegal
27 . Interest on advances forbidden
28 . Restriction on places at which wages may be paid
29 . Remuneration other than wages
30 . (Deleted) Employmen t 5
P AR T V I PRIORITY OF WAGES Sectio n 31 . Priority of wages over other debts
32 . Reference by the court to Director General
P AR T VI I CONTRACTORS AND PRINCIPALS 33 . Liability of principals and contractors for wages
P AR T VII I EMPLOYMENT OF WOMEN 34 . Prohibition of night work
35 . Prohibition of underground work
36 . Prohibition of employment by Minister
P AR T I X MATERNITY PROTECTION 37 . Length of eligible period and entitlement to maternity allowance
38 . Payment of maternity allowance
39 . Payment of allowance to nominee on death of female employee
40 . Loss of maternity allowance for failure to notify employer
41 . Payment of allowance to nominee
42 . Restriction on dismissal of female employee after eligible period
43 . Conditions contrary to Part void
44 . Register of allowances paid
4 4 A . (Omitte d)
P AR T X
EMPLOYMEN T OF CHILDREN AND YOUNG PERSONS
45-56 . (Deleted)
P AR T X I DOMESTIC SERVANTS 57 . Termination of contract 6 Laws of Malaysia A C T 26 5
PAR T XII
RES T DAYS, HOURS OF WORK, HOLIDAYS AND OTHER CONDITIONS OF SERVICE
Sectio n 58 . (Omitte d) 5 8 A . Non-application of Part XII 59 . Rest day 60 . Work on rest day 6 0 A . Hours of work 6 0 B . Task work 6 0 C . Shift work 6 0 D . Holidays 6 0 E . Annual leave 6 0 F . Sick leave 6 0 G . (Omitte d) 6 0 H . (Omitte d) 6 0 I . Interpretation
P AR T XI I A
TERMINATION , LAY-OFF, AND RETIREMENT BENEFITS
6 0 J . Termination, lay-off and retirement benefits
P AR T XII B
EMPLOYMEN T OF FOREIGN EMPLOYEES
6 0 K . Duty to furnish information and returns 6 0 L . Director General may inquire into complaint 6 0 M . Prohibition on termination of local for foreign employee 6 0 N . Termination of employment by reason of redundancy 6 0 O . Permanent resident exempted from this Part
P AR T XII I
REGISTERS , RETURNS AND NOTICE BOARDS
61 . Duty to keep registers 62 . Power to make regulations requiring information as to wages 63 . Duty to submit returns 6 3 A . Duty to give notice and other information 64 . Duty to display notice boards Employmen t 7
P AR T XI V
Sectio n INSPECTIO N 65 . Powers of inspection and inquiry
66 . Inspecting officer to notify presence
67 . Powers of inspecting officers
68 . Officers to be authorized by the Director General
P AR T X V COMPLAINTS AND INQUIRIES 69 . Director General’s power to inquire into complaints
6 9 A . Limitation on power conferred by section 69
6 9 B . Additional powers of Director General to inquire into complaints
6 9 C . Claims for indemnity for termination of contract without notice
6 9 D . Order of Director General may be in writing
6 9 E . Penalty for offence
70 . Procedure in Director General’s inquiry
71 . Director General’s record of inquiry
72 . Joinder of several complaints in one complaint
73 . Prohibitory order by Director General to third party
74 . No fees for summons: service of summons
75 . Enforcement of Director General’s order by Sessions Court
76 . Submission by Director General to High Court on point of law
77 . Appeal against Director General’s order to High Court
78 . Employee’s remedy when employer about to abscond
79 . Powers of Director General to investigate possible offences under this Act
80 . Examination on summons by the Director General
81 . Right of employee to appear before the Director General
P AR T XV I PROCEDURE 82 . Service of summons issued under Part XV
83 . Power to make reciprocal provisions between Malaysia and Singapore for the service, execution and enforcement of summonses, warrants and orders 8 Laws of Malaysia A C T 26 5
Sectio n
84 . Jurisdiction 85 . Prosecution 8 5 A . Right of audience 86 . Saving clause as to civil jurisdiction of courts 87 . Power of court imposing fine 88 . Effect of imprisonment 89 . Incapacity of Director General hearing inquiry 90 . Officers acting under Act deemed public servants
P AR T XVI I OFFENCES AND PENALTIES 91 . Under Parts III and IV 92 . Under Part V 93 . Under Part VIII 94 . Under Part IX 95 . (Deleted) 96 . (Deleted) 97 . Under Part XIII 98 . Under Part XIV 99 . Under Part XV 9 9 A . General penalty 100 . Penalties for failure or non-compliance in relation to rest days, overtime, holidays, annual leave, and sick leave 101 . Offence in connection with inquiry or inspection 10 1 A . Power to compound offences
P AR T XVII I REGULATIONS 102 . Regulations
P AR T XI X REPEAL AND SAVING 103 . Repeal and saving F IRS T S CHEDUL E S ECOND S CHEDUL E 9
EMPLOYMEN T ACT 1955
A n Act relating to employment.
[ Peninsula r Malaysia—1 June 1957, L.N. 228/1957; Federal Territory of Labuan—1 November 2000, P.U. (A) 400/200 0 ]
P AR T I
PRELIMINAR Y
Shor t title and application
1 . (1 ) This Act may be cited as the Employment Act 1955. (2) This Act shall apply to *Peninsular Malaysia only. Interpretatio n 2 . (1 ) In this Act, unless the context otherwise requires— “agricultural undertaking” means any work in which any employee i s employed under a contract of service for the purposes of agriculture, horticultur e or silviculture, the tending of domestic animals and poultry or the collection of the produce of any plants or trees;
“apprenticeshi p contract” means a written contract entered into by a person with an employer who undertakes to employ the person and train or have him trained systematically for a trade for a specified period which shall not be less than two years in the course of which the apprentice is bound to work in the employer’s service;
*NOTE—Thi s Act has been extended to the Federal Territory of Labuan–se e subsection 1(2) of the Federal Territory of Labuan (Extension and Modification of Employment Act) Order 2000 [P.U. (A) 400/2000] w.e.f. 1 November 2000. 1 0 Laws of Malaysia A C T 26 5
“approve d amenity or approved service” means any amenity or service—
(a ) approve d by the Director General under subsection 29(2) on application made to him by an employer for its inclusion in a contract of service; or
(b ) provide d for in any award made by the Industrial Court or in any collective agreement;
“approve d incentive payment scheme” means an incentive payment scheme approved by the Director General under, and for the purposes of, section 60 I ;
“collectiv e agreement” has the same meaning assigned thereto in the Industrial Relations Act 1967 [Ac t 17 7 ];
“confinement ” means parturition resulting after at least twenty- eight weeks of pregnancy in the issue of a child or children, whether alive or dead, and shall for the purposes of this Act commence and end on the actual day of birth and where two or more children are born at one confinement shall commence and end on the day of the birth of the last-born of such children, and the word “confined” shall be construed accordingly;
“constructiona l contractor” means any person, firm, corporation or company who or which is established for the purpose of undertaking, either exclusively or in addition to or in conjunction with any other business, any type of constructional work, and who or which is carrying out such constructional work for or on behalf of some other person under a contract entered into by him or them with such other person, and includes his or their heirs, executors, administrators, assigns and successors;
“constructiona l work” includes the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, dredge, wireless, telegraphic or telephonic installation, electrical undertaking, gaswork, waterwork or other work of construction, as well as the preparation for, or the laying of, the foundations of any such work or structure, and also any earthworks both in excavation and in filling;
“contrac t of service” means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees Employmen t 1 1
t o employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;
“contractor ” means any person who contracts with a principal to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principal’s trade or business;
“day ” means—
(a ) a continuous period of twenty-four hours beginning at midnight; or
(b ) fo r the purposes of Part XII in respect of an employee engaged in shift work or in work where the normal hours of work extend beyond midnight, a continuous period of twenty-four hours beginning at any point of time;
“Directo r General” means the Director General of Labour appointed under subsection 3(1);
“domesti c servant” means a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child’s nurse, valet, footman, gardener, washerman or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use;
“employee ” means any person or class of persons—
(a ) include d in any category in the First Schedule to the extent specified therein; or
(b ) i n respect of whom the Minister makes an order under subsection (3) or section 2 A ;
“employer ” means any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first mentioned person, and the word “employ”, with its grammatical variations and cognate expressions, shall be construed accordingly; 1 2 Laws of Malaysia A C T 26 5
“foreig n employee” means an employee who is not a citizen;
“Industria l Court” has the same meaning assigned thereto in the Industria l Relations Act 1967;
“industria l undertaking” includes—
(a ) disturbing , removing, carting, carrying, washing, sifting, melting, refining, crushing or otherwise dealing with any rock, stone, gravel, clay, sand, soil, night-soil or mineral by any mode or method whatever;
(b ) industrie s in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, packed or otherwise prepared for delivery, broken up, or demolished, or in which materials are transformed or minerals treated, including shipbuilding and the generation, transformation and transmission of electricity or motive power of any kind;
(c ) constructiona l work;
(d ) transpor t of passengers or goods by road, rail, water or air, including the handling of goods at docks, quays, wharves, warehouses or airports;
(e ) an y industry, establishment or undertaking, or any activity, service or work, declared under subsection (5) to be an industrial undertaking;
“intoxicatin g liquor” has the same meaning as that assigned to “intoxicating liquor” under section 2 of the Customs Act 1967 [Ac t 23 5 ];
“machinery ” has the same meaning as in the Factories and Machiner y Act 1967 [ Act13 9 ];
“medica l officer” means a registered medical practitioner who is employed in a medical capacity by the Federal Government, or by the Government of a State;
“part-tim e employee” means a person included in the First Schedule whose average hours of work as agreed between him and his employer do not exceed seventy per centum of the normal hours of work of a full-time employee employed in a similar capacity in the same enterprise whether the normal hours of work are Employmen t 1 3
calculate d with reference to a day, a week, or any other period as may be specified by regulations;
“Peninsula r Malaysia” has the meaning assigned thereto by section 3 of the Interpretation Acts 1948 and 1967 [Ac t38 8 ], and includes the Federal Territory;
“permanen t resident” means a person, not being a citizen, who is permitted to reside in Malaysia without any limit of time imposed under any law relating to immigration, or who is certified by the Federal Government to be treated as such in Malaysia;
“plac e of employment” means any place where work is carried on for an employer by an employee;
“principal ” means any person who 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;
“registere d medical practitioner” means a medical practitioner registered under the Medical Act 1971 [ Act 50 ];
“shif t work” means work which by reason of its nature requires to be carried on continuously or continually, as the case may be, by two or more shifts;
“sprea d over period of ten hours” means a period of ten consecutive hours to be reckoned from the time the employee commences work for the day, inclusive of any period or periods of leisure, rest or break within such period of ten consecutive hours;
“sub-contractor ” means any person who contracts with a contractor for the execution by or under the sub-contractor of the whole or any part of any work undertaken by the contractor for his principal, and includes any person who contracts with a sub-contractor to carry out the whole or any part of any work undertaken by the sub- contractor for a contractor;
“sub-contracto r for labour” means any person who contracts with a contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be; 1 4 Laws of Malaysia A C T 26 5
“underground working” means any undertaking in which operations are conducted for the purpose of extracting any substance from below the surface of the earth, the ingress to and egress from which is by means of shafts, adits or natural caves;
“wag e period” means the period in respect of which wages earned by an employee are payable;
“wages ” means basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service but does not include—
(a ) th e value of any house accommodation or the supply of any food, fuel, light or water or medical attendance, or of any approved amenity or approved service;
(b ) an y contribution paid by the employer on his own account to a ny p e ns i on fund, prov i d e nt fund, sup e r a nnu ati on scheme, retrenchment, termination, lay-off or retirement scheme, thrift scheme or any other fund or scheme established for the benefit or welfare of the employee;
(c ) an y travelling allowance or the value of any travelling concession;
(d ) an y sum payable to the employee to defray special expenses entailed on him by the nature of his employment;
(e ) an y gratuity payable on discharge or retirement; or
(f ) an y annual bonus or any part of any annual bonus; “week” means a continuous period of seven days; “yea r of age” means a year from the date of a person’s birth. (2) The Minister may by order amend the First Schedule. (3 ) The Minister may by order declare such provisions of this Act and any other written law as may be specified in the order to be applicable to any person or class of persons employed, engaged or contracted with to carry out work in any occupation in any agricultural or industrial undertaking, constructional work, statutory body, local government authority, trade, business or place of work, and upon the coming into force of any such order—
(a ) an y person or class of persons specified in the order shall be deemed to be an employee or employees; Employmen t 1 5
(b ) th e person, statutory body or local government authority em p l oy i ng, e ng a g i ng or c on t r acti ng w ith e v e ry su ch p e rson or class of persons shall be deemed to be an employer;
(c ) th e employer and the employee shall be deemed to have entered into a contract of service with one another;
(d ) th e place where such employee carries on work for his employer shall be deemed to be a place of employment; and
(e ) th e remuneration of such employee shall be deemed to be wages,
fo r the purposes of such specified provisions of this Act and any other written law.
(4 ) The Minister may make regulations in respect of the terms and conditions upon which the person or class of persons specified pursuant to subsection (3) may be employed.
( 4 A ) Notwithstanding the provisions of this Act, the Minister may make regulations—
(a ) i n respect of the terms and conditions of service of a part- time employee; and
(b ) prescribin g the manner in which the hours of work of an employee are to be computed for the purposes of determining whether that employee falls within the definition of a “part-time employee”.
(5 ) The Minister may, from time to time, by notification published in the Gazette, declare any particular industry, establishment or undertaking, or any class, category or description of industries, establishments or undertakings or any particular activity, service or work, or any class, category or description of activities, services or works, to be an industrial undertaking for the purposes of this Act.
Ministe r may prohibit employment other than under contract of service
2 A . (1 ) The Minister may by order prohibit the employment, engagement or contracting of any person or class of persons to 1 6 Laws of Malaysia A C T 26 5
carr y out work in any occupation in any agricultural or industrial undertaking, constructional work, statutory body, local government authority, trade, business or place of work other than under a contract of service entered into with—
(a ) th e principal or owner of that agricultural or industrial undertaking, constructional work, trade, business or place of work; or
(b ) tha t statutory body or that authority.
(2 ) Upon the coming into force of any such order, the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and—
(a ) th e principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or
(b ) th e statutory body or local government authority,
shal l be deemed to be the employer for the purposes of such provisions of this Act and any other written law as may be specified in the order.
(3 ) Notwithstanding subsection (1), the Minister may by order approve the employment of any person or class of persons by such other person or class of persons (not being the principal or owner) as he may specify but subject to |