A written contract of employment must be given to every employee where the
employment period exceeds 1 month. The contract must include particulars of the
terms and conditions of employment and notice period required to terminate it.
Wages earned must be paid not later than the 7th day after the last day of
any wage period. An employee has the right to be given by an employer, at or
before the time at which any payment of wages or salary is made to such
employee, a written itemized pay statement.
Unless prior written approval of the Director General of the Department of
Labour is obtained, female employees are not permitted to work in any industrial
or agricultural undertakings between the hours of 10 o'clock in the evening and
5 o'clock in the morning.
Female employees are entitled to 60 days paid maternity leave for up to five
surviving children. Subject to a minimum of RM6 per day, a female employee shall
be paid her normal rate of pay.
The normal work hours of an employee shall not exceed 8 hours in one day or
48 hours in one week.
All employees are permitted to paid holiday on at least 10 gazetted public
holidays in any one calendar year.
Annual leave for employee:
less than 2 years of service – 8 days of paid annual leave
2 to 5 years of service – 12 days of paid annual leave
more than 5 years of service –16 days of paid annual leave
Paid sick leaves for employee:
less than 2 years of service – 14 days of paid sick leave
2 to 5 years of service – 18 days of paid sick leave
more than 5 years of service – 22 days paid sick leave
where hospitalization is necessary, up to a maximum of 60 days paid sick
leave per calendar year
The minimum payment for overtime work is 1 1/2 times the hourly rate of pay
on normal working days, 2 times the hourly rate on rest days and 3 times the
hourly rate on public holidays.
A contract of service can be either oral or writing.
Where an employee begins employment with an employer for a period exceeding
1 month, the employer shall give to the employee a written statement of
particulars of employment.
You can provide better terms and conditions to your employee in a contract
of service but not less favorable then the minimum requirements provided in the
Employment Act 1955.
A contract of service shall contain particulars of :
the date when the employment began
the place of work or an indication of that and of the address of the
employer
the title of the job which the employee is employed to do or a brief
description of the work for which a person is employed
the commencement salary and where applicable other allowances and bonus
any terms and conditions relating to :
probation period
hours of work
entitlement to holidays, including public holidays
overtime pay and leave in lieu
incapacity for work due to sickness or injury, including any provision for
sick pay and medical bills
EPF and SOCSO schemes
the length of notice which the employee is obliged to give and entitled to
receive to terminate the contract of service or a clause on the manner in which
the contract of service may be terminated.
In any circumstances, a wage period shall not exceed 1 month. Where the wage
period is not specified in the contract of service, the wage period shall be
deemed to be 1 month.
Where the period of notice of termination is not specified in the contract
of service , the notice shall be as follows :
4 weeks notice - has been employed for less than 2 years
6 weeks notice - has been employed for 2 years or more but less than 5 years
8 weeks notice - has been employed for 5 years or more
A written contract of service with particulars of the terms and conditions
must be given to all employees on or before the commencement of an employment. the names of employer and employee
Probation is a period during which the employer monitors the employee's
performance also known as a working test period.
The probation period is normally spelt out in the contract of service or
letter of appointment.
If an employer deems it necessary, probationary period can be extended.
During the probation period, an employer has the right to terminate the
service for poor performance, misconduct, lacks the necessary aptitude or skill
required in the position or under other similar conditions. Termination under
these conditions may be without notice.
Upon satisfactory completion of the probation period, the employee must be
informed in writing by the employer stating revised wages and other terms and
conditions where applicable.
Wages less any lawful deductions are payable not later than the 7th day
after the end of wage period.
Where a wage period is not specified in the contract of service, the wage
period shall deemed to be 1 month. A wage period shall not exceed 1 month.
Where an employer wishes to extent the payment of wages time, permit must be
obtained from Director General of Department of Labour.
Where an employee terminates the contract of service under normal
termination, wages to such employee shall be paid not later than the day when
the contract of service is terminated.
An employer has the right to deduct the following items from an employee's
wages without the employee's permission :
Overpayments made by mistake during the immediate preceding three months
from the month in which deductions are to be made
Indemnity due to the employer under Section 13(1) Recovery of advances of
wages provided not interest is charged on the advances
EPF, SOCSO contributions, income tax and other items as authorized by law.
An employee has the right to be given by an employer, at or before the time
at which any payment of wages is made to him, a written itemized pay statement.
The statement shall contain particulars of the gross amount of wages, the
amounts of any variable any fixed deductions from the gross amount and the
purposes for which they are made such as EPF, SOCSO contribution and income tax,
and the net amount of wages payable.
An employee shall be permitted to annual leave leave of not less than the
following :
2 years service - 8 days for each year of service
more than 2 years but less than 5 years service - 12 days for each year of
service
5 years or more service - 16 days for each year of service
Where an employee has not completed 12 months of continuous service with the
same employer, such employee's entitlement to paid annual leave shall be
proportioned to the number of completed months of service.
An employee is not permitted to annual leave due to the following :
if absent from work without the permission of the employer and without
reasonable excuse for more than 10 per centum of the working days during the 12
months of continuous service in respect of which such employee entitlement to
such leave accrues.
if dismissed after due inquiry
An employee shall be permitted to paid sick leave of not less than the
following :
less than 2 years service - 14 days in each calendar year
more than 2 years but less than 5 years service - 18 days in each calendar
year
5 years or more service - 22 days in each calendar year
hospitalization is necessary as certified by a registered medical
practitioner - 60 days in each calendar year
An employee is not permitted to paid sick leave for any period during which
the employee is receiving periodical payments under Workmen's Compensation or
SOCSO.
A female employee is entitled to maternity leave for a period of not less
than the eligible period of 60 consecutive days and maternity allowance in
respect of the eligible period.
Maternity leave period may commence anytime within 30 days before her
confinement but should not be later than the day immediately following her
confinement.
A female employee is qualified for maternity allowance if she fulfills
certain conditions. She shall have less than 5 surviving children and has been
employed for at least 90 days in the 4 months immediately before her
confinement.
Where a female employee is employed on a monthly pay rate, maternity
allowance is based on her monthly wages. Otherwise the maternity allowance is
the ordinary rate of pay for one day or RM6 per day whichever is higher for 60
consecutive days.
Maternity allowance shall be paid in the same manner as if such allowance is
wage and is payable not later than the 7th day after the last day of any wage
period.
A female employee is not entitled to rest day and paid sick leave benefits
during maternity leave.
An employee shall be entitled to at least 1 whole day of rest day in a week.
During temporary disablement under Workmen's Compensation Act 1952 or
Employees Social Security Act 1969, an employee shall not be entitled to rest
day benefit.
An employee shall not work on normal hours exceeding 8 hours a day excluding
a period of rest, 5 consecutive hours of work without a period of rest of not
less than 30 minutes and 48 hours in a week.
Under certain circumstances and mutual agreement, hours of work can exceed 9
hours a day but it cannot exceed 48 hours in a week.
Where an employer requires an employee to work overtime which means to carry
out work in excess of the normal hours of work per day, the hours of overtime
shall not exceed a total of 104 hours in a month.
Your overtime pay shall not be less than 1.5 times the hourly rate of pay on
normal day's work, 2 times the hourly rate of pay on rest day's work and 3 times
the hourly rate of pay on public day's work.
Under the following circumstances, an employer may also require an employee
to work on a rest day :
accident
actual or threatened in the workplace
work which is essential to the life of the community
work which is essential to the defence or security of the country
urgent work need to be done to the machinery or plant
an interruption of work which was impossible to foresee
work to be performed by employees in any industrial undertaking essential to
the economy of Malaysia or any essential service as defined in the Industrial
Relations Act 1967.
Where an employee is employed on a daily, hourly or other similar rate of
pay and required to work on a rest day or holiday, such employee shall be paid
one additional day wages if the work does not exceed half the normal hours of
work or two additional days wages at the ordinary rate of pay if such employee
works more than half but does not exceed the normal hours of work.
In the event of an employee being employed on a monthly rate of pay and
being required to work on a rest day, such employee shall be paid for work of
wages equivalent to half the ordinary rate of pay for work done on the day if
the work does not exceed half the normal hours of work or 1 day wages at the
ordinary rate of pay for work done on that day if such employee works more than
half but does not exceed the normal hours of work.
An employee shall be informed of rest day and a roster for the rest day
shall be prepared by the employer for that purposes.
An employee shall also be entitled to paid holidays of not less than 10 days
in a year. An employee who is required to work on holiday shall be paid 2
additional days wages at the ordinary rate of pay.
In Sabah, an employer is prohibited from employing a child under 14 years to
work in construction, manufacturing, transportation, mining sector or other
places such as restaurants, coffee shops, bars, hotels or offices.
In Sarawak, no young person under the age of 16 years shall be employed on
underground work in any time.
In Peninsular Malaysia, under the Children and Young Persons (Employment)
Act 1966 (Act 350), children under the age of 14 years are
only allow to work between 7 AM until 8 PM
not allow to work for 3 consecutive hours without a period of rest. Period
of rest shall be at least 30 minutes
not allow to work more than 6 hours a day. If attending school, total
working and schooling hours shall not be more than 7 hours a day
and can only be designated by the employer to carry out
light activities in family business or other jobs authorized by the
government
children between the age of 14 and 16 years are
only allow to work between 7 AM until 8 PM
not allow to work for 4 consecutive hours without a period of rest. Period
of rest shall be at least 30 minutes
not allow to work for more than 7 hours. If attending school, total working
and schooling hours shall not be more than 8 hours a day
not allow to commence work with less than 12 rest hours a day
and can only be designated by employer to
carry out light activities which are reasonably believed to be in accordance
to their abilities
be a domestic servant or maid
work in an appropriate industry
engaged in any capacity in any vessel under the guardians of their parents.
An employer who fails to comply with the above has committed an offence
under the Act and the penalty upon conviction shall be a fine up to RM2,000 or
jail term not exceeding 6 months or both.
2.1 The Circumstances a Contract of Service be Terminated by Either Employer
or Employee
Where a contract of service is considered broken, an employer can dismiss an
employee. A contract of service is considered to have been broken when an
employee has been absent from work for more than 2 consecutive working days
without prior leave from the employer or without informing or attempting to
inform the employer at the earliest opportunity during such absence with
reasonable excuse.
An employer may terminate the contract of service where the employee is
found guilty of misconduct, misdemeanor or negligence.
An employee has the right to terminate the contract of service, where an
employer fails to pay wages within seven days after the wages period.
A contract of service can also be terminated without notice :
by paying to the other party or indemnity in lieu of notice
if there is a willful breach by the other party of a term or condition of
the contract of service
Where the contract of service has expired or work being completed, the
contract may also be terminated. Written notice being given by either party may
also terminates a contract of service
2.2 Notice Period Required Terminating a Contract of Service
An employee may resign by giving notice of resignation or termination to the
employer to terminate the contract of service. An employer may also dismiss an
employee by giving notice of termination to such employee. In both situation,
the length of notice shall be the same pursuant to the contract of service.
Where the period of notice of termination is not specified in the contract
of service, the notice period shall be as follows :
2 years or more but less than 5 years of service - minimum 6 weeks
5 years of service or more - minimum 8 weeks less than 2 years of service - minimum 4 weeks
2.3 Termination without Cause Or Excuse by My Employer
Where you have been terminated without cause or excuse by your employer, you
can enforce your civil right and remedies for any breach or non-performance of
the contract of service by any suit in court or you can file in a written
representation within 60 days of the dismissal to the Director General of
Industrial Relations Department to be reinstated pursuant to section 20 of the
Industrial Relations Act, 1967.
The Industrial Relations Act 1967 provides for the regulation of relations
between employers and employee and their trade unions and the prevention and
settlement of disputes between employer and employee which is connected with the
employment or non-employment or the terms of employment or the conditions of
work of such employee.
Where you are a female employee and your employer is found guilty of
terminating you during your maternity leave, your employer shall be liable, on
conviction to a fine not exceeding RM2,000.
2.4 The Circumstances an Employee as Not Entitled to Termination or Lay-Off
Benefits
There are certain circumstances under which an employee is not entitled to
termination or layoff benefits :
Employed for less than 12 months on date of termination
The employee voluntarily terminates the contract of service
Where the employee commits misconduct inconsistent with the fulfillment of
the expression or implied condition of service after due inquiry.
Where the employee attains the age of retirement as stipulated in the
contract of service
The contract of service is renewed
The employee re-engaged on terms and conditions not less favorable than his
previous contract
7 days before the date of termination, the employer has offered to renew the
contract on no less favorable terms
The employee leaves the services without paying the employer the indemnity
due contract of service after receiving due notice of termination of the
contract or without employer's prior consent
An employer shall pay termination or layoff benefits to an employee not
later than 7 days after the termination.
Workmen's compensation is a compensation for injury to an employee or worker
arising out of and in the course of employment that is paid to the worker or
dependants.
The employer will have to purchase a workmen's compensation insurance for
workmen's compensation claims by injured employees or workers.
3.2 The Law Governing The Workmen's Compensation in Malaysia
The Workmen's Compensation Act 1952.
This Act provides for the compensation payment to an injured employee or
worker arising out of and in the course of employment or contracting
occupational disease.
Where the employee or worker dies in the event of fatal accident or
contracting an occupational disease or in the course and arising out of
performing his duty or work, the Workmen's
Compensation Act 1952 provides for the compensation payment to the worker's
dependants.
This Act is administered by the Department of Labour and applies throughout
Malaysia.
3.3Individual Covered Under The Workmen's Compensation Act 1952
Malaysian workers are no longer covered under the Workmen's Compensation Act
1952 with effective from 1st July 1992. Local workers will be covered under the
Employees Social Security Act 1969.
Only foreign workers are covered under this Act in respect of compensation
for employment injury as well as non-employment injury vide Workmen's
Compensation (Foreign Worker's Scheme) (Insurance) Order 1993.
This Act applies to foreign workers
whose earnings are not more than RM500 per month and
Under the Foreign Worker's Scheme, an employer of foreign workers is
responsible to pay an insurance premium of RM86 per year per worker.
An employer is not allowed to deduct the earnings of a worker for the
payment of insurance premium. An employer found guilty of such action, shall be
liable, on conviction to a fine of RM5,000 or to imprisonment for a 1 year term
or to both.
There are 11 insurance companies being selected as insurer to issue
insurance policy under the Foreign Worker's Scheme.
Employer can purchase such insurance from any of the insurance companies
listed :
Amanah General Insurance Berhad
Arab Malaysian Assurance Berhad
London & Pacific Insurance Company Berhad
Mayban Assurance Berhad
MNI Takaful Sdn. Bhd.
Malaysia British Assurance Berhad
Malaysian Assurance Alliance Berhad
Malaysia National Insurance Berhad
The Pacific Insurance Berhad
Syarikat Takaful
An employer found guilty of not buying an insurance for workmen's
compensation, shall be liable, on conviction to fine of RM20,000 or imprisonment
for a term of 2 years or to both.
3.5 What Should Be Done If A Worker Is Involved in an Accident
Each worker involved in an accident must inform the employer within 7 days
from the date of such accident except in the even of fatal accident.
An employer must notify the nearest Department of Labour from the place of
accident in writing. Such notice must be submitted within 10 days from the date
of accident.
An employer shall ensure that all information is with full details and
supporting documents are enclosed such as medical certificate or death
certificate.
An employer must ensure that compensation settlement as determined by the
Department of Labour are paid direct to the injured worker by depositing such
payment to the Department of Labour as directed.
However, compensation settlement cannot be paid direct to the wife, children
or dependants, but to be deposited to the Department of Labour concerned.
Failure to notify the Department of Labour in the event of an accident is an
offence and the employer shall be liable, on conviction to a fine of RM5,000 for
the first offence and RM10,000 for the second offence.
Sexual harassment means any unwelcome verbal, non-verbal, visual,
psychological or physical conduct of a sexual nature that might, on reasonable
grounds, be perceived by the victim as placing a condition of a sexual nature on
his or her employment because of his or her sex.
Sexual harassment may also consist of an unwelcome verbal, non-verbal,
psychological or physical conduct of sexual nature that might, on reasonable
grounds, be perceived by the victim as an insult or humiliation, or a threat to
his or her well-being, and has no connection with his or her employment.
Sexual harassment in the office includes work related harassment which
happens outside the office. Such work related harassment may includes situations
taking place at work-related social gathering or functions, conferences,
workshop or training sessions and during work assignments outside the office.
Sexual harassment in the course of work-related travel is also considered
sexual harassment in the office. Where sexual harassment occurs as a result of
employment responsibilities or relationship over the phone and through
electronic media, it is also considered sexual harassment in the office.
There are two categories of sexual harassment, namely sexual coercion and
sexual annoyance.
4.2.1 Sexual Coercion
It is known as quid pro qul sexual harassment in the United States.
Sexual Coercion is a type of harassment which has direct results in some
consequence to the victim's employment. It is an employment discrimination.
Sexual coercion is under a condition of employment, where an openly or
implicitly offer in keeping a job or getting a promotion is made by a supervisor
to an employee in exchange for sexual favors. Such person normally has the power
over promotion or raise of the employee.
In sexual coercion, promotion and favorable job benefits will follow if an
employee takes the advantage and consented to sex. On the contrary, if the
employee rejects, the job benefits are denied.
4.2.2 Sexual Annoyance
It is also known as hostile environment sexual harassment.
Sexual annoyance is a demeaning and unwelcome sexually related behavior that
is offensive, hostile or intimidating to the victim, but has no direct
connection to any job benefits. However, the annoying behavior creates an
offensive working environment which affects the victim's ability to continue
working.
Sexual annoyance includes sexual harassment by an employee against a
co-employee. Similarly, sexual harassment by a company's customer against an
employee also falls into this category.
Nevertheless, the definition of subjective words like unwelcome, offensive
and annoying still leaves for individual interpretation by courts.
4.3 The Differences Between Verbal, Non-Verbal, Visual, Psychological And
Physical Harassment
Verbal harassment– is in oral form and includes
uncomfortable and offensive teasing, joking, questioning, jesting or making
suggestive remarks or sounds, or verbal repartee.
Non-verbal harassment– a leer with indecent overtone,
sexual activity or desire denoted by hand signal, lips licking or food eating
and persistent flirting.
Visual harassment– covering the wall with pin-up,
calendars, drawings, photographs of naked and scantily clad women or other
sex-based materials and writing sex-based letter. Sexual exposure also falls
under this form of sexual harassment.
Psychological harassment– harms a person's psychological
well being and includes oppressively constant proposals for dates, repeated
undesirable physical intimacy or social invitations.
Physical harassment– includes distasteful action such as
touching of an intimate body part, patting, pinching, stroking, brushing up
against the body, hugging, kissing, fondling and sexual assault.
All forms of sexual harassment are behavior that elicit sexual attention.
4.4 Law in Malaysia to Deal Specifically with Sexual Harassment
There is only one law in existence that comes close to dealing with the
issue of sexual harassment in Malaysia - Penal Code, section 509.
The Penal Code, section 509 provides that : "Whoever, intending to
insult the modesty of any women, utters any words, makes any sound or gesture or
exhibit any object, intending that such word or sound shall be heard, or such
gesture or object shall be seen by such woman, shall be punished with
imprisonment for a term which may extend to 5 years or with fine, or