Q & A Part II

OT claims/ Retrenchment benefit
Balance A/L annual leave(resigned)
Salary-in-lieu of notice
Contract Of Service
Termination Of Pragnant Woman
Non receipt of salary payment
Shift and working hours
Change of terms in contract of service
Are Doctors Protected By Labour Law?
Wife worked 1 month, boss said no pay
How to calculate annual leave?
Termination benefits
Work on rest day, at what rate?
Work on Public Holidays, at what rate?
Notice During Maternity Leave
Working hours
Maternity benefits
Various Questions:
Foreign Workers-want Labour Office to give talk
Service Points
Foreign workers- are they protected by Labour Law
Annual leave
Unpaid leave and replacement
Deduct annual leave for Chinese New Year
Shift workers (in Sarawak)
Is break time included in working hours?
Working hours
Holiday falling on rest day
Salary calculaltion
Late payments
Medical Expenses - to deduct from salary
Notice of Termination during probation period

Google
 
Web www.pesaraonline.net
Re: OT claims/ Retrenchment benefit

Dear Siew,

Would like to confirm the following scenario:-

A permanent full time staff holding a position of Customer Service Officer, whose salary earning RM2,500/ month, where inside the appointment letter did not stated he is entitle to OT ( we are in private commercial firm); the staff is local Malaysian (West Malaysia)citizen.

Question:-
1. As I understand employee whose earning salary above RM1500, is not covered under EA1955, and also do not entitle to OT claim. Would that mean that the above-mentioned staff is not supposed to have OT claim, since his earning is already exceed RM1500. Please advise.
2. If it is confirm that he is not covered under EA1955, would it mean that the compensation for retrenchment have to follow the clause stipulated in EA1955, or if the company has its own policy for retrenchment, can the staff (whose not covered in EA1955) be compensated according to company's policy?

Thank you in advance for your early revert.

Thank you.

Warmest regards,

Olivia Tan

Reply:


Hi Olivia

Since he is not covered by the EA, he will not be able to claim OT under the Act. Furthermore as you said, his appointment letter also did not mention OT claim, that makes matter worse. The Labour Office will not be able to help him under Section 69B. However, does the company handbook mention anything about OT payment? If so he may be able to try to use that to make a OT claim at the Labour Office under Section 69B. If everything does not work out, he may want to consider making a civil claim at the Civil Court. He can consult a lawyer about that.

As to the second question, if there is company policy on that matter and the better if the policy is in written form such as handbook etc, he can use that to make claim under Section 69B since his salary is not above RM5000

Please consult the Labour Office about that also.

Best regards
kl siew

More questions:

Dear Siew,


I have further questions—

My purpose of asking 1st question , OT claim for staff earning wage above 1.5k, is because we want to make sure that we follow procedure stipulated under EA1955. In other word, I want to confirm that those earning wages exceeding 1.5k, are they entitle to OT claim if they stay back for work after official work hour, or come back for work on Rest day/ Public holiday?
For your info, we do not mentioned about paying overtime in Handbook/ appointment letter.

As per your answer for question no.2, if the staff’s salary not exceeding 5k, and if the company does not have retrenchment compensation in written form, does it mean that we have to compensate him according to term stipulated in EA1955?
If the company does not have retrenchment compensation in written form, how are we paying retrenchment compensation for those salary exceed 5k?

If the company does have compensation in written form, how are we paying for staff earning salary between 1.5k-5k, and how about those exceeding 5k?

Please advise because we want to implement our company policy in proper.


Thank you.

Reply:

Hi Olivia

EA provides minimum requirements for employees to enjoy and for employers to comply. It does not mean that employees not covered by the Act are not entitled to OT pay or holidays pay etc. Employees over 1.5k are entitled to OT etc if they are required by the Management to do so (not just stay back to work after office hours or just come to work on holidays on their own volition). The question is at what rates? Since they are not covered by the EA, the rates under the Act are not applicable to them. In such case, the employees over 1.5k should be able to negotiate with their employers about OT payment i.e. a rate to be mutually agreed upon by both parties. If the employer does not want to pay OT etc, then why should they work OT? No one will be willing to work OT when not paid for the work. Whatever it is, be fair. Pay if you want your employees to work OT (not just stay back to work so called OT on their own. They may abuse it)
About payment of retrenchment benefits to employees over 1.5k or over 5k, the amount is to be mutually agreed upon. Do bear in mind that there is another piece of legislation that provides protection to them. If nothing is paid or amount not agreeable, they can claim under the Industrial Relations Act 1967 (Section 20) for wrongful dismissal and for claim for reinstatement. Employees are protected either by the EA1955 or the IR Act. There is no safe way out for employers. It really does not matter whether you have written policy or not. Of course things would be easier if you have a written one.
Since you want to implement your company policy properly, in my opinion, it is important that you should have a written one - a clearly wriiten one on every possible aspect. Then you will see you have less doubts!
For more opinion I really like to suggest that you pay a visit to the Labour Office and have a discussion with one of the senior officers. You will have a better picture.

More questions

:Dear Siew,
As refer to your 2nd answer, may I know what would the compensation likewise as stated under Sec 20 IR act 1967? If this is case of compensation where reinstatement is not possible; given basic salary 2500, length of service 3 years.

Thank you.

Warmest regards,

Olivia Tan

Reply:

Hi

Section 20 of the IR Act does not states the quantum of compensation. When there is a claim for reinstatement and the case is finally referred to the Industrial Court for decision, the Industrial may do the following:

For dismissal cases under Section 20, the Court may order:
1. Reinstatement into his former employment.
2, Award of back wages (from dismissal date to the final date of hearing - subject to maximum period of 24 months).

But if you read Page 23 (N23) of today's Star newspaper under the title "Estate driver wins back job and six years' wages", then we may some idea of the power of the Industrial Court!

3. The Court may also order compensation in lieu of reinstatement base on the formula on one month salary for every year of service.


Try to read Section 20 of the IR Act. It can be found in this website.

Best regards
kl siew

Balance A/L annual leave(resigned)

Morning Siew,


Hi I have a query as follow:-
A staff has tendered resignation. According to his letter of employment, he supposed to give 2 months’ notice. However, due to security of company’s information, we need to release him on the day he tendered. He is a Senior Manager holding company’s business information and he is joining our competitor, that’s why we release him immediately. He has agreed. We will compensate him for salary in-lieu of notice for 2 months.

Q: He has a balance of 5 days annual leave. Should we backpay this annual leave, on top of his 2 months’ salary in-lieu? His salary exceeds 5k.

Thank you.

Warmest regards,

Olivia Tan

Reply:

Hi Olivia

The answer is 'Yes'
Regards
kl siew

Salary-in-lieu of notice

Morning Siew,


Would like to confirm the following:-
A staff has tendered resignation wef 14/2/2006, and due to certain reason he has to be released immediately on 14/2/2006. His notice of resignation is 2 months, with annual leave 5 days. Company will compensate him with 2 months salary-in-lieu of notice.

Would like to confirm the following calculation is correct:

Basic salary:7875, allowance:500, total: 8375
a. Salary ( 1/2/2006-14/2/2006) 8375/28 days x 14 days = 4187.50
b. 2 months’ in-lieu of notice: 8375 x 2 = 16,750
c.Annual leave: 7875/ 26 x 5 = 1514.42

Total salary: a+b+c

Thank you.

Warmest regards,

Olivia Tan

Reply:

Hi Olivia

I observe that RM500 allowance was not included If he is under the EA, this allowance for calculating Annual leave should be included. Only for Overtime calculation it is excluded. Give a ring to the Labour Department about this. No need to mention he is not covered by the EA.

a and b are ok.

Regards
kl siew

Reply:

Hi Olivia
Correction. In my reply a moment ago, I mentioned no need to include the allowance of RM500 for Overtime, it is in fact should be for Sick Leave and not for Overtime.

Reply from Olivia

You mean for Sick Leave no need to include allow, but OT need to include Allow.?

Thank you.

Warmest regards,

Olivia Tan

Reply:

Exactly. Please see Section 60I(1D) quoted below:

"...(1D) For the purposes of payment of sick leave under section 60F, the calculation of the ordinary rate of pay of an employee employed on a daily rate of pay or on piece rate under subsection (1C) shall take account only of the basic pay the employee receives or the rate per piece he is paid for work done in a day under the contract of service...."

Pl also read the definition of "wages" under Section 2 of the EA. and seek further advice from the Labour Dept.

kl siew








Contract Of Service

Dear Mr Siew,

My name is Kevin & I would like to make an enquiry for a friend of mine. My friend was recently employed as a lecturer in a local private college on a contact basis.

The details of the contract are as below:
Contract Start: 6th February 2006
Contract End: 31st December 2006.
Contract termination terms: Either party to pay 3 months salary.
JOB: Lecture at least 18hours/ week & any other job assigned

Upon starting the job, my friend came to know that the working conditions at this particular place were rather bad. Below is the summary of the problems & additional tasks assigned to my friend on top of the lecturing.
i) Poor job assignment/delegation
ii) Required to perform administration jobs
iii) Required to do telemarketing to get more students
iv) Required to track students fees payments
v) Very bad food.

My friend has decided that the job & working environment is not suitable. How can my friend come out of this contract with a minimal loss?

I hope that you will be able provide some advice on the above matter.

Thank you very much in advance for your support & best regards.

Kevin

Reply:

Dear Kevin

From what you have said, I presume there is no notice period for termination of contract, only payment of 3 months salary. If there was notice period, he could give notice instead of having to pay 3 months salary.
Since the contract has been signed by both parties, I am afraid your friend will have to adhere to the terms and conditions stated in the contract. Alternatively he can consult a lawyer about this matter.
Regards
kl siew


Termination Of Pragnant Woman

Dear Sir ,
I am Lim Yean Lue. Currently I already have 37 weeks
of pregnancy. I was working at itopia sdn bhd at
Petaling Jaya Selangor. I was terminated by the
company with the reason their company financial got
problem. The termination take immediate effect on 15th
February 2006. Due to my offer agreement resignation
notice period is 2 months. So my employer paid me for
February and March compensation only. ( But they only
give me every each month.) They didn't paid me any
compensation for maternity leave.
I went to Labour office at Subang Jaya, Selangor. Due
to my salary is above RM1500. They said they can not
help me. They said everythig is based on the
agreement. They seems not really want to help me. But
they recommend me report to Industrial Relations
Department (IR) at Shah Alam. So I submitted all the
information to IR department. They will called me
after one month.
Dear sir , I would like to get some information from
you regarding what kind of the protection from
malaysia law to pregnant working women. Does employer
allow terminate the pregnant woman without paying any
compensation? I just want to get what I reserved.
Beside, thought this case, I hope employer won't
terminate those pregnant women for their own benefit
only. That is unfair to us.
Yesterday I received letter from IR to have a meeting
with my employer on 20 March 2006. So is that ok that
I collect my february salary from the company? Does it
means anything else if I collect it? I worry that if I
collect the check, my employer will say I agree their
terms ( I won't sign anything except sign on accept
february check only).
Please give me some guideline what should I do.
Your help is very appreciate.
Thank You

Lim Yean Lue

Reply:


Hi YL
Sorry about your situation.
Since you are out of the scope of the Employment Act, the protection people like you will have is under the Industrial Relations Act 1967. Your complaint to the IR is the proper way to do.
If you are worried about the receiving of salary might prejudice your case, just delay receiving it until your meeting with the IR officer on 20 March. During the meeting that day, try to ask the officer to help you to get some settlement that is to your satisfaction wether it is monetary or otherwise. It look like you have a good case to negotiate.
Good luck and do not hesitate to contact me if you have further queries.
Best regards
kl siew


Non receipt of salary payment

I HAD RESIGNED FROM A BANK 1 MONTH AGO.I RECEIVED NOTHINGS FROM THE HR DEPT, WHICH INCLUDING END SERVICE LETTER, SALARY AND COMMISSION SLIP AND MY 2 MONTHS SALARY AND COMMISSION AS WELL.
FOR ME, I AM UNDER CONTRACT, HR DEPT NEED 1 MONTH NOTICE WHICH I HAVE FULLFILL THEIR REQUIREMENT.THE RESIGNATION WAS GIVEN TO THE HR AND BRANCH MANAGER ON 6TH JAN 2006.MY LAST DAY IS 6TH FEB 2006.
I TRY TO CONTACT THE HR DEPARTMENT FOR MANY TIMES, THEY JUST PASS ME HERE AND THERE TILL THE LINE WAS CUT OFF. WHEN I ASK FOR THEIR NAME AND THE PERSON IN CHARGE, THEY JUST REFUSE TO TALK AND START PASS THE LINE.
TILL TODAY I CANT SOLVE THE PROBLEMS YET.
KINDLY ADVISE ME WHAT CAN I DO TO SOLVE THE PROBLEMS?
CAN I BRING IT TO THE LABOUR COURT?
FOR ME I NOT GOING TO WORK IN THIS BANKING LINE ANYMORE.

THANK YOU

REGARDS
BK TAN

Reply:

Hi Tan

If I were you, I would call at the Branch Manager personally and find out what had happened to your case. Telephoning is not very effective.
If you still fail to get any response, you can of course bring the case to the Labour Office.
Regards
kl siew

thank you very much.
i will try to contact the branch manager first.

regards
bk tan



Shift and working hours

Hi:

I have some question about the replacement day off.The
following is easier for you to advise me:

21st Feb-Normal working hour from 9am till 6pm
-off duty,gone home
22nd Feb-Midnight working hour from 3am till 7am
(not in working place,it was outside)
-Go back office to continue on duty until
12 noon.
QUESTION:Do we have a replacement day off?

6th March-Normal working hour from 9am till 6pm
-off duty,gone home
7th March-Midnight working hour from 4pm till 7am
(outside)
-straightly off duty

My HR said that they were not in consecutively working
shift therefore they do not have any replacement day
off,what they can do is starting work 3 or 4 hours
late until 6pm,is she right?It makes me very
confused,why we should start work late in the way we
could not continue to work and then off duty
earlier?Please advise me.

Thanks a lot.

Woan Mee

Reply:

Hi
I am also very confused. I have some questions, are you working of shifts? It may help if you can provide your working hours for a period of consecutive 7 days or better still consecutive 14 days. This may help me to see the problem more clearly.
Regards
kl siew

More question:

Hi:

I have some question about the replacement day off.The
following is easier for you to advise me:

21st Feb-Normal working hour from 9am till 6pm
-off duty,gone home
22nd Feb-Midnight working hour from 3am till 7am
(not in working place,it was outside)
-Go back office to continue on duty until
12 noon.
QUESTION:Do we have a replacement day off?

ANSWER: TO ME THE WORKING HOURS ARE OK. ON 22 FEB. YOU HAD TO WORK FROM 3 AM TO 12 NOON CAN BE TAXING FOR YOU. IF I WERE THE MANAGEMENT I WOULD CONSIDER PAYING SOME ALLOWANCE OR TIME OFF FOR EMPLOYEES WHO ARE REQUIRED TO WORK AT ODD HOURS. HOWEVER YOUR COMPANY IS NOT WRONG AS FAR AS THE LABOUR LAW IS CONCERNED.

6th March-Normal working hour from 9am till 6pm
-off duty,gone home
7th March-Midnight working hour from 4pm till 7am
(outside)
-straightly off duty

ANSWER: ON 7 MARCH IT LOOKS LIKE YOU HAVE TO WORK FOR A PERIOD OF 15 HOURS AT ONE GO ALTHOUGH WORK FROM 1 AM TO 7 AM IS CONSIDERED ON 8 MARCH- I.E. OVER 2 DAYS. THIS IS DEFINATELY VERY TIRING FOR YOU. IT WILL BE GOOD IF YOUR COMPANY COULD DO SOMETHING ABOUT IT. IT WILL ALSO BE ADVISIBLE IF YOU CAN BRING THIS PROBLEM TO THE ATTENTION OF THE LABOUR DEPARTMENT FOR THEIR OPINION.

My HR said that they were not in consecutively working
shift therefore they do not have any replacement day
off,what they can do is starting work 3 or 4 hours
late until 6pm,is she right?It makes me very
confused,why we should start work late in the way we
could not continue to work and then off duty
earlier?Please advise me.

Thanks a lot.

Woan Mee

More question:

Hi Kok Leung:

6th March-Normal working hour from 9am till 6pm
> -off duty,gone home
> 7th March-Midnight working hour from 4pm till 7am
> (outside)
> -straightly off duty

Actually it's 4AM,not 4PM.Sorry giving u wrong
information.

Would u mind giving me answer of the following
question?
> My HR said that they were not in consecutively
> working
> shift therefore they do not have any replacement day
> off,what they can do is starting work 3 or 4 hours
> late until 6pm,is she right?It makes me very
> confused,why we should start work late in the way we
> could not continue to work and then off duty
> earlier?Please advise me.

Actually i called to Labor Dept today,he told me that
bcoz of the midnight working hour is not our nature of
the job,so my company should replace a day off or
allowance and he did ask me to send letter to them to
put into case(it scares me!)bcoz my boss is good to
us,we just want to clarify something that we r not
sure about,bcoz in the future we might have midnight
jobs to do and there would be nobody wants to take it
if the management handles like this,right?So i hv to
ask for help but not in the way like lawsuit.

There is another q,my sis told me that the o.t payment
for salary range was changed already.Last time was
salary below RM1500,working overtime will entitle
claims,but now is changed into below RM2000,isn't it?

Thanks a lot.

Woan Mee

Reply:

Hi

First thing first, if your salary is over RM1500, then the Employment Act does not cover you.
If you are covered my answer will be as follow:

For example on 7 March you worked from 4am to 7am and you go off duty. After that as what your boss said come to work 3 or 4 hours late, which means you come to work again at say at 11am and work up to 6pm. If that is the case, your co. will have to pay you overtime from 2pm to 6 pm i.e. 4 hours. According to Section 60A(3)(a) any hour after the "Spread over period of 10 hours" are considered as OT, see below:

"(3)(a) For any overtime work carried out in excess of the normal hours of work, the employee shall be paid at a rate not less than one and half times his hourly rate of pay irrespective of the basis on which his rate of pay is fixed.
(b) In this section, “overtime” means the number of hours of work carried out in excess of the normal hours of work per day:
Provided that if any work is carried out after the spread over period of ten hours, the whole period beginning from the time that the said spread over period ends up to the time that the employee ceases work for the day shall be deemed to be overtime.."

If after working from 4am to 7am and you go off duty and don't come back to work any more that day, to me you have been given ample time off.

About the Labour Department's advice of giving a day off, you mean they said day off on 8 March? If that is the case, I am not so sure, please clarify from them.

About your being scared to write to the Labour Department because your boss is good to you, then I suggest you workers have a heart to heart talk with her about your problems. Try to negotiate something such as allowance for working odd hours or something else which are happy to both parties. Ask her to seek advice from the Labour Office how best to solve the problem.

About your sis's saying the ceiling for OT was raised to RM2000, I am not aware of that. I remember reading something in the newspapers about this, but it was for Government employees and not for employees in the private sectors like you people.

Do keep me informed about the position.
Regards
kl siew






Change of terms in contract of service

Hi Good day to you Sir,

I am currently working in the Hotel Industry. I joined in 2000 and in my appointment letter stated that notice to be given one month notice if I want to resign. But unfortunately now my boss asks me to sign another letter to say that I need to give two month notice if I want to resign. Do I have the right do not want to sign?
Thanks for your attention.
Jamila Rohani
Personnel Officer

Reply:

Hi Jamilah

You of course have the right not to sign it. But is it worthwhile to be so particular over this matter? I presume the management will also have to give you 2 months notice if they want to terminate your service.
You have been working there for quite long, since 2000. I presume you are quite happy there. I will leave it to your better judgement whether to insist on your right or the value of good relationship with your boss.
Please also consult the Labour Office on this.
Regards
Kl siew

Reply from Jamilah

Thank you very much sir, of course I am happy working right here but I am just asking about this. Actually my Boss already forgotten about this and till now I did not sign it. But I will make sure if I want to resign I will notify her earlier and serve her more than 2 months.

Jamila Rohani

Personnel Officer



Are Doctors Protected By Labour Law?

Dear Sir/Madam,

I am houseman and had been working in hospital for
about 4 months plus.The working hours is 'crazy'. It
is out of my curiousity, if whether doctors are
protected by this labour law. I am informed by my
friends from other field that, labour law states that
one should not work for more than 48 hours a week and
in every 7 days, we should have a complete non-working
day for rest.

But so far we are working 10 hours a day (from Monday
to Friday) and 5 hours a day for weekends. Worst, two
to three time a week we need to work over night, that
is from 5pm till the next day 7am and then we still
need to continue our next day's work. Rough
calculation, we need to work about 100 hours a week.

I am not versed with labour law. So am just wondering
if doctors are protected by it. And if there is
anything that we can do. So far, I am told, that's how
doctors' life are. But I am reluctant to accept it,
cause I think the long working hours for us has
serious effects on our job performances and emotions.

I thank you for your time.

Best wishes,
Dr John

Reply:

Hi Doc

The Employment Act 1955 covers non manual employees with monthly salary not more than RM1500 and it also covers only employees in the private sector, not the government or public sector.
I know doctors' working hours are very very long and irregular That's the nature of their profession I understand. I really cannot help much as you are most probably not covered by the EA. Why not consult some of your colleages who have gone the hardship of the profession? However, don't be discouraged by that. That may be just a temporary setback and there is a bright future for you ahead, I am sure.
Do not hesitate to contact me if you have further queries.
Regards
kl siew


Wife worked 1 month, boss said no pay

dear kl_siew,

hi, i've got something i would appriciate if you could help me on.

my wife been working as a retail assistant at a shop at the weld in kl. she started work from 6 feb to 28 feb 2006. during her appointment, no appointment letter was given to her and she was ask to work with her rest day on sunday. then when she wanted to resign, she resigned in good faith and a resigned letter was given to them on 21 feb 2006 even though no appointment letter was given to her. but now, she' ve not received her paid and according to the boss, she owe them 1 month of service. initially during her interview, she was given a starting salary of around rm800 to rm900. yesterday when she called the boss, she said he shall paid her only rm186 because she owe them 1 month of service. by the way the owner of the shop, if not mistaken is a pakistani man.

the boss asked her to collect her salary tomorrow. i wish to know, can i lodge a report to the labour law dept and how?

take the salary no matter what the amount is and then only make a report or go there and talk to the boss first, don't take the salary and then make a report?

how do you think we should do?

i really hope you can help us on this matter.

thank you very much.

regards,

t foo, kl

Reply:

Hi TF
Your wife can lodge a report a the Labour Office. You can find the telephone number on the web site, for Wilayah it is .03-42678797
. Phone up and they tell direct you wife how to do it and where to go.
From what you have described, you wife just should not terminate her service without giving notice even though there was no appointment letter. She should have given 4 weeks notice to do so.
Anyway, please seek advice from the Labour Department as to what your wife should do.
kl siew


How to calculate annual leave?

Dear Sir/Madam,

I would like to clarify something with you.

I joined a company in April 2005.

I was under 3 months probation period, and was confirmed in July.

I was entitled to 7 days of annual leave for the first year and sick leaves according to the law. I have used up my annual leave benefits since I thought my second year of employment will start on April 2006.

Now my employer claims that my annual and sick leave benefits started only after my confirmation.

Please advise me accordingly.

Your expertise is very much appreciated!!

thanks!

-vila-

Reply:

Hi Vila

Your leave entitlement should be calculated from April and not after confirmation. You can confirm it with the Labour Office.
Regards
kl siew

More question:

Thank you!

One more request :)

How do I contact the Labour office? DO they have a website?

I am sorry, but I am still new in the employement field, so I do not want my employers to take advantage over my ignorance. Thank you again!

regards,

-vila-

Reply:

Hi Vila

You can find the Labour Office's telephone numbers in the Home page of my website under Telephone Contact Numbers or just click http://pesaraonline.net/tel-departments.htm Choose the tel numbers in the State where you work.
Regards

More question:

Dear Sir,

I have tendered in my resignation today. According to my contract, I have to give a one month notice period, which I have. My last day of employment should be on the 14th of April, since we do not work on Saturdays and Sundays.

I just want to clarify with you if Saturdays, Sundays and public holidays are included in the one month notice period. It doesn`t state in my contract that I have to give a one month working days notice.

Another issue is my pay. My monthyly pay is RM2000. So from 1st of April to 14th of April, should they average my pay by 30 days and then multiply it by 14 days? Is the correct amount RM 933.33? I think my employer wants to count the working days only for april for my wages, so that would be only RM 599.99.

Please advice me. Thank you.

regards.

Reply:

Hi

One month's notice indludes Sundays and Public Holidays.
Your 14 days pay should 2000/30 x 14. Ask the Labour Office about this.
Please bear in mind that you are not covered by the Employment Act as your pay is more than Rm1500. However the principle is the same. If you think you co. does not give you a fair deal, you are advised to seek help from the Labour Office.
Regards






Termination benefits

Dear Sir/Mdm,

Please reply me as soon as possible.

My friends was work at the factory been 14 years,
because of the company have financial problem the
company want to terminate her service and give her 3
months salary as a consolation. Her basic salary only
740.00. Should my friends received or did she request
to factory re-calculated and get more. If yes, please
show me the calculation?

Best regards.
Mdm Wai.

Reply:

Hi

3 months salary is not enough. Under the Employment Act, she should get termination benefit of 20 days wages for every year of service. Your friend should make complaint to the Labour Office as soon as possible.
Regards
kl siew

More question:

Dear Sir/Mdm,

I have work with this company since 14 years ago but
due to the company finacial problem and sales drop for
the past few year.

The company give me 2 choice:

1) Reduce salary

2) If not agreed, I have to hang over the resignation
letter and company will pay me back 2 month salary.

If I not agreed both option, what should I do.

Thanks.

Reply:

Hi

If I were you I will not agree to both. Let the company take action against you. If they sack you , you can take the matter up with the Labour Office. Why not also consult the Labour Office about this before you make up your mind?
Under the law you are entitled to 20 days x 14 years = 280 days (more than 9 months) salary. So knowing the law and the financial position of the company, you can negotiate for better terms if you choose to accept the second option.
kl siew






Work on rest day, at what rate?

Dear Siew

May I check with you. We are just going to employ a few security guards to
guard our few premises.
These guards will be working on shift , of course. We will give each guard
One day off in a week
Now, however, should any guard be on sick/emergency leave, we may have to
call the guard who is on off day to relief.
How should we pay this Guard who is suppose to be on his "off day"...Should
we be paying a normal one day wage or more. What is the rate?
Please advise

Thank you

Joanne Lee

Reply:

Hi Joanne

I think you have to pay rest day pay in accordance with Section 60(3)(b) of the EA as quoted below:

60(3)(b) In the case of an employee employed on a monthly rate of pay who works on a rest day, he shall be paid for any period of work:
(i) which does not exceed half his normal hours of work, wages equivalent to half the ordinary rate of pay for work done on that day; or
(ii) which is more than half but which does not exceed his normal hours of work, one day's wages at the ordinary rate of pay for work done on that day.

Regards

kl siew

Work on Public Holidays, at what rate?

Dear Siew

Thank you for your information. Still relating to shift workers, can I check with you what is the rate of pay for those scheduled to work on
gazetted public holidays, say Agung's birthday, Labour day etc.

Once again, your advice.

Thank you. Regards

Reply:

Hi

Please refer to Section 60D(3) as quoted below:
"....

(3) (a) Notwithstanding subsections (1), (1A) and (1B), any employee may be required by his employer to work on any paid holiday to which he is entitled under the said subsections and in such even he shall, in addition to the holiday pay he is entitled to for that day:
(i) in the case of employee employed on a monthly, weekly, daily, hourly, or other similar rate of pay, be paid two days' wages at the ordinary rate of pay; or
(ii) in the case of an employee employed on piece rates, be paid twice the ordinary rate per piece:
regardless that the period of work done on that day is less than the normal hours of work.
(aa) For any overtime work carried out by an employee referred to in paragraph (a)(i) in excess of the normal hours of work on a paid public holiday, the employee shall be paid at a rate which is not less than three times his hourly rate of pay.
(aaa) For any overtime work carried out by an employee referred to in paragraph (a)(ii) in excess of the normal hours of work on any paid holiday, the employee shall be paid not less than three times the ordinary rate per piece.
(b) An employee who works on a holiday shall be entitled to a travelling allowance for that day if payable to him under the terms of his agreement with his employer but such employee shall not be entitled under this subsection to receive an increased rate of any housing allowance or food allowance.
(4) For the purposes of this section if any such holiday falls on a half working day, the ordinary rate of pay payable shall be that of a full work day....."
Regards
kl siew

Notice During Maternity Leave

Siew

A friend is intending on resigning..but because she has to give 2 months
notice, will she breach if she gives notice whilst she goes on her maternity
leave( which is 60 days )
She hopes not to breach in anyway. Please advise.

Thanks

Joanne

Reply:

Hi
Is she covered by the Employment Act in the first place?, which means her salary is more than RM1500 she is not covered.
Why should she give notice while on maternity leave? Why the hurry? More info will be helpful for me to give any opinion.
Regards
kl siew

More.....

Siew

No she is not covered by the Employment Act. Her dilema is that she has no more annual leave and cannot take any leave / time off to go for interview.
And as a clerk , giving 2 months' notice is too long. She is afraid that no prospective employer will wait that long.

Thanks

Joanne

Reply:

Hi

Please advise her not to try to go for job interview when she is about to give birth. Employers are usually reluctant to employ a pragnant lady. She better sticks to her present employer at least for the time being until after her confinement. Don't try to resign without a job waiting.
As for 2 months' notice, she can give one month notice and one month pay in lieu of notice to the employer. Whatever it is she got to decide wisely for herself.
I really cannot give her a proper advice.
Regards
kl siew








Working hours

Hi kl_siew,

I'm just wondering with my working hours...
Stated in the Labour Law that working hours must not
be exceeded more than 48 hours per month...

I'm an Accountant Executive and have been paid for
1.7k per month..My working hours is like this:
Mon - Fri = 9.30am - 5.30 pm
Alternate Sat = 9.30am - 3.30pm

As counted by me, my working hours for the month is 52
hours..

Therefore I would like to know is my company have
breach the Malaysia Employment Act 1955?

Thank you. Looking forward to your quick reply.

Liza

Reply:

Hi Liza

From my calculation your total working hours comes to only 46 hours and not 52 hours as stated by. 9.30 to 5.30 is 8 hours and not 9 hours. 9.30 to 3.30 is 6 hours and not 7 hours. Your company seems to be quite generous as far as working hours are concerned.
Regards
kl siew


Maternity benefits

Hello there. Thank you for your informative website http://www.pesaraonline.net/.

I got a question on maternity benefit.

My wife has decided not to work after her delivery. Can she tender her resignation letter after the first 30 days of her maternity leave and giving 30 days notice of resignation?

Do the company got the right not to pay her for the balance of 30 days maternity leave?

Thank you for your time.

Reply:

Hi Sim
If your wife is covered by the Employment Act, which means her salary is not more than RM1500 per month, she is entitlled to 60 days maternity leave. I don't see any problem if she were to give notice after the first 30 days of her maternity leave and she should be able to get her maternity benefit.
Regards
kl siew

More....

Thank you for your prompt reply. Unfortunately my wife salary is more than 1.5k per month.

Reply:

Hi
Never mind, if your wife does not get paid, she still can try to make a claim at the Labour Office under Section 69B if her salary does not exceed RM5000. I don't think it will come to that. I think her employer will pay, I see no reason why they wouldn't pay.
Regards




Various Questions on sick leave:

Hi KL Siew,

i have 2 question and hope that you can help me to settle. thanks.

1. If the staff have taken 14 days sick leave and hospitalisation leave 60 days. Then, he still have yet return to work. So shall the employer still pay his salary? If employer no right to pay him, shall this call as break the contract or termination?

2. If the employer have fixed certain rate for OT, for example, RM5 per hour. So are the employer break the employment act? is the employer must follow the employment act calculation?

3. Monthly pay rate should be 26 days, but if the employer never followed, because they're alway calculate total of every month (sometime, 30, 31, or 28 days).

4. Employer will replace for 1 day for the worker who worked on 1 day of Public holiday. Should get back 2 days replacement ?

5. If the staff have medical chip for 42 days. so can this calculate as 14 days sick leave and the balance of 28 days of hospitalisation leave? if the staff still yet to turn up to work, so what shall i do? shall i still pay her salary? or she is consider termination.

6. If the staff work for 9 hours a day and break 1 hour for lunch. so is this correct? or break the employment act because i have read the employment act and it is mentioned for 8 hours working time only.

7. If the employee (permanent staff, and the contract is mentioned 1 month notice for termination), but if he give the termination letter for a day / few days notice only? may i know the employer still need to pay him the balance of his salary?

8. If the employee require to work on rest day and the employer will pay him RM50 / day (rest day) & OT RM5 per hour, so this can be accept or not? will this break the employment act?

sorry i have a lot of question to you, very appreciated it.

Thank you.

Maple

Reply:

Hi Maple

My answer to your queries are as follow:

1. No, that employee concerned is not entitled to salary legally. Whatever the company is willing to pay may be on compassionate gounds taking into consideration of the employee's services, his family financial backgounds and so on. It is entirely up to the employer.
2. If the RM5 is more than the amount calculated by law at 1.5 times, then it is alright. Otherwise it is not enough.
3. 26 days is used for calculating ORP (Ordinary Rate of Pay) for such item as annual leave, sick leave etc. Using actual numbers of days of the month, is used for calculating matters like absence without pay etc.
4. One day replacement and not two days.
5.If the Medical chits are for ordinary sickness without actually hospitalised, then the 28 days should be without pay. Keep track of that employee. Is he really that sickly or just try to avoid work. Appropriate action should be taken.
6. 9 hours with 1 hour break is considered 8 hours work, no OT.
7. No need to pay for the days of notice period he did not work.
8. Cross check it with what is laid down in the Employment Act. If the amounts mentioned by you are more than the amounts calcuated according to the law, then it is OK. If less, then it is not OK.
Regards
kl siew


Foreign Workers - want Labour Office to give talk.


Dear Sir,
Thank you for this most informative site. I'm working with many migrant workers in my Church - Full Gospel Assembly Centre Penang. Indonesian, Nepalese, Vietnamese and Myanmarese workers come here for fellowship with others from their own country. We provide a place for them to hangout in a healthy environment . We can't afford to provide much but we do have some crackers and water ( sometimes tea / coffee if others bless us ) However, they are really simple, warm-hearted people who don't expect much . Here they take part in a holistic program to keep them off the streets. e.g. English Class & Computer Classes, Guitar, Keyboard & Drums classes. For the girls we have Baking & Cookery, Personal Grooming, Handicraft, Flower Arrangement & Line Dancing. Combined activities include Health Talks, First Aid, Talk on Migrant Labour Laws, Leadership and Motivational Talks and Recycling. All these activities are non-Christian and FOC. They are also for the surrounding community.
Could you please give me the contact of an officer in the Penang Labour Office who could give a talk on Migrant Labour Laws ?
Also, where can I get statistics on the number of migrant workers in Penang ?
Once again, thank you for this site. I am sure it has benefitted many employers and employees who are in doubt.
Yours sincerely,
MollySCOoi
Cross-Cultural Ministries Co-ordinator
Full Gospel Assembly Centre,Penang

Reply:

Hi Molly
Thank you for the kind words. In fact you can find the Penang Labour Office in the Homepage of this website or click on http://pesaraonline.net/tel-departments.htm .
From what you have said you people are giving a very good service to some people, congratulations.
Regards
KL Siew


Service Points

Good Day to you, I just want to ask you sir, for suspension period normally we deduct half pay basic for 14 days. Is it Service points a part of wages in the deduction of suspension? Can we deduct together with the basic salary??? Thank you sir.

Jamila Rohani
Personnel Officer


Reply


Hi Jamila
Can you let me know where the money for the Service point come from? Is it coming from tips? Do you include service point wages into the normal wages for purposes of EPF contributions, SOCSO and so on? Do you include service point money into wages from calculation of overtime work, sick pay etc? That may help me to see a clearer picture.
Regards

Kl siew

Service Points came in from tips and not included to OT and contributions of EPF & Socso. Normally For Rank & File the basic minimum is RM 400.00 and plus 4 points and average points is RM 300.00 per point.

Jamila Rohani
Personnel Officer

Reply:

Hi Jamila

In that case, is not wages then and I personally think it should not be deducted as wages for suspension purposes.
I don't know whether there is any new interpretation about this by the present Labour Department. Why not give them a ring. Click http://pesaraonline.net/tel-departments.htm
If you get a reply, whether yes or no , do let me know for future reference.
Regards

Kl Siew


Foreign workers- are they protected by labour law


Benson wrote:

Dear Kl Siew,

I got to know this website through a friend of mine. Actually have been looking for the employment Acts because since I am a foreigner I really want to know how does it operates.

well, I think you are aware of the exploitation made for the immigrant workers in Malayisa. And I am thinking If I can be a help to them.

I read the Employment Act briefly but couldn't find if those Acts are implied to the "Foreigners Labrours". What does the law says about the "foreign employment" and thier rights and duties?

would you mind to make it clear to me. Would appreicate much.

In services,
Benson

Reply:

Hi Benson,

Thanks. Actually the Employment Act 1955 does not distinguish between local workers and a foreign workers. As long as they have valid work permit with a lawful employer, they are protected in the sense that they can make complaint to the Labour Office if there is any breach by their employers.
You may read Part XIIB of the Act about foreign workers. I say it again, the Act does not distinguish between local and foreign workers. They are all treated the same.
Regards

Kl Siew


Dear Kl siew,

Thanks for your prompt reply.
There is employee who had an accident while working in the machine. His one right hand has been chopped off from the elbow. He went under treatment. The company is silence about his Insurance. How can he get his insurance claimed? and If not sure if he has a policy or not? he alos doesn't know anything about his insurance at this situation what and where is the best way to apporach?

Reply:

Hi Benson
You may help him to report the matter to the Labour Office in the area where that worker is employed. The Labour Office will help him out.
Kl Siew


Annual leave


vitamin c <vitamin_925@yahoo.com> wrote:

Dear Mr Siew

Got to know your website via yahoo search engine :) need your advice ~~~
Here is our company's policy of Annual Leave entitlement:-
on completion of 12 months continuous service - 14 days
on completion of 2 years continuous service - 16 days
on completion of 4 years continuous service - 20 days
A) the company's method of leave calculation as below:
(say, an employee joined the company on 15.04.01)
15.04.01 - 31.12.01 proportionate 8.5/12 x 14 days = 10 days
01.01.02 - 31.12.02 1st yr of service 14 days
01.01.03 - 31.12.03 2nd yr of service 14 days
01.01.04 - 31.12.04 3rd yr of service 16 days
01.01.05 - 31.12.05 4th yr of service 16 days
01.01.06 - 31.12.06 5th yr of service 20 days
B) an employee claims that the method of calculation is supposed to be as below: -
(which is pro-rated whithin the year)
15.04.01 - 14.04.02 14 days
15.04.02 - 14.04.03 (3.5/12 x 14 days) + ( 8.5/12 x 16 days) = 4 + 11 = 15 days
15.04.03 - 14.04.04 16 days
15.04.04 - 14.04.05 (3.5/12 x 16 days) + ( 8.5/12 x 20 days) = 4 + 14 = 18 days
15.04.05 - 14.04.06 20 days
my questions as below: -
1) is there any leave calculation method stated by EA?
2) if No, is that the discretion of the company on the method of leave calculation as
long as it comply with the EA i.e not less than 8, 12 and 16 days?
3) if an employee who are not cover under EA, is that the discretion of the company to
the method of leave calculation as long as it comply with EA?
4) will it violate the law if the employer stated its method of leave calculation on the
employment handbook or via letter to the employees?
5) is employee who earns above RM1,500/month entitled to annual leave benefits cover
by EA?
6) from the calculation above, which is the right method for leave calculation so that it
wont violate the law.or both also the right one that at the discretion of the
company?
hope to hear from you soon.
Thank you.
vita

Reply:

Hi
Based on the co. leave policy as stated by you, (which is different from but better than what is provided in the EA) , the correct calculation in my opinion should be:
15.04.01 - 14.04.02 = 14 days (if not complete then proportionately)
15.04.02 - 14.04.03 = 14 days
15.04.03 - 14.04.04 = 16 days (if not complete then proportionately)
15.04.04 - 14.04.05 = 16 days
15.04.05 - 14.04.06 = 20 days (if not complete then prooportionately)
But what your company is doing is not wrong. It is more for admin purposes. It will be very messy to keep track of all the employees entitlements and calculated it separately based on employee's date of joining. The only problem will come up when an employee leave the service, there may be some shortage Then all his leave entitlement will have to calculated based on my method in order to get the correct number of days.
For employees not covered by the EA, leave entitlement is usually covered by the contract of service. Any dispute as to the terms and conditions of service can be referred to the Labour Office. Pl see Section 69B of the EA.
It would be better if you can seek confirmation from the Labour Department.
Regards
KL Siew

More Questions:

Good day.
Thank you so much for replying my email.
I went to Labour Office showing my leave calculation method and the method of the employee to the officer this morning.
Yes you are right, there is no wrong with the company's method of leave calculation and that since we are granted better than stated at EA, we can write a letter to tell the employee that the method is follow the company's policy (advice from the officer).
I'm more concern on what you mentioned on the calculation when an employee tender his/her resignation. Is that regulate method (i mean follow your method) or can we still calculate according to our policy as we already granted better than EA.
Thank you.
vita

Reply:

Hi
Continue with what you are doing as long as there is no dispute If there is a dispute, you may have to give the exact calculation. For example as in the case quoted by you:
"15.04.01 - 31.12.01 proportionate 8.5/12 x 14 days = 10 days
01.01.02 - 31.12.02 1st yr of service 14 days
01.01.03 - 31.12.03 2nd yr of service 14 days"
If the employee were to leave on 31.12.03, you would have given him a total of 10+14+14= 38 days whereas according to my calculation it should be:
15.04.01- 14.04.02 = 14 days
15.04.02 - 14.04-03 = 14 days
15.4.03 - 31.12.03 = (16/12 x 8.5month) = 11 days , totalling 39 days. Do you see what I mean?
Regards
KL siew


Unpaid leave and replacement


Myrna wrote:

Dear Sir,
I would be very grateful if you could answer my query. I am a tutor at a private college in Johor Bahru. Being new, I was given unpaid leave to attend my convocation. However, what took me a bit surprised is that, my superior wants me to replace the classes I have missed. Being an unpaid leave, logically, I do not need to replace those classes. After all if I replace these classes, I won't be paid a single penny for it.
If it is any MC or other paid leaves, yes, I do agree the tutors or teachers have to replace classes as they are on paid leaves. Please do enlighten me on this issues as soon as possible. I appreciate your co-operation and kudos to you for setting up such a wonderful websites where others can clarify any HR concerns.
Best regards,

Myrna Miraj

Reply:

Hi Miraj
It looks like no so much a question of law but rather a dispute of facts. Is it correct to say you will have to give extra time or another addition day to provide the replacement? If it is so, I agree that you have reason to be unhappy about. Why not bring the matter up to college principal so that you will not have to have your pay deducted but to replace the missed lessons. Looks like I can't give you a satisfactory answer. Try to convince or persuade the principal and get what you wanted. To me that's the best way Good luck.
But the way, being a tutor you may not be covered by the Employment Act which covers employees not more than RM1500 per month.
Do not hesitate to contact me if you have further queries.
Regards
Kl Siew


Deduct annual leave for Chinese New Year


Yuanawrote:


Dear Sir,
Company will be closed for Chinese New Year starting from 28th January to 1st February. However, they will deduct annual leave for 28th January which we don't agreed. Can we complaint to Labour office on this matter?

Reply:

Hi Yuana
This is always a problem whenever there is a long stretch of festive holidays whether it is for Hari Raya or CNY. Others have been asking the same question and I have been advising them that if others don't mind, they should also try to enjoy the long holidays with your family even mean your own annual leave is deducted.
However, you can surely complain or rather consult the Labour Office, given them a call.
Regards
kl siew


Shift workers

Hi,

I'm the HR executive for a Sarawak company. I would like to find out the
following from you:-

i) are all shift workers entitled to overtime claim?
ii) If yes, how do i calculate the overtime pay?

Thanks.


Regards,
Linda

Reply:

Hi Linda

There is no difference between shift workers and non-shift workers. If they are required to work beyond their normal hours of work, you will have to pay them OT according to the provisions of the EA. There is no separate OT rates for shift workers.
Regards
kl siew

Hi Linda

Further to my reply to you earlier, I presume you are working for the Sarawak company in West Malaysia and not in Sarawak itself. If you work in Sarawak, you will have to follow the Sarawak labour law which is the Sarawak Employment Ordinance. Our Employment Act 1955 does not apply to Sarawak.
Regards
kl siew


Hi Siew,

Thanks for your reply. My company is actually in Sarawak. The provisions
in the Employment Act 1955 and the Sarawak Employment Ordinance are almost
similar, right?

I understand that the Sarawak Employment Ordinance covers only those workers
whose salary is RM2,500 and below and certain classes of workers only. What
about those who are not covered by this ordinance? Where should they refer
to?

Thanks once again.

Regards,

Linda

Reply:


Hi Linda

I am sorry, I have not seen the Sarawak Employment Ordinance. In fact I tried to get one over here but I could not get one. In your case, your better seek advice from the Labour Department in Sarawak. But for dismissal cases, the Industrial Relations Act 1967 covers all workers irrespective of salary or occupation for the whole Malaysia.
Thanks
kl siew

Hi Siew,

Thanks. I just got my copy of the Labour Ordinance (Sarawak) Cap. 76 today.
It costs RM25. I can help you to get one, if you want. Of course, all
charges to be borne by you :)

Regards,
Linda

Reply:

Hi Linda

I think that is a good idea to have a copy so that I can have the contents uploaded to my website for the benefits of employers and employees in Sarawak. If you don't mind, please let me know the total cost i.e. including cost for Poslaju or courier service. How do you want me to pay you, I will pay you in advance. No hurry, take your time.
Regards.
kl siew

 


Is break time included in working hours?

Hi,

Need some clarification.

1.If I were to work 12 hours a day, how many hours should be
considered OT.

2.Does Breaktime included in the work hours?

Thanks

Reply:

Hi

Break-time is not included. For example, break is one hour and in your case your OT will be 3 hours.
Thanks

KL Siew


Working hours

Hi KL Siew,

I came across your website and I have some Malaysia Employment ACT quires to
check with you . I am working in a F&B industry in Singapore, due to
expanding we have a Canteen outlet in JB. Beside we have some full time
staff at my JB outlet, we also employ casual labour staff. For casual labour
staff, we pay on weekly or daily basic and they are pay by hourly pay. (eg.
RM $5 per hour).

My quires are as follow :


1) According to Singapore Employment Act, any staff who work more than six
consecutive hours, they are required to have a leisure or break for not less
than 30 minutes.

E.g. : Staff A who work from : 8:30am to 16:30pm. Staff A will be paid $5.00
x 7.5 hrs ( 8hrs - 30 mins break time) = $37.50

I am wondering if Malaysia labour act apply to this ?


2) What is the maximum no of hours that a staff can work up to? E.g If a
staff work continually for 24 hrs, is it against the labour law?


3) What is the salary formula calculation for the notice in lieu if the
staff breach their contract?


4) What is the salary formula calculation for staff who is on Unpaid leave?
I was told that Unpaid leave is calculate as Basic salary divided by 31 days
& times the no of NPL . I just want to confirm the formula.

I hope you can assist me for the above quires as I do not know who I should
turn to.

Thank You and Best Regards,

Fann

Reply::

Hi Fann

1. Below is what the Malaysian EA says:

" 60A. Hours of work.

(1) Except as hereinafter provided, an employee shall not be required under his contract of service to work:

(a) more than five consecutive hours without a period of leisure of not less than thirty minutes duration;...."

2. It should not be more than 12 hours. See law below:

" 60A (7) Except in the circumstances described in subsection (2)(a), (b), (c), (d) and (e), no employer shall require any employee under any circumstances to work for more than twelve hours in any one day...." I suggest you read up Section 60A of the EA 1955

3. Please see below:


" 12. Notice of termination of contract.

(1) Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service.

(2) The length of such notice shall be the same for both employer and employee and shall be determined by a provision made in writing for such notice in the term 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 the has been so employed for five years or more on such date;

provided that this section shall not be taken to prevent either party from waiving his right to a notice under this subsection."

4. Should be divided by the number of days of the month concerned i.e. 28, 30 or 31 depending on that month.
Regards

KL Siew


Hi KL Siew,

Thanks for your prompt reply. Just to confirm the following, cause really
confuse by the law languages:

1) Can I say that staff who work more than five consecutive hours are
require to have at least 30 minutes break? The break time will not be pay?
E.g if they work 8 hrs for today I only pay them 7.5 hrs ?


2)The max hours they can be work up to 12 hrs per day?

Thank you for your kind assistance. Really appreciate.

Regards,
Fann

Reply:

Hi

Normally you don't pay for rest period. Have you been paying them all this while? If so, my advice is for you to do what you have been doing. If you stop paying now based on what I said, you may have problem with the workers.

As for 12 hours limit, the 12 hours can be exceeded under the following circumstances:

" (2) An employee may be required by his employer to exceed the limit of hours prescribed in subsection (1) and to work on a rest day, in the case of:

(a) accident, actual or threatened, in or with respect to his place of work;

(b) work, the performance of which is essential to the life of the community;

(c ) work essential for the defence or security of Malaysia;

(d) urgent work to be done to machinery or plant;

(e) an interruption of work which it was impossible to foresee; or

(f) 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:

Provided that the Director-General shall have the power to enquire into and decide whether or not the employer is justified in calling upon the employee to work in the circumstances specified in paragraphs (a) to (f). ......"

So, if you ask them to serve customers for over 12 hours, that is not OK.

Regards
KL Siew


 

Holiday falling on rest day

Hi Siew,

Hope you still remember me... the one who helped you to get a copy of the Sarawak Labour Ordinance :). By the way, my friend who is in Sabah did not manage to get a copy of the Sabah Labour Ordinance. Apparently, the published copy is not available..that's weird, ain't it? Anyway, probably she asked the wrong person/department.

I have a question for you: its stated in the employment contract that we have five working days per
week or rather the normal hours of work per week which is equivalent to 5 days. Now, if a public holiday falls on a Saturday, are we entitled to get one additional annual leave to replace the PH that falls on a Saturday? I know the labour ordinance says that we are entitled to only one rest day per week, but can you help to clarify on this?

Another question, what about shift workers? I know I have to pay them OT if they work on a public holiday, but are they entitled to the additional leave if the public holiday falls on a Saturday? My opinion is that they are not entitled to claim for the additional leave. Just want your opinion and expertise advice as I don't want to be doing anything illegal if I disallowed the additional leave.

Yours advice is greatly appreciated.

Thanks in advance.

Regards,
Linda Chin

Reply:

Hi Linda

How can I forget you! Nice to hear from you again. It is alright if the Sabah Act is not available.

As for your question #1, employees are not entitled to another day if PH for on Saturdays. Only Sundays are rest day for the purpose of the Ordinance. Please read the Section 105B of Sarawak Labour Ordinance quoted. It says "....the last of such rest days shall be ....."

"...105B. 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:.."

As for question #2, the answer is the same, no need to give another day as substitution.

To confirm what I said, you can always give a ring to the local Labour Department for their advice. Do let me know if they give you a different interpretation.

Best regards and have a nice day.

KL Siew


Salary calculaltion
Dear Mr. Siew,

Hi, I came across your website while searching for answers to my questions. I hope you can help to answer my questions.

I am a fresh graduate and have been offered a job, with a salary of RM2000 per month, 6-day per week, with me contributing 11% to EPF and the company 12%. It is 1-year contract, but I will still be entitled to the fringe benefits and bonus. I was told that after the 1-year contract they will absorb me in as full time staff.

So, my question is that if I start work on 19 JUNE 2006, which is the correct way to calculate my salary for the month of June (from 19 June-30 June)?

After deducting EPF, my monthly salary will be RM 1780. From 19 June to 30 June, there are 12 days. Do I include Sunday when I calculate, as in

RM1780 * 12/30 = RM 712

or do I exclude Sunday

RM1780 * 11/26 = RM753.08

Does the law says anything about this? So, what if it's 5 and 1/2 day per week? (I am not too sure if it
is 6-day per week or 5 and 1/2 day per week)

Also, I am required to do a medical check up with chest x ray report. But I will have to bear the
medical check up cost on my own. I have heard of pre employement check up, but those that I heard of, the company pay for it and they just go to the panel clinic/hospital. Some that I heard, they can claim from the company after being offered the job. So, I just would like to find out if it is appropriate that my company has this rule? As in if the laws say anything about this?

Thanking you.

Truly,
Didi

Reply:

Hi Didi

Thanks for visiting my website.

First and foremost, the Employment Act only covers employees whose salary not more than RM1500.

Anyway, for the calculation of 12 days pay, one should use the actual number of days of the month, i.e. 30 for month June. Sundays and public holidays etc are included but divided by the actual number of days in that month. The calculation should be like this: (2000/30)x12 = 800.00 and deduct EPF, SOCSO from that amount. I think your company will be doing this also. Of course from July onwards, 2000 will be used.

26 days is for calculing items such as sick pay, annual leave pay, holidays pay and so on.

From my experience, most companies send their protential employees for medical check up by their company panel doctors and pay for it. Some are not. The Employment Act 1955 does not say anything about it.

You can double check you questions with the Labour Department. Phone them up. You can find the phone numbers in the Home page of my website.
Regards
KL Siew


Late payments

Hi There!

I work in a food catering company for already 2 years.

The company has about 20 staff with half of them foreigners. My pay is above RM 2K.

The problem is the company always pays us on the 10th of every month but for the last 2 months they have being paying us on the 15th. What action can be taken against them adn can any of us makea complaint silently to avoid any problems with the employer?

Please help.

Thanks,
JAJA

Reply:

Hi

You can tip off the Labour Dept by giving them a telephone call or write a complaint to them, no need to give your real name. See whether it works.
Regards
KL Siew


Medical Expenses - to deduct from salary

Hi KL Siew,

i understand that 60F Sick Leave,
An employee shall, after exam. at the expenses of the employer:
(a) by a registered medical practitioner duly appointed by the employer, or
(b) if no such......
Now, my question is, we do have panel clinic and my panel clinic per visit is RM35. And my company would like to consider to increasing the rate to RM45 to all the staff who need the necessary consultation and better medication. Then, my panel doctor suggest that company charge staff RM5 (company pay RM40 + staff pay RM5). This is to avoid all the staff purposely to get medical leave.
Do i againts the law if i charge the staff RM5. If not, then month end my pay slip can it show this RM5?
very appreciate.....thks.... :)
Maple

Reply:


Hi Maple
How much the Doc is going to bill you? RM40 or RM45? What are going to do with the RM5 deducted from the staff?
Regards
KL Siew


KL Siew,

Doc will bill us RM45 for the maximum fees. We will inform the staff maximum go for RM40 dollars if over this amount we will charge the staff (for example RM5). So finally this RM5 dollar will pay the docs & our company will pay RM40 to docs.
Thks.
Maple

Reply:

Hi

If you deduct the RM5 from the staff's salary, then it is going to be a unlawful deduction under Section 24 of the Employment Act unless the staff give you written permission and the Director General of Labour must also give his approval. Please read Section 24(4)(c):

24(4) The following deductions shall not be made except at the request in writing of the employee and with the prior permission in writing of the Director-General:

(c ) deductions in respect of payments to a third party on behalf of the employee;

Read Section 24 carefully. What you can deduct are governed by that section. Other than that all deductions are unlawful. Talk to the Labour Officer again about this RM5 deduction.
If I were you I will not listen to the suggestion by the panel doctor. First of all why should you increase the medical fee from RM35 to RM45? Did the Doc ask for the increase? Find out what is current market rate of medical fee of other panel doc first before you simply make your panel doctor richer.
Regards
KL siew

Hi,

i undrestand. Actually, is my company plan to increase the medication fees ( first, because the docs said that they can't supply better medication for our staff because we only paid him RM35 max. per visit) so that if we pay him RM45 per visit so that he can give better medication.Good for staff.
Now, my company worry that if we inform the staff increase the amount of medication so that they will get more MC. Previously, all the staff know is RM35 per visit if over this amount then they have to pay the balance so that they are seldom take MC. But, now if they know we increase the limit sure that they will take more MC.
i thro that company can set the limit for the medication fees, like per year can not over certain amount, so can we set the medical fees per visit of certain amount?
Please advise.

Reply:

So don't touch it, just keep it as before, RM35. That is my humble opinion.
Regards
KL Siew

 


 

Notice of Termination during probation period


Dear Mr Siew

Thank you for replying my email. (so sorry for keep on disturbing you)
This is regarding the probationary period of an employee. We have a staff who is under 6 months probationary period. After the 6 months, the company has decided to transfer him to another department (designation will be changed from Application Engineer to Technical Engineer) by giving him another 6 months probationary period, meaning that he is not been confirmed at his first 6 months probationary period.
This employee earns above RM1500 and according to his contract of service, he is subject to transfer to any department within the company, branch or company within the groups.
I was thinking that even we have the right to transfer an employee to another department during his probationary period without confirming him but another 6 months probationary period to go.it still sounds bit unfair to him.
can i have some advice from you and also the procedure to transfer him (meeting, letters.etc.....
Thank you.
vita

Reply:

Hi

Management may have a different thinking. For all you know that staff may not be that good in the first department and that could be the reason for such quick transfer. The second 6 months may be used to test him further whether he is really suitable. I don't know, I may be wrong. I rather not venture any opinion on your management decision.
Regards
KL Siew

Dear Mr Siew
Thank you for your email.
Before the transfer, the department manager had done a performance appraisal with him and rated him "above average".
We finally issued a transfer letter to the employee with 3 months probationary period. he refused to sign as the company will only granting the allowances to the employees upon their confirmation, meaning that the staff will get his allowances only after 9 months probationary period. (6 months in A dept, 3 monhts is B dept)
The GM offered him an immediate confirmation on May (which he will get the allowances back dated to May), following the confirmation he will then only be transferred and redesignated as Project Engineer, he has agreed with the offer and return the transfer letter to the admin dept.
However, before the company issue the confirmation letter to him, he tendered his resignation letter last week.
Mr Siew, i heard from my manager once that the notice of termination during probationary period is 1 month (less than 2 yrs working with same company)....may i ask that is there any wrong if the service of contract (appoinment letter) mentioned that 24 hrs notice either side during probationary period?
Thanks.
vita

Reply:

Hi Vita
If the appointment letter states that before confirmation the notice period of termination is 24 hours on either side and if he has not received his confirmation, I think it it alright for him to give 24 hours notice. Cross check with the Labour Department.
Regards
KL Siew