CHAPTER I.
Preliminary


1. Short title

This Ordinance may be cited as the Labour Ordinance

2. Interpretation

(1) In this Ordinance, unless the context otherwise requires -

"adopted", in reference to any child, means -

(a) a child adopted, or whose adoption has been registered in accordance with the provisions of any written law relating to the adoption of children from time to time in force in Sarawak; or

(b) where there is no such written law, a child whom the Director has certified as having been adopted in accordance with religion, custom or usage;

"agreement" - Repealed -

"agricultural undertaking" means any work in which any employee is employed under a contract of service for the purposes of agriculture, aquaculture, horticulture, silviculture or landscaping, fisheries, livestock husbandry, the rearing, hunting or capturing of wild animals, birds, insects, reptiles, amphibians or worms or the collection of the produce of plants or trees;

"apprentice" - Repealed -

"apprenticeship contract" means a written contract entered into by a person with an employer who undertakes to employ the person and train or have him trained systematically for a trade for a specified period which shall not be less than two years in the course of which the apprentice is bound to work in the employer's service;

"approved amenity or approved service" means any amenity or service -

(a) approved by the Director under subsection (2) of section 117 on application made to him by an employer for its inclusion in a contract of service; or

(b) provided for in any award made by the Industrial Court or in any collective agreement;

"approved incentive payment scheme" means an incentive payment scheme approved by the Director upon an application made to him in writing by an employer under and for the purposes of the interpretation of ordinary rate of pay under this section;

 

"child" means a person under the age of fifteen years;

"collective agreement" has the same meaning assigned thereto as in the Industrial Relations Act 1967;

"confinement" means parturition resulting after at least twenty-eight weeks of pregnancy in the issue of a child or children, whether alive or dead, and shall for the purposes of this Ordinance commence and end on the actual day of birth and where two or more children are born at one confinement shall commence and end on the day of the birth of the last-born of such children, and the word "confined" shall be construed accordingly;

"constructional work" includes the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, dredge, wireless, telegraphic or telephonic installation, electrical undertaking, gas work, waterwork or other work of construction, as well as preparation for, or the laying of, the foundations of any such work or structure, and also any earthworks both in excavation and in filling;

"contract" - Repealed -

"contract of service" means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;

"contractor" means any person who contracts with a principal to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principal's trade or business;

"day" means -

(a) a continuous period of twenty-four hours beginning at midnight;

or

(b) for the purposes of Chapter XIV in respect of an employee engaged in shift work or in work where the normal hours of work extend beyond midnight, a continuous period of twenty-four hours beginning at any point of time;

"dependant" means -

(a) the husband;

(b) the wife or wives;

(c) a child, step-child or adopted child, who is unmarried and under the age of eighteen years;

(d) natural or legally adoptive parents, of an employee;

"Director" means the Director of Labour appointed by virtue of subsection of section 3;

"domestic servant" means a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook house-servant, butler, child's nurse, valet, footman, gardener, washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use;

"employee" means any person or class of persons -

(a) included in any category in the Schedule to the extent specified therein; or

(b) in respect of whom the Minister makes an order under subsection

(7) of section 2A;

"employer" means any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first mentioned person, and the word "employ", with its grammatical variations and cognate expressions, shall be construed accordingly;

"entertainment" includes any exhibition or performance;

"family" means the husband or the wife or wives of an employee, and his children, stepchildren and adopted children who are unmarried and under the age of eighteen years;

"forestry undertaking" means-

(a) any work or occupation involved in the logging, transportation, processing, storage and utilization of timber or the manufacture of timber products;

(b) any work or activity relating to the taking of forest produce; or

(c) any work or occupation involved in forest plantation, re-afforestation, silviculture and horticulture;

"guardian" in relation to a child or young person, includes any person who, in the opinion of the Court having cognizance of any case in relation to the child or young person or in which the child or young person is concerned, has for the time being the charge of or control over the child or young person;

"health officer" - Repealed -

"hourly rate of pay" means the ordinary rate of pay divided by the normal hours of work;

"immigrant worker" - Repealed -

"Industrial Court" has the same meaning assigned thereto in the Industrial Relations Act 1967;

"industrial undertaking" means -

(a) mines, quarries and other works for the extraction of minerals from the earth;

(b) industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, published or printed or bound, adapted for sale, broken up or demolished, packed or otherwise prepared for delivery or in which materials are transformed, or minerals treated including shipbuilding, and the generation, transformation and transmission of electricity and motive power of any kind;

(c) constructional work;

(d) transport of passengers or goods by road, rail, water or air including the handling of goods at docks, quays, wharves,
warehouses, bulking installations, airports or airstrips;
(e) any industry, establishment or undertaking, or any other activity, service or work, which the Minister may by order declare to be an industrial undertaking;

"Medical Officer" means a registered medical practitioner who is employed in a medical capacity by the Federal Government or the Government of a State;

"mine" - Repealed'-

"Minister" means the Minister responsible for labour matters;

"native" - Repealed -

"non-resident employee" means any person who does not belong to Sarawak as provided for in section 71 of the Immigration Act 1959/1963;

"normal hours of work" means the number of hours of work, not exceeding the limit prescribed in sub section (1) of section 105, as agreed between an employer and an employee in the contract of service to be the usual hours of work per day;

 

"ordinary rate of pay" means wages whether calculated by the month, the week, the day, the hour, or by piece rate, or otherwise, which an employee is entitled to receive under the terms of his contract of service for the normal hours of work for one day, but does not include any payment made under an approved incentive payment scheme or any payment for work done on a rest day or on any gazetted public holiday granted by the employer under the contract of service or any day substituted for the gazetted public holiday;

"overtime" means the number of hours of work carried out in excess of the normal hours of work per day, and includes, if any work is carried out after the spread over period of ten hours, the whole period beginning from the time that such spread over period ends up to the time that the employee ceases work for the day;

"part-time employee" means a person included in the Schedule whose average hours of work as agreed between him and his employer do not exceed seventy per centum of the normal hours of work of a full-time employee employed in a similar capacity in the same enterprise whether the normal hours of work are calculated with reference to a day, a week, or any other period as may be specified by rules under Chapter XVI B;

"place of employment" means any place where work is carried on for an employer by an employee;

"principal" means any person who in the course of or for the purposes of his trade or business contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by that person;

"rate of pay" - Repealed -

"recruit" means to procure, engage, hire or supply or undertake to procure, engage, hire or supply employees for the purpose of being employed by the recruiter or by any other person, where such employee does not spontaneously offer his services at the place of employment or at a public employment office or at an office conducted by an employers' organisation and supervised by the Government;

"registered medical practitioner" means a medical practitioner registered under the Medical Act 1971;

"repatriation" means, in the case of non-resident employee the return of an employee to his country or state of origin, and in the case of a resident employee recruited from Sarawak to a place he specifies to his employer at the time of commencement of employment to be his home town, and "repatriated" shall be construed accordingly;

"shift work" means work which by reason of its nature requires to be carried on continuously or continually, as the case may be, by two or more shifts;

"ship" includes any vessel of any nature, engaged in maritime navigation whether publicly or privately owned, but does not include a ship of war;

"sub-contractor" means any person who contracts with a contractor for the execution by or under that person of the whole or any part of any work undertaken by the contractor for his principal, and includes any person who contracts with a sub- contractor to carry out the whole or any part of any work undertaken by the sub-contractor for a contractor;

"subcontractor for labour" means any person who contracts with a contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be;

"underground work" means any undertaking in which operations are conducted for the purpose of extracting any substance from below the surface of the earth, the ingress to and egress from which is by means of shafts, adits or natural caves;

"wage period" means the period in respect of which wages earned by an employee are payable;

"wages" means basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service but does not include -

(a) the value of any house accommodation or the supply of any food, fuel, light or water or medical attendance, or of any approved amenity or approved service;

(b) any contribution paid by the employer on his own account to any pension fund, provident fund, superannuation scheme, retrenchment, termination, lay-off or retirement scheme, thrift scheme, or any other fund or scheme established for the benefit or welfare of the employee;

(c) any travelling allowance or the value of any travelling concession;

(d) any sum payable to the employee to defray special expenses entailed on him by the nature of his employment;

(e) any gratuity payable on discharge or retirement; or

(f) any annual bonus or any part of any annual bonus;

"week" means a continuous period of seven days;

"woman" means a female of the age of eighteen years or above;

"worker" - Repealed -

"worker-recruiter" - Repealed -

"young person" means a person who has ceased to be a child but has not attained the age of eighteen years.

(2) For the purposes of Chapter XI, a person is deemed to be taking part in entertainment when such person is employed in or connected with such entertainment whether as a performer, stagehand or musician.

(3) where an employee is employed on -

(a) a monthly rate of pay, the ordinary rate of pay per day shall be calculated according to the following formula:

monthly rate of pay
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(b) a weekly rate of pay, the ordinary rate of pay per day shall be calculated according to the following formula:

weekly rate of pay
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6

(c) a daily rate of pay or on piece rates, the ordinary rate of pay shall be calculated by dividing the total wages earned by such employee during the preceding wage period (excluding any payment made under an approved incentive payment scheme or for work done on any rest day, any gazetted public holiday granted by the employer under the contract of service or any day substituted for the gazetted public holiday) by the actual number of days the employee had worked during that wage period (excluding any rest day, any gazetted public holiday or any paid holiday substituted for the gazetted public holiday).

(4) For the purposes of payment of sick leave under section 105E the calculation of the ordinary rate of pay of an employee employed on a daily pay or on piece rate under paragraph (c) of subsection (3) shall take only of the basic pay the employee receives or the rate per piece he or work done in a day under the contract of service.

(5) An employer may adopt any method or formula other than the or formula in subsection (3) for calculating the ordinary rate of pay of employee; but the adoption of any other method or formula shall not a rate which is less than any of the rates calculated using the method or formula in that subsection.

(6) The Minister may by order amend the Schedule.

(7) The Minister may by order declare such provisions of this Ordinance and any other written law as may be specified in the order to be applicable to any person or class of persons employed, engaged or contracted with to carry out work in any occupation in any agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work, and upon the coming into force of any such order -

(a) any person or class of persons specified in the order shall be deemed to be an employee or employees;

(b) the person employing, engaging or contracting with every such person or class of persons shall be deemed to be an employer;

(c) the employer and the employee shall be deemed to have entered into a contract of service with one another;

(d) the place where such employee carries on work for his employer shall be deemed to be a place of employment; and

(e) the remuneration of such employee shall be deemed to be wages,

for the purposes of such specified provisions of this Ordinance and any other written laws.

(8) The Minister may make rules in respect of the terms and conditions upon which the person or class of persons specified pursuant to subsection (7) may be employed.

(9) Notwithstanding the provisions of this Ordinance, the Minister may make rules -

(a) in respect of the terms and conditions of service of a part-time employee; and

(b) prescribing the manner in which the hours of work of an employee are to be computed for the purposes of determining whether that employee falls within the definition of a "part-time employee".

(10) The Minister may, from time to time, by notification published in the Gazette, declare any particular industry, establishment or undertaking, or any class, category or description of industries, establishments or undertakings or any particular activity, service or work, or any class, category or description of activities, services or works, to be an industrial undertaking for the purposes of this Ordinance.

2A. Minister may prohibit employment other than under contract of service.

(1) The Minister may by order prohibit the employment, engagement or contracting of any person or class of persons to carry out work in any occupation in any agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work other than under a contract of service entered into with the principal or owner of that agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work.

(2) Upon the coming into force of any such order, the person or class of persons employed, engaged, or contracted with to carry out the work shall be deemed to be an employee or employees and the principal or owner of the agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work, shall be deemed to be the employer for the purposes of such provisions of this Ordinance and any other written law as may be specified in the order.

(3) Notwithstanding subsection (1), the Minister may by order approve the employment of any person or class of persons by such other person or class of persons (not being the principal or owner) as he may specify but subject to such conditions as he may deem fit to impose.

(4) Any person who contravenes any order made under this section commits an offence.

2B. General power to exempt or exclude

The Minister may by order exempt or exclude, subject to such conditions as he may deem fit to impose, any person or class of persons from all or any of the provisions of this Ordinance.