HR MANAGEMENT - Employees Protected Under The Employment Act, 1955

EMPLOYEES PROTECTED UNDER THE EMPLOYMENT ACT, 1955

By Faudzil Harun

Employees Defined Under The Employment Act, 1955          

Section 2 – Interpretation
"employee" means any person or class of persons-

(a) included in any category in the First Schedule to the extent specified

     therein; or

(b) in respect of whom the Minister makes an order under subsection (3) or

     section 2A;      

Section 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 or industrial undertaking, constructional
     work, statutory body, local government authority, trade, business or place
     of work other than under a contract of service entered into with-

     (a) the principal or owner of that agricultural or industrial undertaking,
          constructional work, trade business or place of work; or

     (b) that statutory body or that authority.

(2) Upon the coming into force of any such order, the person or class of 

     persons employed, engaged or contracted with to carry out the work shall 

     be deemed to be an employee or employees and-

     
     (a) the principal or owner of the agricultural or industrial undertaking, 

          constructional work, trade, business or place of work; or

     (b) the statutory body or local government authority shall be deemed to be 

          the employer for the purposes of such provision of this Act and any 

          other written law as may be specified in the order.

(3) Notwithstanding subsection (1), the Minister may by order approve the 

     employment of any person or class of persons by such other person or 

     class of persons (not being the principal or owner) as he may specify but 

     subject to such conditions as he may deem fir to impose.

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

FIRST SCHEDULE

[Subsection 2(1)]

Employee

1.  Any person, irrespective of his occupation, who has entered into a contract 

     of service with an employer under which such person's wages do not 

     exceed two thousand ringgit a month.

2.  Any person who, irrespective of the amount of wages he earns in a month, 

     has entered into a contract of service with an employer in pursuance of 

     which-

     (1) he is engaged in manual labour including such labour as a artisan or 

          apprentice:

          Provided that where a person is employed by one employer partly in 

          manual labour and partly in some other capacity such person shall not 

          be deemed to be performing manual labour unless the time during 

          which he is required to perform manual labour in any one wage period 

          exceeds one half of the total time during which he is required to work 

          in such wage period;

     (2) he is engaged in the operation or maintenance of any mechanically 

          propelled vehicle operated for the transport of passengers or goods or 

          for reward or for commercial purposes;

     (3) he supervises or oversees other employees engaged in manual labour 

          employed by the same employer in and throughout the performance of 

          their work;

     (4) he is engaged in any capacity in any vessel registered in Malaysia and 

          who -

          (a) is not an officer certificated under the Merchant Shipping Acts of 

               the United Kingdom as amended from time to time;

          (b) is not the holder of a local certificate as defined in Part VII of the 

               Merchant Shipping Ordinance, 1952 [F.M. 70/1952]; or

          (c) has not entered into an agreement under Part III of the Merchant 

               Shipping Ordinance 1952; or

     (5) he is engaged as a domestic servant. (Section 12, 14, 16, 22, 61, and 

          64 and Parts IX, XII and XIIA of the Act not applicable)

3.  For the purpose of this Schedule "wages" means wages as defined in 

     section 2, but shall not include any payment by way of commission, 

     subsistence allowance and overtime payment.

Other Categories of Employee Protected 

Under The Employment Act, 1955

Part-Time Employee

They are employee if they work under a contract of service. A common fallacy for employers is to leave them out as in their view they work for short hours. These employee are usually denied benefits by employers. This is wrong as a contract of service can be oral or even implied.

Contract Workers
The term contract worker is being misinterpreted by employers as non-employee and is denied of benefits. The term contract worker is not mentioned in any of Malaysian Laws. Contract worker is an employee and is protected by the Employment Act, 1955.

Domestic Servant
Domestic servants are employees under the Employment Act, 1955 but with very minimal protection. They are not entitled to Part 12 of the Employment Act, 1955. Section 57 of the Employment Act, 1955 provides for the termination of employment of a domestic servant with 14 days notice or wages in lieu of notice. Domestic servants are not subject to Section 14 of the Employment Act, 1955.

Seaman Under The Merchant Shipping Ordinance, 1952                              
Whereas officers and certified seamen gets protection under the Merchant Shipping Ordinance, 1952, the ordinary seamen who do not get the protection under this ordinance is protected under the Employment Act, 1955. However these ordinary seamen do not get protection under Part XII of the Employment Act, 1955 (rest days, holidays, hours of work etc) as it is difficult to regulate their working hours and leave when they are at sea as it is depending on many conditions and situations.

Workman Under The Industrial Relations Act, 1967                                   

Section 2 – Interpretation

“workman” means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.

Section 20 – Representations on dismissals

(1) Where a workman, irrespective of whether he is a member of a trade union 

     of workmen or otherwise, considers that he has been dismissed without 

     just cause or excuse by his employer, he may make representations in 

     writing to the Director General to be reinstated in his former employment; 

     the representations may be filed at the office of the Director General 

     nearest to the place of employment from which the workman was

     dismissed.

(1A) The Director General shall not entertain any representations under 

       subsection (1) unless such representations are filed within sixty days of 

       the dismissal:

       Provided that where a workman is dismissed with notice he may file a 

       representation at any time during the period of such notice but not later 

       than sixty days from the expiry thereof.

       Thus, as stipulated in Section 2 and Section 20 there is no limitation on 

       the type of employment or the amount of wages.