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
(b) in respect of whom the Minister makes an order under subsection (3) or
section 2A;
Section 2A – Minister may prohibit employment
Section 2A – Minister may prohibit employment
other than under contract of
service
(1) The Minister may by order prohibit the employment, engagement or
(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-
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.
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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
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.
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
“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.