Summary Note on Employment Law : Express term : Non-monetary & Monetary Terms
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Here the notes on Employment Law : Express Terms (Non-monetary & Monetary Terms)
....................................Here it goes..................................
EXPRESS TERMS
§
In non-monetary form
è General Concept
§
There are 8 points to be focused
here as follows:
1)
Written contract
2)
Termination clause
3)
Rest day
4)
Working hours
5)
Public holiday (Hari Pelepasan)
6)
Annual leave
7)
Sick leave
8)
Maternity leave (Cuti bersalin)
§
S7=
This serve as the minimum right to be served.
§
S7(a)
& (b) = This serve as the minimum
right to be served & an outside terms is allowed to be imported so long as
it serve the parties at better place. If such terms do not serve the parties
better, the Act will come into play.
1)
Written contract
§
S10(1)
= For a contract more than 1 month, it must be reduced into a written form of
an agreement.
§
‘Tempoh percubaan / Training
period’
·
It is a period of time for both
of parties to get to know each other.
·
Executive & higher ranking
officer requires 3-6 months of the training period.
·
Non-executive & lower ranking
employee requires 1-3 months of the training period.
·
The official verification as a permanent
employee only valid when the employer declares it.
·
Even if the training period has
been expired, and you still work in the co, this does not mean that there will
be an automatic verification of the job.
·
Verification as an employee only
existed once the letter of employment has been proposed to the trainee.
©
Case: *Decided case (cannot find the name)
FOC:
The trainee in this case has applied for annual
leave from the employer. The employer has approved such application. For an
annual leave application, it can only be applied by an employee of the co not
the trainee.
Held:
There is implied verification of the trainee as the employee of the co.
2) Termination clause
§
S10(2)
= Within that written agreement, there must be a termination clause.
§
S12(2)(a)-(d)
= Period for termination’s notice will depend on the period of years of the
employment.
3) Rest day
§
Rationale
of rest day is to refresh the employee’s mind and physical.
§
S59
= “There must be one day per week for the rest day, and that one day must be
paid”.
§
‘One
day for the rest day’ = Does not have to be on
weekend.
§
Employer also must give option
for OT to replace the employee’s rest day.
4) Working hours
§
S60A(1)
= “There must be hours of work per day / per work in every employment.”
§
‘Per
one day’ = Generally understood as 8
hours of work excluding the lunch time.
§
If
more than 8 hours = OT, except for those who
work in a sector which the employee do not really busy within their work. (Eg:
Waiter / waitress). This type of work can be more than 8 hours, but not to
exceed 10 hours.
§
S60A(1A)
= It is permissible for the employer to apply to the Ketua Pengarah to impose
more working hours (exceed the 8-10 hours).
5) Public holidays
§
S60D(1)
= “There must be 11 days of public holidays as stated in the list”. 5 are
compulsory, another 6 is out of the employer’s discretionary.”
§
S8
of Akta Pelepasan = Besides EA, this Act
also can be referred for public holidays’ authority.
§
If
public holiday falls on the resting day =
One day extra of holiday must be given / placed next day.
6) Annual leave
§
S60E(1)
= “This annual leave is on 8 days within 12 months if the employee has worked
not more than 2 years. Those who work 2-5 years, the annual leave is 12 days
& for 5 years & above, the annual leave is 16 days.”
§
This right does not mean to be
automatically applied, as the employer has right to decide based on certain
factors.
§
This discretion of employer is
subjected to the nature of work.
7) Sick leave
§
S60F
= “The paid sick leave is subjected to the period of employment”.
§
S60(1)(aa)(i)
=
·
2 years of work = 14 days
·
2-5 years of work = 18 days
·
5 years of work = 22 days
·
The case relating to admission
into the ward = 60 days
8) Maternity leave
§
S37
= “The maternity leave must not be lower than 60 days of a working days in
total:
§
Private
sector = 60 days is within their SOP.
§
This sick leave can only be
granted until the 5th of the living child is delivered. Death one is
not included.
§
For the 6th child, if
any, the mom can resort to ‘annual leave’
§
For 6th child, if any,
doctor can serve a medical certificate saying that the mom needs to rest for
another 2 weeks before cont.
§
Adopted child = Is not come
within the count of that 5 child.
§
If the mom change the employer =
The no of the child is refreshed again.
§
NOTE;
Paternity leave
·
Govt sector did have it, while
private sector is up to the discretionary of the employer.
§
In monetary form
è General Concept
§
There are 2 points to be focused
here as follows:
1) Payment
of salary / fees
2) Maternity
allowance (Elaun bersalin)
1) Fees
è General Concept
§
S2(1)
= ‘Wage’ is basoc wages & 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 accommodation /
supply of any food / fuel / light / water / medical attendance
©
Case: Chim Swee Him v Md Ariff
FOC:
In this case, the employer served a substantive
amount of foods’ allowance (RM50) to the employee. Employee claim for OT fees,
which need to take into consideration the amount basic wage of the employee.
The issue here is whether the foods’ allowance is included within the
definition of ‘basic wage’.
Held:
Court stated that in counting the basic wage, it did include the foods’
allowance as (a) only exclude the ‘supply of food’ & not ‘the amount /
value of food’.
b)
Any contribution paid by the
employer on his own account to any pension fund / provident fund /
superannuation scheme / lay off or retirement scheme / retrenchment /
termination
c)
Any travelling allowance / value
of any travelling occasion
d)
Any sum payable to the employee
to cover special expenses entailed on him by the nature of his employment
e)
Any gratuity (token) payable on
discharge / retirement
f)
Any annual bonus / any part of
the annual bonus
©
Case: Asia Motors v Ram Raj
Held:
Exception stated from (a) to (f) is not conclusive as this can be added from
time to time. Once it fall within the exception, such particular subject matter
is not included within the scope of basic wage. The qs that need to be asked in
order to determine whether the subject matter is falling within the scope of
basic wage is: “Is the payment is payable for work done?” If it does not touch
EPF, it is not included within the basic wage.
§
Basic
Wage = This type of wage is paid to the employee
for work done by them & usually has been agreed in the employment contract
of the parties.
§
Service
charge : It is not come within the
ambit of wage as this payment is coming from the customer & not the employer. This type of payment
is actually a replacement to the ‘tips’ paid upon the front desk worker. This
is to avoid the unfair benefits between the front desk workers & the rest
of workers.
§
Peintah
Upah Minimum 2012:
·
Semenanjung = RM900.00
·
Sabah / Sarawak = RM800.00
·
This order has bring in huge
issue among the employer & employee, as the employer said that they was
supposed to be consulted with regards to this matter, as they are the one who
pay for the salary.
·
Later, the employer has paid
RM700 (as the basic wage) + RM200 (allowance) just to satisfy this requirement
despite the fact that it should be RM900 per se for the basic wage.
§
S18(1)
= Wage must be paid within a month of working period. Payment that is made once
per 2 weeks also is an acceptable employer has another 7 days after the period
of 1 month to settle the payment of the salary if that is yet to be made.
§
3
types of payment =
·
Cash payment
·
Cheque payment
·
Deposition in bank account
§
S22
= An advancement that is allowed to be
done by the employer for their employee is for housing / construction of house
/ land / transportation / any matter prescribed in (a) to (f).
§
Privatation
= When
this happen, the co is allowed to give an advancement to the employee to buy
the co’s share.
DEDUCTION OF SALARY
§
S24(2)
= The cut from the salary is permissible to be done by the employer for:
a)
Overpayment as for the mistake of
the employer
b)
Indemnity value
c)
Recovery of advancement provided
that no interest is charge upon that advancement
d)
Any deduction authorized by law
§
S24(3)
= The following deduction only can be done if it is requested by the
employee in writing:
a)
Payment to a registered trade
union / any other instalments / loans
b)
Payment for the shares offered
for sale by the employer & purchased by the employee
§
S24(4)
= The following deduction only can be done if
it is requested by the employee in writing & such request has been approve
by the Director General:
a)
Payment for superannuation scheme
/ provident fund.
b) Re-Payment
for advancement of wages
c) Payment
to the 3rd party on behalf of the employee
©
Case: Raymond Michael Ignatius v D & C Finance
FOC:
He became a guarantor for his friend who defaults
in payment.
Held:
Court has held that court has no power to direct co to make deduction in order
for payment to 3rd party as EA provides nothing for it.
d) Payment for any goods sold by
the employer & purchased by the employee
e) Deduction for rental for
accommodation / cost of service / food & meals.
§
S33
= In certain situation, liability to pay
salary can go to the ‘principal employer’
©
Case: Lembaga Kemajuan Tanah Persekutuan v Mat Akhir b. Baker
FOC:
In this case, the pf (FELDA) is being governed by
Ordinan Kemajuan Tanah. Here, FELDA is allowed to appoint workers, agent,
consultant and others to achieve it purpose in promoting & aiding the
‘projek kemajuan & penempatan di tanah Persekutuan’. Here, the FLEDA has
appointed a contractor to clean up the forestry area.
Issue:
Whether FELDA is liable to pay the salary of the construction workers if the
contractor failed to do so.
Held:
Court has held that FELDA did liable to pay for such salary.
2) Fees (OT)
è General Concept
§
There are 3 types of payment of
fees for OT:
1) The payment of OT for
weekdays
·
The normal employment working
hours would require 8 hours of working minus 1 hour for lunch time.
·
After 5.30 pm at the evening, if
there is any continuation of work, it is regarded as OT.
·
S60A(3)
= For work done after normal working horus, the employee is entitle for the
rate of payment that is not less than 1 ½ time of his normal hourly rate.
·
S60A(8)
= S60A(3) is however not applicable for those who work in long-hours of an
inactive / stand-by job (waiter / etc).
2) The payment of OT for rest
day
·
S60A(2) = Employer can request
employee to work on rest day for grounds stated in (a) to (f),where the rate
must be 2 times from normal hourly rate.
3) The payment of OT for Public
holiday
·
S60D(3) = The rate for OT here
must be 3 times from the normal hourly rate.
3) Maternity allowance
è General Concept
§
S37(2)
= The mom should receive the payment for allowance so long as she has been
working for more than 4 months before she takes leave for such maternity
matter. The rate is at normal rate / any rate as allowed by Minister under
S102(2)(c).
§
S40(1)
= This allowance however is subjected to a failure if there is no notification
made by the employee to the employer .
§
S41
= The employee who should receive such maternity allowance can nominee other
person to received such payment of her behalf.
1ST PART: PENGUATKUASAAN
/ EXECUTIONARY POWER
è General Concept
§
There are 2 discussions that are
to be focused:
i. Power to investigate:
·
S69(1) = Ketua pengarah has power to
conduct investigation & decide on matter relating to the payment of wages /
any other payment within the employment contract / within theEA & its
regulations / within the Wages Council Act.
·
S69B = Additional Power given to
Ketua pengarah to investigate & decide the dispute for matter relating to
the payment of salary / any other payment, for those whom their salary is from
RM1500 – Rm5000.
·
Exception = Ketua pengarah is however not
allowed to decide on the same matter which ahs bene tried before this within
the Industrial Relation Act. This is because such Act provides for better
solution. Employee has to opt either to go for EA / IRA
ii. Power to enforce compound:
·
S101A = The compound cannot be more
than 5 % than the fine rate.
1ST PART: POWER TO
INVESTIGATE
è General Concept
§
S65 = Ketua pengarah shall have
power to enter without notice at the place of the employment where he has
reasonable ground to inspect / make inquire for such matter.
§
S66 = Here, Ketua pengarah has to
notify the employer / the owner of the employment place about his presence for
such inspection / inquiry except if he has reasonable ground to believe that
such notification will prejudice his duty.
§
S67(1) = The power to inspect here
involve:
·
Oral
examination
·
The
person orally examined must speak the truth
·
The
person examine must first let the examinee about the (b) duty to speak the
truth.
·
Statement
produced here is whenever possible has to be reduced into writing, and affixed
with the thumbprints of the person who make it. Later, it must be read again to
the maker in the language that is understood by him. He must be given opportunity to amend any
part of the doct.
·
Any
statement made during this course of examination is permissible to be admitted
in the trial of court.
§
S67(2) = The person examined is allowed
to keep silence if the inquiry can bring him a criminal charge /etc.
§
S67(3) = The Ketua pengarah also has
power to ask the person for any copy of related doct.
§
S68 = The officer that conducting
the above duty is only officially authorised to act so if he has obtains the ID
card signed by the Ketua pengarah,
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