Summary Note on Employment Law : Who is employer / employee under Employment Act?
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Here the notes on : Who is employer / employee under Employment Act?
.....................................Here it is.................................
1ST PART: EMPLOYMENT
AGREEMENT (S2(1) OF EA)
1.
Introduction
è General Concept
§
Here, discussion will be focusing
on the term of ‘employee’ and ‘employer’ as per S2(1) of EA.
2.
‘S2(1) – ‘Employee’
è General Concept
§
S2(1)
of EA defines ‘employee’ as a 1) person so included within the 1st
schedule or 2) any other person in respect of whom
Minister makes an order.
§
Here, only the 1) definition will
be focus on.
1) “Employee as per 1st schedule”
§
Referring to the 1st
schedule, a person is deemed to be an ‘employee’ where:
Ø Para 1:
where his wages do not exceed RM2000; or
Ø Para 2:
Refer to type of works done where his wages exceed RM2000; : Where his wages is more than RM2500, he is deemed to be an
‘employee’ if he is:
a)
Manual labor; or
©
Case: Colgate Palmolive (M) Sdn Bhd v Cheong Foo Weng
Held:
In order for a worker to be regarded as ‘manual labor’, the usage of energy
within their course of work must be more than 50% on their ‘physical energy’
rather than their ‘intellectual energy’.
b)
Involve in operation of
maintaining any mechanical propelled vehicle operated for transport; or
c)
Is a supervisor; or
ü Supervisor
is those who supervise / oversee others who are engaged in the manual labor, ‘in & throughout the performance of
their work’.
ü ‘In & throughout the
performance of their work’ = Refer to person who does
nothing but supervises the person engaged
in the manual labor.
ü There
are 2 positions in decided cases about the term of ‘in & throughout the performance of their work’.
1st position:
©
Case: Colgate Palmolive (M) Sdn Bhd v Cheong Foo Weng
Held: The term ‘in & throughout the performance of their
work’ would require the Supervisor to supervise / oversee the employees
engaged in manual labor throughout their performance. This mean, the supervisor
only come within the interpretation of the Act as an employee, if he has spent
most of his working hours supervising & overseeing the manual labourers. It
also must be noted that the subject matter that is to be supervised must be a
person, and not machineries.
2nd position:
©
Case: Ong Siew Giek v International Footwear (PG) Sdn Bhd
FOC:
A senior supervisor came within the meaning of term ‘employee’ as prescribed in
S2(1) of EA, by virtue of para 2(3) of the 1st schedule. In this
case, the claimant was previously employed by the df as a senior production
supervisor. She claimed vs the df for her termination benefits.
Held:
This case has commented that Colgate’s case has given a very strict
interpretation for the term of ‘in &
throughout the performance of their work’. In this case, the court held
that the supervisor does not have to be physically present at all time &
that the supervision work can be done by his assistant.
§
NOTE:
There is an apparent diff of FOC in the case of Colgate & Ong Siew. This is
because, in Ong siew, the supervisor involved is a senior supervisor & she
has assistant as for excess work load. If you want to use this case as
authority, the FOC must be given a focal point.
d)
Ship officer; or
e)
Engaged in a domestic servant field.
ü S2 of EA
= ‘Domestic servant’ is a person employed in connection with the work of a
private dwelling-house & not in the connection with any trade / business of
profession carried on by the employer in such dwelling house.
ü This
mean, the carrier such as a cook / house maid / babysitter / gardener /etc,
also covered under this categories of employee.
© Case: Chin Kim
Chang v Mariadass & Anor
FOC:
The issue before the court in this case is whether
Mariadass and his wife is an ‘emplyee’ within the meaning prescribed by the
Employment Ordinance 1955? Both of them has been employed by CKC. Previously,
that house was owned by Mr Davis who has employed both of df and the wife as
the cook & housemaid. After Mr Davis moved out from that house, CKC has
comes in as a temporary guests in which all other employees of the firm is
allowed to do so. Later, the wife & husband wanted to claim for OT. OT is
available if the workers is an ‘employee’ of the co & not the ‘domestic
servant’.
Held: Here, the husband and
wife’s claim has failed. This is because high court has extended the meaning of
a ‘private dwelling house’ (pdh). Any resting house still can be regarded as
PDH so long as it is not open to the public. In the current case, the PDH is
only open the employee of the co. This mean that the wife & husband is
still the domestic worker of the private dwelling house and not the employee of
the co., thus making their claim for the OT to be failed.
§
NOTE:
For ‘FOREGIN WORKER’, S2(1) did includes “… those who
are not citizen..”, & this must be read together with S60k, where it is stated that “Employer should furnish the
‘foreign worker’ to the Director General within 14 days”.
3.
‘S2(1) – ‘Employer’
è General Concept
§
S2(1)
of EA defines ‘employer’ as any person
who has entered into a contract of service to employ any other person as an
employee & includes the agent, manager or factor of such 1st
mentioned person, & the word ‘employ’, with it grammatical variations &
cognate expressions shall be construed accordingly.
©
Case: Plantation Agencies Sdn Bhd v HJ Ariffin b. HJ Ismail
FOC:
In this case, the resp had applied for a
ddeclaration relating to the terms & conditions of service of his
employment. He not only sued the employer but he also has sued the agent of the
employer who has acted as an agent to recruit personnel for the rubber estates.
Issue:
Whether the app who acted as a recruitment agent is regarded to be ‘employer’
vs the resp?
Held:
In this case, it is clear that the resp is not employed by the agent, but he is
employed by the 1st df, Perbadanan Kemajuan N. Kedah. Despite the
fact that the employment was definitely secured by the agent, but still the
employer is the one who has final say about such employee picked by the agent.
And employer also is the one who is going to pay the salary of the employee. Even
if the agent supervised the employee, agent still cannot be regarded as an
‘employer’, thus agent has no liabilities to meet. Thus, the claim vs the agent
is failed as the agent is not regarded as an employer in this case.
§
NOTE:
For the above case, it must be noted that the counsel in that case has referred
S183 of Company Act for the argument relating to the agent instead of using the
definition of ‘employer’ under S2(1) of
the EA. A different outcome might be sought if the case has referred to S291) of
EA instead of CA.
©
Case: Uniphoenix Corp Bhd v Raymond Leong Ah Kat
FOC:
In this case, the holding company has appeal vs
the decision of session court in deciding that the df/appellant is the employer
of the pf. The df has argued in its appeal that the session court has wrong in
lifting up the corporate veil of the company.
Issue:
Whether the main company has control over the subsidiary co? If yes, the corp
veil can be lifted up in order to ensure that justice is done & to avoid of
permitting the main co to use the excuse of ‘not to lift up the corp veil’ as
to avoid from their liability.
Held:
In this case, there is clear evidence that Uniphoenix was the brain & mind
of the subs co., thus making the decision to lift up the corp veil as a sound
decision. Uniphoenix is the employer of the subs co.
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