PRINCIPLES OF CONSUMER PROTECTION :

EMPLOYMENT ACT 1955

 CLO 3 : IDENTIFY ACCURATELY THE
PRINCIPLES OF CONSUMER PROTECTION
SUCH AS EMPLOYMENT ACT

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 IMPORTANCE PIECE OF LABOUR LEGISLATION
COMPREHENSIVE LEGAL FRAMEWORK
1. WAGES
2. REST DAYS
3. HOURS OF WORK
4. HOLIDAYS
5. TERMINATION
6. MATERNITY PROTECTION
7. EMPLOYMENT OF FOREIGN EMPLOYEES
8. EMPLOYERS DUTY TO NOTIFY LABOUR OFFICE
WHEN COMMENCING BUSINESS

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 CHIEFLY CONCERNED WITH EMPLOYEES
EARNING LESS THAN RM2000
PURPOSE ENSURE NO CONTRACT OF

SERVICE ENTERED INTO BETWEEN THE

EMPLOYER EMPLOYEE IS LESS
FAVOURABLE THAN THE PROVISIONS UNDER
THE ACT

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 CONTRACT OF SERVICES Any agreement
(0ral/writing & expressed/implied) whereby
one person agrees to employ another as an
employee & the other agrees to serve his
employer as his employee.
Include apprenticeship contract. (STILL
REMEMBER?)

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 DAY A continuous period of 24 hours
beginning at midnight
EMPLOYEE Any person who enters into a

COS with an employer and wages not >

RM2000 per month ; etc
EMPLOYER Any person who has entered a

COS to engage an employee

SHIFT WORK work, because of its nature,

required to be carried on continuously, by 2

or more shifts

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 WEEK a continuous period of 7 days
WAGES Basic wages & all other payment
in cash payable to an employee in respect
of his COS (but doesnt include value of
accomodation, contribution to provident
fund etc, allowance, gratuity and bonus.

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 The act describes the employment
contract in terms of the well-known
contract of services to govern the
employer employee relationship.
S.10 nature of work to be done exceeds 1
month, the contract should be in writing.
S.10(2) a contract shall included clause
setting out the manner in which such
contract may be terminated.

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 TERMS CONTENTS /PROMISE MADE BY
EACH PARTY
LETTER OF APPOINTMENT, COMPANY
HANDBOOKS ETC
IMPLIED TERMS COURT DECIDE
CONTRACT CAN BE EITHER FOR PARTICULAR
PERIOD OF TIME OR OPEN ENDED

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1. COMPULSORY STATUTORY CONTRIBUTIONS
EPF/SOCSO/PENSION
2. IN TORTS EMPLOYER WILL NOT LIABLE
FOR THE ACT COMMITED BY INDEPENDENT
CONTRACTORS, WHEREAS LIABLE FOR
TORTS COMMITED BY EMPLOYEES IN THE
COURSE OF THEIR EMPLOYMENT WHICH
RESULTED IN INJURIES TO 3RD PARTY
3. EMPLOYERS OWE A DUTY TO HIS
EMPLOYEES TO TAKE REASONABLE CARE
FOR SAFETY

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4. IN CASE OF JUDGEMENT MADE AGAINST AN
EMPLOYEE, AN ATTACHMENT OF EARNINGS
CAN BE ORDERED, WHERE COURT CAN
COMPEL EMPLOYER TO DEDUCT THE
SALARY FOR CERTAIN PURPOSES.
5. MOST IMPORTANT EMPLOYEE ENTITLED
TO PROTECTIONS MINIMUM STANDARD OF
EMPLOYMENT PROTECTIONS, MINIMUM
REQUIREMENT OF DISMISSAL &
TERMINATION NOTIES

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 CONTRACT NOT NECESSARY IN WRITING
IMPLIED FROM CIRCUMSTANCES OR ORALLY

REFERENCE CASE
KILANG GULA FELDA PERLIS S/B V AMAN
SHAH BIN ABDUL KHALID
COURT HELD : FLEXIBLE APPROACH SHOULD
BE APPLIED IN DETERMINING WHETHER A
PERSON IS A WORKMAN UNDER THE ACT.

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 HOW MANY REST DAYS IS AN EMPLOYEE
ENTITLED TO UNDER THIS ACT?

ONE WHOLE DAY OF REST DAY IN EACH WEEK

(OF 7 DAYS)

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 IT IS LAWFUL IF EMPLOYER REQUIRES
EMPLOYEE TO WORK ON A REST DAY
PROVIDED THAT:-
1. EMPLOYEE IS ENGAGED IN SHIFT WORK
WHICH BY REASON OF ITS NATURE
REQUIRES CONTINUOUS ATTENTION;
2. THERE IS ACCIDENT, IN RESPECT TO HIS
PLACE OF WORK
3. THE PERFORMANCE OF THE WORK IS
ESSENTIAL TO THE LIFE OF THE COMMUNITY

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4. THE WORK IS ESSENTIAL FOR THE
DEFENCE OR SECURITY OF MALAYSIA
5. IT INVOLVES URGENT WORK TO BE DONE
TO MACHINERY OR PLANT;
6. UNFORESEEN INTERRUPTION OF WORK;
AND
7. WORK TO BE PERFORMED BY THE
EMPLOYEE IS ESSENTIAL TO THE ECONOMY
OF MALAYSIA.

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 REFERENCE CASE
MALAYAN COMMERCIAL BANKS ASSC & ANOR.
v ASSC OF BANK OFFICERS, PENINSULAR
MALAYSIA & ANOR
ISSUE? WHETHER A BANK EMPLOYEE COULD
BE REQUIRED TO WORK ON REST DAY
COURT HELD: S.60A(2)(f) IT IS PLAIN THAT
AN EMPLOYEE MAY BE REQUIRED TO WORK
WHERE THERE IS WORK TO BE PERFORMED
IN ANY ESSENTIAL SERVICE.

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 HOW SHOULD AN EMPLOYEE WHO IS
REQUIRED TO WORK ON A REST DAY BE
PAID?

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 DAILY HOURLY RATED EMPLOYEE
- 1 DAY WAGES AT ORDINARY RATE FOR ANY
PERIOD OF WORK NOT MORE THAN HALF
HIS WORKING HOURS.
- 2 DAY WAGES AT ORDINARY PAY, FOR ANY
PERIOD OF WORK MORE THAN HALF BUT
NOT MORE THAN HIS NORMAL WORKING
HOURS.

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 MONTHLY RATED EMPLOYEE
- HALF THE ORDINARY RATE OF PAY FOR
WORK DONE ON THAT DAY FOR ANY
PERIOD OF WORK WHICH DOES NOT
EXCEED HALF HIS NORMAL HOURS OF
WORK;
- ONE DAYS WAGE AT ORDINARY PAY, FOR
ANY PERIOD OF WORK MORE THAN HALF
BUT NOT MORE THAN HIS NORMAL
WORKING HOURS.

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 EMPLOYEE SHALL NOT BE REQUIRED TO
WORK (UNDER COS) :
- MORE THAN FIVE CONSECUTIVE HOURS
WITHOUT A BREAK OF AT LEAST 30
MINUTES (ANY BREAK LESS THAN 30
MINUTES IN 5 CONSECUTIVE HOURS SHALL
NOT BREAK THE CONTINUITY OF THAT 5
CONSECUTIVE HOURS);
- MORE THAN 8 HOURS IN ONE DAY;

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- IN EXCESS OF A SPREAD OVER PERIOD OF
10 HOURS IN ONE DAY; OR
- MORE THAN 48 HOURS IN ONE WEEK.

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 WHERE THERE IS AN AGREEMENT TO WORK
LESS THAN 8 HOURS ON A CERTAIN DAY,
THE WORK ON ANOTHER DAY MAY BE
INCREASED TO EXCEED 8 HOURS, BUT NO
EMPLOYEE SHOULD WORK MORE THAN NINE
HOURS A DAY OR 48 HOURS IN ONE WEEK.

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 AFTER EVERY 12 MONTHS OF CONTINUOUS
SERVICE WITH THE SAME EMPLOYER, AN
EMPLOYEE IS ENTITLED TO ANNUAL LEAVE,
AS FOLLOWS;
- < 2 YEARS 8 DAYS EACH YEAR;
- > 2 YEARS BUT < 5 YEARS 12 DAYS EACH
YEAR
- >5 YEARS AND MORE 16 DAYS EACH YEAR

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 EMPLOYEE ENTITLEMENT IN RESPECT OF
SICK LEAVE IS AS FOLLOWS;
WHERE HOSPITALISATION IS NOT NECESSARY;
- < 2 YEARS 14 DAYS
- >2 YEARS BUT <5 YEARS 18 DAYS
- >5 YEARS 22 DAYS

HOSPITALISATION IS NECESSARY;
60 DAYS IN AGGREGATE.

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 EMPLOYEE IS ENTITLED TO BE PAID AT HIS
ORDINARY OF PAY ON 10 GAZETTED PUBLIC
HOLIDAYS, 4 OF WHICH SHOULD BE;
NATIONAL DAY;
YDP AGONG BIRTHDAY;
BIRTHDAY OF RULER / FEDERAL TERRITORY
DAY
WORKERS DAY
* WHERE A HOLIDAY FALLS ON A REST DAY,
THE FOLLOWING DAY WILL BE A HOLIDAY
(S.60D(1), 1(A))

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 HOW SHOULD AN EMPLOYEE WHO IS
REQUIRED TO WORK ON HOLIDAYS BE PAID?

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 FOR A MONTLY, WEEKLY, DAILY OR HOURLY
RATED EMPLOYEE, HE SHALL BE PAID 2
DAYS WAGES AT ORDINARY RATE OF PAY (IF
HE CARRIES OVERTIME WORK, HE SHALL BE
PAID NOT LESS THAN 2 TIMES THE
ORDINARY RATE PER PIECE);
FOR AN EMPLOYEE WHO IS EMPLOYED IN

PIECE RATES, HE SHALL BE PAID NOT LESS

THAN 3 TIMES THE ORDINARY RATE PER
PIECE.

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 UNION CARBIDE SINGAPORE PTE LTD. v
GOVINDAN NAIR
COURT : S.41(1), EVERY EMPLOYEE IS
ENTITLED NOT ONLY TO HOLIDAYS, BUT IS
ALSO ENTITLED IN RESPECT OF SUCH
PUBLIC HOLIDAYS TO BE PAID AT HIS
ORDINARY RATE OF PAY
R WAS ENTITLED TO PUBLIC HOLIDAY ON
SATURDAY AS HIS SALARY DID NOT INCLUDE
PAYMENT FOR SATURDAYS.

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 ONE AREA OF GREAT CONCERN

THE WAGES COUNCILS ACT 1947 HAS

ESTABLISHED A COUNCIL (KNOWN AS
WAGES COUNCIL) TO SET SUCH A MINIMUM
WAGES IN CERTAIN INDUSTRIES.

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 WAGES S.2 EA 1955 BASIC WAGES & ALL
OTHER PAYMENTS IN CASH PAYABLE TO AN
EMPLOYEE FOR WORK DONE ( OTHER THAN
VALUE OF ANY HOUSE, ANY CONTRIBUTION
PAID BY THE EMPLOYER, ANY TRAVELLING
ALLOWANCE, ANY ANNUAL BONUS ETC

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 GENERAL RULE WAGE PAID AT LEAST
ONCE EVERY MONTH
COS SHALL SPECIFY A WAGE PERIOD NOT

EXCEEDING ONE MONTH.

IF THE CONTRACT DOES NOT SPECIFY THIS,

THE WAGE PERIOD WOULD BE DEEMED TO

BE ONE MONTH,
S18 WAGES MUST PAID REGULARLY AND

WITHIN STIPULATED PERIOD.

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 CONTRACT MAY SPECIFY WAGE PERIODS
NOT EXCEEDING ONE MONTH
IF SILENT, WAGE PERIOD SHALL BE DEEMED

TO BE ONE MONTH
S19 WAGES ARE PAYABLE NOT LATER

THAN THE 7TH DAY OF WAGE PERIOD

S20 NORMAL TERMINATION WAGES

PAYABLE ON THE DAY COS IS TERMINATED.

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 TERMINATION WITHOUT NOTICE, WAGES
SHALL BE PAID BY THE EMPLOYER NOT
LATER THAN THE 3RD DAY AFTER THE DAY
ON WHICH THE CONTRACT IS SO
TERMINATED

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 REFERENCE CASE : ASIA MOTOR SDN BHD v
RAM RAJ & ANOR
FACTS : RESPONDENTS WERE SALES REP OF

THE APPELANT. THEY MADE COMPLAINT TO

THE DIRECTOR OF LABOUR STATING THAT
THEY WERE PAID LESS THAN STATUTORY
MINIMUM REMUNERATION.
COURT HELD : WORD REMUNERATION SEEM

TO HAS SAME MEANING WITH WAGES USED

IN EMPLOYMENT ACT 1955

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 S.22 EA 1955 MENTIONED THAT IT IS
UNLAWFUL TO PAY AN EMPLOYEE A WAGE
ADVANCE (EXCEEDING 1 MONTH WAGES)
UNLESS:
1. TO PURCHASE LAND;

2. TO PURCHASE, BUILD OR IMPROVE A HOUSE;

3. TO PURCHASE VEHICLE;

4. TO PURCHASE LIVESTOCK; OR

5. TO PURCHASE SHARES OF EMPLOYER

BUSINESS (OFFERED BY EMPLOYER)

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 ONLY ALLOWED IN CERTAIN RESTRICTED
CIRCUMSTANCES
EMPLOYER MAY DEDUCT WITHOUT

EMPLOYEES PERMISSION IF:

1. OVERPAYMENT MADE BY MISTAKE
2. INDEMNITY DUE TO THE EMPLOYER BY THE
EMPLOYEE (S.13(1))
3. RECOVERY OF ADVANCE WAGES (NO
INTEREST)
4. EPF, SOCSO, INCOME TAX ETC AS
AUTHORIZED BY LAW.
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 S.23 AN EMPLOYEE IS NOT ENTITLED TO
ANY WAGES SPENT IN;
1. PRISON OR POLICE CUSTODY
2. TRAVELLING TO AND FROM PRISON OR ANY
OTHER PLACE OF CUSTODY; AND
3. ATTENDING OR RETURNING FROM COURT,
EXCEPT AS A WITNESS OF HIS EMPLOYERS
BEHALF

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AN EMPLOYER IS BANKRUPT AND THE COURT
HAS ORDERED THAT HIS PROPERTIES BE
SOLD BY A SECURED CREDITOR. DOES THIS
MEAN THAT THE EMPLOYEES WILL NOT GET
THEIR WAGES?

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 GENERAL RULE : WHERE THE PROPERTY OF
AN EMPLOYER IS SOLD BY A COURT ORDER
UPON THE APPLICATION OF A SECURED
CREDITOR, THE COURT SHALL NOT
AUTHORISE PAYMENT OF THE PROCEEDS OF
SALE TO THE SECURED CREDITOR UNTIL
THE EMPLOYEES WAGES HAVE BEEN PAID
FIRST.

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 TERM TERMINATION REFERS TO END OF
EMPLOYMENT RELATIONSHIP
CONTRACT TERMINATED BY THE EMPLOYER
BECAUSE OF THE PERCEIVED MISCONDUCT
OF THE EMPLOYEE TERMINATION TERMED
IS DISMISSAL

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 DISTINCTION

TERMINATION DISMISSAL
EXERCISABLE BY BOTH PREROGATIVE OF THE
PARTIES BY NOTICE EMPLOYER TO END
EMPLOYMENT - MISCONDUCT

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 THE CONTRACT MAY BE TERMINATED BY
THE EMPLOYER (WHEN HE RETRENCHES,
FOR EXAMPLE) OR BY EMPLOYEE (WHEN HE
RESIGNS) OR EVEN BY AN EVENT (SUCH AS
AGE OR DEATH)

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 IN OTHER WORDS TERMINATION OF
CONTRACT OF EMPLOYMENT IS;

The ending of the contractual relationship by

way of notice as stipulated in the contract of
service. There is no requirement to give
reason. In lieu of the notice, the law allows
the parties to ignore the notice requirement
by paying certain amount of money which is
called payment of expected wages or
wages already paid. Termination right was
applied to both parties.
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IN RAMAN A/L PERUMAL THEVER v NATIONAL
LAND FINANCE COOPERATIVE SOCIETY LTD,
HIGH COURT SANCTIONED THIS
PROPOSITION WHEN IT HELD :
the reason for termination or dismissal must
be given in the notice of dismissal or
termination itself, and if not so given, then
the termination or dismissal is without
reason

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 HIGH COURT VIEW IF NO REASON IS GIVEN
IN THE NOTICE, THE INDUSTRIAL COURT
HAS NO RIGHT TO INQUIRE INTO OTHER
GROUNDS SUBSEQUENTLY PUT UP BY THE
EMPLOYER TO JUSTIFY THE DISMISSAL.
HOWEVER, THE FEDERAL COURT ON APPEAL
ALLOWD THE APPLICATION AND
OVERRULED THE HIGH COURT DECISION.

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 THE CONTRACT OF SERVICE LAID DOWN
THE RULE TO TERMINATE THE CONTRACT,
i.e., BY GIVING NOTICE.
IT MEANS THAT NOTICE IS AN ESSENTIAL
REQUIREMENT IN TERMINATION OF
CONTRACT BUT THERE IS NO REQUIREMENT
TO GIVE REASON (NO NEED TO JUSTIFY THE
REASON FOR TERMINATION)

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 PART II OF EMPLOYMENT ACT 1955
PRECSRIBES WHEN AND HOW THE
EMPLOYMENT CONTRACT TERMINATES OR
MAY BE TERMINATED AS FOLLOWS:
1. BY EFFLUXION OF TIME
2. BY NOTICE
3. WITHOUT NOTICE
4. FOR SPECIAL REASON

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 S.11 CONTRACT OF SERVICE FOR A
SPECIFIED PERIOD OF TIME OR FOR
PERFORMANCE OF SPECIFIED PIECE OF WORK
TERMINATES WHEN THE PERIOD OF TIME FOR
WHICH THE CONTRACT WAS MADE HAS
EXPIRED OR WHEN THE PIECE OF WORK
SPECIFIED IN THE CONTRACT HAS BEEN
COMPLETED.
CONTRACT FOR UNSPECIFIED PERIOD OF TIME

CAN BE TERMINATED ONLY IN ACCORDANCE

WITH THE PROVISIONS OF PART II

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 S.12 EITHER PARTY TO A CONTRACT OF
SERVICE MAY AT ANY TIME GIVEN TO THE
OTHER PARTY NOTICE OF HIS INTENTION TO
TERMINATE SUCH CONTRACT OF SERVICE
EMPLOYER HAS THE RIGHT TO DISMISS AN

EMPLOYEE WITHOUT ASSIGNING ANY REASON

PROVIDING HE GIVES PROPER NOTICE

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 2 PROVISIONS
1. LENGTH OF SUCH NOTICE MUST BE THE
SAME PERIOD FOR EMPLOYER AND
EMPLOYEE (BE SPECIFIED IN THE
CONTRACT)
2. IF NOT SPECIFIED, THE MINIMUM LENGTH IS;
- LESS THAN 2 YEARS SERVICE 4 WEEK

NOTICE
- >2 BUT <5 YEARS 6 WEEK NOTICE
- > 5 YEARS 8 WEEKS NOTICE

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IS IT POSSIBLE?

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S.13 EITHER PARTY MAY TERMINATE THE
CONTRACT WITHOUT NOTICE BY PAYING THE
OTHER PARTY AN INDEMNITY EQUAL TO THE
AMOUNT OF WAGES FOR THE NOTICE
PERIOD OR IN PROPORTION TO THE
UNEXPIRED TERMS OF THE NOTICE
(WITHOUT WAITING FOR THE EXPIRY OF THE
NOTICE ALREADY GIVEN)

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 AN EMPLOYER, MAY, DISMISS WITHOUT
NOTICE AN EMPLOYEE FOR MISCONDUCT
(THAT IS TO SAY, SUMMARILY TERMINATE
THE CONTRACT OF SERVICE BETWEEN
THEM) BUT HE MAY DO SO ONLY AFTER
DUE INQUIRY

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 AN EMPLOYEE MAY SUMMARILY TERMINATE
HIS CONTRACT OF SERVICE WITH AN
EMPLOYER IF HE OR HIS DEPENDANTS ARE
IMMEDIATELY THREATENED WITH BODILY
DANGER THROUGH VIOLENCE OR DISEASE
IF HE DID NOT BY THE CONTRACT
UNDERTAKE TO RUN.

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