CHAPTER 5: WORKING HOURS AND LEAVE 5.1: REST DAY Section 59: Rest day: every employee is entitled a rest day for every seven days. When an employee agrees to work on his rest day, he is entitled a higher normal rate of pay. o If he works less than half of his normal hours of work, he is to paid one full day's wages. o If he works between the half his normal hours and full hours, he is entitled to two days' wages. If an employee works overtime on a rest day, he will get paid at the rate two times his hourly rate of pay for each hour of overtime. In Sundram v Veemah & Ors, o where the respondents lodged a complaint for rest day pay and holiday pay. The main issue before the High Court was whether there had been on the part of the employer failure to determine the rest day under section 59(1) and the consequent failure to prepare a roaster before the commencement of the month on which the rest days fall, informing the employees the days appointed to be his rest day. o Held; the respondents had, therefore, worked without rest days for a period of 44 weeks. The High Court confirmed the order of the Labor Officer that a sum of $3,366, being rest day pay at $6 per day for 44 days per person, be paid to the respondents. 5.2: MAXIMUM WORKING HOURS Section 60A: Hours of work: an employee shall not be required under his contract of service to work -- o (a) more than five consecutive hours without a period of leisure of not less than thirty minutes duration; o (b) more than eight hours in one day; o (c) in excess of a spread over period of ten hours in one day; o (d) more than forty-eight hours in one week. Section 60C: Shift work: an employee who is engaged under his contract of service in shift work may be required by his employer to work more than eight hours in any one day or more than forty-eight hours in any one week but the average number of hours worked over any period of three weeks, or over any period exceeding three weeks as may be approved by the Director General, shall not exceed forty-eight per week. 5.3: OVERTIME Employers may request their employees to work overtime and, if the employees agreed, he must be paid overtime rate of pay. Section 60A(3): Rates of pay for overtime work for monthly rated workers are 1.5 times the hourly rate of pay. o Section 60A(3)(b): overtime means the number of hours of work carried out in excess of the normal hours of work per day Section 60A(2): An employee may be required by his employer to exceed the limit of hours prescribed in subsection (1) and to work on a rest day, in the case of o (a) accident, actual or threatened, in or with respect to his place of work; o (b) work, the performance of which is essential to the life of the community; o (c) work essential for the defence or security of Malaysia; o (d) urgent work to be done to machinery or plant; o (e) an interruption of work which it was impossible to foresee; or o (f) work to be performed by employees in any industrial undertaking essential to the economy of Malaysia or any essential service as defined in the Industrial Relations Act 1967: Section 60A(7): Except in the circumstances described in paragraph (2)(a),(b), (c), (d) and (e), no employer shall require any employee under any circumstances to work for more than twelve hours in any one day. 5.4: PUBLIC HOLIDAYS Section 60D(1)(a): Holidays: Every employee shall be entitled to a paid holiday at his ordinary rate of pay on ten gazetted public holidays in any one calendar year, five of which shall be-- o the National Day; o the Birthday of the Yang di-Pertuan Agong; o the Birthday of the Ruler or the Yang di-Pertua Negeri, as the case may be, of the State in which the employee wholly or mainly works under his contract of service, or the Federal Territory Day, if the employee wholly or mainly works in the Federal Territory; o the Workers' Day: o Malaysia Day; and Section 60D(1)(b): on any day appointed as a public holiday for that particular year under section 8 of the Holidays Act 1951. o Provided that if any of the said ten gazetted public holidays falls on a rest day the working day following immediately thereafter shall be a paid holiday in substitution therefore. o by agreement between the employer and an employee any other day or days may be substituted for one or more of the remaining six gazetted public holidays provided for. Eg: if Deepavali is a public holiday to which the employee is entitled, the employer may request him to work on Deepavali but give him an extra day off at Hari Raya, provided that it is agreed by the employee. Difference between Employment Act 1955, Sabah Labour Ordinance and Sarawak Labour Ordinance: o EA1955: grant employees minimum of 11 public holidays per year. o Sabah: grants minimum of 14 public holidays. o Sarawak: grants minimum for 16 public holidays Section 60D(3)(a): any employee may be required by his employer to work on any paid holiday to which he is entitled under the said subsections and in such event he shall, in addition to the holiday pay he is entitled to for that day, regardless that the period of work done on that day is less than the normal hours of work: o in the case of an employee employed on a monthly, weekly, daily, hourly, or other similar rate of pay, be paid two days' wages at the ordinary rate of pay; or o (ii) in the case of an employee employed on piece rates, be paid twice the ordinary rate per piece. Section 60D(3)(a): For any overtime work carried out by an employee referred to in subparagraph (a)(i) in excess of the normal hours of work on a paid public holiday, the employee shall be paid at a rate which is not less than three times his hourly rate of pay. 5.5: ANNUAL LEAVE Section 60E(1) provides on paid annual leave as follow: Years of completed service with the same employer Annual leave entitlement 1 year and over, but less than 2 years of continuous service with same employer 8 days For every 12 months of continuous service with same employer, if employed for 2 years or more but less than 5 years 12 days For every 12 months of continuous service with same employer, if employed for 5 years or more 16 days If he has not completed twelve months of continuous service with the same employer during the year in which his contract of service terminates, his entitlement to paid annual leave shall be in direct proportion to the number of completed months of service o Provided that any fraction of a day of annual leave so calculated which is less than one-half of a day shall be disregarded, and where the fraction of a day is one-half or more it shall be deemed to be one day; o Provided further that where an employee absents himself from work without the permission of his employer and without reasonable excuse for more than ten per centum of the working days during the twelve months of continuous service in respect of which his entitlement to such leave accrues he shall not be entitled to such leave. Section 60E(2): Any employee who does not apply for the leave, loses that right to the leave. o Provided that, if the employee applies for leave and his application is rejected, at the end of the year the employer is required to pay the employee one day's pay for every day of leave still due to him. o EA 1955 does not provide for the practice of carrying forward unused leave to the next year, but it is not prohibited as this is an advantage to the employee. Emergency leave or compassionate leave is not provided under EA 1955, although in practice, many employers do permit employees to take such leave often on unpaid basis. Section 60E(2A): upon the termination of an employee's contract of service, the employee shall be entitled to take before such termination takes place the paid annual leave due to be taken in the year in which the termination takes place in respect of the twelve months of service preceding the year in which the termination takes place, and, in addition, the leave accrued in respect of the completed months of service during the year in which the termination takes place. Section 60E(3): The employer shall pay the employee his ordinary rate of pay for every day of paid annual leave, and an employee on a monthly rate of pay shall be deemed to have received the annual leave pay if he receives his monthly wages. Section 60E(3A): If the contract of service has been terminated by either party before an employee has taken the paid annual leave to which he is entitled under this section, the employer shall pay the employee his ordinary rate of pay in respect of every day of such leave: o Provided that this subsection shall not apply where an employee is dismissed under paragraph 14(1)(a): misconduct. 5.6 SICK LEAVE Section 60F(1) provides on sick leave as follow: Years of employment Sick leave entitlement in each calendar year (when hospitalization is not required) Less than 2 years 14 days 2 to 5 years 18 days 5 years or more 22 daysa 60 days in the aggregate in each calendar year if hospitalization is necessary, as may be certified by such registered medical practitioner or medical officer. Section 60F(2): Any employee who absents himself on sick leave which did not certified by a registered medical practitioner/medical officer/dental surgeon, or certified by medical practitioner /medical officer/dental surgeon, but did not inform his employer within 48 hours of the commencement of sick leave, shall be deemed to absent himself from work without the permission of his employer and without reasonable excuse for the days on which he is so absent from work. Section 60F(3): The employer shall pay the employee his ordinary rate of pay for every day of such sick leave, and an employee on a monthly rate of pay shall be deemed to have received his sick leave pay if he receives from his employer his monthly wages

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Answer the Question Below .:

1. Section 4(1) of the Minimum Retirement Age Act 2012 stated that notwithstanding any other written law, the minimum retirement age of an employee shall be upon the employee attaining the age of sixty years. Discuss whether there are exceptions.

2. The Employees' Social Security Act 1969 provided that compensation will be paid to an employee if he suffered injury arising out of and in the course of his employment. Elaborate the term "injury arising out of and in the course of his employment".