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Is it legal for my boss to make me work on a Malaysian public holiday?

2 months ago Denise C.

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Have you ever been caught in that situation where you were looking forward to a public holiday because you and your friends have planned this epic road trip. You get your bags packed, your car gassed and ready to go. As you are bidding your colleagues a cheery goodbye on the eve of that public holiday, your boss steps into the office and announces that the company would not be closed. Work would go on as usual. 

Devastated, you whip off your party hat and swap it for your painful work hat. If you have ever been caught in such a situation, you would probably have some questions like can my boss even make me work on a public holiday? If yes, what do I get in return – would it be double pay or an additional day off?

This article only covers those who are considered employees under the Employment Act 1955 and Peninsular Malaysia (including the Federal Territory of Labuan). The Act defines “employees” as those who are earning below RM2,000 or those (regardless of how much they are earning) who are engaged in certain services such as manual labour or being a domestic servant. To view the full list of services, you can read the First Schedule of the Employment Act. 

If you do not fit within the definition of an employee as mentioned above, you would not be protected by the Employment Act. Instead, you would have to rely on your employment contract and should you have any disputes about the contract, you would have to bring it to the Industrial Court. 

In general, the Employment Act can be said to provide the bare minimum benefits that that companies have follow. So, if your company provides you with more benefits than the Employment Act, than those would apply. On the other hand, if your company provides less benefits than what the Employment Act does, the benefits listed in the Employment Act would then apply instead.  For example, if the Employment Act states that you are entitled to at least one rest day a week and your company provides you with two, then your company’s conditions would stand.

Section 7 Employment Act (in part):

“...any term or condition of a contract of service...which provides a term or condition of service which is less favourable to an employee than a term or condition of service prescribed by this Act...shall be void and of no effect...”

 

To start off, every employee is entitled to at least one rest day

Image from quickmeme.com

If your boss has got you working seven days a week, he might be breaking the Employment Act 1955 ("EA 1955"). Section 59(1) of the EA 1955 tells us that every employee is entitled to one rest day a week and this day would be determined by your boss. For most office workers who get more than one day off a week, any additional day off that you get is also considered a rest day under the Act, such as your weekends. 

Section 59 of the Employment Act:

“(1)Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week the last of such rest days shall be the rest day for the purposes of this Part:”

“(1B) Notwithstanding subsection (1), the Director General, on a written application by an employer and subject to any conditions he may deem fit to impose, may permit the employer to grant the rest day for each week on any day of the month in which the rest days fall and the day so granted shall be deemed to be the employee’s rest day for the purposes of this section.”

However, your boss may apply to the Director General of Labour to grant your weekly rest days on any day of the month. For example, if you were entitled to four rest days a month (for the four weeks in a month), instead of having one day weekly, you might be given four days off in a row on any given day in the month. This situation would typically arise for off-shore workers. 

 

What happens if I have to work on my rest day?

Image from re-tales.net

Unless you are engaged in work that requires you to work continuously for two or more shifts, there are limited situations in which it is legal for your boss to make you work on a rest day. Section 60A(2) provides the scenarios in which your boss can compel you to work on a rest day and to put it in point form, they are as follows:

  1. Where there is an actual or potential accident at your work place
  2. Where your work is essential to the life of the community
  3. Where your work is essential to the defence or security of Malaysia
  4. Where there is urgent work to be done to machinery or a plant
  5. Where there was a work interruption that was impossible to foresee
  6. Where you are a worker employed in an industrial undertaking, carrying out work essential to Malaysia’s economy or any essential services (essential services is listed in the First Schedule of the Industrial Relations Act 1967 and it covers a wide range of services ranging from banking to transport)

So, okay. You have been called back to work on a rest day. The next question that would crop up is – am I entitled to additional pay? The answer is yes. 

How much you would get depends on three different scenarios listed in the Employment Act. 

Work not exceeding half of your normal work hours:

If you are a worker employed on a daily or hourly basis, you are entitled to one day’s pay at the normal rate

If you are a worker employed on a monthly or weekly basis, you are entitled to half the normal rate of pay for work done on that day. How this is calculated will be discussed later on in the article. 

Work exceeding half but not more than your normal work hours:

If you are a worker employed on a daily or hourly basis, you are entitled to two days’ pay at the normal rate

If you are a worker employed on a monthly or weekly basis, you are entitled to one day’s pay at the normal rate.

Work exceeding your normal work hours (overtime):

If you are working beyond your normal working hours, it doesn’t matter if you were hired on a hourly or monthly basis, you are entitled to a pay of at least twice your normal hourly rate.

A little extra information to throw in, if you are working overtime on a normal working day, section 60A(3)(a) provides that you are entitled to a pay of at least one and a half times your normal hourly rate:

”For any overtime work carried out in excess of the normal hours of work, the employee shall be paid at a rate not less than one and half times his hourly rate of pay irrespective of the basis on which his rate of pay is fixed.”

Now, we come to the question of the hour…

 

What about working on a public holiday?

Image from theeggyolks.com 

Section 60D(1) tells us that as employees, we are entitled to a paid holiday on any of the gazetted public holidays (such as National Day, Malaysia Day or the Yang di-Pertuan Agong’s birthday, for example) or any other days that are declared as holidays through the Holidays Act 1951

Section 60D(1):

“Every employee shall be entitled to a paid holiday at his ordinary rate of pay on the following days in any one calendar year: (a) on eleven of the gazetted public holidays, five of which shall be—”

Despite this, your employer requires you to work on a public holiday, he is allowed to substitute that day with another day off for you. 

Section 60D(1A):

“...Provided that 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 in paragraph (1)(a): And provided further that the employer may grant the employee any other day as a paid public holiday in substitution for any of the public holidays referred to in paragraph (1)(b).”

Now, regarding what you pay you should receive if you work on a public holiday, section 60D(3)(a) tells us that regardless of whether you are employed as an hourly or monthly worker, you are entitled to an additional two days’ pay at the normal rate on top of the holiday payIn addition to that, unlike working on a rest day, it does not matter how many hours of work you put in on that public holiday.

Image from spongebob.wikia.com 

For example, if you are usually earning RM20 per day, working on a public holiday entitles you to RM60 per day. This calculation is based on the holiday pay (RM20) + two days’ wages at ordinary rate of pay (RM20 x 2 = RM40). Section 60D(3)(a) is quoted as follows:

“...in addition to the holiday pay he is entitled to for that day— (i) 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...regardless that the period of work done on that day is less than the normal hours of work.”

If you have to work overtime on a public holiday, you would receive a minimum pay of three times your normal hourly rate. This means that if you usually receive RM5.00 per hour, working overtime on a public holiday would entitled you to be paid RM15 per hour. 

An additional point to note is that if the public holiday falls on a half working day for you, the normal rate of pay is that of a full working day. 

This means that if you usually earn RM20 for a full working day and RM10 for a half working day, in order to calculate the pay that you would receive on a public holiday, RM20 would be the amount used. 

 

Hold up. How do I even know what my ordinary rate of pay is?

Image from strikerless.com 

Section 60I(1)(a) tells us that “ordinary rate of pay” means the wages that you are supposed to receive (whether counted hourly, weekly or monthly) under your contract of service. This does not include the pay that you would receive for working on rest days or public holidays because as mentioned above, there would separate calculations for what pay you would receive for working on a rest day or public holiday. 

If you are curious as to how to calculate your ordinary rate of pay, the formulas are as follows:

For a worker paid on a monthly basis:

The ordinary rate of pay is found by dividing your monthly pay by 26. For example, if you earn RM2,600 per month, your ordinary rate of pay would be RM100. 

For a worker paid on a weekly basis:

The ordinary rate of pay is found by dividing your weekly pay by 6. For example, if you earn RM600 per day, your ordinary rate of pay would be RM100. 

For a worker paid on a daily/hourly basis:

The ordinary rate of pay is found by dividing your total salary for the preceding work period (if you are paid weekly, this means the pay you received in the last week, if you are paid monthly, then it would be the pay you received for the month before) by the number of days you worked during that work period. The salary that is used for this calculation must exclude any amount paid as incentives or rest day/public holiday wages. 

For example, if you were paid weekly and received RM150 for five days of work, your ordinary rate of pay would be RM30.

Section 60I(2) also tells us that employers are not obliged to use the formulas provided by the Employment Act but whatever method they choose to calculate your ordinary rate of pay cannot place you at a greater disadvantage than what the law has provided:

“An employer may adopt any method or formula other than the method or formula in subsection (1A), (1B) or (1C) for calculating the ordinary rate of pay of an employee; but the adoption of any other method or formula shall not result in a rate which is less than any of the rates provided in the subsections.”

 

But what if my boss wants to give me an additional day off for working on a public holiday but I want extra pay instead?

Image from twitter.com via @Abblebabblez 

The Employment Act does not specify which reimbursement your employer must provide you when you are asked to work on a public holiday. Whether or not you would be entitled to additional pay or another day off would depend on your company’s policy and/or the agreement that you come to with your boss. 

This is because given how diverse the businesses are in Malaysia, it would be impossible to regulate this issue in a manner that would ensure every business would not suffer economic losses. So for example, if you worked for a logistics company that requires strict adherence to schedules, additional pay might be the best way to go. On the other hand, if you work for a smaller business that has a group of staff working, it might be more economically viable for them to give you an additional day off instead. 

At the end of the day, it pays to learn about your company’s policies in order for you to make preparations for a nice getaway or, if you are getting additional pay, to ogle things you want to buy. 

This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy.
Tags:
employment act 1965
industrial relations act 1967
holiday act 1951
public holiday pay
overtime pay
ordinary rate of pay
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