As opposed to Peninsular Malaysia, the legislation that regulates the employment law in Sarawak is the Labour Ordinance (Sarawak Cap. 76) (hereinafter referred to as ‘‘SLO’’).
Those working in Sarawak are entitled to certain benefits under the SLO. Should these benefits be withheld from an employee, he is still entitled to those benefits under the SLO regardless of any particular terms that may be stated in the employment contract. However, this does not mean that the employer and employee are not allowed to enter into a contract which is more favourable for the employee.
It should be pointed out that the SLO only applies to an employee who has a monthly salary of RM 2,500.00 or less, and this does not include any commissions, allowances and overtime payments. Those who earn more than RM 2,500.00 per month would have to rely on common law principles and the specific terms of their respective employment contracts.
Every employee covered under the SLO is entitled to the following benefits:
- at least 60 consecutive days of maternity leave (for female employee);
- at least 16 days of paid holidays;
- 1 rest day per week;
- paid annual leave; and
- paid sick leave.
Notwithstanding how an employee is remunerated (i.e. whether the employee is paid monthly, weekly, daily or piece rate), he is still entitled to the benefits mentioned above. This means that an employee is entitled to paid holidays if the public holiday falls on his/her working day. This applies to daily-paid employees as well! As for rest days, they do not necessarily have to be on a Sunday. It can be any day of the week as determined by the employer.
The number of days for paid annual leave is determined by how long the employee had worked for the employer. If he is employed for less than 2 years, he will be entitled to 8 days of paid annual leave. If he is employed for more than 2 years but less than 5 years, he is entitled to 12 days of paid annual leave. If he is employed for more than 5 years, he is entitled to 16 days of paid annual leave.
The employee must inform, or have attempted to inform, his employer within 48 hours in order for him to be entitled to paid sick leave. Furthermore, he must also be certified as unfit for work by the employer’s panel of doctors or any registered medical practitioner if it is an emergency.
Working on Public Holiday or Rest Day
If an employee is required to work on a public holiday, the employee must be paid 2 days’ wages if he is employed on a monthly, daily or hourly rate of pay. As for employees employed on piece rates, he must be paid twice the ordinary rate per piece.
If an employee is required to work on a rest day and the period of work is less than half of his normal hours of work, he is entitled to 1 day’s wages. If the period of work is more than half but does not exceed his normal hours of work, the employee is entitled to 2 days’ wages. If the employee is required to work overtime on his rest day, he is entitled to at least two times of his hourly rate of pay.
Termination and Lay-off Benefits
When an employee is retrenched or terminated, the employer is obliged to serve ‘sufficient notice’ to the employee. Failing to do so may result in the employee claiming payment of wages in lieu of notice. A notice deemed to be sufficient is dependent on the length of employment – 4 weeks’ notice if he is employed for less than 2 years; 6 weeks’ notice if he is employed for more than 2 years but less than 5 years; 8 weeks’ notice if he is employed for 5 years or more.
Under the Labour Rules (Sarawak) (Termination and Lay-Off Benefits) 2008, an employee is also entitled to certain days of wages, depending on the length of employment – 10 days’ wages if he is employed for less than 2 years; 15 days’ wages if he is employed for more than 2 years but less than 5 years; and 20 days’ wages if he is employed for more than 5 years.
Although the SLO provides minimum benefits for an employee, this does not mean that they can be absent from their work whenever they please. The employee may be terminated if he absents himself for more than 2 consecutive days without any reasonable excuse(s), notice or any attempts to notify his employer.
The SLO places mandatory provisions that employers have to comply with in order to protect employees as they are in a weaker position to bargain but, at the same time, it also imposes a duty to employees to be accountable for their work.
Author: Joan Chin Wei Ling, LL.B. (Hons) University of Reading (UK), Middle Temple
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