Part I - PRELIMINARY
1. Short title and application
(1) This Act may be cited as the Employment Act 1955.
(2) This Act shall apply to *Peninsular Malaysia only
*NOTE—This Act has been extended to the Federal Territory of Labuan–see subsection 1(2) of the Federal Territory of Labuan (Extension and Modification of Employment Act) Order 2000 [P.U. (A) 400/2000] w.e.f. 1 November 2000.
(1) In this Act, unless the context otherwise requires—
"agricultural undertaking" means any work in which any employee is employed under a contract of service for the purposes of agriculture, horticulture or silviculture, the tending of domestic animals and poultry or the collection of the produce of any plants or trees;
"apprenticeship contract" means a written contract entered into by a person with an employer who undertakes to employ the person and train or have him trained systematically for a trade for a specified period which shall not be less than two years in the course of which the apprentice is bound to work in the employer’s service;
"approved amenity or approved service" means any amenity or service—
(a) approved by the Director General under subsection 29(2) on application made to him by an employer for its inclusion in a contract of service; or
(b) provided for in any award made by the Industrial Court or in any collective agreement;
"approved incentive payment scheme" means an incentive payment scheme approved by the Director General under, and for the purposes of, section 60I;
"collective agreement" has the same meaning assigned thereto in the Industrial Relations Act 1967 [Act 177];
"confinement" means parturition resulting after at least twenty-two weeks of pregnancy in the issue of a child or children, whether alive or dead, and shall for the purposes of this Act commence and end on the actual day of birth and where two or more children are born at one confinement shall commence and end on the day of the birth of the last-born of such children, and the word "confined" shall be construed accordingly;
"constructional contractor" means any person, firm, corporation or company who or which is established for the purpose of undertaking, either exclusively or in addition to or in conjunction with any other business, any type of constructional work, and who or which is carrying out such constructional work for or on behalf of some other person under a contract entered into by him or them with such other person, and includes his or their heirs, executors, administrators, assignees and successors;
"constructional work" includes the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, dredge, wireless, telegraphic or telephonic installation, electrical undertaking, gaswork, waterwork or other work of construction, as well as the preparation for, or the laying of, the foundations of any such work or structure, and also any earthworks both in excavation and in filling;
"contract of service" means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;
"contractor" means any person who contracts with a principal to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principal’s trade or business;
"contractor for labour" means a person who contracts with a principal, contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be;
(a) a continuous period of twenty-four hours beginning at midnight; or
(b) for the purposes of Part XII in respect of an employee engaged in shift work or in work where the normal hours of work extend beyond midnight, a continuous period of twenty-four hours beginning at any point of time;
"Director General" means the Director General of Labour appointed under subsection 3(1);
"domestic servant" means a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child’s nurse, valet, footman, gardener, washerman or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use;
"employee" means any person or class of persons—
(a) included in any category in the First Schedule to the extent specified therein; or
(b) in respect of whom the Minister makes an order under subsection (3) or section 2A;
"foreign domestic servant" means a domestic servant who is not a citizen or a permanent resident;
"employer" means any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first mentioned person, and the word "employ" with its grammatical variations and cognate expressions, shall be construed accordingly;
"foreign employee" means an employee who is not a citizen;
"Industrial Court" has the same meaning assigned thereto in the Industrial Relations Act 1967;
"industrial undertaking" includes—
(a) disturbing, removing, carting, carrying, washing, sifting, melting, refining, crushing or otherwise dealing with any rock, stone, gravel, clay, sand, soil, night-soil or mineral by any mode or method whatever;
(b) industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, packed or otherwise prepared for delivery, broken up, or demolished, or in which materials are transformed or minerals treated, including shipbuilding and the generation, transformation and transmission of electricity or motive power of any kind;
(c) constructional work;
(d) transport of passengers or goods by road, rail, water or air, including the handling of goods at docks, quays, wharves, warehouses or airports;
(e) any industry, establishment or undertaking, or any activity, service or work, declared under subsection (5) to be an industrial undertaking;
"intoxicating liquor" has the same meaning as that assigned to"intoxicating liquor" under section 2 of the Customs Act 1967 [Act 235];
"machinery" has the same meaning as in the Factories and Machinery Act 1967 [Act 139];
"medical officer" means a registered medical practitioner who is employed in a medical capacity by the Federal Government, or by the Government of a State;
"Minister" means the Minister charged with the responsibility for human resources;
"part-time employee" means a person included in the First Schedule whose average hours of work per week as agreed between him and his employer are more than thirty per centum but do not exceed seventy per centum of the normal hours of work per week of a full-time employee employed in a similar capacity in the same enterprise;
"Peninsular Malaysia" has the meaning assigned thereto by section 3 of the Interpretation Acts 1948 and 1967 [Act 388], and includes the Federal Territory;
"permanent resident" means a person, not being a citizen, who is permitted to reside in Malaysia without any limit of time imposed under any law relating to immigration, or who is certified by the Federal Government to be treated as such in Malaysia;
"place of employment" means any place where work is carried on for an employer by an employee;
"principal" means any person who in the course of or for the purposes of his trade or business contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal;
"registered medical practitioner" means a medical practitioner registered under the Medical Act 1971 [Act 50];
"sexual harassment" means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment;
"shift work" means work which by reason of its nature requires to be carried on continuously or continually, as the case may be, by two or more shifts;
"spread over period of ten hours" means a period of ten consecutive hours to be reckoned from the time the employee commences work for the day, inclusive of any period or periods of leisure, rest or break within such period of ten consecutive hours;
"sub-contractor" means any person who contracts with a contractor for the execution by or under the sub-contractor of the whole or any part of any work undertaken by the contractor for his principal, and includes any person who contracts with a sub-contractor to carry out the whole or any part of any work undertaken by the sub-contractor for a contractor;
"underground working" means any undertaking in which operations are conducted for the purpose of extracting any substance from below the surface of the earth, the ingress to and egress from which is by means of shafts, adits or natural caves;
"wage period" means the period in respect of which wages earned by an employee are payable;
"wages" means basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service but does not include—
(a) the value of any house accommodation or the supply of any food, fuel, light or water or medical attendance, or of any approved amenity or approved service;
(b) any contribution paid by the employer on his own account to any pension fund, provident fund, superannuation scheme, retrenchment, termination, lay-off or retirement scheme, thrift scheme or any other fund or scheme established for the benefit or welfare of the employee;
(c) any travelling allowance or the value of any traveling concession;
(d) any sum payable to the employee to defray special expenses entailed on him by the nature of his employment;
(e) any gratuity payable on discharge or retirement; or
(f) any annual bonus or any part of any annual bonus;
"week" means a continuous period of seven days;
"year of age" means a year from the date of a person’s birth.
(2) The Minister may by order amend the First Schedule.
(3) The Minister may by order declare such provisions of this Act and any other written law as may be specified in the order to be applicable to any person or class of persons employed, engaged or contracted with to carry out work in any occupation in any agricultural or industrial undertaking, constructional work, statutory body, local government authority, trade, business or place of work, and upon the coming into force of any such order—
(a) any person or class of persons specified in the order shall be deemed to be an employee or employees;
(b) the person, statutory body or local government authority employing, engaging or contracting with every such person or class of persons shall be deemed to be an employer;
(c) the employer and the employee shall be deemed to have entered into a contract of service with one another;
(d) the place where such employee carries on work for his employer shall be deemed to be a place of employment; and
(e) the remuneration of such employee shall be deemed to be wages,
for the purposes of such specified provisions of this Act and any other written law.
(4) The Minister may make regulations in respect of the terms and conditions upon which the person or class of persons specified pursuant to subsection (3) may be employed.
(4A) Notwithstanding the provisions of this Act, the Minister may make regulations—
(a) in respect of the terms and conditions of service of a part-time employee; and
(b) prescribing the manner in which the hours of work of an employee are to be computed for the purposes of determining whether that employee falls within the definition of a ―part-time employee‖.
(5) The Minister may, from time to time, by notification published in the Gazette, declare any particular industry, establishment or undertaking, or any class, category or description of industries, establishments or undertakings or any particular activity, service or work, or any class, category or description of activities, services or works, to be an industrial undertaking for the purposes of this Act.
2A. Minister may prohibit employment other than under contract of service
(1) The Minister may by order prohibit the employment, engagement or contracting of any person or class of persons to carry out work in any occupation in any agricultural or industrial undertaking, constructional work, statutory body, local government authority, trade, business or place of work other than under a contract of service entered into with—
(a) the principal or owner of that agricultural or industrial undertaking, constructional work, trade, business or place of work; or
(b) that statutory body or that authority.
(2) Upon the coming into force of any such order, the person or class of persons employed, engaged or contracted with to carry out the work shall be deemed to be an employee or employees and—
(a) the principal or owner of the agricultural or industrial undertaking, constructional work, trade, business or place of work; or
(b) the statutory body or local government authority,
shall be deemed to be the employer for the purposes of such provisions of this Act and any other written law as may be specified in the order.
(3) Notwithstanding subsection (1), the Minister may by order approve the employment of any person or class of persons by such other person or class of persons (not being the principal or owner) as he may specify but subject to such conditions as he may deem fit to impose.
(4) Any person who contravenes any order made under this section commits an offence.
2B. General power to exempt or exclude
The Minister may by order exempt or exclude, subject to such conditions as he may deem fit to impose, any person or class of persons from all or any of the provisions of this Act.
3. Appointment of officers
(1) The Yang di-Pertuan Agong may appoint an officer to be styled the Director General of Labour, in this Act referred to as "the Director General"
(2) The Yang di-Pertuan Agong may appoint, to such number as he considers necessary for carrying out the provisions of this Act, officers of the following categories, that is to say—
(a) Deputy Directors General of Labour;
(b) Directors of Labour, Deputy Directors of Labour, Senior Assistant Directors of Labour and Assistant Directors of Labour; and
(c) Labour Officers.
(3) Subject to such limitations, if any, as may be prescribed by regulations made under this Act, any officer appointed under subsection (2) shall perform all the duties imposed and may exercise all the powers conferred upon the Director General by this Act, and every duty so performed and power so exercised shall be deemed to have been duly performed and exercised for the purposes of this Act.
Any person affected by any decision or order, other than an order or decision under section 69, 69B, 69C, 73 or subsection 81D(4), given or made by an officer appointed under subsection 3(2), may, if he is dissatisfied with such decision or order, within fourteen days of such decision or order being communicated to him appeal in writing therefrom to the Director General.
5. Effect on Act of other written laws
Nothing in this Act shall be construed as relieving any person who has entered into a contract of service, either as the employer or as the person employed, of any duty or liability imposed upon him by the provisions of any other written law for the time being in force in Malaysia or any part thereof or to limit any power which may be exercised by any public officer or any right conferred upon any such person as aforesaid under or by virtue of any such written law.