Key Amendments to the Employment Act 1955 (wef 1/1/2023)

Definition of employment

1. Employee earning RM4000 and below *

2. Employee in manual labour

3. Supervisor of employee in manual labour

4. Employee in mechanically propelled vehicle

5. Domestic employee

*Provision of the Act not applicable include overtime, payment for work done on off/rest day and public holidays, shift allowance and termination benefits for employee’s wages exceeds RM4000.

Presumption of employment

The Bill provides that in the absence of a written contract and unless proven otherwise, there will be presumption of an employment relationship if the following factors are given:

• his/her work or hours of work are subject to control by another person;

• he/she is equipped with tools, material or equipment by another person to execute his work;

• his/her work constitutes an integral part of another person's business;

• his/her work is performed solely for the benefit of another person; or

• payment is made to him/her for work done at regular intervals and it constitutes the majority of his/her income.

Apprenticeship Contract

Shall be for a minimum period of six months and a maximum period of twenty four months.

Calculation of wages for an incomplete month

The Bill provides a new section in the Act that introduces the below formula for calculating wages where an employee has not worked a full month:

(Monthly wages/number of days of the particular wage period ) X Number of days eligible in the wages period

For OT (or encashment of annual leave) : ordinary rate of pay (ie 26 days) remain unchanged under the current law.

Extension of maternity leave

Previously, the Act provided a 60 days maternity leave for all female employees, subject to the conditions of the Act. Now, when the Bill comes into force, eligible female employees will be entitled to 98 days of maternity leave.

Restriction on termination of pregnant employees

The Bill introduces a new section in the EA which prohibits an employer from terminating an employee who is pregnant or is suffering from an illness arising out of her pregnancy, except under specific circumstances such as willful breach of contract, misconduct or closure of the employer’s business. It is vital on employers to prove that the termination was not due to pregnancy.

Paternity Leave

Married male employees will now be entitled to 7 consecutive days of paternity leave up to 5 confinements.

Sexual harassment

The Bill introduces a new section which requires employers to conspicuously exhibit a notice to raise awareness of sexual harassment in the workplace. The sexual harassment provisions are still viewed as weak and limited. The Anti Sexual Harassment Bill 2021 would provide more guidelines upon being passed. It is currently in its first reading in Parliament.

Employment of foreign employees

Approval must be obtained from the Director-General of Labor to employ a foreign employee. Upon the employer satisfying the conditions listed in the Act, approvals are granted. Failure to obtain an approval is an offense, and on conviction, the employer shall be liable to a fine not exceeding RM 100,000 and/or to imprisonment for a term not exceeding five years.

Reduction on working hours

Previously, the Act provided 48 hours as regular working hours. With the Bill coming into force, the regular working hours will be reduced to 45 hours a week.

Flexible working arrangements

Employees can apply for flexible working arrangement, depending on the suitability of the working hours or work place. However, there is no legal obligation on the employer to grant this request. If the employer is to reject the request, they are required to provide grounds of refusal within 60 days of the application.

Discrimination

The Director General has the authority to investigate and decide disputes on discrimination in employment between employer and employee. Furthermore, the Director General has the power to make an order where necessary. However, this provision is vague and it does not define discrimination. Job seekers will not be able to rely on this provision as there is no employment relationship between an employer and job seekers, and as such this provision will not apply to protect job seekers from discrimination.

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