KNOW YOUR RIGHTS AS AN EMPLOYEE-PUBLIC HOLIDAYS
A. Skipping Work : Absent without leave “AWOL”
Do you know, skipping work before or after a public holiday may resulting in you losing your rights for public holidays?
Section 60D(2) of the Employment Act 1955 (“Act 265”) provides that if an employee is absent from work WITHOUT REASONABLE CAUSE or WITHOUT CONSENT where the next day or the previous day is a public holiday, then the employee is not eligible for paid public holiday.
The Employment Act 1955 is not applicable –
- in Sabah and Sarawak (which are subject to their own special Ordinances), or
- if there is a work contract agreement between the employer and employee.
B. Public Holidays
In Malaysia there are many Public Holidays gazetted under the Holidays Act 1951 (Act 369). However, under Section 60D(1A) Act 265, before the start of each year calendar, the employer must place a notice to the employees listing the remaining six gazetted paid public holidays.
Employers are given the option to choose eleven (11) days only as paid leave in one year (which is obliged to be notified to the employee by way of notice before the commencement of the new calendar year), in which Section 60D(1)(a) of Act 265 listed the compulsory Public Holidays as follows:
- five (5) DAYS OF PUBLIC HOLIDAYS THAT ARE COMPULSORY AND IRREPLACEABLE WITH OTHER DAYSe. –
- National Day;
- Birthday of the Yang di-Pertuan Agong;
- Birthday of the Ruler/Yang di-Pertua Negeri or the Federal Territory Day;
- Labor Day;
- Malaysia Day; and
- the remaining six (6) days of Public Holidays may be selected by the employer according to their discretion.
Based on the proviso of Section 60D(1)(b) of Act 265, if the Public Holiday falls on a rest day, or any Public Holiday other than the eleven (11) Public Holidays stated above (overlapping Public Holidays), then the next working day shall be a public holiday in lieu.
For any overtime work during the five (5) days of such compulsory Public Holiday, the employer is obliged to pay an additional wage of three (3x) times the hourly rate of pay of that employee.
However, the proviso of Section 60D (1A) of Act 265 provides that the employer and the employee by agreement may substitute for one or more of the remaining six (6) gazetted holidays provided for by the agreement between the employer and the employee. The employer may also grant the employee any other day as a paid public holiday in lieu of any of the aforementioned public holidays.
In the event that the employee is required by his employer to work overtime during the selected six (6) paid public holidays, pursuant to Section 60D(3)(a) of Act 265 the employee shall be paid an additional wage of three (3x) times his hourly rate of pay.
C. Additional public holidays (Additional holidays announced by the Government)
Any additional holiday is a holiday that has not been gazetted and it is announced by the Government on a specific event in accordance with Section 60D(1)(b) of Act 265 and Section 8 of the Holidays Act 1951 (Act 369).
This additional holiday, must be granted by the employer on the special date declared by the Government or the employer may grant the employee any other day as a paid public holiday in substitution for the additional public holiday.
Generally, Act 265 is merely a guidance that sets the minimum requirement, whereby employers have the discretion to provide benefits of paid leave for leave other than that eleven (11) days of public holidays within one calendar year. However, employers are encouraged to provide leave for all public holidays declared by the Government.
Prepared by,
Siti Saliah Salim
MESSRS MISYAIL OTHMAN & CO
