Day: October 29, 2022

Industrial Court Award No. 99 Of 1980

[Case No. 61 Of 1980] 28 August 1980

Subject Matter: claim for paid lunch breaks.

The Paper & Paper Products Manufacturing Employees Union (“the Union”) entered into a collective agreement with MFC Sdn. Bhd. (“the Company”) on 28.12.76.

Article 15 of this agreement inter alia reads:-

“(b) Factory

(i) Day Work

• 8.00 a.m. to 5.00 p.m. – Monday to Friday inclusive, with a one-hour unpaid lunch break.
• 8.00 a.m. to 12 noon – Saturday.

• Total hours of work per week – 44 hours
• Monthly-rated: Paid Rest Day
• Daily-rated: Unpaid Rest Day

(ii) Shift Work

• 7.00 a.m. to 3.00 p.m.; or
• 3.00 p.m. to 11.00 p.m.; or
• 11.00 p.m. to 7.00 a.m.
• Six days per week, each with a 40-minute unpaid lunch break.

• Total hours of work per week – 44 hours
• Monthly-rated: Paid Rest Day
• Daily-rated: Unpaid Rest Day

All factory employees will be allowed paid tea breaks as follows:

• Morning Shift – 9.30 a.m. to 9.40 a.m.
• Afternoon Shift – 5.00 p.m. to 5.10 p.m.
• Night Shift – 1.00 a.m. to 1.10 a.m.
• Day Workers – 9.30 a.m. to 9.40 a.m. 3.00 p.m. to 3.10 p.m.”

It is common ground that during the lunch break, there is a total shutdown, and the employees are free to leave the factory premises. The lunch break is fixed as follows:

1. Day Workers – 12 noon to 1.00 p.m.
2. Shift Workers – 12 noon to 12.40 p.m.

The Union contends that because the employees have to work a 9-hour day (Day Workers) and an 8-hour day (Shift Workers), they are entitled to paid lunch breaks under Proviso (i) to Section 60A(1) of the Employment Act 1955.

The Law

Section 60A of the Employment Ordinance 1955 (insofar as it is relevant) reads:

“(1) Except as hereinafter provided, an employee shall not be required under his contract of service to work –

1. more than six consecutive hours [Now: 5 consecutive hours] without a period of leisure;
2. more than eight hours in one day or more than forty-eight hours in one week;Provided that –
   1. an employee who is engaged in work which must be carried on continuously may be required to work for eight consecutive hours inclusive of a period or periods of not less than forty-five minutes in the aggregate during which he shall have the opportunity to have a meal;

(9) For the purposes of this Part, “hours of work” means the time during which an employee is at the disposal of his employer and is not free to dispose of his own time and movements.”

As a result, the Company, on the other hand, says that it has not broken any law, and the proviso does not apply to its employees.

Findings of the Court

The Court found as a fact that neither the Day Workers nor the Shift Workers are required to work for more than six consecutive hours without a period of leisure, nor are they required to work for more than eight hours in one day.

The Court further found as a fact that no employee is engaged in work which must be carried on continuously for eight consecutive hours.

The Court has come to this finding on the ground that there is a complete and clean break from work during the lunch hour each day.

The fact that the lunch hour is fixed by the employer or that the employee is away from home for 8 or 9 hours each day is irrelevant.

The Court, accordingly, hold that:

• the hours of work of Day Employees do not offend against Section 60A(1)(b) of the Employment Ordinance, 1955; and
• Proviso (i) of Section 60A(1) of the Employment Ordinance, 1955 does not apply to the Shift Employees at this factory.

They are, therefore, not entitled to paid lunch breaks.

And for these reasons, the Court dismissed the claim for paid lunch breaks.

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Section 60A(1)(c) of the Employment Act 1955 (“the Act”) states that an employee may not be forced to work for more than ten hours in a single day under the terms of his contract of service unless otherwise provided herein.

You might be wondering what precisely is meant by the phrase “spread over period of ten hours” and who exactly this pertains to.

Section 2(1) defines “spread over period of ten hours” as 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.

Plaza Hotel Kuala Lumpur v. National Union of Hotel, Bar, & Restaurant Workers

In the case of Plaza Hotel Kuala Lumpur v. National Union of Hotel, Bar, & Restaurant Workers, the Industrial Court provided an example to provide light on the meaning of this rule.

The Court stated that the term “spread over period” applies in certain industries, such as the food and catering business, where employees are required to serve tables, for example, for lunch between the hours of 11:00 a.m. and 3:00 p.m., wait for a period until dinner time, and then work from 7:00 p.m. to 11:00 p.m.

The employees have complete freedom to pursue their own interests during the break period from 3:00 p.m. to 7:00 p.m.

Their shift is split into two; that is why it is also called a “split shift”.

For the above illustration, the total amount of work spread out over a period of time is 12 hours (the two extra hours are considered over time).

According to the findings of the Industrial Court, the practice of split duty is exclusive to the hospitality sector and, more specifically, to the restaurant sector of the industry.

This is because business is concentrated during lunch and dinner, with a significant lull in activity in between. Therefore, employees are required to report for work twice a day, even though the real number of hours worked each day is greater than eight.

They are expected to remain on duty even while eating their meals. They toil away while everyone else is eating.

And they take their break for meals before or after everyone else does.

In this case, the Court was of the view that:-

• the limitation of a spread over a period of ten hours concerning the normal hours of work per day and the requirement to pay overtime above a spread over a period of ten hours per day as contemplated by Section 60A of the Act is not designed to cover cases where an employee is called upon to work two shifts within a period of 24 hours.

• Since the normal hours of work for one shift is eight hours, Section 60A (7) permits the Claimant another four hours of overtime for the day.

• The “Spread Over Period of Ten Hours” rule was not permitted to be applied by the Company.

Intraline Resources Sdn. Bhd. v Mohamad Shah Gubah Ahmad [2007] 1 MELR 158

In Employment Act 1955, s. 60A provides, inter alia, “60A . Hours of Work.

(1) Except as hereafter provided, an employee shall not be required under his contract of service to work:-

1. more than five consecutive hours without a period of leisure of not less than thirty minutes duration;
2. more than eight hours in one day;
3. in excess of a spread over period of the hours in one day;
4. more than forty-eight hours in one week;

Provided that –

1. for the purpose of sub section (1)(a), any breach of less than thirty minutes in the five consecutive hours shall not breach the continuity of that five consecutive hours;
2. an employee who is engaged in work which must be carried on continuously and which requires his continual attendance may be required to work for eight consecutive hours inclusive of a period or periods of not less than forty-five minutes in aggregate during which he shall have the opportunity to have a meal; and
3. where, by agreement under the contract of service between the employee and the employer, the number of hours of work on one or more days of the week is less than eight, the limit of eight hours may be exceeded on the remaining days of the week, but so that no employee shall be required to work for more than nine hours in one day or forty eight hours in one week

(1A) … (1B) … (1C) …

The provision on “spread over period of ten hours” in one day, as stated by section 60A(1)(c) above, is attempted to be clarified by the Industrial Court in this case, which was heard in 2007.

The court was of the view that section 60A(1)(c) should be read independently for the reason that it does not synchronise with the other sub-sections 60A(1)(a), 1(b) and 1(d).

To read it conjunctively or together with the other 3 sub-sections 60A(1)(a), (1)(b), and (1)(d) would render these 3 sub-sections meaningless as it is contradictory to them.

Therefore, the claimant cannot claim that his working hours could not be more than 8 hours in one day under sub-sections 60A(1)(b) when the normal hours of work as agreed between him and his employer in the contract of service was the normal working hours of the company’s working hours.

The Court, thus, found that the normal hours of work or working hours as scheduled by the company to be from 8 am to 6 pm of 10 hours per day to be within the meaning of “spread over period of ten hours” as defined under s. 2(1) above.

This Court held that the claimant cannot rely on s. 60A(1)(b) and (d) of the Employment Act 1955 to construe that his working hours should not exceed 8 hours a day or 48 hours a week in the circumstances of this case.

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The International Labour Organisation (ILO) Hours of Work (Industry) Convention (No. 1) of 1919 introduced a maximum standard working time of 48 hours per week and eight hours per day as an international norm.

In Malaysia, The maximum weekly working time is stipulated in section 60A(1)(d).

This section states that an employee shall not be obliged under the terms of his contract of service to work more than 48 hours in one week (*), except for the circumstances described in the following section.

The forty-eight-hour week was designed to guarantee that the total amount of time spent working should not be more than eight hours each day over a span of six consecutive days.

Therefore, the total maximum of forty-eight hours may be calculated by multiplying the statutory restriction of eight working hours per day with the maximum limit of six working days per week.

This results in a total maximum of forty-eight hours.

In the case of shift employees, however, subsection (1) of section 60C permits the calculation of the average number of hours worked throughout a period of three weeks.

Exception

According to the law, an employee who is engaged under his contract of service in shift work may be required by his employer to work more than eight hours in any one day or more than forty-eight hours (*) in any one week; however, the law states that the average number of hours worked over any period of three weeks shall not exceed forty-eight hours per week.

This limit is in place to protect employees from working excessively long hours.

The law has been amended to allow for Flexible Working Arrangements

However, the Employment Act 1955 has been amended so that it now contains Part XIIC, which is an important component that makes provisions for various flexible working arrangements.

In relation to their employment, employees can now make written requests to their employers according to Sections 60P and 60Q of the Act for a flexible working arrangement to vary the:-

• hours of work;
• days of work; or
• place of work,

Then, employers have sixty days to react with a decision, and if the request is denied, employees are entitled to an explanation of the decision.

Simply put, flexible work arrangements are alternate arrangements or schedules from the traditional working day, hour or place.

Remark:

(*) The Amendment Act 2022 reduces the maximum working hours per week to 45 hours for all employees under the scope of EA 1955 irrespective of whether they are non-shift employees or shift employees.

Enforcement of the amendments to Malaysia’s Employment Act 1955 will begin on 1 January 2023.

Our website's articles, templates, and material are solely for reference. Although we make every effort to keep the information up to date and accurate, we make no representations or warranties of any kind, either express or implied, regarding the website or the information, articles, templates, or related graphics that are contained on the website in terms of its completeness, accuracy, reliability, suitability, or availability. Therefore, any reliance on such information is strictly at your own risk.

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