Explanation No 1
In Malaysia, there are 3 pieces of Employment Legislation, i.e.
- Employment Act 1955;
- Sabah Labour Ordinance;
- Sarawak Labour Ordinance.
The Employment Act, the Sabah Labour Ordinance, and the Sarawak Labour Ordinance each have their own rules and regulations.
Section 60D(1) of the Malaysian Employment Act says that all employees are entitled to 11 gazetted public holidays, including,
- The National Day
- The Workers’ Day
- The Malaysia Day (September 16)
- The birthday of the Ruler or Yang di-Pertua Negeri or Federal Territory day
- The birthday of Yang-Di Pertuan Agong; AND
Special Public Holidays
- on any day appointed as a public holiday for that particular year under section 8 of the Holidays Act 1951 [Act 369]; or
- on any day declared as a public holiday by the Government of the State (Applicable to Sabah and Sarawak)
When talking about the Public Holidays
Public holidays in Malaysia are set by both the federal government and the states. They are mostly based on a list of federal holidays celebrated all over the country, plus a few extra holidays celebrated by each state and federal territory.
The legislation governing public holidays in Malaysia includes:
- the Holidays Act 1951 (Act 369) in Peninsular Malaysia and Labuan;
- the Holidays Ordinance (Sabah Cap. 56) in Sabah, and
- the Public Holidays Ordinance (Sarawak Cap. 8) in Sarawak.
Holidays by Declaration
Section 8 of the Holidays Act of 1951 says that the Prime Minister, by notification in the Gazette or in such other manner as he thinks fit, can make any day a public holiday :
- in the whole of Peninsular Malaysia and Labuan,
- in one of the federal territories or
- in one of the states after consulting with the government of that state.
To encourage the people to carry out their responsibility and vote on polling day on Saturday, Caretaker Prime Minister Datuk Seri Ismail Sabri Yaakob has declared Nov 18 and 19 public holidays on November 14, 2022.
The notification can be found here:-
Then, how about Sabah and Sarawak?
In Sabah and Sarawak, the power to declare any day as a public holiday rests with the state governor (in practice, exercised on the state government’s advice) under the states’ respective Holidays Ordinances.
Last Saturday (Nov 12), Abang Johari had said Sarawak did not feel it was necessary to declare a public holiday on polling eve as an extra rest day for workers could affect productivity.
He had said the state government needed to consider the economic impact of a decision like declaring a special public holiday.
BUT, Tan Sri Abang Johari Tun Openg (pic) said the state decided on this in line with Prime Minister Datuk Seri Ismail Sabri Yaakob’s announcement that Nov 18 and 19 will be public holidays this afternoon.
He added this was important to allow the democratic process to go ahead smoothly and facilitate voting.
Following an announcement from caretaker Prime Minister Datuk Seri Ismail Sabri, the Sabah state government has also agreed to declare November 18 and 19 as public holidays.
Chief minister Datuk Hajiji Noor said that the state has agreed to the two days off to make it easier for Sabahans to carry out their civic duties and vote on Saturday.
So, now Public holidays have been declared on the polling day for a general election, then two practical questions are being arisen.
- Must employers follow?
- How about the pay if employees are required to work on these 2 days?
To answer question No 1, please see Explanation No 2
Explanation No 2 – 5
Who is Covered in the Employment Act, Sabah Labour Ordinance & Sarawak Labour Ordinance?
I know there is an Amendment Act to the Employment Act 1955; however, as of today, the applicability of the labour regulations in Malaysia, governed by the First Schedule of the Employment Act, 1955/Sabah Labour Ordinance & Sarawak Labour Ordinance, only applies to:
- Employees who have entered into a contract of service with an employer and whose monthly wages do not exceed RM2,000 (Sabah Labour Ordinance & Sarawak Labour Ordinance: RM2,500), regardless of the occupation
- Employees who have entered into a contract of service with an employer and whose monthly wages exceed RM2,000 (Sabah Labour Ordinance & Sarawak Labour Ordinance: RM2,500) but are engaged in the following:
- Manual labour
- Maintenance or operation of any mechanically propelled vehicle
- Supervision other employees involved in manual labour
- Any vessel registered in Malaysia
- Domestic service
- he is engaged in recruiting employees (Sabah Labour Ordinance & Sarawak Labour Ordinance ONLY)
What about employees who fall outside the scope of the Employment Act 1955 (i.e. non-EA Employees), Sabah Labour Ordinance & Sarawak Labour Ordinance?
Employees who are not covered by the Employment Act of 1955, Sabah Labour Ordinance & Sarawak Labour Ordinance are legally obligated to abide by the conditions of their employment contract. If there is nothing in the contract about public holidays, it is usually up to the employer to decide whether or not to take the day off.
But in practice, though, most employers choose to give non-EA employees the same public holidays as their EA employees because it makes things easier for them to manage.
What if there was no Employment Contract given?
An employment Contract sets out the rights and obligations of both the employee and their employer, referred to as the “terms” of employment.
In light of the Company’s practice
However, it is a common misconception that all terms of employment have to be written down in a formal document. Terms may be agreed upon orally or In light of the Company’s practice and not committed to writing, but they will still be legally binding on the parties.
Hence, for the sake of clarity, it is always preferable to have a written employment contract, employee handbook or company policies.
An employee handbook helps new employees learn about the company’s rules, policies, culture, and values. It will also help protect the company from legal issues. New employees are usually provided with an employee handbook during the onboarding process.
Explanation No 6
In the exercise of the powers conferred by section 8 of the Holidays Act 1951 [Act 369], the Prime Minister appointed 18 and 19 November 2022 as a public holiday in Peninsular Malaysia in addition to the days mentioned in the First Schedule of the Act.
Media Statement from the Ministry of Human Resources Malaysia dated November 16, 2022, can be found here:-
Explanation No 7
Employees covered by the Employment Act of 1955 will be eligible for paid public holidays on November 18 and 19, 2022.
This is because Gazette Order P.U (B) 556 is conferred by section 8 of the Holidays Act 1951, Whereas Holidays Act 1951, and is only applicable to Peninsular Malaysia and Labuan (Employment Act 1955). Then, how about Sabah and Sarawak?
I believe the Yang di-Pertua Negeri of Sabah and Sarawak will, at any time by notification in the Gazette, appoint November 18 and 19, 2022, to be observed as a Public Holiday soon.
Latest Update: in the exercise of the powers conferred by section 9 of the Holidays Ordinance, the Governor of Sabah (yang di-Pertua Negeri) has appointed 18 November 2022 (Friday) and 19 November 2022 (Saturday) as special Public Holidays.
The notification dated November 15, 2022, can be found here:-
Explanation No 8
Any employee may be required by his employer to work on November 18 and 19, 2022, to which he is entitled as Public Holidays and in such event, he shall, in addition to the holiday pay he is entitled to for that day:-
- in the case of an employee employed on a monthly, weekly, daily, hourly, or other similar rates of pay, be paid two days’ wages at the Ordinary Rate of Pay (ORP); or
- in the case of an employee employed on piece rates, be paid twice the ordinary rate per piece,
regardless that the period of work done on that day is less than the normal hours of work.
In layman’s terms, even if the employer requires the employee to work for 1 hour, in addition to the holiday pay, he is still entitled to be paid two days’ wages at the Ordinary Rate of Pay (ORP).
Meaning of “Ordinary Rate of Pay” (ORP) & Hourly Rate of Pay
“Ordinary rate of pay” in this context is basically the employee’s “daily” wage and is calculated by dividing the employee’s monthly salary by 26.
“Hourly rate of pay” means the ordinary rate of pay divided by the regular hours of work.
Scenario No 1 – During Normal Hours of Work
Example: Ah Jib works 8 hours a day from 8 am to 5 pm (with a 1-hour lunch break) for a monthly salary of RM2,080.
His ordinary rate of pay is RM80 (RM2,080 / 26 = RM80).
And his hourly rate of pay would be RM10 (RM80 / 8 hours = RM10)
On November 18, 2022, during normal working hours (from 8 am to 5 pm), Ah Jib is required to work.
Regardless of how many hours he works, whether 1 hour or 8 hours, he will be entitled to additional pay of:-
= RM80 * 2
= RM160
Hence, in the month of November, his total salary will be:-
= RM2,080 + RM160
= RM2,240
Explanation No 9
Scenario No 2 – Overtime
In the case of an employee employed on a monthly, weekly, daily, hourly, or other similar rates of pay, if they are required to work in excess of their normal hours of work on November 18 and 19, 2022, they shall be paid at a rate which is not less than three times his hourly rate of pay.
Example: Ah Jib works 8 hours a day from 8 am to 5 pm (with a 1-hour lunch break) for a monthly salary of RM2,080.
His ordinary rate of pay is RM80 (RM2,080 / 26 = RM80).
And his hourly rate of pay would be RM10 (RM80 / 8 hours = RM10)
On November 18, 2022, Ah Jib is required to work from 8 am to 6 pm). His hour of work are as follows:-
- Normal hours of work: 8 hours, will be entitled to additional pay of RM 160 (two days’ wages at the Ordinary Rate of Pay)
- The hour in excess of his normal hours of work: 1 hour (from 5 pm to 6 pm)
Let’s calculate Ah Jib’s pay
(i) For the normal hours of work, he will be entitled to additional pay of:-
= RM80 * 2
= RM160
(ii) For the hour in excess of his normal hours of work, he shall be paid at a rate which is not less than three times his hourly rate of pay:-
= 1 hour * RM10 (HRP) * 3 (three times his hourly rate of pay)
= RM30
Hence, in the month of November, his total salary will be:-
= RM2,080 + RM160 + RM30
= RM2,270
Public Holiday Substitution – Alternatively
Under s 60D(1A), the employer may grant the employee any other day as a paid public holiday in substitution for any of the public holidays given under section 8 of the Holidays Act 1951.
Simply put, it is conceivable to agree with an employee to change the date of a public holiday that the government has declared.
For example:
- swapping November 18, 2022, for December 27, 2022, so they would work on November 18, 2022, but have a paid day’s leave on December 27, 2022, allowing them to take extended vacations for Christmas day (*).
(*) If the company chooses to observe Christmas Day as a public holiday, and Christmas Day on December 25, 2022 happens to fall on a rest day, then the working day that immediately follows the rest day, which is December 26, 2022, will be a paid holiday in place of December 25, 2022. This holiday will be in place of Christmas Day.
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