Palmex Industries Sdn. Bhd. v. Public Prosecutor [1989]
Section 60C of the Employment Act 1955 states as follows:
60C. Shift Work (1) Notwithstanding s. 60A(1)(b) and (d) but subject to subsection (1)(a) thereof, 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 but the average number of hours worked over any period of three weeks shall not exceed forty-eight per week. (2) Except in the circumstances described in s. 60A(2)(a), (b), (c), (d), (e), no employee who is engaged under this contract of service in shift work shall work for more than twelve hours in any one day. Section 60C must be read with s. 60A of the Act, which provides as follows:
60A. Hours of Work
(1) Except as hereinafter provided, an employee shall not be required under his contract of service to work: (a) more than five consecutive hours without a period of leisure of not less than thirty minutes duration; (b) more than eight hours in one day; (c) in excess of a spread over period of ten hours in one day; (d) more than forty-eight hours in one week: …
This section stipulates the maximum number of hours an employee can be required to work. Section 60C(1) provides the exception for shift workers.
A shift worker may be required by his employer to work more than eight hours on any day. Sub-section (2) of s. 60C then limits the number of hours to twelve.
Reading the two sections together, there is a provision that an employer cannot require an employee to work more than eight hours in one day.
Still, if the employee is a shift worker, the employer may require him to work more than eight hours on any one day, subject to a maximum of twelve hours.
Therefore, if an employer requires an employee to work for more than twelve hours in any one day, he contravenes this provision and can be punished under s. 99A of the Act, which is wide enough to cover this contravention.
In this case, the appellant (the Company/employer) permitted employee X to work more than 12 hours on the said date, from 3 p.m. on 6 April 1986 to 3 p.m. on 7 April 1986, which was in contravention of s. 60C(2) of the Employment Act 1955 and have committed an offence punishable under s. 99A of the Employment Act 1955 thereof.
The appellant (the Company/employer) also permitted employee Y to work more than 12 hours on the said date, from 3 p.m. on 28 April 1986 to 3.00 p.m. on 29 April 1986, in contravention of s. 60C(2) of the Employment Act 1955 and have committed an offence punishable under s. 99A of the same Act thereof.
The appellant was found guilty on both charges and was fined RM300 for each charge.
The ground of appeal involves the interpretation of the word “day” as applicable to shift workers.
Under s. 2 of the Act, “day” means:
- a continuous period of twenty-four hours beginning at midnight; or
- for the purposes of Part XII in respect of an employee engaged in shift work, a continuous period of twenty-four hours beginning at any point in time.
The appellant contended that:
- The “day” for all their shift workers started at 7 a.m., the start of the first shift.
- Even for the shift worker who started work at 3 p.m., his “day” was also from 7 a.m. that day.
- The company has fixed this.
- Therefore the employee had not worked more than twelve hours in one “day”.
A “day” for a shift worker is a continuous period of twenty-four hours beginning at any point in time.
The Court concluded that:
“At any point in time” means the time he starts his work on a particular day.
If he starts his work at 7 a.m. on a certain day, a “day” about him will be a continuous period of twenty-four hours from that time.
If on another day he starts his work at 11 p.m., his “day” will be a continuous period of twenty-four hours from that time.
An employer cannot fix the “day” for his shift workers.
In this case, employee X started work at 3 p.m. on 6 April 1986. The “day” concerning him was, therefore, a continuous period of twenty-four hours from 3 p.m. on 6 April 1986.
His “day” ended at 3 p.m. on 7 April 1986. During this period, he worked for sixteen hours.
Employee Y‘s “day” was from 3 p.m. on 28 April 1986 to 3 p.m. on 29 April 1986. Teoh also worked for sixteen hours during this period.
It was contended (and Employee Y admitted) that Employee Y worked on 29 April 1986 from 7 a.m. to 3 p.m. because he wanted to help his friend.
He changed his shift with a friend.
The change was allowed by the appellant because it had no choice.
If a change request was not allowed, the employee could just be absent himself, which would cause work interruption.
It was submitted that the appellant was therefore justified under s. 60A(2)(e) .
Section 60C(2) starts with the words “Except in the circumstances described in s. 60A(2)(a), (b), (c), (d), (e) no employee shall require any employee who is engaged under his contract of service in shift work to work for more than twelve hours in any one day.” However, the Court did not agree to this. The Court concluded that Section 60A(2)(e) is not meant for a situation like this. It is meant for a situation where there is an interruption of work which is impossible to foresee. In this case, the interruption, if any, was clearly foreseeable.
Hence, the appeal of the company was dismissed.
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