Vinu & Lopez

16/08/2022

It is important to take note of the impending amendment to the Employment Act 1955 pursuant to the EMPLOYMENT (AMENDMENT OF FIRST SCHEDULE) ORDER 2022 [P.U. (A) 262/2022] which comes into force on 1 September 2022.

This is however a cursory view on the interesting amendments and does not cover the entire EMPLOYMENT (AMENDMENT OF FIRST SCHEDULE) ORDER 2022.

Prior to the amendment, the existing FIRST SCHEDULE reads as follows:

“1. Any person, irrespective of his occupation, who has entered into a contract of service with an employer under which such person’s wages do not exceed two thousand ringgit a month.”

What this meant before was for those employees earning above RM2,000.00, their terms and conditions of employment would be governed by their contracts of employment (no matter how unfavorable it was compared to the provisions of the Employment Act 1955). The new amendment however replaces the above with the following paragraph:

“1. Any person who has entered into a contract of service.”

The new amendment above also introduces the following new provision that addresses those employees earning wages exceeding RM4,000.00 which will now exclude the applicability of amongst others double day wages for working on rest days, overtime and termination, lay-off and retirement benefits under the Employment Act 1955:

“1A. Notwithstanding paragraph 1, the person whose wages exceeds four thousand ringgit a month.”

Provisions that are not applicable under Section 1A of the FIRST SCHEDULE above:

Subsections 60(3) - Work on Rest Day, 60A(3) - Hours of Work , 60C(2A) - Shift Work , 60D(3) and 60D(4) - Holidays and section 60J - Termination, lay-off and retirement benefits.

What these amendments mean is that all employees under a contract of employment (contract of service) will now be covered under the Employment Act irrespective of their wages save for the carve out of certain provisions for those earning wages exceeding RM4,000.00 mentioned above.

The amendments however does not affect those employees who fall under the categories of manual workers, supervisors of manual workers; those engaged in operation or maintenance of a mechanically propelled vehicle i.e drivers save for those who are engaged as domestic employees (see: amended subparagraph 2(5) of the FIRST SCHEDULE)

Noting the above, all employers must now ensure that it strictly complies with Employment Act 1955 as section 7 stipulates that the more favourable conditions of service under the Employment Act will prevail. Any terms and conditions of employment that are less favourable will now be void and shall be substituted with the provisions of the Employment Act 1955 (where applicable).

Source:

28/11/2020

We would like to congratulate the Kuala Lumpur Bar Committee Young Lawyers Committee for a job well done. Thank you for having us and we wish all the participants all the best in the KL Bar E-Moot Court Competition.

06/11/2020

Clients usually enquire on the chances of success in litigation matters and “assurance is expected to be expressed as a percentage as if predicting success in litigation were capable of scientific precision or was some statistical exercise.”

A good write up by Fahri Azzat.

“What are our chances of success?”Every litigation lawyer’s client That is a question a client will inevitably ask his or her lawyer about a case in court. It is understandable. T…

26/03/2020

MOVEMENT CONTROL ORDER: EMPLOYMENT RETENTION PROGRAM (ERP) FOR EMPLOYEES WHO RECEIVED UNPAID LEAVE NOTICE

As part of the Economic Stimulus Package 2020, the Government of Malaysia had announced that financial aid of RM600 per month will be provided to employees who were instructed to take no pay leave during the MCO period (up to a maximum period of 6 months).

The attached infographic provides the eligibility for the financial aid and steps to be taken to apply for the same.

Speak to your employer if you are affected!

26/03/2020

MOVEMENT CONTROL ORDER: PAYMENT OF WAGES AND STATUTORY CONTRIBUTIONS

25/03/2020

MOVEMENT CONTROL ORDER: EXTENSION OF THE DURATION AND ITS IMPACT

20/03/2020

MOVEMENT CONTROL ORDER: MINISTRY OF HUMAN RESOURCES FAQS

On 16.3.2020, Prime Minister Tan Sri Muhyiddin Yassin declared that Malaysia will be placed under a nationwide Movement Control Order from 18.3.2020 to 31.3.2020, due to the Covid-19 outbreak. The Movement Control Order is a first in the country’s history.

The Movement Control Order is issued pursuant to the Prevention and Control of Infectious Diseases Act 1988 (“PCIDA”) and the Police Act 1967.

The Prevention and Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020 (“PCIDA Regulations 2020”) where regulations relating to amongst others a list of essential services and offences were subsequently made.

The Ministry of Human Resources has since announced a series of FAQ questions on 19.3.2020. (“MOHR FAQ 19.3.2020”)

We want to however address a few queries on the MOHR FAQ 19.3.2020 that we have been asked during the Movement Control Order.

1. Can an employer require an employee to physically report to work during the period of the Movement Control Order.

Only if the employer falls within the Schedule of Essential Services under the PCIDA Regulations 2020.

Even so, an employer is required to comply with Regulation 5(1) PCIDA Regulations 2020 to keep the number of personnel in an Essential Services industry to a minimum.

2. What if an employer does not fall under the Schedule of Essential Services?

The employer is not allowed to operate without written permission from the Director General of Health.

Employers however may direct employees to work from home. Do take note that the Movement Control Order merely restricts movement and as such the obligations of employment contract still continues.

Employers are still required to pay wages and fixed allowances stipulated under the employment contract.

3. Can an employer unilaterally direct an employee to utilise their annual leave, sick/medical leave during the period of the Movement Control Order to avoid paying wages.

No. An employer is not allowed to make any unilateral variations to an employment contract which includes forcing them to take their annual leave, sick/medical leave etc.

Any unilateral variations and/or impositions may expose an employer to unfair dismissal claims under the Industrial Relations Act 1967 and penalties under the Employment Act 1955.

4. Can an employee lodge a complaint with the Labour Department (JTK) against their employer for any infractions during the Movement Control Order period.

Yes. Only if it relates to the enforcement of obligations under the terms and conditions of an employment contract.

Do take note that the Labour Department (JTK) only has jurisdiction to hear complaints relating to employees that fall within the Employment Act 1955 in particular those categories contained in the First Schedule. The Employment Act 1955 generally applies to those employees whose wages are up to RM2,000.00.

For those employees outside the parameters of the First Schedule of the Employment Act 1955 i.e. above RM2,000.00, the Labour Department (JTK) can still entertain complaints if the employee’s wages do not exceed RM5,000.00. (See: Section 69B(1) Employment Act 1955)

As such, the Labour Department (JTK) will not have any jurisdiction to hear any complaints for those employees who fall outside the scope mentioned above (save for provisions such as those under Part IX of the Employment Act 1955).

Notwithstanding the above, an employee may still lodge a complaint to the police if they are aware of any contravention to the PCIDA Regulations 2020.

5. Can an employee’s employment contract be terminated due to it being frustrated.

These are trying times indeed noting the Covid-19 pandemic which led to the unprecedented Movement Control Order being imposed.

For an employment contract to be frustrated, there must be some outside or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting which either makes it impossible for the contract to be performed at all.

Long periods of restriction of movement due to the Movement Control Order may impact employers in the long run and may potentially give rise to a frustration of contract situation.

**The information and views set out in any of the publications therein are those of the author(s) and do not necessarily reflect the official position of the firm, Vinu & Lopez. The firm is not responsible for errors, misinterpretations, or omissions related to these publications therein. Neither the firm nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein.**

17/03/2020

Announcement: Movement Control Order

06/02/2020

Our firm had provided an insight of the current state of affairs plaguing the Semai People in Ulu Geruntum, Perak.

We have reproduced the article from the Malaysian Insight for your viewing:

“LAWYERS representing the Ulu Geruntum Orang Asli in Gopeng want the contractors on a mini-hydro project to stop all work on ancestral land until a court decides on the case.

Their suit to stop the project and seek recognition of Semai native customary land was filed before 14th general election in May 2018.

The case is set to be heard at Ipoh High Court next month.

Lawyer Vinu Kamalananthan told The Malaysian Insight a letter was issued yesterday to the lawyers representing the project’s contractors to request their clients cease all operations until the completion of the suit.

If the companies fail to adhere to the request, the Semai may seek interim relief pending the determination of the high court suit, he told The Malaysian Insight.

“We wrote to the lawyers for Perak Hydro and Conso Hydro to say that, as this matter has been scheduled for trial, their clients ought to cease all activities and encroachments on native customary lands and to leave the newly built huts alone, as the matter should be decided in the next few months.

“If they do not agree, then we may have to seek interim relief, which may include an injunction pending the full disposal of the high court suit.”

The Semai tribe in Ulu Geruntum had hoped that Perak, under a new government, would scrap mini-hydroelectric project mooted by the previous Barisan Nasional administration because they said it encroaches on their ancestral land.

The project involves building 31 mini-dams along three rivers, including Sg Kampar. The suit filed by the Semai is against the dams that affect their land.

Despite their demands, the Pakatan Harapan state government last year gave the green light for the project to resume on grounds that it was contractually obliged to do so.

“The aim of the suit is to get the disputed lands recognised and gazetted as native customary lands of the Semai people, and also to try and stop further development over the land, which would include the mini-hydro project,” Vinu said, adding Perak Hydro Renewable Energy Corporation and Conso Hydro RE Sdn Bhd had previously filed an application to strike out the suit but were unsuccessful.

Vinu’s legal partner, Conrad Lopez, said the Semai filed an application in June 2019 seeking to increase the size of the native customary lands from 1,011ha to about 3,000ha.

“This amendment to the size of the native customary lands claimed was ultimately allowed by the Ipoh High Court in January this year.

“This is to increase the size of what the Semai claim as their native customary lands. Evidence on this point would be led during the trial of the high court suit.”

The Semai have built huts on land that forms the subject matter of the dispute.
“Therefore, all activities and encroachments by the companies on native customary lands should cease until the determination of the suit.

“We hope that we do not have to resort to seeking an injunction as this would have the potential of delaying the trial,” Lopez added.

Semai villagers have been protesting against the mini-hydro project since 2012.

It started with a series of 25 mini-hydro projects across the state that BN approved in 2012.

Another six were approved a year later, bringing the total cost of all 31 dams to RM2.92 billion.

The villagers accused the concessionaire, Perak Hydro, of destroying their crops to build a road during construction and encroaching on their land.

Vinu also hoped the federal government can take up the Semai’s claims to their ancestral land as Putrajaya did for the Orang Asli in Gua Musang, Kelantan.
Last year in a landmark case, Putrajaya sued Kelantan for legal recognition of the native land rights of the Orang Asli community.

Attorney-General Tommy Thomas said the federal government decided to act against the PAS government to gain native land rights for the Temiar Orang Asli in Pos Simpor. – February 6, 2020.”

The link to the article above can be accessed below:

Legal team says injunction will cause further delays to suit filed before GE14.

11/01/2020

And it’s a wrap. Thank you for organising this event.

08/01/2020

Come join us on 11 January 2020 for the Kopi, Kuih & Kaunsel organised by the KLBC Young Lawyers Committee. See you there.

01/01/2020

We wish you all a happy new year and welcome the start of a new decade &lopez