Categories of Employee covered under the Employment Act 1955
Categories of Employee covered under the Employment Act 1955

Categories of Employee covered under the Employment Act 1955

This article aims to elaborate the following categories of employees protected under the Employment Act 1955 (‘EA’) as stated in the First Schedule of the EA.

  1. Employee whose wages do not exceed RM2,000 a month

As a matter of general rules, this is the most straight forward category of the EA employee as provided under paragraph 1 of the First Schedule of the EA which states, 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 RM2,000 a month is protected by the EA.

  1. Employee whose wages exceed RM2,000 a month but provided under paragraph 2 of the First Schedule of the EA:-

2(1) Employee engaged in manual labour.

If the employee intends to come within the scope of the EA, the time during which they are required to perform manual labour in any one wage period must exceeds 50% of the total time in which they are required to work in such wage period.

It was held in the case of Colgate Palmolive Sdn Bhd v Cheong Foo Weng [2001] MLJU 765 that:-

‘It is trite law that “manual labour” involves physical exertion as opposed to mental/intellectual effort. Thus, it is not manual labour if “the real labour involved is labour of the brain and intelligence”’

………………..

Thus, it is essential to determine whether the work in question is purely physical in nature, as opposed to work which has a physical/manual content but which is really dependent upon acquired skill, knowledge or experience. In law, a person is not deemed to be “engaged in manual labour” if his job functions are primarily and substantially dependent on his acquired skill, knowledge or experience but with incidental manual work.

Conversely, a person is in law “engaged in manual labour” if his duties are substantially or purely physical in nature with very little or no mental effort.

2(2) Employee engaged in the operation or maintenance of any mechanically propelled vehicle operated.

2(3) Employee who supervises or oversees other employees engaged in manual labour.

The case of Colgate Palmolive Sdn Bhd v Cheong Foo Weng [2001] MLJU 765  held that there are 3 essential limbs to be proven by the employee sought to come within this category:-

(a) That they were “supervisors”;

(b) That as Supervisors they were “supervising or overseeing other employees labour”; and

(c) That they supervised persons engaged in manual labour “in and throughout the performance of their (the manual labourers) work”.

Hence, for paragraph 2(3) of the First Schedule of EA to apply, one must be: –

– supervisor who is physically present at all time during the performance of the job functions; and

– the supervision must be of employees (i.e. manpower), as opposed to general supervision (i.e. machines, materials and methods) and administrative functions.

In the case of Ong Siew Giek @ Cheh Siew Giek v International Footwear (PG) Sdn Bhd [2005] 2 MLJ 96, the court, other than recognises the 3 requirements to be fulfilled as stated in Colgate Palmolive’s case, it further clarified that

‘…in and throughout the performance of their work’ cannot be restricted to refer only to the manual labour’s work performance, as long the supervisor was effectively the person over all in charge.

Despite in this case, the complainant was a senior supervisor, had 1 assistant supervisor, 2 line leaders and 1 operator under her.

However, the Court held that so long as the supervisor takes responsibility for the act of her assistant supervisors down the line and so long as she performs for the benefit of the workers, she must fall within paragraph 2(3) of the First Schedule of EA.

2(4) is engaged in any capacity in any vessel registered in Malaysia.

2(5) is engaged as a domestic servant.

‘Domestic servant’ means a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child’s nurse, valet, footman, gardener, washerman or washer-woman, watchman, groom and driver or cleaner of any vehicle licensed for private use, as defined under section 2(1) of the EA.

 

Conclusion:-

Ultimately, each and every categories of the employee covered under the EA must be considered separately based on their job designation and descriptions as spelt out in their employment contract or contract of service.

 

About the Author: 

This article was written by Chia Swee Yik, Partner of this Firm (+6016 2148 218, chia@chialee.com.my), who endeavors to provide practical advice on employment law.

Feel free to contact him if you have any queries.

Get In Touch
Please do not hesitate to reach us out with the contact information below, or send us a message using the forms below. Our team will respond to you with a quote, if not answer your straightforward question right away. We assure you all information shared with us will be kept private & confidential.