The public holidays that are declared on an ad hoc basis often became the concern of many Malaysian employers.
The most recent ones, of course, were none other than the 9th May 2018 being made a public holiday in conjunction of the 14th National Election. In addition to that, 2 consecutive public holidays on the were also declared on the following 10th and 11th of May 2018, by the new government of Malaysia in celebration of the Pakatan Harapan’s victory in the 14th General Election.
As seen in the Star Online news piece, such public holidays are declared by the Chief Secretary to the Government, Tan Sri Dr Ali Hamsa, in pursuant to Section 8 of the Holidays Act 1951.
The law, as provided under Section 60D(1) of the Employment Act 1955 states that every employee shall be entitled to 11 gazette public holidays.
In addition, Malaysian employees shall also be entitled to any days which are appointed as a public holiday under section 8 of the Holidays Act 1951 (let’s call this “Ad Hoc Public Holiday”).
Both the 11 gazette public holidays and Ad Hoc Public Holiday are paid holidays.
It is also the law that 5 of the 11 gazette public holidays shall be as follows:-
- the National Day;
- the Birthday of Yang-Di Pertuan Agong;
- the Birthday of the Ruler or Yang di-Pertua Negeri or Federal Territory day (all of which varies in different states);
- the Workers’ day; and
- the Malaysia Day (16 September).
A full list of the 11 gazette public holidays can be found in the First Schedule of the Holidays Act 1951 as follows. So, other than the 5 holidays entitlement for each and every employee in Malaysia, the employer is free to choose the remaining 6 gazette public holidays to make up the 11 days, and these chosen days must be effectively communicated with the employees either through notice or stated in the employment agreement.:-
- Birthday of the Prophet Muhammad (s.a.w)
- National Day
- Chinese New Year (2 days, except 1 day in the states of Terengganu and Kelantan)
- Wesak Day,
- Birthday of the Yang di-Pertuan Agong
- Hari Raya Puasa (2 days)
- Hari Raya Haji (1 day, except 2 days in the states of Terengganu and Kelantan)
- Christmas day
- Malaysia Day (16 September)
- Nuzul Al-Quran – only in Federal Territory of Kuala Lumpur, Putrajaya, Labuan
As for the Ad Hoc Public Holiday, it is provided under Section 60D(1A) of the Employment Act 1955 that the employer may grant the employee any other day as a paid public holiday in substitution of any of the Ad Hoc Public Holiday.
Legal tip to avoid the unpredictable Ad Hoc Public Holiday
Knowing the law, it is perhaps practical for the employer to state clearly in the employment agreement or through a memorandum or notice, to reserve such discretion of the employer to compensate the employee another day as a paid public holiday in substitution of the Ad Hoc Public Holiday.
Otherwise, should the employer require his employee to work on the Ad Hoc Public Holiday, the employer must be mindful that the employee is entitled, in addition to the pay he is entitled to the day, be paid additional two days’ ordinary rate of pay. To quote Section 60D(3)(a) of the Employment Act 1955:-
“60D(3)(a) any employee may be required by his employer to work on any paid holiday to which he is entitled under the said subsections [60D(1)] and in such event he shall, in addition to the holiday pay he is entitled to for that day —
(i) in the case of an employee employed on a monthly, weekly, daily, hourly, or other similar rate of pay, be paid two days’ wages at the ordinary rate of pay; or
(ii) 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.”
Based on the legal tip suggested above, Ad Hoc Public Holiday should not appear as daunting as it might seem for many Malaysian employers.
However, the ideal remains that the wages paid for holidays should be the normal rate instead of the increased 3 times of the normal rate.
About the author:
This article was written by Chia Swee Yik, Partner of this Firm, who has provided advice on employment law.
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For the latest announcement of the national and state public holidays for the year 2021, kindly click Federal and State Public Holidays 2021.