WORKING HOURS AND OVERTIME
1. What are the working hours stipulated by the laws? What are the working hours stipulated by the laws?
In general, the following conditions must be adhered to in any contract of service with an employee:-
i) Working hours per day shall not exceed 8 hours in a day
ii) Working hours shall not exceed 48 hours in a week
iii) In any one day, no employee shall work for more than 5 consecutive hours without a period of rest of at least 30 minutes (by the Aug 1998 amendments, any break less than 30 minutes is not counted as a break at all)
iv) The employee shall not work in excess of a spread over period of ten hours in any one day
But in respect of the meal break hours, there is an exception recognizing that there are certain jobs which do not permit employees to leave their work unattended for long periods. For such employees, defined as those whose work "must be carried out continuously and which requires his continual attendance" work may be carried on for eight continuous hours without that single 30 minutes period of rest. However, in return they may be allowed a number of short breaks which must add up to 45 minutes in total, and one of such breaks must be long enough for them to have their meals.
2. Can an employee be asked to work for longer hours than eight hours in a day without paying overtime, but instead be given time off to replace the longer hours worked?
The law only allows an hour's extension daily, i.e. up to 9 hours in any one day. The extra hour worked can be given as time off on other day(s) of the week so that the total of 48 hours is maintained. In fact, this is the principle on which 5-day week and 5-1/2 day week is based. Except that the employee ends up working less than 48 hours weekly in the case of 5 day week as the maximum of 9 hours a day on five days add up to only 45 hours.
3. Can there be exceptions to those limits stipulated in item #1 above?
Yuup! The prescribe hours may be exceeded in the case of : -
i) an actual accident, or an anticipated one in the place of work
i) ii) performance of work which is essential to the life of the community
ii) performance of work essential for the defence or security of Malaysia
iii) interruption of work which was unforeseeable
iv) urgent work to be done to the plant or machinery
v) work in any industrial undertaking essential to the economy of Malaysia or any essential service as defined under the Industrial Relations Act, 1967
4. What is that "spread over period" thing mentioned above?
The definition of this is found in Section 2 of the Act stated as follows: -
"spread over period of ten hours" means a period of ten consecutive hours to be reckoned from the time the employee commences work for the day, inclusive of any period of periods of leisure, rest or break within such period of ten consecutive hours;"
So what does it mean? Just this - the employer has the benefit in any single day of ensuring that a worker finishes his eight hours of normal work within a consecutive 10 hour period. In the past, certain types of jobs may start very early in the day, say 8:00 a.m. The employee works a few hours, then goes off work, to return again to do another period, and off again. The actual work may end late in the evening, but if you had added up the actual hours worked, the employee would still have actually worked 8 hours during all those short stints in the day.
Example of such work are cinema ticket sellers, restaurant workers and so on.
With the "spread over period" law, the employer cannot stretch 8 hours of work over a 10 hour period anymore. If he does so, he still has to pay overtime rates for hours which are past the 1st 10 hours even though the employee is not working until the time the employee actually stops work for the day.
5. What are the overtime rates?
That's 1.5 times the normal hourly rate of pay for overtime which is performed on a normal work day.
For overtime work performed on a rest day (i.e. any work performed on a rest day which is in excess of the normal hours of work in a day) the rate of 2 times the hourly rate of pay. In respect of overtime work on public holiday in the rate is 3 times the hourly rate of pay.
6. What is the maximum no. of hours a employee may work in a day including overtime?
It would look like under normal circumstances, an employee is only allowed to work the normal maximum of 8 hours and 4 hours of overtime, i.e. a total of 12 hours in a day. If it is a monthly rated employee, it is usually assumed that the break hours are not paid for and not included within this 12 hour daily limit. For shift workers who are usually paid for their break hours, then it is inclusive of the break hours - unless your contract of service stipulates otherwise.
7. Are there any other limitations on overtime work?
It is obvious that the maximum daily overtime hour is limited to 4 hours a day at best. The monthly limit in aggregate for any employee must also not exceed 104 hours.
If any employer feels that 104 hours of overtime work per employee per month is still not sufficient for his operational needs, then he has to apply to the Director General Of Labor for exemption. Must be a very lucky employer who has workers who love to work so much overtime in a month - either that or they must be foreign workers - ehh?
8. Does the treatment of shift workers differ in any way?
Shift workers may work for more than 8 hours on any one day for more than 48 hours in a week, provided that when you take the average of the total hours over any 3-week period, the average still does not exceed 48 hours.
As with other workers, shift workers are not allowed to exceed 12 hours of work in any one day, except under the circumstances as stipulated in item #3 above.
