PUBLIC HOLIDAYS
1. What is the public holiday entitlement for employees?
The Employment Act 1955 (EA 1955) provides that an employee should enjoy at least 10 paid public holidays in a year. Four of these 10 days are specified as "COMPULSORY". The other 6 being left to the discretion of the employer to choose from the list of Gazetted public holidays, or for that matter to pick any other day it wishes as a paid holiday, e.g. the Anniversary of the Company founding.
To be competitive in employee benefits, or due to the nature of its operations, many, if not most companies, offer more than the 10 days set by the EA 1955. So the actual days do vary from organization to organization within the range of 10 to 18 days.
{ Where to Look : Section 60D(1) }
2. Which are the 4 days and what does being "compulsory" imply in respect of these 4 days?
The 4 days are:
i) The Agung's Birthday
ii) The Labor Day
iii) The State Sultan's Birthday (or the Federal Territories Day in the case of the Federal Territories)
iv) The National Day
Being compulsory means that The employer is not allowed to substitute these holidays with another day. Employees either get the day off as a paid holiday, or if they are required to work then they must be paid the prescribed holiday rates.
{ Where to Look : Section 60D(1) }
3. How does substitution of public holiday work?
Certain businesses operate on all 365 or 366 days in the year - hotels, public transport and hospitals being among the most conspicuous. To cater to these operations, these employers are allowed to have arrangements with employees to substitute certain holidays with any other day. This allows some employees to be off on the actual day itself, while leaving adequate numbers to man operations as if it is a normal working day for them. The substitute day becomes the public holiday for this latter group of employees and if they are required to work on the substitute day, then they are to be paid at the required public holiday rate.
Employers should not, (or rather - must not) exploit the employee either by not fixing the substituted day well in advance for the employee, or substituting the substituted holiday again. Some employers may do this to avoid paying holiday pay.
{ Where to Look : Section 60D(1) and (1A) }
4. What is the meaning of gazetted public holidays?
This is the list of official holidays which Federal Government has announced and gazetted accordingly in respect of national and state holidays for the whole country. For each state, there should be 18 such holidays.
The government offices are always closed on these days accordingly. So too the financial institutions. But private businesses are in no way forced to close for business on these days, nor are they forced to adopt these as their company holidays, except of course for the 4 compulsory holidays.
5. How do employees get to know which public holidays they will be enjoying?
The employer is required, before the beginning of the year to post onto the notice board a list of the paid holidays that will be observed.
For these days that are to be substituted, it is left to be mutually agreed upon between the employer and the employee(s) concerned.
{ Where to Look : Section 60(1A) }
6. What happens if the federal or state government declares an additional holiday?
That depends.
Under normal circumstances, it is expected that as long as the employer has provided at least the minimum 10 days, then the employer is not compelled to observe any other additional day as a paid public holiday for the employee.
But there are situations where the employer may have contractually (wittingly or otherwise) tied himself to observed all holidays declared by the government. So check the wordings on the contract of service.
{ Where to Look : Section 60D - Read between the Lines }
7. What if an employer is compelled to close operations for a day as a mark of respect in the event of the passing away of a dignitary?
Closing operations and having to pay employees for that day may be two different issues. The employer may not need to pay the employee on that day as a paid public holiday. Again, check the contract of service.
{ Where to Look : Section 60D - Read between the Lines }
8. What happens if an employee falls sick on his public holiday and obtains a valid sick leave for it?
Treat that day as his sick leave and take it off his sick leave entitlement. But he has to report for work as soon as the sick leave is over and then the employer can decide on the day to grant as his substitute holiday.
The employee has no right to continue through the sick leave to the next day as his substitute public holiday.
{ Where to Look : Section 60D (1B )}
9. What are the rates for public holiday work?
Irrespective whether the employee is monthly-rated, daily-rated, hourly-rated or piece-rated - the employee shall be paid 2 days wages ( in addition to the holiday pay he is already entitled to) for any number of hours of work which does not exceed his normal hours of work.
In simpler language, for example - if an employee normally works 8 hours a day, then even if he works an hour or less on a public holiday, he is to be paid 16 hours' wages. So you might as well make sure the employee is put to in full 8 hours of work on a public holiday or not at all if you are squeamish about paying so much for hours not worked.
{ Where to Look : Section 60D(3)(a)}
10. What are the rates for public holiday work which exceeds the normal hours?
Let's say we are sticking to the 8-hour period as normal hours. If an employee works beyond the 8 hours, every hour is to be paid at 3 times the hourly rate of pay.
{ Where to Look : Section 60D(3)(aa)}
11. An employee works part of the day on a compulsory public holiday, falls ill and obtains sick leave for the rest of the day. What happens to the holiday pay?
Ouch! I need help on this one for myself. Help..Anyone?
There seems to be 2 ways of looking at this and I have not come across any specific test case that decides this. Maybe someone out there can put in some views.
Angle 1: Favoring the Employer
Even compulsory holidays are substitutable in the event of sickness or temporary disablement under SOCSO or Workman's Compensation. Therefore treat the public holiday as sick leave and substitute the next working day as the public holiday in substitution.
Angle 2: Favoring The Employee
But the way it is read, the law on the payment for work on public holiday does start off with the words "Notwithstanding subsections (1),(1A) and (1B)". The employee can argue that with this provision, if he has already reported for work before falling sick, then this overrides the issue of substitution and he is entitled to be paid the additional 2 days pay for having reported for work.
Any other ideas out there?
{ Where to Look : Section 60D(1) to 60D(3)}
12. What can be done if an employee absents himself on the working day immediately before a public holiday?
Yeah - this happens pretty often when the "balik kampung" fever strikes during the Chinese New Year or Hari Raya Holidays.
Unless he has a reasonable excuse for it, the employee will forfeit the holiday pay. If it happens to be a stretch of 2 or more days of public holiday, - too bad - he loses the holiday pay for the days concerned.
The same applies if the employee absents himself on the day immediately after 1 or more public holidays, including the substituted holidays.
{ Where to Look : Section 60D(2)}
13. What is a reasonable excuse for being absent?
The answer to this question must be worth a million-bucks. It is best left to the employee to explain and prove it is genuine, unpreventable and serious enough to warrant his absence. Of course the usual well-worn reasons (that I have had the pleasure and privilege to receive) which are generally not found acceptable are:
- My baby sitter did not come to work
- mother (or any available relative) fell sick,
- bus came late, could not get a return ticket back,
- stuck with parents who decided to extend their holidays,
- sick and produces sick certificate from a clinic which is not within the company's appointed, panel of doctors,
- dog ate my shoes,
- drug addict stole my shoes, and
- lots more ingenious or less than genius ones, if I dig into my memory bank.
To me, these are hardly reasonable or acceptable. But to you, because you as a superior may also have been using these reasons for yourself, may say that the above are reasonable. I leave it to you.
{ Where to Look : Industrial Court Reports }
14. Can an employee refuse an order to work on a public holiday?
The Law says "any employee may be required by his employer to work on any public holiday to which he is entitled" . So it looks like the employee cannot refuse to work on a public holiday if the employer insists that he return to work.
When it comes to public holidays, the employer can require the employee to work.
15. A public holiday falls on a Saturday, which happens to be a half-day. Is the employee's holiday pay treated as 1/2 day's pay.
The laws specifically states that in such a case, the half day shall be paid as if it is a full working day.
{ Where to Look : Section 60(4) }
16. A paid public holiday coincides with an employee's rest day. Does he automatically get the next day off?
Sure. Both the employer and employee know well in advance when a public holiday falls, and so too with the employee's rest day. If it happens to be a Sunday which is the also the Rest Day for the many companies, then Monday is obviously the rest day automatically.
Where the company does not close for any day in the week, and employees are scheduled to have their rest day by turns throughout the week, then the working day immediately following the rest day becomes the employee's rest day.
{ Where to Look : Section 60(D)(1) }
17. An employee's rest day coincides with a public holiday, let's say it happens to be a Sunday. On that Sunday itself, the employee is called back to work. Is it to be paid as work a rest day or work on a public holiday?
As the law provides that if a public holiday coincides with a rest day, the next day is to be considered as a public holiday in substitution, it obviously places priority on the rest day. In this case, the work on Sunday is to be paid a Work on A rest day. If the Employee works on Monday in this case, then he is to be paid the holiday rates for it.
{ Where to Look : Read Between The Lines }
18. If an employee's rest day on Sunday coincides with a paid public holiday and on Sunday he falls sick and obtains sick leave from the company doctor, then what?
The rest day takes precedence over the public holiday. So Sunday is treated as a rest day While Monday is his paid public holiday.
In this case, the sick certificate is to be disregarded as an employee is not entitled to sick leave while on his rest day.
{ Where to Look : Section 59(1) }
19. A paid public holiday falls on a day during which a female employee is on maternity leave. Does the employee get a public holiday in substitution?
Employees on Maternity Leave are not entitled to any public holiday.
20. A part-time employee has a contract in which he works only 3 days a week, and that too he works only for 4 hours on each of those days. What is his public holiday entitlement?
Remember the definition of who is an employee covered by the EA 1955 who is to be entitled to the minimum provisions of the law?
Looks like he is entitled to the minimum 10 days at the normal 4 hours at his ordinary rate of pay for the day. Unless of course, the employer has mistakenly given him a letter that says he is entitled to all the holidays that other employees are entitled to - then it will hurt a wee bit more than the 10 days.
{ Where to Look : Read Between The Lines - Section(2) - Definition }
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