22 April, 2017
24 April 2017 has been declared as a public holiday to celebrate the installation of Sultan Muhammad V as the 15th Yang di-Pertuan Agong. The declaration was made pursuant to the Holidays Act 1951.
While employees are rejoicing, we have received numerous queries from employers as to whether they are required to observe 24 April 2017 as a public holiday. Due to operational requirements or business exigencies, some employers would prefer 24 April 2017 to be business as usual. This is not something new – similar issues arose when Malaysia declared 31 December 2010 as a public holiday when we won the ASEAN Football Federation (AFF) Suzuki Cup. That situation was more challenging for employers who had received less than 1 day’s notice of a public holiday, which also fell on the last day of the year (when most companies are trying to complete their year end targets or meet filing deadlines).
This year, employers were also particularly worried given certain headlines alleging that they would be fined RM10,000.00 if they don’t allow their employees to get a day off on 24 April 2017.
To clarify, the Employment Act 1955 provides:
- Employees are entitled to 11 gazetted public holidays, 5 of which must be National Day, the Birthday of the Yang di-Pertuan Agong, the Birthday of the Ruler or the Yang di-Pertua Negeri of the state where the employee works, Worker’s Day/Labour Day, and Malaysia Day.
- In addition to the 11 gazetted public holidays, employees are also entitled to any public holiday declared under Section 8 of the Holidays Act 1951
However, for holidays declared under the Holidays Act 1951 (such as 24 April 2017), the employer has the right and perogative to grant the employee “any other day as a paid public holiday” in substitution. (This option for substitution is not available for other gazetted public holidays).
As such, employers can require employees to work on 24 April 2017 but they need to provide another day as a public holiday in substitution. Some employers opt to grant their employees an additional day of annual leave in substitution.
It is therefore inaccurate to say that employers would be fined RM10,000.00 if they require their employees to work on 24 April 2017. There is only a contravention of the law if the employer makes their employees work on 24 April 2017 and fail to provide an additional holiday in substitution.
The usual caveats apply – the provisions and protections of the Employment Act 1955 only apply to employees falling within the ambit of the Act. These are typically employees with a monthly salary of RM2,000.00 or less, and/or are engaged in manual labour. Other employees are not protected by the Act and will be governed by the terms of their employment contract. If the contract is silent as to how public holidays will be treated, it is generally understood (with some exceptions) that employers maintain management prerogative as to whether to observe the public holiday or not.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
