16 July, 2018
Most people may know that Malaysian employment law is governed by the Employment Act 1955 (“Act”), but many don’t realise that the Act doesn’t apply to all employees. The Act only applies to employees included in the First Schedule, which includes:
“1. 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 two thousand ringgit a month.
2. Any person who, irrespective of the amount of wages he earns in a month, has entered into a contract of service with an employer in pursuance of which –
(1) he is engaged in manual labour including such labour as an artisan or apprentice….”
An employee is considered engaged in manual labour if he spends more than 50% of his working hours doing manual labour.
But what is manual labour?
The Act does not define what is manual labour, and yet the definition of manual labour is crucial since it will determine whether a particular employee is afforded the statutory protection of the Act.
How do Courts interpret “manual labour”?
In the leading case of Colgate Palmolive (M) Sdn Bhd v Cheong Foo Weng & 12 Ors (and Another Appeal) [2002] 2 AMR 2107, the term “manual labour” was defined as:
“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”. Whilst all manual labour would entail some manual work, it cannot be readily assumed that the person performing the manual work is a manual labourer and further it cannot also be accepted that the person is in law “engaged in manual labour”.
The test to determine whether or not a person is “engaged in manual labour” is: “what is the substantial/dominant purpose of the employment, to the exclusion of the matters which are incidental or accessory to the employment”. It is therefore 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 the above case, senior craftsman, electrical technician, instrument technician, waste water technician, and boiler attendant were considered non-manual workers since their jobs required “the labour of brain and intelligence” as well as their acquired skill, knowledge or experience. Their use of hands in carrying out their day-to-day tasks should not therefore negate the more substantial purpose of their employment, which is the use of their minds and their diagnostic skills.
Since all the categories of employees mentioned above are required to apply their minds and solve daily problems that may arise in their work, and their job functions cannot be performed by laymen but clearly requires the obtaining of a qualification in the form of Certificates or Diplomas and/or vast years of experience, they are not manual workers.
The Court in Syed Ibrahim Syed Mohd & Ors v Exxonmobile Exploration & Production Malaysia Inc [2014] MLRHU 1458 adopted a straightforward approach, i.e. so long as more than half of the time an employee’s works involves manual labour, he is deemed an employee under the Employment Act, irrespective of his position, job scope, skills, knowledge and salary. Where an employee’s tasks are mostly done by hand, often repetitious in nature done to specified instructions and done at specified intervals, he is considered engaged in manual labour. The court referred to an English case which held that workers who repair and adjust complicated machineries are still manual labourers even though they have skill and technical knowledge; this is because the “purpose of their jobs is the use of hands”.
In the recent case of Leighton Contractors (M) Sdn Bhd v Gnanapragasam a/l Arukiam & Ors [2016] MLJU 456, the court used Colgate Palmolive’s definition to determine that the respondents who were Shunter/Train Assistants were in fact manual workers. The general nature of their employment was deemed physical in nature by the court since they do not perform any desk jobs, no tables or offices were assigned to them, they do not perform any work using paper, pen or stationery, and their work does not involve the use of computers. The necessity of the employees exercising their judgment when indicating the signals to move or stop to the train assistant does not take the work out of the scope of manual labour, since no work can be altogether mindless.
Since the Act seeks only to protect specially defined classes of employees, the ‘manual labour’ definition is not intended to be liberally interpreted, as otherwise there would be no necessity for the other exceptions in the First Schedule of the Act. Further, the burden is on the employee to prove that he falls under the Act.
Key Takeaways
Based on cases, these are some of the typical characteristics of manual labour:
- Does not require skill, knowledge or experience
- Is not a desk job, does not require use of pen and paper
- Done according to employer’s specific instructions
- Repetitious in nature or done at very specified intervals
- Work primarily involves use of hands without utilisation of intelligence or creativity
- No special / sophisticated tools and equipment required
- No special qualification or education required
- No special/sophisticated tools and equipment required
What types of jobs have been held to be manual labour / not manual labour by the courts?
|
Manual Labour |
Not Manual Labour |
|---|---|
| · Mechanical technician
· Production technician · Crane operator · Industrial health technician · Radio operator · Cook · Maintenance men · Driver · Pantry aide · Storehand · Shunter/ Train assistant |
· Administrative Executives
· Electrical chargeman · Senior Craftsman · Waste water technician · Boiler attendant · Senior technician · Supervisors · Executives |
As can be seen, there is no clear line that can be drawn between what jobs amount to manual labour and what jobs don’t amount to manual labour. Some jobs like “electrician” or “instrument technician” have been held to be manual labour in one case, and not manual labour in another case (not very helpful, we know!)
Each case is therefore determined by its own set of facts and it would be extremely unwise to decide on whether or not a person is engaged in manual labour by merely relying on the job designation or the title given to him by the employer.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
