SABAH CAP. 67
LABOUR ORDINANCE
Incorporating latest amendments - Act A1238/2005
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Publication Date : |
Ord 18/1949 |
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Date of coming into operation : |
1 January 1950 |
ARRANGEMENT OF SECTIONS
Long Title
PART I - LABOUR DEPARTMENT
CHAPTER I - PRELIMINARY AND INTERPRETATION.
Section 1. Short title
Section 2. Interpretation
Section 2A. Minister may prohibit employment other than under contract of service.
Section 2B. General power to exempt or exclude.
CHAPTER II - OFFICERS
Section 3. Commissioner of Labour and other officers
Section 3A. Officers to be authorized by Director.
Section 4. Powers of inspection and inquiry.
Section 5. Inspection of documents
Section 6. Power of summons and institution of proceedings
Section 7. [Deleted]
CHAPTER IIA - COMPLAINTS AND INQUIRIES.
Section 7A. Director’s power to inquire into complaints.
Section 7B.Limitation on power conferred by section 7A.
Section 7C.Additional powers of Director to inquire into complaints.
Section 7D.Claims for indemnity for termination of contract without notice.
Section 7E.Order of Director may be in writing.
Section 7F.Procedure in Director’s inquiry.
Section 7G.Director’s record of inquiry.
Section 7H.Joinder of several complaints in one complaint.
Section 7I.Prohibitory order by Director to third party.
Section 7J.No fees for summons; service of summons.
Section 7K.Enforcement of Director’s order by Sessions Court.
Section 7L.Submission by Director to High Court on point of law.
Section 7M. Appeal against Director’s order to High Court.
Section 7N.Employee’s remedy when employer about to abscond.
Section 7O. Examination on summons by the Director.
Section 7P. Right of employee to appear before the Director.
CHAPTER III - [Deleted] .
Section 8. [Deleted].
PART II - CONTRACTS OF SERVICE
CHAPTER IV - TERMS AND CONDITIONS.
Section 9. More favourable conditions of service under the Ordinance to prevail.
Section 9A.Validity of any term or condition of service which is more favourable.
Section 9B.Removal of doubt in respect of matters not provided for by or under this Ordinance.
Section 9C.Contracts of service not to restrict rights of employees to join, participate in or organize trade unions.
Section 10. Guaranteed week
Section 10A.Provision as to termination of contracts.
Section 11. Termination of contract of service by notice.
Section 12. Termination of contract without notice.
Section 13. Termination of contract for special reasons.
Section 13A.When contract is deemed to be broken by employer and employee.
Section 14. [Deleted]
Section 15. [Deleted]
Section 16. [Deleted]
CHAPTER V - [Deleted]
Section 17. [Deleted]
Section 18. Contracts to be in writing and to include provision for termination.
Section 19. [Deleted]
Section 20. [Deleted]
Section 21. [Deleted].
Section 22. [Deleted].
Section 23. [Deleted].
Section 24. [Deleted].
Section 25. [Deleted].
Section 26. [Deleted].
Section 27. [Deleted].
Section 28. [Deleted].
Section 29. [Deleted].
Section 30. [Deleted].
Section 31. [Deleted].
Section 32. [Deleted].
Section 33. [Deleted].
CHAPTER VI - APPRENTICESHIP CONTRACTS.
Section 34. Apprenticeship contracts excluded from sections 10, 10A, 11, 12, 13, 13A, and 18.
Section 35. [Deleted].
Section 36. [Deleted].
Section 37. [Deleted].
Section 38. [Deleted].
Section 39. [Deleted].
Section 40. [Deleted].
Section 41. [Deleted].
Section 42. [Deleted].
CHAPTER VII [Deleted].
Section 43. [Deleted].
CHAPTER VIII - [Deleted].
CHAPTER IX - [Deleted].
Section 44. [Deleted].
Section 45. [Deleted]. .
Section 46. [Deleted].
Section 47. [Deleted].
Section 48. [Deleted].
Section 49. [Deleted].
Section 50. [Deleted].
Section 51. [Deleted].
Section 52. [Deleted].
Section 53. [Deleted].
Section 54. [Deleted].
CHAPTER IX - [Deleted].
Section 55. [Deleted].
PART IV - PROVISIONS RELATING TO EMPLOYMENT
CHAPTER X - REGISTERS, RETURNS AND NOTICE BOARD .
Section 56. [Deleted].
Section 57. Duty to display notice board.
Section 58. Duty to keep registers.
Section 58A. Powers to make rules requiring information as to wages.
Section 59. Duty to submit returns.
Section 59A. Duty to give notice and other information.
Section 60. [Deleted].
Section 61. [Deleted].
Section 62. [Deleted].
Section 63. [Deleted].
Section 64. [Deleted].
Section 65. [Deleted].
Section 66. [Deleted].
Section 67. [Deleted].
Section 68. [Deleted].
Section 69. [Deleted].
CHAPTER XI - SPECIAL PROVISIONS RELATING TO THE EMPLOYMENT OF CHILDREN AND YOUNG PERSONS.
Section 70.[Deleted].
Section 71. Certificate of medical officer as to age.
Section 72. Employment in which children and young persons may be engaged.
Section 73. The Minister may prohibit any child or young person from engaging or being engaged in any employment.
Section 73A.Number of days of work.
Section 73B.Hours of work of children.
Section 73C.Hours of work of young person.
Section 73D.Employment connected with public entertainment.
Section 74. [Deleted].
Section 74A. Power to prescribe minimum wages after inquiry.
Section 74B. Contractual capacity.
CHAPTER XIA - EMPLOYMENT OF WOMEN
Section 75. Prohibition of night work.
Section 76. Emergencies
Section 77. [Deleted].
Section 78. Prohibition of underground work.
Section 78A. Prohibition of employment.
Section 79. [Deleted].
Section 80. [Deleted].
Section 81. [Deleted].
Section 82. [Deleted].
CHAPTER XIB - MATERNITY PROTECTION
Section 83. Length of eligible period and entitlement to maternity allowance.
Section 84. [Deleted].
Section 85. Payment of maternity allowance.
Section 86. Payment of allowance to nominee on death of a female employee.
Section 87. Loss of maternity allowance for failure to notify employer.
Section 88. [Deleted].
Section 89. [Deleted].
Section 90. Payment of allowance to nominee.
Section 91. Notice of termination of employment.
Section 91A. Restriction on dismissal of female employee after eligible period.
Section 92. [Deleted].
Section 93. [Deleted].
Section 94. Conditions contrary to Chapter void.
Section 94A.Register of allowances paid.
Section 95. [Deleted].
CHAPTER XII - REPATRIATION
Section 96. Rights and obligations of worker and employer in respect of repatriation.
Section 97. Exemption from obligation to repatriate.
Section 98. Employer to provide transport.
Section 99. [Deleted].
CHAPTER XIII - Domestic service
Section 100. Domestic servants
CHAPTER XIV - CONTRACTS OF SERVICE
Section 101.[Deleted].
Section 102. Limitation on advances to employees.
Section 103. Holidays.
Section 104. Hours of work.
Section 104A.Shift work.
Section 104B.Rest day.
Section 104C.Work on rest day.
Section 104D.Annual leave.
Section 104E.Sick leave.
Section 104F.Termination, lay-off and retirement benefits.
Section 105. Task work.
Section 106. [Deleted].
Section 107. Period for which wages not payable.
Section 107A.Wage period.
Section 107B.Wages not due for absence from work through imprisonment or attendance in court.
Section 108. Payment of wages.
Section 109. Restriction on places at which wages may be paid.
Section 110. Wages to be paid in legal tender.
Section 110A. Payment of wages through bank.
Section 111. [Deleted].
Section 112. Conditions restricting place at which, manner in which, and person with whom wages paid to be spent illegal.
Section 113. Lawful deductions.
Section 114. Interest on advances forbidden
Section 115. Deductions for fines, etc.
Section 116. Remuneration other than wages
Section 116A. Priority of wages over other debts.
Section 116B.Reference by the Court to Director.
Section 116C.Liability of principals and contractors for wages.
CHAPTER XIVA - EMPLOYMENT OF NON - RESIDENT EMPLOYEE.
Section 117. [Deleted.]
Section 118. Employment of non resident employee and priority for resident employee.
Section 118A.Duty to furnish information and returns.
Section 118B.Director may inquire into complaint.
Section 118C.Prohibition on termination of resident employee for non-resident employee.
Section 118D.Termination of employment by reason of redundancy.
Section 118E. Permanent resident exempted from this Chapter.
Section 119. [Deleted].
Section 120. [Deleted].
Section 121. [Deleted].
PART V - PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS AND REPEAL.
CHAPTER XVI - GENERAL.
Section 122. [Deleted].
Section 123. [Deleted].
Section 123A.Prosecution.
Section 123B.Power of court imposing fine.
Section 123C.Effect of imprisonment.
Section 124. Right of audience.
Section 125. Public servants.
Section 125A.Protection of Director and officers.
Section 126. [Deleted].
Section 127. Saving clause as to civil jurisdiction of court.
Section 128. Onus of proof.
Section 129. Service of summons.
Section 129A. Incapacity of Director hearing inquiry.
Section 130. [Deleted].
CHAPTER XVIA - OFFENCES AND PENALTIES.
Section 130A. Under sections 3 to 6.
Section 130B.Offence in connection with inquiry or inspection.
Section 130C.Under Chapter IIA.
Section 130D.Under Chapter IV.
Section 130E.Under Chapter X.
Section 130F.Under Chapter XI.
Section 130G.Under Chapter XIA.
Section 130H.Under Chapter XIB.
Section 130I.Under Chapter XII.
Section 130J.Under Chapter XIV.
Section 130K.Penalties for failure or noncompliance in relation to rest days, overtime, holidays, annual leave and sick leave.
Section 130L.Under Chapter XIVA.
Section 130M.General penalty.
Section 130N. Power to compound offences.
CHAPTER XVIB - RULES.
Section 130O.Power to make rules.
Section 131. Existing Ordinances not affected.
Section 132. Saving and transitional of contracts, etc., entered into before this Ordinance.
SCHEDULE: [Subsection (2) of section 2]
Long Title
To amend and consolidate the law relating to labour [Ord. No. 18 of 1949].
Part I
Labour Department
CHAPTER I - PRELIMINARY AND INTERPRETATION
1 Short title
This ordinance may be cited as the Labour Ordinance.
2 Interpretation
(1) In this Ordinance, unless the context otherwise requires—
"adopted", in reference to any child, means—
(a) a child adopted, or whose adoption has been registered in accordance with the provisions of any written law relating to the adoption of children from time to time in force in Sabah; or
(b) where there is no such written law, a child whom the Director has certified as having been adopted in accordance with religion, custom or usage;
"agricultural undertaking" means any work in which any employee is employed under a contract of service for the purposes of agriculture, aquaculture, horticulture, silviculture or landscaping, fisheries, livestock husbandry, the rearing, hunting or capturing of wild animals, birds, insects, reptiles, amphibians or worms or the collection of the produce of plants or trees;
"apprenticeship contract" means a written contract entered into by a person with an employer who undertakes to employ the person and train or have him trained systematically for a trade for a specified period which shall not be less than two years in the course of which the apprentice is bound to work in the employer’s service;
"approved amenity or approved service" means any amenity or service—
(a) approved by the Director under subsection (2) of section 116 on application made to him by an employer for its inclusion in a contract of service; or
(b) provided for in any award made by the Industrial Court or in any collective agreement;
"approved incentive payment scheme" means an incentive payment scheme approved by the Director upon an application made to him in writing by an employer under and for the purposes of the interpretation of ordinary rate of pay under this section;
"child" means a person under the age of fifteen years;
"collective agreement" has the same meaning assigned thereto as in the Industrial Relations Act 1967; [Act 177]
"confinement" means parturition resulting after at least twenty-eight weeks of pregnancy in the issue of a child or children, whether alive or dead, and shall for the purposes of this Ordinance commence and end on the actual day of birth and where two or more children are born at one confinement shall commence and end on the day of the birth of the last-born of such children, and the word "confined" shall be construed accordingly;
"constructional work" includes the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, dredge, wireless, telegraphic or telephonic installation, electrical undertaking, gaswork, waterwork or other work of construction, as well as preparation for, or the laying of, the foundations of any such work or structure, and also any earthworks both in excavation and in filling;
"contract of service" means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;
"contractor" means any person who contracts with a principal to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principal’s trade or business;
"day" means—
(a) a continuous period of twenty-four hours beginning at midnight; or
(b) for the purposes of Chapter XIV in respect of an employee engaged in shift work or in work where the normal hours of work extend beyond midnight, a continuous period of twenty-four hours beginning at any point of time;
"dependant" means—
(a) the husband;
(b) the wife or wives;
(c) a child, step-child or adopted child, who is unmarried and under the age of eighteen years;
(d) natural or legally adoptive parents,
of an employee;
"Director" means the Director of Labour appointed by virtue of subsection (1) of section 3;
"domestic servant" means a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child’s nurse, valet, footman, gardener, washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use;
"employee" means any person or class of persons—
(a) included in any category in the Schedule to the extent specified therein; or
(b) in respect of whom the Minister makes an order under subsection (7) of section 2A;
"employer" means any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first-mentioned person, and the word "employ", with its grammatical variations and cognate expressions, shall be construed accordingly;
"entertainment" includes any exhibition or performance;
"family" means the husband or the wife or wives of an employee, and his children, step children and adopted children who are unmarried and under the age of eighteen years;
"forestry undertaking" means—
(a) any work or occupation involved in the logging, transportation, processing, storage and utilization of timber or the manufacture of timber products;
(b) any work or activity relating to the taking of forest produce; or
(c) any work or occupation involved in forest plantation, reafforestation, silviculture and horticulture;
"guardian", in relation to a child or young person, includes any person who, in the opinion of the Court having cognizance of any case in relation to the child or young person or in which the child or young person is concerned, has for the time being the charge of or control over the child or young person;
"hourly rate of pay" means the ordinary rate of pay divided by the normal hours of work;
"Industrial Court" has the same meaning assigned thereto in the Industrial Relations Act 1967;
"industrial undertaking" means—
(a) mines, quarries and other works for the extraction of minerals from the earth;
(b) industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, published or printed or bound, adapted for sale, broken up or demolished, packed or otherwise prepared for delivery or in which materials are transformed, or minerals treated including shipbuilding, and the generation, transformation and transmission of electricity and motive power of any kind;
(c) constructional work;
(d) transport of passengers or goods by road, rail, water or air including the handling of goods at docks, quays, wharves, warehouses, bulking installations, airports or airstrips;
(e) any industry, establishment or undertaking, or any other activity, service or work, which the Minister may by order declare to be an industrial undertaking;
"medical officer" means a registered medical practitioner who is employed in a medical capacity by the Federal Government or the Government of a State;
"Minister" means the Minister responsible for labour matters;
"non-resident employee" means any person who does not belong to Sabah as provided for in section 71 of the Immigration Act 1959/1963; [Act 155]
"normal hours of work" means the number of hours of work, not exceeding the limit prescribed in subsection (1) of section 104, as agreed between an employer and an employee in the contract of service to be the usual hours of work per day;
"ordinary rate of pay" means wages whether calculated by the month, the week, the day, the hour, or by piece rate, or otherwise, which an employee is entitled to receive under the terms of his contract of service for the normal hours of work for one day, but does not include any payment made under an approved incentive payment scheme or any payment for work done on a rest day or on any gazetted public holiday granted by the employer under the contract of service or any day substituted for the gazetted public holiday;
"overtime" means the number of hours of work carried out in excess of the normal hours of work per day, and includes, if any work is carried out after the spread over period of ten hours, the whole period beginning from the time that such spread over period ends up to the time that the employee ceases work for the day;
"part-time employee" means a person included in the Schedule whose average hours of work as agreed between him and his employer do not exceed seventy per centum of the normal hours of work of a full-time employee employed in a similar capacity in the same enterprise whether the normal hours of work are calculated with reference to a day, a week, or any other period as may be specified by rules under Chapter XVIB;
"place of employment" means any place where work is carried on for an employer by an employee;
"principal" means any person who in the course of or for the purposes of his trade or business contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by that person;
"recruit" means to procure, engage, hire or supply or undertake to procure, engage, hire or supply employees for the purpose of being employed by the recruiter or by any other person, where such employee does not spontaneously offer his services at the place of employment or at a public employment office or at an office conducted by an employers’ organisation and supervised by the Government;
"registered medical practitioner" means a medical practitioner registered under the Medical Act 1971; [Act 50.]
"repatriation" means, in the case of a non-resident employee, the return of an employee to his country or State of origin, and in the case of a resident employee recruited from Sabah, to a place he specifies to his employer at the time of commencement of employment to be his home town, and "repatriated" shall be construed accordingly;
"shift work" means work which by reason of its nature requires to be carried on continuously or continually, as the case may be, by two or more shifts;
"ship" includes any vessel of any nature, engaged in maritime navigation whether publicly or privately owned, but does not include a ship of war;
"subcontractor" means any person who contracts with a contractor for the execution by or under that person of the whole or any part of any work undertaken by the contractor for his principal, and includes any person who contracts with a subcontractor to carry out the whole or any part of any work undertaken by the subcontractor for a contractor;
"subcontractor for labour" means any person who contracts with a contractor or subcontractor to supply the labour required for the execution of the whole or any part of any work which a contractor or subcontractor has contracted to carry out for a principal or contractor, as the case may be;
"underground work" means any undertaking in which operations are conducted for the purpose of extracting any substance from below the surface of the earth, the ingress to and egress from which is by means of shafts, adits or natural caves;
"wage period" means the period in respect of which wages earned by an employee are payable;
"wages" means basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service but does not include—
(a) the value of any house accommodation or the supply of any food, fuel, light or water or medical attendance, or of any approved amenity or approved service;
(b) any contribution paid by the employer on his own account to any pension fund, provident fund, superannuation scheme, retrenchment, termination, lay-off or retirement scheme, thrift scheme, or any other fund or scheme established for the benefit or welfare of the employee;
(c) any travelling allowance or the value of any travelling concession;
(d) any sum payable to the employee to defray special expenses entailed on him by the nature of his employment;
(e) any gratuity payable on discharge or retirement; or
(f) any annual bonus or any part of any annual bonus;
"week" means a continuous period of seven days;
"woman" means a female of the age of eighteen years or above;
"young person" means a person who has ceased to be a child but has not attained the age of eighteen years.
(2) For the purposes of Chapter XI, a person is deemed to be taking part in an entertainment when such person is employed in or connected with such entertainment whether as a performer, stagehand or musician.
(3) Where an employee is employed on—
(a) a monthly rate of pay, the ordinary rate of pay per day shall be calculated according to the following formula:
monthly rate of pay
26
(b) a weekly rate of pay, the ordinary rate of pay per day shall be calculated according to the following formula:
weekly rate of pay
6
(c) a daily rate of pay or on piece rates, the ordinary rate of pay shall be calculated by dividing the total wages earned by such employee during the preceding wage period (excluding any payment made under an approved incentive payment scheme or for work done on any rest day, any gazetted public holiday granted by the employer under the contract of service or any day substituted for the gazetted public holiday) by the actual number of days the employee had worked during that wage period (excluding any rest day, any gazetted public holiday or any paid holiday substituted for the gazetted public holiday).
(4) For the purposes of payment of sick leave under section 104E, the calculation of the ordinary rate of pay of an employee employed on a daily rate of pay or on piece rate under paragraph (c) of subsection (3) shall take account only of the basic pay the employee receives or the rate per piece he is paid for work done in a day under the contract of service.
(5) An employer may adopt any method or formula other than the method or formula in subsection (3) for calculating the ordinary rate of pay of an employee; but the adoption of any other method or formula shall not result in a rate which is less than any of the rates calculated using the method or formula in that subsection.
(6) The Minister may by order amend the Schedule.
(7) The Minister may by order declare such provisions of this Ordinance and any other written law as may be specified in the order to be applicable to any person or class of persons employed, engaged or contracted with to carry out work in any occupation in any agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work, and upon the coming into force of any such order—
(a) any person or class of persons specified in the order shall be deemed to be an employee or employees;
(b) the person employing, engaging or contracting with every such person or class of persons shall be deemed to be an employer;
(c) the employer and the employee shall be deemed to have entered into a contract of service with one another;
(d) the place where such employee carries on work for his employer shall be deemed to be a place of employment; and
(e) the remuneration of such employee shall be deemed to be wages,
for the purposes of such specified provisions of this Ordinance and any other written law.
(8) The Minister may make rules in respect of the terms and conditions upon which the person or class of persons specified pursuant to subsection (7) may be employed.
(9) Notwithstanding the provisions of this Ordinance, the Minister may make rules—
(a) in respect of the terms and conditions of service of a part-time employee; and
(b) prescribing the manner in which the hours of work of an employee are to be computed for the purposes of determining whether that employee falls within the definition of a "part-time employee".
(10) The Minister may, from time to time, by notification published in the Gazette, declare any particular industry, establishment or undertaking, or any class, category or description of industries, establishments or undertakings or any particular activity, service or work, or any class, category or description of activities, services or works, to be an industrial undertaking for the purposes of this Ordinance.
[Subs. Act A1238:s.3]
[Former ordinance reads:]
For the purpose of this Ordinance save where the context otherwise requires---
"agreement "means an oral engagement to work entered into in accordance with the provisions of this Ordinance;
"apprentice "means any person of either sex who has contracted to serve an employer and to learn and be taught any business, trade, manufacture, undertaking, calling or employment in which workers are employed;
"child "means a person under the age of fourteen years;
"confinement "means the delivery of a child;
"contract "means a written engagement to work entered into in accordance with the provisions of this Ordinance;
"dependant "means the wife or wives of a worker and his children who are unmarried and under the age of sixteen years and any aged or incapacitated relative entirely dependent upon him and living with him;
"domestic servant "means any house, stable or garden servant or car driver employed in, or in connection with, the domestic services of any public or private dwelling-house,eating house, club, and others
(note : text cannot see)
"employer"includes:
(a) the Government of the Federal and State Government;
(b) the Government of any Member of the Commonwealth in respect of any worker, whose agreement or contract of service was made in the colony; and
(c) any person or body of person corporate or incorporate and the legal personal representative of a deceased employer who or which enters or has entered into any agreement or contract with any worker and the duly authorised agent or manager of such person or body of persons;
and where any such person or government (hereinafter referred to as the principal) in the course of or for the purpose of his or its trade, business or operations enters into any agreement or contract with any other person ( hereinafter referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be held to be the employer;
"family"means the wife or wives of a worker and his children who are unmarried and under the age of fourteen years.
"Health Officer"means the Director of Medical Services and includes any officer to whom, by writing under his hand, he delegates the exercise or performance of all or any of the powers or duties conferred or imposed on the Health Officer by this Ordinance to the extent of the powers or duties so delegated;
"immigrant worker "means any worker whose passage to the Colony has been provided in consideration of a promise to perform work in the Colony;
"industrial undertaking "means---
(a) mines, quarries and other works for the extraction of minerals from the earth;
(b) industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed, including shipbuilding, and the generation, transformation and transmission of electricity and motive power of any kind;
(c) construction, reconstruction, maintenance, repair, alteration, or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, telegraphic or telephonic installation, electrical undertaking, gaswork, waterwork or other work of construction, as well as the preparation for or laying the foundation of any such work or structure;
(d) transport of passengers or goods by road or rail, or inland waterways, including the handling of goods at docks, quays, wharves, and warehouses, but excluding transport by hand.
Provided that if, having regard to the nature of the work involved in any occupation which forms part of the industrial undertakings, the minister considers that such occupation should be excluded from the provisions of this Ordinance relating to industrial occupations, he may declare, by order, that employment in such occupation shall be deemed not to be employment in an industrial undertakings for the purpose of this Ordinance;
Provided further that any undertaking of which a part only is an industrial undertakings shall not for that reason alone be deemed to be an industrial undertakings.
"mine "includes any undertaking whether public or private for the extraction of any substance from under the surface of the earth;
"native "means any person of a race or tribe indigenous to the Colonies of North Borneo, Sabah, or Sarawak or the State of Brunei;
"place of employment "means any place where work is carried on by or on behalf of any employer;
"recruit "with its grammatical variations and cognate expressions means to procure, engage, hire, or supply or undertake or attempt to procure, engage, engage hire or supply workers for the purpose of being employed by the recruiter or by any other person, where such worker does not spontaneously offer his services at the place of employment or at a public employment office or at an office conducted by an employers’ organisation and supervised by the Government of the Federation;
"repatriation "means the return of a worker to his country of domicile or origin and includes the return to his home of a worker who has been brought to a place of employment by an employer from any other place within the Colony;
"shift worker "means a worker who is doing work which by reason of its nature requires to be carried on continuously by a succession.
"ship "includes any vessel or boat of any nature whatsoever, engaged in maritime navigation whether publicly or privately owned but does not include a ship of war;
"woman "means a female of the age of eighteen years or upwards;
"worker "means a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner or other person engaged in manual labour or in recruiting such or in supervising in person any in and throughout the performance of his work, who has entered into and works under an agreement or contract with an employer and includes an immigrant worker and any person other than clerical staff, employed in the operation or maintenance of mechanically propell vehicles used for the transport of passengers or goods for hire or for commercial purposes, but does not include an apprentice or domestic servant;
"worker - recruiter "means a person who, being employed as a worker, is authorised in writing by his employer to recruit, but who does not receive any remuneration or other advantage for such recruiting;
"young person "means a person who has ceased to be a child but who is under the age of eighteen years.
2A Minister may prohibit employment other than under contract of service
(1) The Minister may by order prohibit the employment, engagement or contracting of any person or class of persons to carry out work in any occupation in any agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work other than under a contract of service entered into with the principal or owner of that agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work.
(2) Upon the coming into force of any such order, the person or class of persons employed, engaged, or contracted with to carry out the work shall be deemed to be an employee or employees and the principal or owner of the agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work, shall be deemed to be the employer for the purposes of such provisions of this Ordinance and any other written law as may be specified in the order.
(3) Notwithstanding subsection (1), the Minister may by order approve the employment of any person or class of persons by such other person or class of persons (not being the principal or owner) as he may specify but subject to such conditions as he may deem fit to impose.
(4) Any person who contravenes any order made under this section commits an offence.
[Ins.Act A1238:s.4]
2B General power to exempt or exclude
The Minister may by order exempt or exclude, subject to such conditions as he may deem fit to impose, any person or class of persons from all or any of the provisions of this Ordinance.
[Ins.Act A1238:s.4]
CHAPTER II - OFFICERS
3 Commissioner of Labour and other officers
(1) The Minister may appoint an officer to be styled the Director of Labour, hereinafter referred to as the "Director".
[Subs .Act A1238:s.5]
(1A) The Minister may appoint, to such number as he considers necessary for carrying out the provisions of this Ordinance, officers of the following categories that is to say:
(a) Deputy Directors of Labour;
(b) Senior Assistant Directors of Labour;
(c) Assistant Directors of Labour; and
(d) Labour Officers and such other officers.
[Ins.Act A1238:s.5]
(1B) Subject to such limitations, if any, as may be prescribed by rules made under this Ordinance, any officer appointed under subsection (1A) shall perform all the duties imposed and may exercise all the powers conferred upon the Director by this Ordinance, and every duty so performed and power so exercised shall be deemed to have been duly performed and exercised for the purposes of this Ordinance.
[Ins.Act A1238:s.5]
(2) Any person affected by any decision or order, other than an order under Chapter IIA, given or made by an officer appointed under subsection (1A) may, if he is dissatisfied with such decision or order, within fourteen days of such decision or order being communicated to him, appeal in writing therefrom to the Director.
[Subs .Act A1238:s.5]
(3) If any employer is dissatisfied with any decision or order made or given by the Commissioner of Labour either original or by virtue of the preceding sub-section, he may appeal from such decision or order to the Minister within fourteen days of the date of such decision or order being communicated to him.
[Former section reads:
(1) The Minister may appoint an officer to be styled the Commissioner of Labour, hereinafter referred to as the Commissioner, and also appoint one or more officers to be styled Deputy Commissioner of Labour or Assistant Commissioner of Labour and such other officers as may be necessary for carrying out the provisions of this Ordinance, who, subject to such limitations as the Minister may by rule prescribe, may perform all duties imposed and exercise all powers conferred on the Commissioner by this Ordinance.
(2) If any employer is dissatisfied with any decision or order of a Deputy Commissioner of Labour or an Assistant Commissioner of Labour made or given by virtue of the provisions of the preceding sub-section he may appeal from such decision or order to the Commissioner within fourteen days of the date of such decision or order being communicated to him.
3A Officers to be authorized by Director
An officer appointed under subsection (1A) of section 3 shall not exercise any of the powers of the Director under this Ordinance unless he is in possession of an official identification signed by the Director authorizing him to exercise such powers, and any officer so authorized shall produce his official identification on demand to the owner or occupier of the place of employment and to the employer of any employees employed thereat.
[Ins.Act A1238:s.6]
4 Powers of inspection and inquiry
(1) The Director shall have power to enter without prior notice at all times any place of employment where employees are employed or where he has reasonable grounds for believing that employees are employed and to inspect any building occupied or used for any purpose connected with such employment and to make any inquiry which he considers necessary in relation to any matter within the provisions of this Ordinance.
[Subs .Act A1238:s.7]
(2) In the course of an inspection under subsection (1)—
(a) the Director may put questions concerning the employees to the employer or to any person who may be in charge of them, or to the employees themselves or any other person whom he believes to be acquainted with the facts and circumstances of any matter within the provisions of this Ordinance;
(b) the employer or such person, or any such employee, or any such other person shall be legally bound to answer such questions truly to the best of his ability;
(c) a statement made by a person under this section shall, whenever possible, be reduced into writing and signed by the person making it or affixed with his thumbprint, as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any correction he may wish; and
(d) any statement made and recorded under this section shall be admissible as evidence in any proceedings in Court.
[Subs .Act A1238:s.7]
(3) If the Commissioner has reasonable ground for suspecting that any offence has been committed against an employee, and whenever any complaint of personal ill-usage or breach of any of the provisions of this Ordinance is made to the Commissioner, the Commissioner may forthwith remove, or cause to be removed, such employee from the place of employment where he is employed for further enquiry into the matter.
[Am.Act A1238:s.2,s.7]
(4) The Commissioner may by order in writing require any employer to take within such reasonable time as the Commissioner may determine such steps as he considers necessary with a view to remedying defects observed in plant, layout, working methods, supervision, medical or sanitary provision or other matters at any place of employment which he may have reasonable cause to believe constitute a threat to the health or safety of the employees.
[Am.Act A1238:s.2,s.7]
[Former section reads:
(1) The Commissioner or Health Officer may enter at all reasonable times upon any place of employment, and into any house accomodation provided by an employer for workers to the employer or to any person who may be in charge of them, or to the workers themselves, and the employer or such person, or any such worker, shall be legally bound to answer such questions truly to the best of his ability.
(2) The Commissioner may be warrant under his hand appoint Inspectors who may exercise the powers contained in subsection (1). Any such Inspector as shall not have been appointed under the provisions of subsection (1) of section 3 shall, upon demand made by the person in charge of such premises produce his warrant.
(3) If the Commissioner or Health Officer has reasonable ground for suspecting that any offence has been committed against a worker, and whenever any complaint of personal ill-usage or breach of any of the provisions of this Ordinance is made to the Commissioner or Health Officer, the Commissioner or Health Officer, as the case may be, may forthwith remove, or cause to be removed, such worker from the place of employment where he is employed for further enquiry into the matter.
(4) The Commissioner or Health Officer may by order in writing require any employer to take within such reasonable time as the Commissioner may determine such steps as he considers necessary with a view to remedying defects observed in plant, layout, working methods, supervision, medical or sanitary provision or other matters at any place of employment which he may have reasonable cause to believe constitute a threat to the health or safety of the workers.
5 Inspection of documents
(1) The Commissioner may---
[Am.Act A1238:s.8]
(a) require the employer to produce before him all or any of the employees employed by him together with any contracts of service, books of account of wages, registers and other documents relating to the employees or their employment and to answer such questions in respect of the employees or their employment as he may think fit to ask;
[Subs. Act A1238:s.8]
(b) take or remove for purposes of analysis samples of materials and substances used or handled, subject to the employer or his representative being notified of any samples or substances taken or removed for such purposes;
[Am.Act A1238:s.8]
(c) copy or make extracts from the contracts of service, books of account of wages, registers and other documents relating to the employees or their employment;
(d) take possession of the contracts of service, books of account of wages, registers and other documents relating to the employees or their employment where, in his opinion—
(i) the inspection, copying or the making of extracts from the contracts of service, books of account of wages, registers or other documents cannot reasonably be undertaken without taking possession of them;
(ii) the contracts of service, books of account of wages, registers or other documents may be interfered with or destroyed unless he takes possession of them; or
(iii) the contracts of service, books of account of wages, registers or other documents may be needed as evidence in any legal proceedings under this Ordinance.
(2) Notwithstanding paragraph (a) of subsection (1), no employee shall be required to leave or to cease from performing any work on which he is engaged if his absence or cessation from such work would endanger life or property or seriously disrupt any operation being carried on by his employer.
[Ins. Act A1238:s.8]
[Former section reads:
The Commissioner or Health Officer may---
(a) call for and examine all contracts, registers, books of account and other documents concerning any worker or relating to their employment; and
(b) take or remove for purposes of analysis samples of materials and substances used or handled, subject to the employer or his representative being notified of any samples or substances taken or removed for such purposes.
6 Power of summons and institution of proceedings
(1) Whenever the Commissioner has reasonable grounds for suspicion that any offence under this Ordinance or any rule made hereunder has been committed or is about to be committed or wishes to enquire into any matter concerning terms and conditions of employment or any other matter relating to employer and worker dealt with under the provisions of this Ordinance, or any rules made hereunder the Commissioner may summon any person whom he has reason to believe can give information respecting the subject-matter of the enquiry, and the person so summoned shall be legally bound to attend at the time and place specified in the summons and to answer truthfully all questions which the Commissioner may put to him.
[Am. Act A1238:s.9]
(1A) The Director may issue to the employer such order as may be necessary or expedient to resolve the matters dealt with under subsection (1).
[Ins. Act A1238:s.9]
(2) If the Commissioner is of opinion that an offence has been committed or that any complaint is well founded he may institute such criminal proceedings as he shall deem necessary in the circumstances.
[Am. Act A1238:s.9]
(3) A summons issued under this section shall be in such form as may be prescribed.
[Ins. Act A1238:s.9]
[Former section reads:
(1) Whenever the Commissioner has reasonable grounds for suspicion that any offence under this Ordinance has been committed or wishes to enquire into any matter concerning disputes as to wages, wrongful termination of agreement or contract, misconduct, food, medical attendance, death. mining usage and mining complaint, Federal or State Government inspection, sanitation or any other matter relating to employer and worker dealt with under the provisions of this Ordinance, the Commissioner may summon any person whom he has reason to believe can give information respecting the subject-matter of the enquiry, and the person so summoned shall be legally bound to attend at the time and place specified in the summons and to answer truthfully all questions which the Commissioner may put to him.
(2) If the Commissioner is of opinion that an offence has been committed or that any complaint is well founded he may institute such proceedings criminal or civil for and in the name of the worker as he shall deem necessary in the circumstances.
7 [Deleted]
[Deleted by Act A1238:s.10]
[Former section reads:
Section 7. Penalties
(1) Any employer or other person who wilfully obstructs or impedes any entry, enquiry or investigation made under this Ordinance or wilfully obstructs the service of, or obedience to, any summons, and any person summoned who neglects to attend as required in such summon, and any person who commits in that connection any offence described in Chapter X of the Penal Code shall be punished as provided in the Chapter X of the Penal Code.
(2) Any employer who contravenes or fails to comply with any order of the Commissioner or Health Officer made under section 4 shall be quilty of an offence and shall be liable to a fine of five hundred dollars and to imprisonment for six months and, in the case of a continuing offence, to a fine of twenty-five dollars for every day during which such offence is continued.
(3) Any employer who knowingly makes any false entry in any statement or record concerning his workers shall be quilty of an offence and shall be liable to a fine of five hundred dollars and to imprisonment for six months.
CHAPTER IIA - COMPLAINTS AND INQUIRIES
7A Director’s power to inquire into complaints
(1) The Director may inquire into and decide any dispute between an employee and his employer in respect of wages or any other payment in cash due to such employee under—
(a) any term of the contract of service between such employee and his employer;
(b) any of the provisions of this Ordinance or any subsidiary legislation made thereunder; or
(c) the provisions of the Wages Councils Act 1947[ Act 195] or any order made thereunder,
and, in pursuance of such decision, may make an order in the prescribed form for the payment by the employer of such sum of money as he deems just without limitation of the amount of such sum of money.
(2) The powers of the Director under subsection (1) shall include the power to hear and decide, in accordance with the procedure laid down in this Chapter, any claim by—
(a) an employee against any person liable under section 116C;
(b) a subcontractor for labour against a contractor or subcontractor for any sum of money which the subcontractor for labour claims to be due to him in respect of any labour provided by him under his contract with the contractor or subcontractor; or
(c) an employer against his employee in respect of indemnity due to such employer under subsection (1) of section 12;
and to make such consequential orders as may be necessary to give effect to his decision.
(3) In addition to the powers conferred by subsections (1) and (2), the Director may inquire into and confirm or set aside any decision made by an employer to dismiss without notice, or downgrade or impose any other lesser punishment made by an employer under subsection (1) of section 13 and the Director may make such consequential orders as may be necessary to give effect to his decision:
Provided that if the decision of the employer under paragraph (a) of subsection (1) of section 13 is set aside, the consequential order made by the Director against such employer shall be confined to payment of indemnity in lieu of notice and other payments that the employee is entitled to as if no misconduct was committed by the employee:
Provided further that the Director shall not set aside any decision made by an employer when any other lesser punishment is imposed by an employer under paragraph (c) of subsection (1) of section 13 if such decision has not resulted in any loss in wages or other payments payable to the employee under his contract of service:
And provided further that the Director, shall not exercise the power conferred by this subsection unless the employee has made a complaint to him under the provisions of this Chapter within sixty days from the date on which the decision under section 13 is communicated to him either orally or in writing by his employer.
(4) An order made by the Director for the payment of money under this section shall carry interest at the rate of eight per centum per annum, or at such other rate not exceeding eight per centum per annum as the Director may direct, the interest to be calculated commencing on the thirty-first day from the date of the making of the order until the day the order is satisfied:
Provided that the Director, on an application by an employer made within thirty days from the date of the making of the order, if he is satisfied that special circumstances exist, may determine any other date from which the interest is to be calculated.
[Ins. Act A1238:s.11]
7B Limitation on power conferred by 7A
Notwithstanding section 7A, the Director shall not inquire into, hear, decide or make any order in respect of any claim, dispute or purported dispute which, in accordance with the Industrial Relations Act 1967—
(a) is pending in any inquiry or proceedings under that Act;
(b) has been decided upon by the Minister under subsection (3) of section 20 of that Act; or
(c) has been referred to, or is pending in any proceedings before, the Industrial Court.
[Ins. Act A1238:s.11]
7C Additional powers of Director to inquire into complaints
(1) Notwithstanding the provisions of this Ordinance, the powers of the Director under paragraph (a) of subsection (1) of section 7A shall extend to employees whose wages per month exceed two thousand five hundred ringgit but does not exceed five thousand ringgit.
(2) For the purposes of this section, the term "wages" means wages as defined in section 2 but does not include any payment by way of commission, subsistence allowance or overtime payment.
(3) Save for this Chapter and Chapter XVI which shall apply with the necessary modifications, the other provisions of this Ordinance shall not apply to the employees referred to in subsection (1).
[Ins. Act A1238:s.11]
7D Claims for indemnity for termination of contract without notice
(1) In the exercise of his powers under subsection (1) of section 7C, the Director may inquire into and decide any claim concerning any indemnity due to the employer or the employee where the contract of service is terminated by either party without notice, or if notice was given, without waiting for the expiry of that notice.
(2) The indemnity due to the employer or employee under subsection (1) shall be a sum equal to the amount of wages which would have accrued to the employee during the term of the notice or during the unexpired term of the notice.
[Ins. Act A1238:s.11]
7E Order of Director may be in writing
Notwithstanding subsection (1) of section 7A, an order of the Director made under subsection (1) of section 7C or subsection (1) of section 7D for the payment by or to the employer or employee of a sum of money as the Director deems just, without any limitation of amount, may be made in writing.
[Ins. Act A1238:s.11]
7F Procedure in Director’s inquiry
The procedure for disposing of questions arising under sections 7A, 7C and 7D shall be as follows:
(a) the person complaining shall present to the Director a written statement of his complaint and of the remedy which he seeks or he shall in person make a statement to the Director of his complaint and of the remedy which he seeks;
(b) the Director shall as soon as practicable thereafter examine the complainant on oath or affirmation and shall record the substance of the complainant’s statement in his case book;
(c) the Director may make such inquiry as he deems necessary to satisfy himself that the complaint discloses matters which in his opinion ought to be inquired into and may summon in the prescribed form the person complained against, or if it appears to him without any inquiry that the complaint discloses matters which ought to be inquired into he may forthwith summon the person complained against:
Provided that if the person complained against attends in person before the Director it shall not be necessary to serve a summons upon him;
(d) when issuing a summons to a person complained against, the Director shall give such person notice of the complaint made against him and the name of the complainant and shall inform him of the date, time and place at which he is required to attend and shall inform him that he may bring with him any witnesses he may wish to call on his behalf and that he may apply to the Director for summonses to such persons to appear as witnesses on his behalf;
(e) when the Director issues a summons to a person complained against, he shall inform the complainant of the date, time and place mentioned therein and shall instruct the complainant to bring with him any witnesses he may wish to call on his behalf and may on the request of the complainant and subject to any condition as he may deem fit to impose, issue summonses to such witnesses to appear on behalf of the complainant;
(f) when at any time before or during an inquiry, the Director has reason to believe that there are any persons whose financial interests are likely to be affected by such decision as he may give on completion of the inquiry or whom he has reason to believe have knowledge of the matters in issue or can give any evidence relevant thereto, he may summon any or all of such persons;
(g) the Director shall, at the time and place appointed, examine on oath or affirmation those persons summoned or otherwise present whose evidence he deems material to the matters in issue and shall then give his decision on the matters in issue;
(h) if the person complained against or any person whose financial interests the Director has reason to believe are likely to be affected and who has been duly summoned to attend at the time and place appointed in the summons fails so to attend, the Director may hear and decide the complaint in the absence of such person notwithstanding that the interests of such person may be prejudicially affected by his decision;
(i) in order to enable a court to enforce the decision of the Director, the Director shall embody his decision in an order in such form as may be prescribed.
Ins. Act A1238:s.11]
7G Director’s record of inquiry
The Director shall keep a case book in which he shall record the evidence of persons summoned or otherwise present and his decision and order in each matter in issue before him and shall authenticate the same by attaching his signature thereto and the record in such case book shall be sufficient evidence of the giving of any decision;
and any person interested in such decision or order shall be entitled to a copy thereof free of charge and to a copy of the record upon payment of the prescribed fee.
[Ins. Act A1238:s.11
7H Joinder of several complaints in one complaint
Where it appears to the Director in any proceedings under this Chapter that there are more employees than one having a common cause for complaint against the same employer or person liable, it shall not be necessary for each employee to make a separate complaint under this Chapter, but the Director may, if he thinks fit, permit one or more of them to make a complaint and to attend and act on behalf of and generally to represent the others, and the Director may proceed to a decision on the joint complaint or complaints of each and all such employees:
Provided that, where the Director is of the opinion that the interests of the employer or person liable are likely to be prejudiced by the non-attendance of any employee, he shall require the personal attendance of such employee.
[Ins. Act A1238:s.11]
7I Prohibitory order by Director to third party
(1) Whenever the Director shall have made an order under section 7A, 7C or 7D, against any employer or any person liable for the payment of any sum of money to any employee or subcontractor for labour and the Director has reason to believe that there exists between such employer or person liable and any other person a contract, not necessarily a contract as defined in section 2, in the course of the performance of which the employee or subcontractor performed the work in respect of which the order was made, the Director may summon such other person and, if after enquiry he is satisfied that such a contract exists, may make an order in the prescribed form prohibiting him from paying to the employer or person liable and requiring him to pay to the Director any money (not exceeding the amount found due to such employee or subcontractor for labour) admitted by him to be owing to the employer or person liable in respect of such contract:
Provided that where such other person admits to the Director in writing that money is owing by him under such contract to the employer or person liable he need not be summoned to attend before the Director and the Director may make such order in his absence:
Provided further that where such other person is liable as a principal under subsection (1) of section 116C to pay any wages due by the employer or person liable and where the money admitted by him to be owing to the employer or person liable is not sufficient to pay the whole of such wages, nothing in this subsection shall relieve him of his liability for the balance of such wages up to the amount for which he is liable under proviso (b) of subsection (1) of section 116C.
(2) The payment of any money in pursuance of an order under subsection (1) shall be a discharge and payment up to the amount so paid of money due to the employer or person liable under the contract.
[Ins. Act A1238:s.11]
7J No fees for summons; service of summons
(1) No fee shall be charged by the Director in respect of any summons issued by him under this Chapter.
(2) Any such summons may be served by a Sessions Court or a Magistrates’ Court on behalf of the Director or in such other manner, and by such person, as the Director may deem fit.
[Ins. Act A1238:s.11]
7K Enforcement of Director’s order by Sessions Court
Where any order has been made by the Director under this Chapter, and the same has not been complied with by the person to whom it is addressed, the Director may send a certified copy thereof to the Registrar of a Sessions Court, or to the Court of a First Class Magistrate, having jurisdiction in the place to which the order relates or in the place where the order was made, and the Registrar or Court, as the case may be, shall cause the copy to be recorded and thereupon the order shall for all purposes be enforceable as a judgment of the Sessions Court or of the Court of the First Class Magistrate, as the case may be, notwithstanding that the same may in respect of amount or value be in excess of the ordinary jurisdiction of the said Court:
Provided that no sale of immovable property shall for the purposes of such enforcement be ordered except by the High Court.
[Ins. Act A1238:s.11]
7L Submission by Director to High Court on point of law
(1) In any proceedings under this Chapter the Director may, if he thinks fit, submit any question of law for the decision of a Judge of the High Court and if he does so he shall decide the proceedings in conformity with such decision.
(2) An appeal shall lie to the Court of Appeal from any decision of a Judge under subsection (1).
[Ins. Act A1238:s.11]
7M Appeal against Director’s order to High Court
(1) If any person whose financial interests are affected is dissatisfied with the decision or order of the Director under section 7A, 7C, 7D or 7I, such person may appeal to the High Court.
(2) Subject to any rules made under section 4 of the Subordinate Courts Rules Act 1955, [ Act 55 ] the procedure in an appeal to the High Court shall be the procedure in a civil appeal from a Sessions Court with such modifications as the circumstances may require.
7N Employee’s remedy when employer about to abscond
(1) If any employee complains to a Magistrate that he has reasonable grounds for believing that his employer, in order to evade payment of his wages, is about to abscond, the Magistrate may summon such employer and direct him to show cause why he should not be required to give security by bond to remain in the State until such wages are paid; and if, after hearing the evidence of such employer, the Magistrate decides that such bond shall be given, the Magistrate may order such employer to give security by bond in such sum as to the Magistrate seems reasonable, that he will not leave the State until the Magistrate is satisfied that all the just claims of such employee against him for wages have been paid or settled.
(2) If the employer fails to comply with the terms of such order to give security, he shall be detained in prison until arrangements have been made to the satisfaction of the Magistrate for settling the claims of such employee:
Provided that—
(a) such employer shall be released at any time by the committing Magistrate on security being furnished or on his paying either the whole or such part as to the Magistrate seems reasonable of all just claims of such employee against him for wages or on filing of a petition in bankruptcy by or against him; and
(b) in no case shall the period of such detention exceed three months.
(3) The bond to be given by an employer shall be a personal bond with one or more sureties, and the penalty for breach of the bond shall be fixed with due regard to the circumstances of the case and the means of the employer.
(4) If on or after a complaint by any employee under subsection (1) it appears to the Magistrate that there is good ground for believing that the employer complained against has absconded or is absconding or is about to abscond, the Magistrate may issue a warrant for the arrest of such employer and such employer shall be detained in custody pending the hearing of the complaint unless he finds good and sufficient security to the satisfaction of the Magistrate for his appearance to answer the complaint.
(5) For the purposes of this section, a certificate purporting to be signed by the Director and issued to the Magistrate to the effect that wages claimed have been paid or settled shall be sufficient evidence of the payment or settlement thereof.
[Ins. Act A1238:s.11]
7O Examination on summons by the Director
Any person summoned by the Director under this Chapter shall be legally bound to attend at the time and place specified in the summons and to answer truthfully all questions which the Director may put to him.
[Ins. Act A1238:s.11]
7P Right of employee to appear before the Director
No employer shall prevent or attempt to prevent any employee from appearing before the Director in pursuance of this Chapter.
[Ins. Act A1238:s.11]
CHAPTER III - [Deleted]
8 [Deleted]
[Deleted by Act A1238:s.12]
[Former ordinance reads:]
Section 8. Power to make rules
(1) The Minister -in-Council may make rules generally for carrying out the provisions of this Part.
(2) Such rules may provide for any matter which by this Part is to be, or may be, prescribed.
(3) Any such rule may provide a penalty for the breach or contravention thereof not exceeding a fine of two hundred dollars or in default thereof imprisonment for three months.
Part II
Contracts Of Service
CHAPTER IV - TERMS AND CONDITIONS
9 More favourable conditions of service under the Ordinance to prevail
Subject to section 9A, any term or condition of a contract of service or of an agreement, whether such contract of service was entered into before or after the coming into force of this Ordinance, which provides a term or condition of service which is less favourable to an employee than a term or condition of service prescribed by this Ordinance or any rules, order or other subsidiary legislation made thereunder shall be void and of no effect to that extent and the more favourable provisions of this Ordinance or any rules, order or other subsidiary legislation made thereunder shall be substituted therefor.
[Subs.by Act A1238:s.15]
[Former ordinance reads:]
Section 9. Terms of agreement
An agreement may be entered into for any period not exceeding one month, or for any number of days’ work not exceeding twenty six or for the performance by a worker of any specified piece of work capable of being completed within one month from the commencement of the work.
Provided that each party to an agreement for a period not exceeding one month shall on the termination of such agreement in the manner aforesaid be conclusively presumed to have entered into a fresh agreement upon the same terms and conditions as those of the agreement so terminated unless notice has been given previously by either party to such agreement in accordance with the provisions of section 11.
(2) In the absence of proof to the contrary every agreement shall be presumed to be for a period of one month.
9A Validity of any term or condition of service which is more favourable
Subject to any express prohibition under this Ordinance or any rules, order or other subsidiary legislation made thereunder, nothing in section 9 shall be construed as preventing an employer and an employee from agreeing to any term or condition of service under which an employee is employed, or shall render invalid any term or condition of service stipulated in any collective agreement or in any award of the Industrial Court, which is more favourable to the employee than the provisions of this Ordinance or any rules, order or other subsidiary legislation made thereunder.
[Ins. by Act A1238:s.16]
9B Removal of doubt in respect of matters not provided for by or under this Ordinance
For the removal of doubt, it is hereby declared that if no provision is made in respect of any matter under this Ordinance or any subsidiary legislation made thereunder, or if no rules, order or other subsidiary legislation has been made on any matter in respect of which rules, or an order or other subsidiary legislation may be made under this Ordinance, it shall not be construed as preventing such matter from being provided for in a contract of service, or from being negotiated upon between an employer and an employee.
[Ins. by Act A1238:s.16]
9C Contracts of service not to restrict rights of employees to join, participate in or organize trade unions
Nothing in any contract of service shall in any manner restrict the right of any employee who is a party to such contract—
(a) to join a registered trade union;
(b) to participate in the activities of a registered trade union, whether as an officer of such union or otherwise; or
(c) to associate with any other persons for the purpose of organizing a trade union in accordance with the Trade Unions Act 1959. [Act 262].
[Ins. by Act A1238:s.16]
10 Guaranteed week
(1) In the case of an employee employed on a contract of service and paid according to the number of days’ work performed an employer shall provide work suitable to the capacity of such employee for not less than six days in every week with the exception of gazetted public holidays and Sundays (or such other rest day as may be substituted for a Sunday by agreement between the employer and the employee, entered into not less than three days before the rest is taken) and if he is unable or fails to provide such work on such number of days whereon the employee presents himself for work and is fit to work the employer shall nevertheless be bound to pay to the employee in respect of each of such days, wages, including cost of living allowance, if any, at not less than his ordinary rate of pay, or if the employee is on piece rates at not less than the average of his previous weeks’ earnings or if he has not been working, at the average rate during the last full weeks’ work by similar class of employee engaged on similar work..
[Am. by Act A1238:s.2, 17]
(2) A contract of service shall be deemed to be breached by an employer if he fails to provide work or pay wages in accordance with subsection (1).
[Ins. by Act A1238:s.17]
[Former ordinance reads:]
(1) In the case of a worker employed on an agreement for a period of a week or more and paid according to to the number of days’ work performed an employer shall provide work suitable to the capacity of such worker for not less than six days in every week with the exception of prescribed holidays and Sundays (or such other rest day as may be substituted for a Sunday by agreement between the employer and the worker, entered into not less than three days before the rest is taken) and if he is unable or fails to provide such work on such number of days whereon the worker presents himself for work and is fit to work the employer shall nevertheless be bound to pay to the worker in respect of each of such days, wages, including cost of living allowance, if any, at not less than his usual rate of pay, or if the worker is on piece rates at not less than the average of his previous weeks’ earnings or if he has not been working, at the average rate during the last full weeks’ work by similar class of worker engaged on similar work.
10A Provision as to termination of contracts
(1) A contract of service for a specified period of time or for the performance of a specified piece of work shall, unless otherwise terminated in accordance with this Chapter, terminate when the period of time for which such contract was made has expired or when the piece of work specified in such contract has been completed.
(2) A contract of service for an unspecified period of time shall continue in force until terminated in accordance with this Chapter.
[Ins. by Act A1238:s.18]
11 Termination of contract of service by notice
[Am. by Act A1238:s.19]
(1) Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service;
[Subs. by Act A1238:s.19]
(2) The length of such notice shall be the same for both employer and employee and shall be determined by a provision made in writing for such notice in the terms of the contract of service, or, in the absence of such provision in writing, shall not be less than—
(a) four weeks’ notice if the employee has been so employed for less than two years on the date on which the notice is given;
(b) six weeks’ notice if he has been so employed for two years or more but less than five years on such date;
(c) eight weeks’ notice if he has been so employed for five years or more on such date:
Provided that this Section shall not be taken to prevent either party from waiving his right to a notice under this subsection;
[Subs. by Act A1238:s.19]
(3) Notwithstanding anything contained in subsection (2), where the termination of service of the employee is attributable wholly or mainly to the fact that—
(a) the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed;
(b) the employer has ceased, or intends to cease, to carry on the business in the place at which the employee was contracted to work;
(c) requirements of that business for the employee to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish;
(d) the requirements of that business for the employee to carry out work of a particular kind in the place at which he was contracted to work have ceased or diminished or are expected to cease or diminish;
(e) the employee has refused to accept his transfer to any other place of employment, unless his contract of service requires him to accept such transfer; or
(f) a change has occurred in the ownership of the business for the purpose of which an employee is employed or of a part of such business,