Employment (Part-Time Employees) Regulations 2010

In October 2010, the new Employment (Part-Time Employees) Regulations came into force and affected many employers in the country. I will briefly highlight the entitlements provided for under this set of regulations.

Regulation 1 – Citation and Commencement

Vide gazette notification PU(A) 303, the Minister of Human Resource has introduced the above regulations which shall come into operation from 1^st October 2010 onwards. These regulations are intended for the purpose of setting a minimum standard required of an employer when engaging part-time employees. It also covers existing part-time employees who have commenced work before the coming into operation of these Regulations.

 

Regulation 2 – Interpretation

The “normal hours of work” referred to in these Regulations means the hours of work as agreed in the contract of service between the employer and the part-time employee.

 

Regulation 3 – Non-application

As these Regulations are subject to the Employment Act 1955, those who do not fall within the definition of “Employee” in the First Schedule of the Employment Act will not be covered by the Regulations. Under section 2 of the Employment Act 1955, a part-time employee is a person included in the First Schedule of the Employment Act 1955 whose average hours of work do not exceed 70% of the normal hours of work of a full time employee employed in a similar capacity.

The Regulations do not apply to casual employees i.e part-time employees who are engaged occasionally, or on an irregular basis as and when needed and whose working hours in one week does not exceed 30% of the normal hours of work of a full time employee in one week. For example, if the working hour of a full time employee is 48 hours per week and if a part-time employee for the same position has been employed to work not more than 15 hours per week, he is not covered by these Regulations. These Regulations also do not apply to a home working employee i.e one who performs work for an employer within the employee’s residence.

 

Regulation 4 – Normal hours of work of part-time employee where normal hours of work of full time employee cannot be ascertained

Since the definition stipulates that the hours of work of a part-time employee should not exceed 70% of the hours of work of a full-time employee, it is necessary to know the hours of work of the full time employee in the same position. The Regulation provides that if the normal hours of work of a full time employee cannot be ascertained or if no full time employee is employed in a similar capacity then the normal hours of work of a full time employee shall be deemed to be 8 hours in one day or 48 hours in one week.

 

Regulation 5 – Payment of hourly rate beyond normal hours of work

If a part-time employee is required to work overtime i.e in excess of his normal hours of work during the working week he should be paid as follows:

(a)    For any work in excess of the part-time employees normal hours of work which does not exceed the normal hours of a full-time employee’s work he should be paid his hourly rate of pay.

(b)   For any work which is in excess of the normal hours of work of a full time employee, he should be paid 1.5 times his hourly rate of pay.

For example, if the normal hours of work of the part time employee is 5 hours per day whereas the normal hours of work of a full time employee is 8 hours per day, then the part-time employee would be entitled to his normal hourly rate of pay for up to 8 hours but thereafter he would be entitled to 1.5 times his hourly rate of pay.

Regulation 6  – Holidays

(1)    Every part-time employee is entitled to a paid holiday at his ordinary rate of pay on the following days in a calendar year.

(a)    On not less than 7 of the gazetted public holidays, 4 of which shall be:

• the National Day
• the Birthday of Yang di-Pertuan Agong;
• the Birthday of Yang di-Pertua Negeri or Federal Territory Day
• the Worker’s Day

(b)   On any day declared under Section 8 of the Public Holidays Act 1951.

(2)    If any of the public holidays fall on a rest day the next working day shall be a paid holiday in substitution.

(3)    The employer is required to exhibit at the place of employment a notice specifying the gazetted public holidays.

(4)    The employer and the part-time employee may agree to substitute any other day for the 3 public holidays other than the 4 compulsory holidays.

(5)    If the part-time employee is required to work his normal hours of work on a public holiday, he shall be paid not less than 2 days wages in addition to the holiday pay

(6)    If a part-time employee is required to work beyond his normal hours of work on a paid holiday he shall be paid as follows:

(a)   Not less than twice the hourly rate of pay for any work which exceeds the normal hours of work of the part-time employee, and

(b)   Not less than 3 times the hourly rate of pay for any work which exceeds the normal hours of work of a full time employee in the same position

For example, if a part-time employee whose normal hours of work is 5 hours, is called to work in excess of the 5 hours, he shall be paid twice the hourly rate of pay for each hour or part thereof that is in excess of the 5 hours. If the normal hour of work of a full time employee in the same position is 8 hours and if the part-time employee is called to work in excess of 8 hours, he should be paid 3 times the hourly rate of pay for each hour.

(7)    Any employer who does not comply with the provisions of these regulations is liable to a fine not exceeding ten thousand ringgit.

Regulation 7 – Annual Leave

(1) A part-time employee is entitled to annual leave of:-

(a)    Not less than 6 days for every 12 months of continuous service if the part-time employee is employed for a period of less than 2 years

(b)   Not less than 8 days for every 12 months of continuous service if the part-time employee is employed for a period of more than 2 years but less than 5 years

(c)    Not less than 11 days for every 12 months of continuous service if the part-time employee is employed for a period of 5 years or more

(2) When a part-timer has not completed 12 months of continuous service, and if his service is terminated, his annual leave entitlement will be calculated based on the proportion to the number of completed months of service.

(3) The employer should pay the employee at his ordinary rate of pay for every day of his paid annual leave.

(4) When the service of a part-time employee is terminated on any ground other than dismissal for misconduct, the employer is required to pay him for any unutilised annual leave.

(5) An employer who fails to comply with the regulations on annual leave commits an offence which is punishable by a fine of ten thousand ringgit.

Regulation 8 – Sick Leave

(1)    A part-time employee is entitled to sick leave as follows:

(a)    Not less than 10 days for every twelve months of continuous service if the part-time employee is employed for a period of less than 2 years

(b)   Not less than 13 days for every twelve months of continuous service if the part-time employee is employed for a period of 2 years or more but less than 5 years

(c)    Not less than 15 days for every twelve months of continuous service if the part-time employee is employed for a period of 5 years or more

(2)    A part-time employee is not entitled to paid sick leave on a non-working day.

(3)    An employer who fails to comply with the provisions on sick leave is liable for a fine of ten thousand ringgit

Regulation 9 – Rest Day

(1)    A part-time employee who works 5 days or more with a total number of working hours of not less than 20 hours of work in a week, shall be entitled to a rest day. For example, if the part-time employee works 4 hours a day from Monday to Friday he will be eligible for 1 rest day but if he works 2 hours a day from Monday to Sunday, he is not entitled to a rest day because the total number of hours is less than 20 hours.

(2)    If the part-time employee is required to work his normal working hours on a rest day he should be paid 2 days wages at his ordinary rate of pay.

(3)    If the part-time employee is required to work beyond his normal hours of work on a rest day, he should be paid as follows:

(a)    1.5 times the hourly rate of pay for any work in excess of his normal hours of work but not more than the normal hours of work of a full time employee.

(b)   Twice the hourly rate of pay for any work in excess of his normal hours of work if his hours of work exceeds the normal hours of work of a full time employee.

For example, if the normal hours of work of the part time employee is 5 hours per day and the normal hours of work of a full time employee in the same position is 8 hours per day, the part-time employee is entitled to be paid his normal rate for the first 5 hours at 1.5 times the hourly rate for any work in excess of the 5 hours but not more than 8 hours and at twice the hourly rate for any work in excess of 8 hours.

(4)    An employer who does not comply with the provisions on rest day shall be liable to a fine not exceeding ten thousand ringgit.

Regulation 10

An employer and a part-time employee may agree to any term or condition of service which is more favourable to the part-time employee then the provisions in these regulations.

Regulation 11

These regulations are also applicable to any person who was engaged as a part-time employee before 1^st of October 2010.