Employing during the holiday period?: Types of contracts

Christmas bells are ringing and the holidays are here. My post is to assist employers who are seeking to employ extra hands in anticipating a busy month ahead. In essence, an employer should consider various employment options to safeguard their rights under the law.

Firstly, I will cover the possibilities of employing a minor as it is highly possible that the minors are our sourcing for jobs during the long holidays. The question to be dealt with here is whether or not an employer can hire a minor, and if so, what are the restrictions? I trust the table here covers the core points highlighted under the CYPA (Employment) (Amendment) Act 2010.

Category Definition Areas of Employment Hours of Work Note
Child Less than 15 years Light work for family, government sponsored work, apprenticeship or any other work with prior permission from DGL Not allowed to work from 8pm – 7am.

 

30 mins break after each 3 hours

 

Not more than 6 hours a day if he attends school for 7 hours a day

 

Can’t commence work before 14 hours of break

A minor can enter into a contract of service and may sue in his own capacity. However, the employer is not allowed to seek for compensation under s.13 for a breach for wages in lieu of notice.
Young Person 15 years or more All above including domestic servant,  any office, shop, workshop, cinema, etc, any industrial undertaking and vessel under personal charge by parent or guardian.

 

Female young persons are not allowed to work in hotels, bars, restaurants, clubs unless it is own by parent or guardian.

Not allowed to work from 8pm – 6am.

 

40 mins break after each 3 hours

 

Not more than 7 hours a day if he attends school for 8 hours a day

 

Can’t commence work before 12 hours of break

 

Secondly, I would like to differentiate between a full-time employee and a part-time employee as shown in the below table:

Category Definition Security of Tenure Benefits / Protection
Employee As defined under the First Schedule to the EA (having an existing contract of service whose salary does not exceed RM1,500.00 per month) or (the provisos under the First Schedule) Yes Employment Act 1955
Part-time employee Having a contract of service whose working hours in a week is within 30% – 70% of the normal work hours of a full time employee in a similar position. Yes Employment (Part-time employees) Regulations 2010
Casual employee Engaged occasionally or on an irregular basis and the working hours in a week does not exceed 30% of the normal work hours of a full-time employee in a similar position. No Nil

 

The above serves as an illustration and I will now explain the differences in detail.

Firstly, it is important to look at the nature of the job. The primary question an employer should be asking is whether or not the candidate will be serving as a part-time employee or whether the company wants this person in a full-time position for a couple of months. If the vacancy is for a part-time position, the regulations will have to be adhered to. The regulations are dealt with in my previous post so please look into it for further details.

If the employment is for a specific duty or for a specific duration, it is my proposal that the employee is hired on a fixed-term contract basis. The fixed-term employee is also assured of security of tenure in employment but the security will lapse upon the expiration of the contract or upon cessation of duties. This is the best method of employment even if the person employed is a minor.

Say for example, Mr. A is interested in getting an additional barista for his coffee joint. If he were to employ this person under a fixed-term contract, he can state in the agreement that the contract will automatically come to an end after a 3 month period. There is no need for Mr. A to serve additional notice or to prove that the eventual termination was with just cause and excuse. One key to a fixed term contract is not to renew the contract over and over again otherwise it would be deemed as a disguise and be treated as if it is a permanent contract. In terms of benefits, the fixed-term worker can receive benefits which are pro-rated depending on the duration of employment.

This is my observation thus far. It is possible to expand on the contents of this post but I felt it would bore my audience which is why I prefer to keep it short and simple. For further questions, please feel free to contact me.

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