FAQ as at 29.4.2020
1.
Can
the employees be forced to take annual leave or unpaid leave during the
Movement Control Order (MCO) period?
A: If the contract of employment provides
for power to the employer to require the employees to take annual or unpaid
leave during temporary shutdown, then the employer may do so. Otherwise it may
be done only with written consent (agreement) of the employees. The law is that
in the absence of contractual provision, the employer may not force the
employees to utilise their annual leave or take unpaid leave.
The need for agreement is also
stated in the FAQ No. 3 issued by MoHR
on 31.3.2020 where it stated that subject to the agreement of both
parties, the employer may offer to employees either:
a)
Paid leave;
b)
Half pay
leave;
c)
Unpaid leave.
Note: The terms of the contract of
employment may be found in the letter of offer, employee handbook, rules and
regulations, staff memo and etc.
2.
Must
the employer pay full salary during MCO period?
A: In the FAQ issued by the Ministry of Human
Resources (MoHR) on 19.3.2020, the Ministry has given directives that the
employer may not force the employees to take annual leave or unpaid leave and
the employer must pay the employees salary in full during the period of MCO. It
was also stated that that it is an offence under the Regulation 7 of the
Prevention and Control of Infectious Diseases (Measures within the Infected
Local Areas) Regulation 2020 for the employer to breach the directives and if
found guilty, the employer may be fined not exceeding RM1,000.00 or imprisoned
for a term not exceeding 6 months or both.
The Ministry has not stated what law
it is relying on to hold the position.
As far as we are concerned, there is
no provision in the Prevention and Control of Infectious Diseases Act 1988 or
the Employment Act 1955 providing that the employer is required to pay full
wages during temporary shutdown.
We would advise the employer to
first take a look at the contract of employment to ascertain whether the
employer is given the power to reduce the employees’ wages during temporary
shutdown. If there is none, we have to look at the common law.
There are conflicting authorities on
this issue. On the one hand, there are authorities where it was held that it is
unfair to require the employer to pay full wages to the employees during
temporary shutdown and that it is fair for the employer to cut 50% of the
employees’ wages during such shutdown. There was a case which allowed reduction
of 66%. On the other hand, there are authorities where it was held that if
there is no provision in the contract giving such power to the employer, the
employer has no power to reduce the employees’ wages.
Our view is that:
a)
Section 2 of the
Employment Act defines wages as basic wages and other payments in cash payable
to an employee for work done. Naturally, if there is no work done, there should
be no pay. This is also reinforced by section 23 which provides for situations
where wages is not due for absence from work;
b)
We believe that
there is a lacuna in the law;
c)
Therefore it is
unfair to require the employer to pay full wages to the employees during
temporary shutdown and a 50% reduction may be acceptable and fair.
Our advice is to engage the
employees and get them to understand the critical situation everybody is
currently facing and the need for the employer to reduce their wages. The best
possible way is to get their agreement in writing.
We do have to caution you that if
you can’t get their agreement in writing but still proceed to reduce their
wages, you may have to see them in court if there are any complaints and there
may also be criminal charges.
1.
行动管制期间，员工是否可以被迫休年假或无薪假？
答： 若雇佣合同里列明雇主有权要求员工在暂时停工期间休年假或无薪假，那么雇主可以那么做，否则这只能在获得员工书面许可（协议）的情况下才能进行。法律规定，在没有合约条款的情况下，雇主不能强迫员工使用他们的年假或休无薪假。
协议的重要性也在人力资源部所发表的第3份常见问题中提及，既在双方同意的前提下，雇主可向员工提供以下任何一项：
a)
有薪假
b)
半薪假
c)
无薪假
备注：雇佣合同的条款可在聘请信件，员工手册，规章制度，员工备忘录等中查找。
2.
雇主是否需在行动管制期间支付全薪？
答： 人力资源部于19.3.2020发布的常见问题中，发出指令指示雇主不能强迫员工休年假或无薪假及雇主需在行动管制期间支付员工全薪。若雇主违反指令，将被视为违反2020年预防及控制传染病（受感染区域内措施）条例第七条文。若被判有罪，雇主将被罚款不超过RM1,000.00或监禁不超过6个月或两者兼施。
该部并未说明该立场的法律依据。
对于我们而言，1988年预防及控制传染病法令及1955年劳工法令里并没有条文规定雇主需在暂时停工期间支付全额工资。
我们建议雇主先查看雇佣合同以确认雇主是否有权在暂时停工期间删减员工们的工资。若无，我们需查看普通法。
这个课题有着相反的判例。一方面，有些判决判定要求雇主在暂时停工期间支付员工全额工资是不公平的，而删减员工50%的工资是公平的。有一个案例允许删减66%。另一方面，有些判决判定如果雇佣合同中没有条款赋予雇主这样的权利，雇主无权删减员工的工资。
我们的看法是：
1. 劳工法令第2条文将工资定义为支付给员工以完成工作的基本工资和其他现金付款。理所当然，若没有工作，那么就不该有工资。第23条文也接应了这一点，既列明了因缺勤而没有工资的情况；
2. 我们相信法律中存有空白部分；
3. 因此，要求雇主在暂时停工期间支付全额工资是不公平的，而减少50%可能更为合理和公平。
我们的建议是雇主应与员工讨论，让他们了解大家目前所面临的严峻情势以及雇主删减他们工资的的必要性。最好的方式是获得他们的书面同意。
我们也需提醒您，若您无法取得他们的书面同意但仍删减他们的工资，那么如果有任何的投诉，您可能需与员工对簿公堂（打官司），并且还可能受到刑事指控。
