PUBLIC HOLIDAYS IN MALAYSIA
The government of Malaysia declared September 4, 2017 a public holiday following Malaysia’s outstanding performance at the 29th SEA Games. The Prime Minister was teasing the crowd, saying it was not easy to declare a public holiday. Many Malaysians Employers are surely wondering how the Government can declare a public holiday in Malaysia?
We will explain how the Employers need only to observe 11 days per year of the Gazetted holidays, out of which the employers are free to choose 6 out of the 11 days.
How many Public Holidays do We have?
Public Holiday are listed in the First Schedule of the Holidays Act. The 10 Public Holidays listed in the schedule is observed throughout Malaysia as follows:
Chinese New Year
Hari Raya Aidilfitri 2 days
Merdeka Day 31 August
Hari Raya Haji
Malaysia Day 16 September
Prophet Muhammad’s Birthday
Christmas Day 25 December
It is interesting to note that only one day for Chinese New Year holiday in the States of Kelantan and Terengganu, two days in the other States while two days Hari Raya Haji holiday in the States of Kelantan and Terengganu, one day in the other States.
Hold On, we have more public Holiday: State Level
In Malaysia, we have two types of public holidays, those at national and state levels. National holidays are the abovementioned public holiday, normally observed by most governmental and private organisations. State holidays are normally observed by certain states in Malaysia or when it is relevant to the state itself according to section 9(1) of the Holidays Act.
As an example let us take Kuala Lumpur, the national capital of the country. Kuala Lumpur celebrates New Year’s Day on January 1, Thaipusam, Nuzul Al-Quran and Awal Muharram.
Kuala Lumpur also celebrates a special holiday called Federal Territory Day along with only two other territories on February 1 according to section 9(2) of the Holidays Act. Federal Territory Day in Kuala Lumpur celebrates the formation of the territory in 1974. Prior to that, Kuala Lumpur and the area now known as Putrajaya were under the state of Selangor.
The Private Sector: 11 Days to be Observed.
5 Compulsory Days and 6 Elective Days
Fortunately, for the Employers, Section 60D of the Employment Act only provides every employees to be entitled to the 11 gazetted public holidays and any day appointed as a public holiday under section 8 of the Holidays Act (for example, September 4, 2017).
That is to say employers are not required to observe these state level holidays. As such, the employees are still required to work as usual if the employers do not declare these state level holidays as paid holidays.
Exceptions are, Federal Territory Day must be observed in the Federal Territory of Kuala Lumpur, Putrajya and Labuan. In other states, the Birthday of the Ruler or the Yang di-Pertua Negeri must be observed.
Section 60D provides that the employer must list 11 gazetted public holidays that the employees are entitled to before the commencement of each calendar year, 5 of which shall be:
National Day, the Birthday of Yang-Di Pertuan Agong, Birthday of the Ruler or the Yang di-Pertua Negeri or Federal Territory Day, the Worker’s Day and Malaysia Day.
The Employers are free to choose the remaining 6 holidays to make up the 11 days.
This section allows the employers to ask the employees to come to work on Chinese New Year, Hari Raya Aidifiltri or Deepavali! As stated earlier, the employer need to list which 11 gazetted public holiday, if your day is not in the list, you have to be absent from the table of family gathering.
The Minister can create more holidays!
The Minister can declare any day as a public holiday according to section 8 of the Holidays Act. This section basically gives the Minister responsible the power to appoint any day he wants as a public holiday in the Peninsular, the Federal Territories or certain States (after consulting the States).
Based on the abovementioned section, Prime Minister is the Minister charged with responsibility for public holiday. He may appoint any date, in our scenario, September 4 as a public holiday. This can be seen in a statement issued by the Malaysian Prime Minister’s Department has announced that September 4 as a public holiday in appreciation of the outstanding achievement of the Malaysian contingent in 29th Kuala Lumpur SEA Games.
This holiday is a national holiday and observed throughout Malaysia by the public sector and the private sector. Private sector is governed by Employment Act 1955.
It is important to note that the Employment Act only applies to Peninsular Malaysia or West Malaysia. Sabah and Sarawak, collectively called East Malaysia, have maintained separate labour enactments.
Can the employer asks the employees to work on a Declared Public Holiday?
Under Section 60 of Employment Act, an employee may be required to work on any paid holiday subjected to two days’ wages at the ordinary rate of pay.
In addition, section 60D 3(b) provides that an employee who works on a holiday shall be entitled to a travelling allowance for that day if payable to him under the terms of his agreement with his employer but such employee shall not be entitled under this subsection to receive an increased rate of any housing allowance or food allowance.
Employer may be fined if does not grant leave.
In the previous installation of Sultan Muhammad V from Kelantan as Malaysia’s 15th Yang di-Pertuan Agong, Malaysian Employers Federation (MEF) executive director Datuk Shamsuddin Bardan has said that employers who do not grant leave on 24 April could face a fine as according to section 99A of the Employment Act. Meanwhile, Malaysian Trades Union Congress (MTUC) president Abdul Halim Bin Mansor said that government and private offices in every state should comply to the holiday as a sign of respect.
Some companies may have plans on September 4. The employer may grant the employee any other day as a paid public holiday in substitution for any of the public holidays according to Section 60D (1A) of the Employment Act.
There are only 11 days of paid Public Holidays, out of which the employers may choose 6 out of 11, there are some special holidays the Minister may declare from time to time as special holidays.
However, the employers may nominate a replacement day for these holidays declared at short notice.
If the employers should require the employees to work during those holidays declared by the minister, the rate of pay is that of a public holiday.
The relevant principal statutes relating to legislated matters pertaining to public holiday in Malaysia are as follows:
Section 3 of Interpretation Act 1948 And 1967 states:
“public holiday” means a public holiday established by law in Malaysia or any part of Malaysia.
“Minister” means, subject to subsection 8(2), a Minister of the Government of Malaysia (including the Prime Minister and a Deputy Minister);
Also, Section 8(2) of Interpretation Acts 1948 And 1967 states:
References to “the High Court”, “the Minister” and “the Treasury”
(2) A reference to “the Minister” is a reference to the Minister for the time being responsible for the matter in connection with which the reference is made.
In turn, Section 2 of the Holidays Act 1951 states:
“Minister” means the Minister charged with the responsibility for public and bank holidays.And, Section 8 of the Holidays Act 1951 provides that:
Minister may appoint special days to be observed as bank or public holidays
The Minister may, by notification in the Gazette or in such other manner as he thinks fit, appoint, in respect of Peninsular Malaysia, or the Federal Territory or, after consultation with the State Authority, in respect of a State, a day to be observed as a public holiday or a bank holiday in addition to, or in substitution for, any of the days mentioned in the Schedules and thereupon this Act shall, in Peninsular Malaysia, or in the Federal Territory, or in the State in respect of which a day is appointed to be observed as a holiday as aforesaid, be applicable to such day in the same manner as if the said day had been mentioned in the First Schedule or the Second Schedule, as the case may be.
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