*NATIONAL WAGES CONSULTATIVE COUNCIL ACT 2011

This Act comes into operation on a date to be appointed by the

Minister by notification in the Gazette, and the Minister may appoint different dates for the coming into operation of this Act in different parts of Malaysia.

Interpretation

in respect of Peninsular Malaysia, the Director General of

Labour appointed under subsection 3(1) of the Employment

Act 1955;

in respect of Sabah, the Director of Labour appointed under subsection 3(1) of the Sabah Labour Ordinance; or

in respect of Sarawak, the Director of Labour appointed under subsection 3(1) of the Sarawak Labour Ordinance;

“contract of service” means any agreement, whether oral or in writing, and whether express or implied, whereby one person agrees to employ another person as an employee and that other person agrees to serve his employer as an employee, but does not include an apprenticeship contract;

“court” means the Magistrate Court;

“employer” means any person who has entered into a contract of service to employ another person as an employee and includes the agent, manager or factor of such first-mentioned person;

“Council” means the National Wages Consultative Council established under section 3;

“Minister” means the Minister charged with the responsibility for human resources;

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“enforcement officer” means the officers appointed under section 3 of the Employment Act 1955, section 3 of the Sabah Labour

Ordinance or section 3 of the Sarawak Labour Ordinance;

“employee” means any person or class of persons specified in the following schedules:

the First Schedule to the Employment Act 1955;

the Schedule to the Sabah Labour Ordinance; or

the Schedule to the Sarawak Labour Ordinance, but does not include the person or class of persons to whom the minimum wages order is not applicable;

“Chairman” means the Chairman of the Council appointed under section 5;

“minimum wages order” means the order made by the Minister under section 23;

“Secretary” means the Secretary of the Council appointed under section 5.

to advise the Government on all matters relating to minimum wages, including its development at the international level;

to make recommendations to the Government on the minimum wages rates and coverage according to sectors, types of employment and regional areas, and other matters relating to minimum wages and wages;

to consult the public on the minimum wages rates and coverage;

to collect and analyse data and information and to conduct research on wages and the socioeconomic indicators;

to coordinate and supervise, and to evaluate the impact of, the implementation of minimum wages;

to review the minimum wages order;

to deliberate on all matters relating to minimum wages;

to disseminate information and analysis on wages; and

to carry out any other functions as it deems fit to enable it to perform its functions effectively or which are incidental to the performance of its functions.

The Council shall have the power to do all things expedient or reasonably necessary for or incidental to the performance of its functions.

Membership of the Council

a Chairman;

a Deputy Chairman;

a Secretary;

at least 5 members from amongst the public officers;

at least 5 members representing the employees;

at least 5 members representing the employers; and

at least 5 other members.

The Chairman, Deputy Chairman and the members of the

Council referred to in paragraph (1)(g) shall be appointed from amongst persons—

The Secretary appointed under paragraph (1)(c) shall be a public officer.

The members of the Council referred to in paragraphs (1)(c)

and (d) shall be appointed by office.

The number of members of the Council appointed under paragraph (1)(e) shall be the same as the number of members of the

Council appointed under paragraph (1)(f) at any one time.

The Council shall consist of members not exceeding twenty-nine persons at any one time.

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Temporary exercise of functions of the Chairman

the office of the Chairman is vacant;

the Chairman is absent from duty or from Malaysia; or

the Chairman is, for any other reason, unable to carry out his functions.

The Deputy Chairman shall, during the period in which he is carrying out the functions of the Chairman under this section, be deemed to be the Chairman.

Secretary

to manage the affairs of the Council;

to implement the decisions of the Council; and

to carry out any other duties as directed by the Council.

The Secretary shall, in carrying out his responsibilities, act under the power and direction of the Council.

Tenure of office

Notwithstanding subsection (1), the members of the Council appointed under paragraphs 5(1)(c) and (d) shall hold office until the appointment is revoked under subsection 10(1).

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Allowances

A member of the Council may resign from office by giving thirty days’ written notice to the Minister.

Vacation of office

he dies;

there has been proved against him, or he has been convicted of, a charge in respect of—

an offence involving fraud, dishonesty or moral turpitude;

he becomes a bankrupt;

he is of unsound mind or is otherwise incapable of discharging his duties;

14 Laws of Malaysia

he absents himself from two consecutive meetings of the

Council without leave of the Chairman, or in the case of the Chairman, without leave of the Minister;

his resignation is accepted by the Minister; or

his appointment is revoked by the Minister.

If the office of a member of the Council is vacated, the

Minister may, if necessary, appoint another person to hold the office for the remaining period vacated by that member or for an interim period until a new member is appointed to that office, as the Minister thinks fit.

Meetings

At least fourteen days’ notice in writing or by electronic mail shall be given to the members of the Council.

Procedure at meetings

in the absence of the Chairman at any meeting of the

Council for any reason, the Deputy Chairman shall preside at the meeting; or

in the absence of the Chairman and the Deputy

Chairman at any meeting of the Council for any reason, any other member of the Council appointed by the

Chairman shall preside at the meeting.

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The quorum of the Council shall be two-thirds of the members of the Council, including the Chairman.

Every member present at the meeting of the Council shall be entitled to one vote.

If there is an equality of votes, the Chairman, the Deputy

Chairman or any other member presiding at the meeting of the

Council under subsection (1) shall have the casting vote.

Minutes

Any minutes made of a meeting of the Council shall, if duly signed by the Chairman, be admissible in evidence in all legal proceedings without further proof.

Every meeting of the Council in respect of which minutes of the proceedings have been made in accordance with subsection (2)

shall be deemed to have been duly convened and held and all members at the meeting to have been duly qualified to act.

Council may invite others to meetings

Any person invited under subsection (1) may be paid such allowances as the Council may determine.

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Procedure

The Council shall appoint any of its members to be the chairman of a committee.

The Council may appoint any of its members or any qualified persons to be members of a committee.

The members of a committee may be paid such allowances as the Council may determine.

The Council may at any time revoke the appointment of any member of a committee, make changes in the composition of the members of a committee or dissolve a committee.

Subject to any direction of the Council, the committee may determine its own procedure.

The chairman of each committee shall cause minutes of all its meetings to be maintained and kept in proper form and copies of the minutes shall be submitted by the committee to the Council as soon as practicable.

A committee may invite any person not being a member of the committee to attend its meetings to advise on any matter under discussion, but that person is not entitled to vote at the meeting.

Any person invited under subsection (8) may be paid such allowances as the Council may determine.

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Secretariat

The secretariat shall be subject to the direction, control and supervision of the Secretary.

Funds

any vacancy in the membership of, or any defect in the establishment of, the Council; or

any omission, defect or irregularity not affecting the merits of the case.

have consultation with the public on the minimum wages rates and coverage in such manner as the Minister may determine; and

collect and analyse data and information and conduct research on wages and the socioeconomic indicators.

Council to make recommendation

the minimum wages rates;

the coverage of the recommended minimum wages rates according to sectors, types of employment and regional areas;

the non-application of the recommended minimum wages rates and coverage to any sectors, types of employment and regional areas or to any person or class of persons;

the commencement of the minimum wages order and the different dates for the commencement of the minimum wages order to different sectors, types of employment and regional areas, or to different persons or class of persons; and

other matters relating to the minimum wages, including the implementation of the recommended minimum wages rates and coverage.

The

Government may, after considering the recommendation—

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Where the Government directs the Council to review the recommendation and make a fresh recommendation under paragraph

The

Government may, after considering the fresh recommendation made pursuant to subsection (3)—

The Minister may, upon the direction of the Government, by notification in the Gazette, amend or revoke the minimum wages order.

Effect of the minimum wages order

Where the rates of the basic wages agreed in a contract of service is lower than the minimum wages rates as specified in the minimum wages order, the rates shall be substituted with any rates not lower than the minimum wages rates as specified in the minimum wages order.

Where the rates of the basic wages agreed in a contract of service is higher than the minimum wages rates as specified in the minimum wages order, the rates shall not be reduced to any rates lower than the rates of the basic wages agreed in the contract of service.

Nothing in this section shall be construed as preventing an employer and an employee from agreeing to any rates of the basic wages which are higher than the minimum wages rates as specified in the minimum wages order.

Council to review minimum wages order

Notwithstanding subsection (1), the Council may, on its own accord or upon the direction of the Government, review the minimum wages order.

The review made under subsection (1) or (2) shall be on the matters specified in paragraphs 22(1)(a) to (e) and for the purpose of evaluating the effectiveness of the minimum wages order and its implication on the social and economic development of the country.

Where the Council is satisfied that any matter specified in the minimum wages order needs to be amended, sections 21, 22 and 23

shall apply.

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investigate into any offence under this Act;

conduct any inquiry under this Act; and

enforce any provision of this Act.

Production of authority card

Whenever such enforcement officer exercises any of the powers under this Act, he shall, on demand, produce to the person against whom the power is being exercised the authority card issued to him under subsection (1).

Search and seizure with warrant

any premises have been used or are about to be used for;

or

there is in any premises evidence necessary to the conduct of an investigation into,

22 Laws of Malaysia the commission of an offence under this Act, the Magistrate may issue a warrant authorizing an enforcement officer named in the warrant, at any reasonable time, by day or by night and with or without assistance, to enter the premises and if need be by force.

A warrant issued under subsection (1) may authorize the enforcement officer to—

Any book of account of wages, register, financial statement or other document shall be admissible as evidence in any proceedings in court under this Act against the person or any other person.

An enforcement officer entering any premises under this section may take with him such other persons and equipment as may appear to him to be necessary.

An enforcement officer may, in the exercise of his powers under this section, if it is necessary so to do—

Where, by reason of its nature, size or amount, it is not practical to remove any book of account of wages, register, financial statement or other document seized under this section, the enforcement officer shall, by any means, seal such book of account of wages, register, financial statement or other document in the premises or container in which it is found.

Any person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (6) or removes the book of account of wages, register, financial statement or other document under seal or attempts to do so commits an offence.

Search and seizure without warrant

In exercising his powers, the enforcement officer—

The enforcement officer may make copies or take extracts of the recorded information, computerized or digitalized data if he deems it necessary.

For the purposes of this section, “access” includes being provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of recorded information, computerized or digitalized data.

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Warrant admissible notwithstanding defects

shall prepare—

a list of the book of account of wages, register, financial statement or other document seized and shall sign the list; and

shall as soon as practicable serve a copy of the list of the book of account of wages, register, financial statement or other document seized and the written notice of the seizure to the occupier of the premises which have been searched, or to his agent or servant at those premises.

The written notice of the seizure shall not be required to be served under paragraph (1)(b) where the seizure is made in the presence of the person against whom proceedings under this Act are intended to be taken, or in the presence of the owner of the property or his agent, as the case may be.

If the premises are unoccupied, the enforcement officer shall post a copy of the list of the book of account of wages, register,

26 Laws of Malaysia financial statement or other document seized conspicuously on the premises.

Release of the book of account of wages, etc., seized

A record in writing shall be made by the enforcement officer effecting the release of the book of account of wages, register, financial statement or other document under subsection (1) specifying in detail the circumstances of and the reason for the release, and he shall send a copy of the record to the Public Prosecutor within seven days of the release.

No cost or damages arising from seizure to be recoverable

refuses any enforcement officer access to any premises which the enforcement officer is entitled to have under this Act or in the execution of any duty imposed or power conferred by this Act;

assaults, obstructs, hinders or delays any enforcement officer in effecting any entry which the enforcement officer is entitled to effect under this Act, or in the execution of any duty imposed or power conferred by this Act; or

refuses any enforcement officer any information relating to an offence or suspected offence under this Act or any other information which may reasonably be required of him and which he has in his knowledge or power to give, commits an offence.

Powers to require the production of book of account of wages, etc.

to produce to the enforcement officer, any book of account of wages, register, financial statement or other document whether in physical form or in electronic medium; and

to make copies of, or extracts from any book of account of wages, register, financial statement or other document

28 Laws of Malaysia and to produce copies or extracts of such documents, as the case may be, to the enforcement officer.

Any person who refuses or fails to comply with the direction made by the enforcement officer under this section commits an offence.

Enforcement officer may retain documents

The person who provided the document is entitled to be supplied, as soon as practicable, with a copy certified by the enforcement officer to be a true copy of the document.

Notwithstanding the provisions of any other written law, the certified copy of the document shall be admissible as evidence as if it were the original document.

If the enforcement officer is satisfied that the retaining of the document is no longer necessary, the enforcement officer may return the document to the person who provided the document as soon as practicable.

Access to records

Any person who fails to comply with the direction made by the enforcement officer under subsection (1) commits an offence.

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Power to require attendance of persons acquainted with case

If any person refuses or fails to attend as so required, the enforcement officer may report such refusal or failure to a Magistrate who shall issue a summons to secure the attendance of such person as may be required by the order made under subsection (1).

Examination of persons acquainted with case

Such person shall be bound to answer all questions relating to the case put to him by the enforcement officer:

Provided that such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

A person making a statement under this section shall be legally bound to state the truth, whether or not such statement is made wholly or partly in answer to questions.

The enforcement officer examining a person under subsection

shall first inform that person of the provisions of subsections (2)

and (3).

A statement made by any person under this section shall, whenever possible, be taken down in writing and signed by the person making it or affixed with his thumb print, as the case may be,

30 Laws of Malaysia 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 corrections he may wish.

Admission of statements in evidence

When any witness is called for the prosecution or for the defence, other than the accused, the court shall, on the request of the accused or the prosecutor, refer to any statement made by that witness to the enforcement officer in the course of the investigation under this Act and may then, if the court thinks fit in the interest of justice, direct the accused to be furnished with a copy of it and the statement may be used to impeach the credit of the witness in the manner provided by the Evidence Act 1950 [Act 56].

Where the accused had made a statement during the course of an investigation, such statement may be admitted in evidence in support of his defence during the course of the trial.

Nothing in this section shall be deemed to apply to any statement made in the course of an identification parade or falling within section 27 or paragraphs 32(1)(a), (i) and (j) of the Evidence

Act 1950.

When any person is charged with an offence in relation to—

For the purpose of any proceedings under this Act, an enforcement officer may prepare a report which consists of the following:

The report prepared under subsection (1) and any documents issued by the employer to the employee indicating the payment of wages shall be prima facie evidence in any proceedings under this Act.

the difference between the minimum wages rate as specified in the minimum wages order and the basic wages paid by the employer to the employee, including the outstanding differences; and

other payments accrued from the calculation of wages based on the basic wages which shall be in accordance with the minimum wages rates as specified in the minimum wages order.

The calculation of the differences and other payments accrued under subsection (1) shall be made in accordance with the

Employment Act 1955, Sabah Labour Ordinance or Sarawak Labour

Ordinance, as the case may be.

Where an employer fails to comply with an order made under subsection (1), the court shall, on the application of the employee, issue a warrant to levy the employer’s property for the differences and other payments accrued under subsection (1) in the following manner: