*LABOUR ORDINANCE [SARAWAK CAP. 76]

a child adopted, or whose adoption has been registered in accordance with the provisions of any written law relating to the adoption of children from time to time in force in

Sarawak; or

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where there is no such written law, a child whom the

Director has certified as having been adopted in accordance with religion, custom or usage;

“agricultural undertaking” means any work in which any employee is employed under a contract of service for the purposes of agriculture, aquaculture, horticulture, silviculture or landscaping, fisheries, livestock husbandry, the rearing, hunting or capturing of wild animals, birds, insects, reptiles, amphibians or worms or the collection of the produce of plants or trees;

“apprenticeship contract” means a written contract entered into by a person with an employer who undertakes to employ the person and train or have him trained systematically for a trade for a specified period which shall not be less than two years in the course of which the apprentice is bound to work in the employer’s service;

“approved amenity or approved service” means any amenity or service—

approved by the Director under subsection (2) of section 117 on application made to him by an employer for its inclusion in a contract of service; or

provided for in any award made by the Industrial Court or in any collective agreement;

“approved incentive payment scheme” means an incentive payment scheme approved by the Director upon an application made to him in writing by an employer under and for the purposes of the interpretation of ordinary rate of pay under this section;

“child” means a person under the age of fifteen years;

“collective agreement” has the same meaning assigned thereto as in the Industrial Relations Act 1967 [Act 177];

“confinement” means parturition resulting after at least twenty-eight weeks of pregnancy in the issue of a child or children, whether alive or dead, and shall for the purposes of this Ordinance commence and

Labour 15

end on the actual day of birth and where two or more children are born at one confinement shall commence and end on the day of the birth of the last-born of such children, and the word “confined” shall be construed accordingly;

“constructional work” includes the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, dredge, wireless, telegraphic or telephonic installation, electrical undertaking, gaswork, waterwork or other work of construction, as well as preparation for, or the laying of, the foundations of any such work or structure, and also any earthworks both in excavation and in filling;

“contract of service” means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;

“contractor” means any person who contracts with a principal to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principal’s trade or business;

“day” means—

a continuous period of twenty-four hours beginning at midnight; or

for the purposes of Chapter XIV in respect of an employee engaged in shift work or in work where the normal hours of work extend beyond midnight, a continuous period of twenty-four hours beginning at any point of time;

“dependant” means—

the husband;

the wife or wives;

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a child, step-child or adopted child, who is unmarried and under the age of eighteen years;

natural or legally adoptive parents, of an employee;

“Director” means the Director of Labour appointed by virtue of subsection (1) of section 3;

“domestic servant” means a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child’s nurse, valet, footman, gardener, washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use;

“employee” means any person or class of persons—

included in any category in the Schedule to the extent specified therein; or

in respect of whom the Minister makes an order under subsection (7) of section 2A;

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

“employ”, with its grammatical variations and cognate expressions, shall be construed accordingly;

“entertainment” includes any exhibition or performance;

“family” means the husband or the wife or wives of an employee, and his children, step children and adopted children who are unmarried and under the age of eighteen years;

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“forestry undertaking” means—

any work or occupation involved in the logging, transportation, processing, storage and utilization of timber or the manufacture of timber products;

any work or activity relating to the taking of forest produce;

or

any work or occupation involved in forest plantation, reafforestation, silviculture and horticulture;

“guardian”, in relation to a child or young person, includes any person who, in the opinion of the Court having cognizance of any case in relation to the child or young person or in which the child or young person is concerned, has for the time being the charge of or control over the child or young person;

“hourly rate of pay” means the ordinary rate of pay divided by the normal hours of work;

“Industrial Court” has the same meaning assigned thereto in the

Industrial Relations Act 1967;

“industrial undertaking” means—

mines, quarries and other works for the extraction of minerals from the earth;

industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, published or printed or bound, adapted for sale, broken up or demolished, packed or otherwise prepared for delivery or in which materials are transformed, or minerals treated including shipbuilding, and the generation, transformation and transmission of electricity and motive power of any kind;

constructional work;

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transport of passengers or goods by road, rail, water or air including the handling of goods at docks, quays, wharves, warehouses, bulking installations, airports or airstrips;

any industry, establishment or undertaking, or any other activity, service or work, which the Minister may by order declare to be an industrial undertaking;

“medical officer” means a registered medical practitioner who is employed in a medical capacity by the Federal Government or the

Government of a State;

“Minister” means the Minister responsible for labour matters;

“non-resident employee” means any person who does not belong to Sarawak as provided for in section 71 of the Immigration

Act 1959/1963 [Act 155];

“normal hours of work” means the number of hours of work, not exceeding the limit prescribed in subsection (1) of section 105, as agreed between an employer and an employee in the contract of service to be the usual hours of work per day;

“ordinary rate of pay” means wages whether calculated by the month, the week, the day, the hour, or by piece rate, or otherwise, which an employee is entitled to receive under the terms of his contract of service for the normal hours of work for one day, but does not include any payment made under an approved incentive payment scheme or any payment for work done on a rest day or on any gazetted public holiday granted by the employer under the contract of service or any day substituted for the gazetted public holiday;

“overtime” means the number of hours of work carried out in excess of the normal hours of work per day, and includes, if any work is carried out after the spread over period of ten hours, the whole period beginning from the time that such spread over period ends up to the time that the employee ceases work for the day;

“part-time employee” means a person included in the Schedule whose average hours of work as agreed between him and his employer

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do not exceed seventy per centum of the normal hours of work of a full-time employee employed in a similar capacity in the same enterprise whether the normal hours of work are calculated with reference to a day, a week, or any other period as may be specified by rules under Chapter XVIB;

“place of employment” means any place where work is carried on for an employer by an employee;

“principal” means any person who in the course of or for the purposes of his trade or business contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by that person;

“recruit” means to procure, engage, hire or supply or undertake to procure, engage, hire or supply employees for the purpose of being employed by the recruiter or by any other person, where such employee does not spontaneously offer his services at the place of employment or at a public employment office or at an office conducted by an employers’ organisation and supervised by the Government;

“registered medical practitioner” means a medical practitioner registered under the Medical Act 1971 [Act 50];

“repatriation” means, in the case of a non-resident employee, the return of an employee to his country or State of origin, and in the case of a resident employee recruited from Sarawak, to a place he specifies to his employer at the time of commencement of employment to be his home town, and “repatriated” shall be construed accordingly;

“shift work” means work which by reason of its nature requires to be carried on continuously or continually, as the case may be, by two or more shifts;

“ship” includes any vessel of any nature, engaged in maritime navigation whether publicly or privately owned, but does not include a ship of war;

“subcontractor” means any person who contracts with a contractor for the execution by or under that person of the whole or any part of

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any work undertaken by the contractor for his principal, and includes any person who contracts with a subcontractor to carry out the whole or any part of any work undertaken by the subcontractor for a contractor;

“subcontractor for labour” means any person who contracts with a contractor or subcontractor to supply the labour required for the execution of the whole or any part of any work which a contractor or subcontractor has contracted to carry out for a principal or contractor, as the case may be;

“underground work” means any undertaking in which operations are conducted for the purpose of extracting any substance from below the surface of the earth, the ingress to and egress from which is by means of shafts, adits or natural caves;

“wage period” means the period in respect of which wages earned by an employee are payable;

“wages” means basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service but does not include—

the value of any house accommodation or the supply of any food, fuel, light or water or medical attendance, or of any approved amenity or approved service;

any contribution paid by the employer on his own account to any pension fund, provident fund, superannuation scheme, retrenchment, termination, lay-off or retirement scheme, thrift scheme, or any other fund or scheme established for the benefit or welfare of the employee;

any travelling allowance or the value of any travelling concession;

any sum payable to the employee to defray special expenses entailed on him by the nature of his employment;

any gratuity payable on discharge or retirement; or

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any annual bonus or any part of any annual bonus;

“week” means a continuous period of seven days;

“woman” means a female of the age of eighteen years or above;

“young person” means a person who has ceased to be a child but has not attained the age of eighteen years.

For the purposes of Chapter XI, a person is deemed to be taking part in an entertainment when such person is employed in or connected with such entertainment whether as a performer, stagehand or musician.

Where an employee is employed on—

For the purposes of payment of sick leave under section 105E, the calculation of the ordinary rate of pay of an employee employed on a daily rate of pay or on piece rate under paragraph (c) of subsection (3)

shall take account only of the basic pay the employee receives or the rate per piece he is paid for work done in a day under the contract of service.

An employer may adopt any method or formula other than the method or formula in subsection (3) for calculating the ordinary rate of pay of an employee; but the adoption of any other method or formula shall not result in a rate which is less than any of the rates calculated using the method or formula in that subsection.

The Minister may by order amend the Schedule.

The Minister may by order declare such provisions of this

Ordinance and any other written law as may be specified in the order to be applicable to any person or class of persons employed, engaged or contracted with to carry out work in any occupation in any agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work, and upon the coming into force of any such order—

The Minister may make rules in respect of the terms and conditions upon which the person or class of persons specified pursuant to subsection (7) may be employed.

Notwithstanding the provisions of this Ordinance, the Minister may make rules—

The Minister may, from time to time, by notification published in the Gazette, declare any particular industry, establishment or undertaking, or any class, category or description of industries, establishments or undertakings or any particular activity, service or work, or any class, category or description of activities, services or works, to be an industrial undertaking for the purposes of this

Ordinance.

Minister may prohibit employment other than under contract of service

Upon the coming into force of any such order, the person or class of persons employed, engaged, or contracted with to carry out the

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work shall be deemed to be an employee or employees and the principal or owner of the agricultural, forestry or industrial undertaking, constructional work, trade, business or place of work, shall be deemed to be the employer for the purposes of such provisions of this Ordinance and any other written law as may be specified in the order.

Notwithstanding subsection (1), the Minister may by order approve the employment of any person or class of persons by such other person or class of persons (not being the principal or owner) as he may specify but subject to such conditions as he may deem fit to impose.

Any person who contravenes any order made under this section commits an offence.

General power to exempt or exclude

The Minister may appoint, to such number as he considers necessary for carrying out the provisions of this Ordinance, officers of the following categories, that is to say:

Subject to such limitations, if any, as may be prescribed by rules made under this Ordinance, any officer appointed under subsection (1A) shall perform all the duties imposed and may exercise all the powers conferred upon the Director by this Ordinance, and every duty so performed and power so exercised shall be deemed to have been duly performed and exercised for the purposes of this

Ordinance.

Any person affected by any decision or order, other than an order under Chapter IIA, given or made by an officer appointed under subsection (1A) may, if he is dissatisfied with such decision or order, within fourteen days of such decision or order being communicated to him, appeal in writing therefrom to the Director.

If any employer is dissatisfied with any decision or order made or given by the Director either original or by virtue of subsection (2), he may appeal from such decision or order to the Minister within fourteen days of the date of such decision or order being communicated to him.

Officers to be authorized by Director

In the course of an inspection under subsection (1)—

If the Director has reasonable ground for suspecting that any offence has been committed against an employee, and whenever any complaint of personal ill-usage or breach of any of the provisions of this Ordinance is made to the Director, the Director may forthwith remove, or cause to be removed, such worker from the place of employment where he is employed for further inquiry into the matter.

The Director may by order in writing require any employer to take within such reasonable time in the circumstances such steps as he considers necessary with a view to remedying defects observed in plant, layout, working methods, supervision, medical or sanitary provision or other matters at any place of employment which he may

Labour 27

have reasonable cause to believe constitute a threat to the health or safety of the employees.

require the employer to produce before him all or any of the employees employed by him together with any contracts of service, books of account of wages, registers and other documents relating to the employees or their employment and to answer such questions in respect of the employees or their employment as he may think fit to ask;

take or remove for purposes of analysis samples of materials and substances used or handled, subject to the employer or his representative being notified of any samples or substances taken or removed for such purposes;

copy or make extracts from the contracts of service, books of account of wages, registers and other documents relating to the employees or their employment;

take possession of the contracts of service, books of account of wages, registers and other documents relating to the employees or their employment where, in his opinion—

the inspection, copying or the making of extracts from the contracts of service, books of account of wages, registers or other documents cannot reasonably be undertaken without taking possession of them;

Notwithstanding paragraph (a) of subsection (1), no employee shall be required to leave or to cease from performing any work on which he is engaged if his absence or cessation from such work would endanger life or property or seriously disrupt any operation being carried on by his employer.

Power of summons and institution of proceedings

The Director may issue to the employer such order as may be necessary or expedient to resolve the matters dealt with under subsection (1).

If the Director is of opinion that an offence has been committed or that any complaint is well founded he may institute such criminal proceedings as he shall deem necessary in the circumstances.

A summons issued under this section shall be in such form as may be prescribed.

any term of the contract of service between such employee and his employer;

any of the provisions of this Ordinance or any subsidiary legislation made thereunder; or

the provisions of the *Wages Councils Act 1947 [Act 195]

or any order made thereunder, and, in pursuance of such decision, may make an order in the prescribed form for the payment by the employer of such sum of money as he deems just without limitation of the amount of such sum of money.

The powers of the Director under subsection (1) shall include the power to hear and decide, in accordance with the procedure laid down in this Chapter, any claim by—

In addition to the powers conferred by subsections (1) and (2), the Director may inquire into and confirm or set aside any decision made by an employer to dismiss without notice, or downgrade or impose any other lesser punishment made by an employer under subsection (1) of section 14 and the Director may make such consequential orders as may be necessary to give effect to his decision:

Provided that if the decision of the employer under paragraph (a) of subsection (1) of section 14 is set aside, the consequential order made by the Director against such employer shall be confined to payment of indemnity in lieu of notice and other payments that the employee is entitled to as if no misconduct was committed by the employee:

Provided further that the Director shall not set aside any decision made by an employer when any other lesser punishment is imposed by an employer under paragraph (c) of subsection (1) of section 14 if such decision has not resulted in any loss in wages or other payments payable to the employee under his contract of service:

And provided further that the Director, shall not exercise the power conferred by this subsection unless the employee has made a complaint to him under the provisions of this Chapter within sixty days from the date on which the decision under section 14 is communicated to him either orally or in writing by his employer.

An order made by the Director for the payment of money under this section shall carry interest at the rate of eight per centum per annum, or at such other rate not exceeding eight per centum per annum as the

Director may direct, the interest to be calculated commencing on the thirty-first day from the date of the making of the order until the day the order is satisfied:

Provided that the Director, on an application by an employer made within thirty days from the date of the making of the order, if he is satisfied that special circumstances exist, may determine any other date from which the interest is to be calculated.

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Limitation on power conferred by section 8A

is pending in any inquiry or proceedings under that Act;

has been decided upon by the

Minister under subsection (3) of section 20 of that Act; or

has been referred to, or is pending in any proceedings before, the Industrial Court.

Additional powers of Director to inquire into complaints

For the purposes of this section, the term “wages” means wages as defined in section 2 but does not include any payment by way of commission, subsistence allowance or overtime payment.

Save for this Chapter and Chapter XVI which shall apply with the necessary modifications, the other provisions of this Ordinance shall not apply to the employees referred to in subsection (1).

Claims for indemnity for termination of contract without notice

The indemnity due to the employer or employee under subsection (1) shall be a sum equal to the amount of wages which would have accrued to the employee during the term of the notice or during the unexpired term of the notice.

Order of Director may be in writing

the person complaining shall present to the Director a written statement of his complaint and of the remedy which he seeks or he shall in person make a statement to the

Director of his complaint and of the remedy which he seeks;

the Director shall as soon as practicable thereafter examine the complainant on oath or affirmation and shall record the substance of the complainant’s statement in his case book;

the Director may make such inquiry as he deems necessary to satisfy himself that the complaint discloses matters which in his opinion ought to be inquired into and may summon in the prescribed form the person complained against, or if it appears to him without any inquiry that the complaint discloses matters which ought to be inquired into he may forthwith summon the person complained against:

Provided that if the person complained against attends in person before the Director it shall not be necessary to serve a summons upon him;

Labour 33

when issuing a summons to a person complained against, the Director shall give such person notice of the complaint made against him and the name of the complainant and shall inform him of the date, time and place at which he is required to attend and shall inform him that he may bring with him any witnesses he may wish to call on his behalf and that he may apply to the Director for summonses to such persons to appear as witnesses on his behalf;

when the Director issues a summons to a person complained against, he shall inform the complainant of the date, time and place mentioned therein and shall instruct the complainant to bring with him any witnesses he may wish to call on his behalf and may on the request of the complainant and subject to any condition as he may deem fit to impose, issue summonses to such witnesses to appear on behalf of the complainant;

when at any time before or during an inquiry, the Director has reason to believe that there are any persons whose financial interests are likely to be affected by such decision as he may give on completion of the inquiry or whom he has reason to believe have knowledge of the matters in issue or can give any evidence relevant thereto, he may summon any or all of such persons;

the Director shall, at the time and place appointed, examine on oath or affirmation those persons summoned or otherwise present whose evidence he deems material to the matters in issue and shall then give his decision on the matters in issue;

if the person complained against or any person whose financial interests the Director has reason to believe are likely to be affected and who has been duly summoned to attend at the time and place appointed in the summons fails so to attend, the Director may hear and decide the complaint in the absence of such person notwithstanding that the interests of such person may be prejudicially affected by his decision;

34

in order to enable a court to enforce the decision of the

Director, the Director shall embody his decision in an order in such form as may be prescribed.

Director’s record of inquiry

The payment of any money in pursuance of an order under subsection (1) shall be a discharge and payment up to the amount so paid of money due to the employer or person liable under the contract.

No fees for summons; service of summons

Any such summons may be served by a Sessions Court or a

Magistrates’ Court on behalf of the Director or in such other manner, and by such person, as the Director may deem fit.

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Enforcement of Director’s order by Sessions Court

An appeal shall lie to the Court of Appeal from any decision of a Judge under subsection (1).

Appeal against Director’s order to High Court

Subject to any rules made under section 4 of the Subordinate

Courts Rules Act 1955 [Act 55], the procedure in an appeal to the High

Court shall be the procedure in a civil appeal from a Sessions Court with such modifications as the circumstances may require.

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Employee’s remedy when employer about to abscond

If the employer fails to comply with the terms of such order to give security, he shall be detained in prison until arrangements have been made to the satisfaction of the Magistrate for settling the claims of such employee:

Provided that—

The bond to be given by an employer shall be a personal bond with one or more sureties, and the penalty for breach of the bond shall be fixed with due regard to the circumstances of the case and the means of the employer.

If on or after a complaint by any employee under subsection (1)

it appears to the Magistrate that there is good ground for believing that the employer complained against has absconded or is absconding or is about to abscond, the Magistrate may issue a warrant for the arrest of

38

such employer and such employer shall be detained in custody pending the hearing of the complaint unless he finds good and sufficient security to the satisfaction of the Magistrate for his appearance to answer the complaint.

For the purposes of this section, a certificate purporting to be signed by the Director and issued to the Magistrate to the effect that wages claimed have been paid or settled shall be sufficient evidence of the payment or settlement thereof.

Examination on summons by the Director

to join a registered trade union;

to participate in the activities of a registered trade union, whether as an officer of such union or otherwise; or

to associate with any other persons for the purpose of organizing a trade union in accordance with the Trade

Unions Act 1959 [Act 262].

Guaranteed week

A contract of service shall be deemed to be breached by an employer if he fails to provide work or pay wages in accordance with subsection (1).

Provision as to termination of contracts

A contract of service for an unspecified period of time shall continue in force until terminated in accordance with this Chapter.

Termination of contract of service by notice

The length of such notice shall be the same for both employer and employee and shall be determined by a provision made in writing for such notice in the terms of the contract of service, or, in the absence of such provision in writing, shall not be less than—

Notwithstanding anything contained in subsection (2), where the termination of service of the employee is attributable wholly or mainly to the fact that—

Such notice shall be written and may be given at any time, and the day on which the notice is given shall be included in the period of the notice.

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Termination of contract without notice

Either party to a contract of service may terminate such contract of service without notice in the event of any wilful breach by the other party of a condition of the contract of service.

Termination of contract for special reasons

dismiss without notice the employee;

downgrade the employee; or

impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.

For the purposes of an inquiry under subsection (1), the employer may suspend the employee from work for a period not exceeding two weeks but shall pay him not less than half his wages for such period:

Provided that if the inquiry does not disclose any misconduct on the part of the employee, the employer shall forthwith restore to the employee the full amount of wages so withheld.

An employee may terminate his contract of service with his employer without notice where he or his dependants are immediately

44

threatened by danger to the person by violence or disease such as such employee did not by his contract of service undertake to run.

When contract is deemed to be broken by employer and employee

An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.

15 ̶ 17. (Deleted by Act A1237).

In every written contract of service, a clause shall be included setting out the manner in which such contract may be terminated by either party in accordance with this Ordinance.

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Such written contract of service shall contain such particulars necessary to define the rights and obligations of the parties thereto as may be prescribed by rules made under this Ordinance.

20 ̶ 34. (Deleted by Act A1237).

estate of twenty hectares or more;

mine;

factory;

trade, business or manufacturing activity carried on in any premises, on or in which not less than five employees are employed shall, if such estate, mine, factory or premises are outside the limits of a City,

Municipality, Town Council, Town Board or other local authority, cause to be erected where practicable in a conspicuous place at or adjacent to the place where the access road to such estate, mine, factory or premises joins the main road or a railway or river, as the case may be, a notice board on which shall be set out in the national language the name of such estate, mine, factory, trade, business or manufacturing activity and the address of its registered or other office.

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Duty to keep registers

Every such register shall be preserved for such period that every particular recorded therein shall be available for inspection for not less than six years after the recording thereof.

Notwithstanding subsections (1) and (2), the Director, on a written application by an employer, may permit the employer to keep the information required under subsection (1) in any other manner as may be approved by the Director subject to such conditions as he may deem fit to impose.

Power to make rules requiring information as to wages

Notwithstanding the provisions of this Ordinance, the powers of the Director under subsection (1) extend to every employee employed under a contract of service irrespective of the monthly wages of the employee.

Duty to give notice and other information