Malaysians love their public holidays, and these are always happily welcomed by all communities whatever the occasion may be! But happiness aside, what bothers employers is, how are they to treat employees’ supposed entitlement to public holidays?
Basically, there are three different types of public holidays:
- non-replaceable holidays;
- replaceable holidays; and
- sudden declared holidays.
There are five non-replaceable holidays under Section 60D(1)(a) of the Employment Act 1955:
i. National Day;
ii. Birthday of the Yang di-Pertuan Agong;
iii. Birthday of the ruler of the state, or Federal Territory Day;
iv. Workers’ Day; and
v. Malaysia Day.
These five holidays are non-replaceable. If the said public holiday falls on a rest day, the working day immediately following the rest day shall be recognised as the substituted public holiday.
For example, the Birthday of the Yang di-Pertuan Agong, which falls on September 9, 2018 (Sunday) is a rest day in the state of Penang. The working day immediately following the rest day, which is September 10, 2018 (Monday) is therefore the substituted public holiday.
Any day declared as a public holiday under Sections 8 and 9 of the Holidays Act 1951 can be replaced with consent from the employees. Pursuant to the First Schedule of the Holiday Act 1951, there are several days listed which are observed throughout Malaysia, such as Prophet Muhammad’s Birthday, which will happen on November 20, 2018 (Tuesday). The question is, can this holiday be replaced?
The following are some points for employers to consider:
Employers who observe only specific public holidays in a year and NOT ALL public holidays will not be obliged to observe November 20, 2018 as a public holiday. However, for employers who in their handbook/policies have stated that they observe ALL public holidays in a year, will have to declare November 20, 2018 a public holiday; or treat November 20, 2018 as a normal working day and replace the holiday with another day. Section 60D(1A) of Employment Act 1955 provides for this right if the employer gets consent from its employees to exercise that right.
Sudden Declared Holidays
What if the federal or state government suddenly decides to declare a certain day a holiday? Recently, for example, the new Pakatan Harapan government announced that May 10 and 11, 2018 would be declared public holidays if they won GE14. The issue is, how do employers treat these unforeseen declared holidays?
Employers can actually either abide by the government’s wishes and consider May 10 and 11 public holidays, or treat them as normal working days and replace those holidays with other days. Section 60D(1A) of Employment Act 1955 provides for this right provided the employer gets consent from the employees.
What if an employee is absent from work before or after the public holiday? By virtue of Section 60D(2) of Employment Act 1955, if an employee is absent without leave or without reasonable excuse on the working day immediately before or after a public holiday or a substituted holiday, he is not entitled to any holiday pay for the said public holiday.
In conclusion, apart from non-replaceable public holidays, companies can either declare a general holiday to be such, or they can treat it as a normal working day and replace it with another day, with consent from the employees.
Have a great holiday!
David Koh is currently working at MECA as a legal adviser. He is passionate about subjects related to property, corporate commercial law, insurance, and industrial relations.