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Weekly Rest (Industry) Convention, 1921 (No. 14) - Malaysia - Sarawak (RATIFICATION: 1964)

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Articles 2 and 5 of the Convention. Weekly rest entitlement. Uniformity of the weekly rest period. Compensatory rest. In its previous comment, the Committee noted with concern the absence of progress towards full application of Article 2 of the Convention, given that the restrictive definition of the term “employee” in the Sarawak Labour Ordinance, leaves certain categories of workers without the benefit of a weekly rest day of one whole day provided for in section 105B (1) of the Sarawak Labour Ordinance. It also noted the lack of progress in the application of Article 5, as section 105C of the Sarawak Labour Ordinance only provides for monetary compensation but not for compensatory rest for workers performing work on their weekly rest day. The Committee notes with concern that on both issues the Government, in its report, limits itself to indicating that it will pursue a discussion with the State Government of Sarawak to ensure that weekly rest entitlement is applicable to all workers employed in any industrial undertaking and that compensatory rest is accorded to workers performing work on their weekly rest day. In this context, the Committee once again requests the Government to take the necessary measures in the near future to ensure that: (i) the whole of the staff employed in industrial undertakings would be entitled to weekly rest; (ii) the period of weekly rest would, wherever possible, be granted simultaneously to the whole of the staff of each undertaking; (iii) the weekly rest would, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district; and (iv) compensatory rest is granted to workers who have to work during their weekly rest day, irrespective of any monetary compensation. The Committee also requests the Government to provide information on any progress made in this respect. The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard.

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Article 2 of the Convention. Weekly rest entitlement. Uniformity of the weekly rest period. In its previous comments, the Committee noted that due to the restrictive definition of the term “employee” in the Labour Ordinance Sarawak (Act A1237 of 2005), certain categories of workers do not benefit from the legal protection afforded in section 105B(1) of the Act which provides that every employee shall be allowed in each week a rest day of one whole day. In particular, it noted that this was the case for non-manual workers who are employed in industrial undertakings and whose monthly wages exceed 2,500 Malaysian ringgit (MYR) per month, as they were excluded from the definition of “employee” (section 2 and Schedule). Recalling that the Convention applies to “the whole of the staff employed in any industrial undertaking” (Article 2(1)), it requested the Government to indicate how it ensured the weekly rest entitlement of those workers who are not covered by the Labour Ordinance. The Committee also recalled that the Convention provides that the period of weekly rest shall, wherever possible, be granted simultaneously to the whole of the staff of each undertaking, and that it shall, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district (Article 2(2) and (3)). It asked the Government to specify how these principles are given effect in law and practice. The Committee notes that the Government indicates in its report that (i) for those employees excluded from the scope of application of the Labour Ordinance, their working conditions are determined by the terms and conditions of the labour contract or collective agreement; those employees are entitled to weekly rest day if it is spelled out in the contract of employment; (ii) the Labour Ordinance does not prescribe when the weekly rest day is to be taken; and (iii) the day of rest is to be determined by the employer from time to time. The Committee therefore notes with concern the absence of progress towards full application of Article 2. The Committee requests the Government to take the necessary measures to ensure that: (i) the whole of the staff employed in industrial undertakings would be entitled to weekly rest; (ii) the period of weekly rest would, wherever possible, be granted simultaneously to the whole of the staff of each undertaking; and (iii) the weekly rest would, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district.
Article 5. Compensatory rest. In its previous comments, the Committee noted that section 105C of the Labour Ordinance Sarawak only provides for monetary compensation, and not compensatory rest, for workers performing work on their weekly rest day. The Committee recalled that Article 5 calls for compensatory periods of rest to be provided, as far as possible, to workers performing work on their weekly rest day and requested the Government to consider the possibility of amending the Labour Ordinance Sarawak in order to give full effect to the requirements of Article 5. The Committee notes that the Government indicates that there is no provision in the legislation which provides for the duty of the employer to provide for compensatory rest. In the absence of progress, the Committee requests the Government to take the necessary measures in order to ensure that compensatory rest is granted to workers who have to work during their weekly rest day, irrespective of any monetary compensation.

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The Committee notes with regret that the Government’s report has not been received. It expresses concern in this respect. It hopes that the next report will contain full information on the matters raised in its previous comments.
Repetition
Article 2 of the Convention. Scope of application. The Committee notes that the Labour Ordinance Sarawak (Cap. 76) was amended by the Labour Ordinance (Sarawak Cap. 76) (Amendment) 2005 (Act A1237). Section 2 of the amended Labour Ordinance repealed the old definition of the term “worker”, which had the effect of limiting the scope of application of the Labour Ordinance Sarawak only to manual workers, in favour of the concept of “employee” understood in a broad sense to include all non-manual workers, whose monthly wage do not exceed 2,500 Malaysian ringgit (MYR) per month, as well as all manual workers irrespective of the amount of their earnings. Recalling that the Convention applies to “the whole of the staff employed in any industrial undertaking”, the Committee requests the Government to indicate how it ensures the weekly rest entitlement of those non-manual workers who are employed in industrial undertakings and whose monthly wages exceed MYR2,500.
Moreover, recalling that the Convention requires that the period of weekly rest, wherever possible, be granted simultaneously to all the personnel of an enterprise and also that the day of rest, wherever possible, be fixed so as to coincide with the day already established by the traditions or customs of the country, the Committee asks the Government to specify how these principles are given effect in law and practice.
Article 5. Compensatory rest. The Committee notes that section 105C of the Labour Ordinance Sarawak prescribes increased pay for workers who are required to work on their day of rest but not compensatory rest. Recalling that this Article of the Convention calls for compensatory periods of rest to be provided, as far as possible, to workers performing work on their weekly rest day, the Committee requests the Government to consider the possibility of amending the Labour Ordinance Sarawak in order to give full effect to the requirements of the Convention on this point.

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The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous comments.
Repetition
Article 2 of the Convention. Scope of application. The Committee notes that the Labour Ordinance Sarawak (Cap. 76) was amended by the Labour Ordinance (Sarawak Cap. 76) (Amendment) 2005 (Act A1237). Section 2 of the amended Labour Ordinance repealed the old definition of the term “worker”, which had the effect of limiting the scope of application of the Labour Ordinance Sarawak only to manual workers, in favour of the concept of “employee” understood in a broad sense to include all non-manual workers, whose monthly wage do not exceed 2,500 Malaysian ringgit (MYR) (approximately US$740) per month, as well as all manual workers irrespective of the amount of their earnings. Recalling that the Convention applies to “the whole of the staff employed in any industrial undertaking”, the Committee requests the Government to indicate how it ensures the weekly rest entitlement of those non-manual workers who are employed in industrial undertakings and whose monthly wages exceed MYR2,500.
Moreover, recalling that the Convention requires that the period of weekly rest, wherever possible, be granted simultaneously to all the personnel of an enterprise and also that the day of rest, wherever possible, be fixed so as to coincide with the day already established by the traditions or customs of the country, the Committee asks the Government to specify how these principles are given effect in law and practice.
Article 5. Compensatory rest. The Committee notes that section 105C of the Labour Ordinance Sarawak prescribes increased pay for workers who are required to work on their day of rest but not compensatory rest. Recalling that this Article of the Convention calls for compensatory periods of rest to be provided, as far as possible, to workers performing work on their weekly rest day, the Committee requests the Government to consider the possibility of amending the Labour Ordinance Sarawak in order to give full effect to the requirements of the Convention on this point.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:
Repetition
Article 2 of the Convention. Scope of application. The Committee notes that the Labour Ordinance Sarawak (Cap. 76) was amended by the Labour Ordinance (Sarawak Cap. 76) (Amendment) 2005 (Act A1237). Section 2 of the amended Labour Ordinance repealed the old definition of the term “worker”, which had the effect of limiting the scope of application of the Labour Ordinance Sarawak only to manual workers, in favour of the concept of “employee” understood in a broad sense to include all non-manual workers, whose monthly wage do not exceed 2,500 Malaysian ringgit (MYR) (approximately US$740) per month, as well as all manual workers irrespective of the amount of their earnings. Recalling that the Convention applies to “the whole of the staff employed in any industrial undertaking”, the Committee requests the Government to indicate how it ensures the weekly rest entitlement of those non-manual workers who are employed in industrial undertakings and whose monthly wages exceed MYR2,500.
Moreover, recalling that the Convention requires that the period of weekly rest, wherever possible, be granted simultaneously to all the personnel of an enterprise and also that the day of rest, wherever possible, be fixed so as to coincide with the day already established by the traditions or customs of the country, the Committee asks the Government to specify how these principles are given effect in law and practice.
Article 5. Compensatory rest. The Committee notes that section 105C of the Labour Ordinance Sarawak prescribes increased pay for workers who are required to work on their day of rest but not compensatory rest. Recalling that this Article of the Convention calls for compensatory periods of rest to be provided, as far as possible, to workers performing work on their weekly rest day, the Committee requests the Government to consider the possibility of amending the Labour Ordinance Sarawak in order to give full effect to the requirements of the Convention on this point.

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Article 2 of the Convention. Scope of application. The Committee notes that the Labour Ordinance Sarawak (Cap. 76) was amended by the Labour Ordinance (Sarawak Cap. 76) (Amendment) 2005 (Act A1237). Section 2 of the amended Labour Ordinance repealed the old definition of the term “worker”, which had the effect of limiting the scope of application of the Labour Ordinance Sarawak only to manual workers, in favour of the concept of “employee” understood in a broad sense to include all non-manual workers, whose monthly wage do not exceed 2,500 Malaysian ringgit (MYR) (approximately US$740) per month, as well as all manual workers irrespective of the amount of their earnings. Recalling that the Convention applies to “the whole of the staff employed in any industrial undertaking”, the Committee requests the Government to indicate how it ensures the weekly rest entitlement of those non-manual workers who are employed in industrial undertakings and whose monthly wages exceed MYR2,500.

Moreover, recalling that the Convention requires that the period of weekly rest, wherever possible, be granted simultaneously to all the personnel of an enterprise and also that the day of rest, wherever possible, be fixed so as to coincide with the day already established by the traditions or customs of the country, the Committee asks the Government to specify how these principles are given effect in law and practice.

Article 5. Compensatory rest. The Committee notes that section 105C of the Labour Ordinance Sarawak prescribes increased pay for workers who are required to work on their day of rest but not compensatory rest. Recalling that this Article of the Convention calls for compensatory periods of rest to be provided, as far as possible, to workers performing work on their weekly rest day, the Committee requests the Government to consider the possibility of amending the Labour Ordinance Sarawak in order to give full effect to the requirements of the Convention on this point.

Part V of the report form. Application in practice. The Committee notes the information provided by the Government that in 2008 the Sarawak Labour Department inspected 2,706 workplaces and found no cases of non-compliance with the relevant legislation. It requests the Government to continue providing up to date and concrete information on the application of the Convention in practice, including, for instance, statistics on the number of workers covered by the relevant legislation, extracts from reports of the labour inspection services concerning weekly rest, copies of collective agreements including clauses on weekly rest, etc.

Finally, the Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that the ratification of up to date Conventions, including the Weekly Rest (Industry) Convention, 1921 (No. 14), and the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106), should be encouraged because they continue to respond to current needs (see GB.283/LILS/WP/PRS/1/2, paragraphs 17–18). The Committee accordingly invites the Government to contemplate ratifying Convention No. 106 – especially since the relevant legislation is of general application and covers equally industry and commerce – and to keep the Office informed of any decision taken or envisaged in this respect.

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Article 2 of the Convention. Scope of application. The Committee notes with satisfaction that the Labour Ordinance Sarawak (Cap. 76), on which the Committee has been formulating comments since 1967, was amended by the Labour Ordinance (Sarawak Cap. 76) (Amendment) 2005 (Act A1237) and that the possibility of contracting out of the right to weekly rest, which was allowed under former section 105 of the Labour Ordinance Sarawak, has now been removed.

The Committee is raising other matters in a request addressed directly to the Government.

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Since 1967, the Committee has been addressing comments to the Government, expressing its hope that the Government will consider amending the Labour Ordinance Sarawak (Cap. 76) of 1952 (as amended by Ordinance 11 of 1958) in accordance with the Convention. First, the Labour Ordinance Sarawak (Cap. 76) excludes in its section 2 non-manual workers from its scope of application, which is not in line with Article 2 of the Convention. That Article provides that "the whole of the staff employed in any industrial undertaking" shall enjoy the weekly rest period. Secondly, section 105 of the Labour Ordinance Sarawak (Cap. 76) stipulates that the weekly rest period is subject to variation by individual contracts of employment. Thirdly, the Labour Ordinance Sarawak (Cap. 76) does not provide a compensatory rest as provided for under Article 5 of the Convention.

Since 1970, the Government has indicated the possibility of modifying the Labour Ordinance Sarawak (Cap. 76) in order to give effect to the provisions of the Convention. No legislative change has so far taken place. In its last report, the Government states that the Labour Ordinance Sarawak (Cap. 76) is in the final stage of amendment, a statement which is being made since 1992.

Furthermore, since 1975, the Government has indicated that steps have been taken to standardize the labour legislation in Federal Malaysia and to extend the Employment Act of Malaysia of 1955 (as amended 1981) to Sarawak, with appropriate modifications. Currently, this Act applies to West Malaysia only. In 1987, the Committee was informed by the Government that the extension process is in an advanced stage and should soon be formalized. So far, the Government has not forwarded to the Committee any document extending the Employment Act of Malaysia of 1955 to Sarawak.

The Committee urges the Government to overcome the obstacles in the modification of the Labour Ordinance Sarawak (Cap. 76) and to keep it informed on all progress achieved. In addition, the Committee would like to be informed on any changes with regard to the standardization of the labour law in Federal Malaysia. The Committee requests the Government to explain the relationship between the Labour Ordinance Sarawak (Cap. 76) and the Employment Act of Malaysia of 1955 after the extension of the Employment Act to Sarawak.

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The Committee notes the report sent by the Government, which merely indicates that the Labour Ordinance is being revised. The Committee recalls that, in its report to the ILO in 1992, the Government stated that measures were being taken to amend section 105 of the Labour Ordinance in order to make it mandatory for employers to provide a weekly rest day to their workers. The Government made no further mention of this amendment in its reports sent in 1994 and 2000. The Committee hopes that the Government will take the necessary steps as soon as possible to bring its legislation into line with the Convention on this point and that it will provide the relevant text as soon as it has been adopted.

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In its previous comments, the Committee noted the Government's indication that action had been taken to amend section 105 of the Labour Ordinance so that it is mandatory for employers to provide a weekly rest day. The Committee notes the Government's indication in its last report that no changes have been made to the Labour Ordinance. The Committee hopes that the proposed amendment to the Labour Ordinance will soon be adopted in order to give full effect to the provisions of the Convention. It also requests the Government to keep it informed of any progress achieved in this respect and to supply a copy of the relevant text when it is adopted.

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