Parliament, in its wisdom, had legislated an absolute reduction of the workweek to 45 hours.
So we find it repulsive that the legal and enforcement department of the Ministry of Human Resources had the audacity to pen a letter dated 20 December 2022 to the Federation Of Malaysian Manufacturers, in which the former referred selectively to Section 60A(9) of the Employment Act 1955, without considering the provisions in Section 60A(1)(d)(ii) of the same act.
For an understanding of these provisions, we reproduce these sections.
Section 60A(9): For the purpose of this Part “hour of work” means the time during which an employee is at the disposal of the employer and is not free to dispose of his own time and movements.
Section 60A(1)(d)(ii): an employee who is engaged in work which must be carried on continuously and which requires his continual attendance may be required to work for eight consecutive hours inclusive of a period or periods of not less than forty-five minutes in the aggregate during which he shall have the opportunity to have a meal…
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A plain reading of Section 60A(9) must lead to the interpretation of working hours in totality and not meal breaks in isolation. Nowhere in Section 60A(9) is there a reference that meal breaks should be excluded from the normal hours of work.
On the contrary, Section 60A(1)(d)(ii) mandates employers to provide a minimum of 45 minutes’ break within the eight consecutive hours of work, for the workers to have a meal.
Given the unequivocal provisions of Section 60A(1)(d)(ii), there can be no other interpretation other than that workers must be provided with a minimum break of 45 minutes for the sole purpose of enabling them to have a meal, during the daily eight consecutive hours of work.
We, in the Penang division of the Malaysian Trades Union Congress, are convinced that the legal and enforcement department of the Ministry of Human Resources has not been transparent in addressing holistically the relevant provisions of the law.
By discarding the provisions of Section 60A(1)(d)(ii) of the Employment Act, the department has failed in its fiduciary duty to subscribe to the intention of Parliament to bring about an absolute reduction of workweek hours.
Contrary to the opinion of the legal and enforcement department, the very same Jabatan Tenaga Kerja (Labour Department) had published a set of frequently asked questions, in which it is clearly illustrated, in paragraph F, that the objective of Parliament was to reduce the workweek in absolute terms to 45 hours, inclusive of 45-minute meal breaks.
Unfortunately, premised on the legal and enforcement department’s letter addressed to the Federation of Malaysian Manufacturers, employers are refusing to reduce working hours – which, in our view, defeats the intention of Parliament.
So, we demand that the Ministry of Human Resources takes immediate remedial action to enforce the law, given the intention of Parliament to reduce in real terms the workweek to 45 hours.
K Veeriah is secretary of the Penang division of the Malaysian Trades Union Congress