May 9 declared public holiday: do employers need to observe it?

Authors: Donovan Cheah (Partner) from Donovan & Ho

www.dnh.com.my

9th May 2018 has been declared as a public holiday. The Prime Minister’s Office said that the public holiday declaration is in accordance with Section 8 of the Holidays Act 1951. Section 8 of the Holidays Act allows the Minister, by notification in the Gazette or in any such manner as he thinks fit, to appoint any day as a public holiday or bank holiday in West Malaysia or in the Federal Territory. 

We already know that employers are statutorily required to give their employees a “reasonable period” to vote.

Now that polling day has been declared a public holiday, the next question is:

Can employers choose not to observe 9th May 2018 as a public holiday and ask their employees to come to work like normal, provided they still give their employees reasonable time off to vote?

Answer:

Employees covered by the Employment Act 1955 (“EA Employees“), ie: mainly employees engaged in manual labour and/or employees with monthly wages not exceeding RM2,000, are entitled to a paid holiday for any holiday that is declared under Section 8 of the Holidays Act 1951. Therefore, EA Employees are entitled to the paid holiday on 9th May 2018. HOWEVER, the employer may choose not to observe 9th May 2018 as a public holiday provided that the employee is granted any other day as a paid public holiday in substitution. EA Employees who are required to work on the public holiday will be entitled to overtime rates as set out in the Employment Act 1955.

Employees who are not covered by the Employment Act 1955 (“Non-EA Employees“) are not statutorily guaranteed the paid holiday on 9th May 2018 and their entitlements are subject to what is stated in their employment contract and/or employee handbook. Eg: they will be entitled to the paid holiday if their contract states that their employer will observe “all public holidays”. However, if their contract is silent, then employers may have some discretion whether to observe the holiday or not.

In any event, if the employer chooses not to observe the public holiday on 9th May 2018 and directs their employees to come to work like normal, the employer must still provide their employees a “reasonable” period to vote, failing which they will be committing an offence under the Election Offences Act. Similar issues arose when 24 April 2017 was declared as a public holiday for our King’s coronation.