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Sarawak Labour Ordinance (ACT A1237) - Chapter 76: Labour, Page 2

PART II - CONTRACT OF SERVICE

CHAPTER IV - Terms And Conditions

10. More favourable conditions of service under the Ordinance to prevail

Subject to section 10A, any term or condition of a contract of service or of an agreement, whether such contract of service was entered into before or after the coming into force of this Ordinance, which provides a term or condition of service which is less favourable to an employee than a term or condition of service prescribed by this Ordinance or any rules, order or other subsidiary legislation made thereunder shall be void and of no effect to that extent and the more favourable provisions of this Ordinance or any rules, order or other subsidiary legislation made thereunder shall be substituted therefor.

10A. Validity of any term or condition of service which is more favourable.

Subject to any express prohibition under this Ordinance or any rules, order or other subsidiary legislation made thereunder, nothing in Section 10 shall be construed as preventing an employer and an employee from agreeing to any term or condition of service under which an employee is employed, or shall render invalid any term or condition of service stipulated in any collective agreement or in any award of the Industrial Court, which .is more favourable to the employee than the provisions of this Ordinance or any rules, order or other subsidiary legislation made thereunder.

10B. Removal of doubt in respect of matters not provided for by or under this Ordinance.

For the removal of doubt, it is hereby declared that if no provision is made in respect of any matter under this Ordinance or any subsidiary legislation made thereunder, or if no rules, order or other subsidiary legislation has been made on any matter in respect of which rules, or an order or other subsidiary legislation may be made under this Ordinance, it shall not be construed as preventing such matter from being provided for in a contract of service, or from being negotiated upon between an employer and an employee.

10C. Contracts of service not to restrict rights of employees to join, participate in or organize trade unions.

Nothing in any contract of service shall in any manner restrict the right of any employee who is a party to such contract -

(a) to join a registered trade union;

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

(c) to associate with any other persons for the purpose of organizing a trade union in accordance with the Trade Unions Act 1959.

11. Guaranteed Week.

(1) In the case of an employee employed on a contract of service and paid according to the number of day's work performed, an employer shall provide work suitable to the capacity of such employee for not less than five and a half days in every week with the exception of gazetted public holidays and Sunday (or such other rest day as may be substituted for a Sunday by agreement between the employer and the employee, entered into not less than three days before the rest is taken) and if he is unable or fails to provide such work on such number of days whereon the employee presents himself for work and is fit to work the employer shall nevertheless be bound to pay to the employee in respect of each of such days, wages, at not less than his ordinary rate of pay, including cost of living allowance, if any, or if the employee is on piece rates at not less than the average of his previous weeks' earnings or if he has not been working, at the average rate during the last full week's work earned by a similar class of employee engaged on similar work:

Provided that if such day is a work day, other than a Saturday, the employer shall pay at a rate as if a whole day's work had been performed.

(2) 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).

11A. Provision as to termination of contracts.

(1) A contract of service for a specified period of time or for the performance of a specified piece of work shall, unless otherwise terminated accordance with this Chapter, terminate when the period of time for which such contract was made has expired or when the piece of work specified such contract has been completed.

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

12. Termination of contract of service by notice

(1) Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service.

(2) 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-

(a) four weeks' notice if the employee has been so employed for less than two years on the date on which the notice is given;

(b) six weeks' notice if he has been so employed for two years more but less than five years on such date;

(c) eight weeks' notice if he has been so employed for five years more on such date:

Provided that this section shall not be taken to prevent either party from waiving his right to a notice under this subsection.

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

(a) the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employee

(b) the employer has ceased or intends to cease, to carry on the business in the place at which the employee was contracted work;

(c) requirements of that business for the employee to carry out work of a particular kind have ceased or diminished or are expected cease or diminish;

(d) the requirements of that business for the employee to carry out work of a particular kind in the place at which he was contracted to work have ceased or diminished or are expected to cease or diminish;

(e) the employee has refused to accept his transfer to any other place of employment, unless his contract of service requires him to accept such transfer; or

(f) a change has occurred in the ownership of the business for the purpose of which an employee is employed or of a part of such business, regardless of whether the change occurs by virtue of a sale or other disposition or by operation of law,

the employee shall be entitled to, and the employer shall give to the employee, notice of termination of service, and the length of such notice shall be not less than that provided under paragraph (a), (b) or (c) of subsection (2), as the case may be, regardless of anything to the contrary contained in the contract of service.

(4) 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.

13. Termination of contract without notice.

(1) Either party to a contract of service may terminate such contract of service without notice or, if notice has already been given in accordance with section 12, without waiting for the expiry of that notice, by paying to the other party an indemnity of a sum equal to the amount of wages which would have accrued to the employee during the term of such notice or during the unexpired term of such notice.

(2) 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.

14. Termination of contract for special reasons.

(1) An employer may, on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry-

(a) dismiss without notice the employee;

(b) downgrade the employee; or

(c) 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.

(2) 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.

(3) An employee may terminate his contract of service with his employer without notice where he or his dependants are immediately threatened by danger to the person by violence or disease such as such employee did not by his contract of service undertake to run.

14A. When contract is deemed to be broken by employer and employee.

(1) An employer shall be deemed to have broken his contract of service with the employee if he fails to pay wages in accordance with this Ordinance.

(2) 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 a 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. Cancellation of agreement by Commissioner

- Repealed -

16. Capacity to enter into an agreement.

- Repealed -

17. Penalties.

- Repealed -

CHAPTER V - Contracts - Repealed

18. Certain contracts excluded.

- Repealed -

19. Contracts to be in writing and to include provision for termination.

(1) A contract of service for a specified period of time exceeding one month or for the performance of a specified piece of work, where the time reasonably required for the completion of the work exceeds or may exceed one month shall be in writing and shall be signed by both parties:

Provided that an employee unable to sign may indicate his consent by affixing thereto the impression of his thumb.

(2) 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.

(3) 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. Contents of contract.

- Repealed -

21. Attestation of contracts.

- Repealed -

22. Medical Examination.

- Repealed -

23. Capacity to enter into contract.

- Repealed -

24. Limitation of Contract with natives.

- Repealed -

25. Maximum duration of contracts.

- Repealed -

26. Transfer to other employment.

- Repealed -

27. General termination of contract.

- Repealed -

28. Cancellation of contract by Commissioner.

- Repealed -

29. Duration of re-engagement contracts.

- Repealed -

30. Provisions applicable to re-engagement contract.

- Repealed -

31. Summary of Chapter to be brought to notice of workers.

- Repealed -

32. Contracts for service outside Sarawak.

- Repealed -

33. Extra-territorial contracts for employment in Sarawak.

- Repealed -

34. Penalties.

- Repealed -

CHAPTER VI - Apprenticeship Contracts

35. Apprenticeship contracts excluded from sections 11, HA, 12. 13,14,14A and 19.

Sections 11, HA, 12, 13, 14, 14A and 19 shall not apply to apprenticeship contracts which are in a form approved by and of which a copy has been filed with the Director.

36. Contracts of apprenticeship of person over sixteen.

- Repealed -

37. Assignment.

- Repealed -

38. Attestation.

- Repealed -

39. Duties of attesting officer.

- Repealed -

40. Certificate of service on discharge.

- Repealed -

41. Retention of apprentices after expiry of contract.

- Repealed -

42. Suspension and discharge.

- Repealed -

43. Penalties.

- Repealed -

CHAPTER VII - Rules - Repealed

44. power to make rules.

- Repealed -

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