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Sarawak Labour Ordinance (ACT A1237) - Chapter 76: Labour, Page 3

PART IV - PROVISION RELATING TO EMPLOYMENT

CHAPTER X - Registers, Returns And Notice Board

 

57. Applications.

- Repealed -

58. Duty to display notice board.

The owner of any -

(a) estate of twenty hectares or more;

(b) mine;

(c) factory;

(d) trade, business or manufacturing activity carried on in any premises,

on or in which not less than five employees are employed shall, if such estate, mine, factory or premises is outside the limits of a City, Municipality, Town Council, Town Board or other local authority, cause to be erected where practicable in a conspicuous place at or adjacent to the place where the access road to such estate, mine, factory or premises joins the main road or a railway or river, as the case may be, a notice board on which shall be set out in the National Language the name of such estate, mine, factory, trade, business or manufacturing activity and the address of its registered or other office.

59. Duty to keep registers.

(1) Every employer shall prepare and keep one or more registers containing such information regarding each employee employed by him as may be prescribed by rules made under this Ordinance.

(2) Every such register shall be preserved for such period that every particular recorded therein shall be available for inspection for not less than six years after the recording thereof.

(3) Notwithstanding subsections (1) and (2), the Director, on a written application by an employer, may permit the employer to keep the information required under subsection (1) in any other manner as may be approved by the Director subject to such conditions as he may deem fit to impose.

59A. Power to make rules requiring information as to wages.

The Minister may, by rules made under this Ordinance, provide that every employer or any specified class or classes of employers shall make available, in such form and at such intervals as may be prescribed, to every employee employed by him or them or to such class or classes of employees as may be specified such particulars as may be specified relating to the wages of such employees or any of them.

60. Duty to submit returns.

(1) The Director may by notification in the gazette or by notice in writing require every employer or such class or classes of employers as may be specified, and every owner or occupier of land upon which employees are employed or such class or classes of owners or occupiers as may be specified, to forward to the Director at such times as he may direct a return or returns,in such form or forms as he may prescribe, giving such particulars relating to the employees of the employers, or to the employees employed on the land, as may be prescribed.

(2) Notwithstanding the provisions of this Ordinance, the powers of the Director under subsection (1) extends to every employee employed under a contract of service irrespective of the monthly wages of the employee.

60A. Duty to give notice and other information.

(1) Any person or employer who proposes -

(a) to operate any agricultural, forestry or industrial undertaking or any establishment where any commerce, trade, profession or business of any description is carried on;

(b) to take over or commence business in such undertaking or establishment; or

(c) to change the name or the location of such undertaking or establishment, in which any employee is employed or is likely to be employed shall, within ninety days of such commencing of operation, taking over or commencing of business, or changing of the name or the location of the undertaking or establishment, as the case may be, give notice in writing of such proposal to the nearest office of the Director having administrative jurisdiction for the area in which that undertaking or establishment is located and furnish such office of the Director with -

(aa) the registered name, address and nature of business

of;

(bb) the name of the manager or person in charge of; and

(cc) a statement of the categories and total number of

employees employed in,

that undertaking or establishment.

(2) For the purposes of this section, the expressions "commencing

of operation" and "commencing of business" each means the date on which the undertaking or establishment is registered under any written law or the date on which the first employee is employed in furtherance of the undertaking or commerce, trade, profession or business in such establishment, which ever is earlier.

(3) Where any undertaking or establishment as is referred to in subsection (1) is already in operation or has commenced business, such notice shall be given within ninety days of the coming into force of this section.

61. Housing, water supply and sanitation.

- Repealed -

62. Surroundings of housing to be kept clean.

- Repealed -

63. Regular inspection of housing.

- Repealed -

64. Separate house accommodation to be provided for each case.

- Repealed -

65. Agricultural Allotments.

- Repealed -

66. Medical care and treatment.

- Repealed -

67. Burial of deceased worker or dependant.

- Repealed -

68. Hospital maintained by employers.

- Repealed -

69 Approval of place of employment and prohibition of employment of workers where arrangements are inadequate.

- Repealed -

70. Penalties.

- Repealed -

 

CHAPTER XI - Special Provisions Relating To The Employment Of Children And Young Persons

71. Application.

- Repealed -

72. Certificate of medical officer as to age.

Where, in any proceeding under this Ordinance, a person is alleged to be a child or young person, the Court may accept a certificate of a Medical Officer to the effect that, in his opinion, such person is or is not a child or young person.

73. Employment in which children and young persons may be engaged.

(1) No child or young person shall be, or be required or permitted to be, engaged in any employment other than those specified in this section.

(2) A child may be engaged in any of the following employments:

(a) employment involving light work suitable to his capacity in any undertaking carried on by his family;

(b) employment in any public entertainment, in accordance with the terms and conditions of a license granted in that behalf under this Chapter;

(c) employment requiring him to perform work approved or sponsored by the Federal Government or the Government of any State and carried on in any school, training institution or training vessels; and

(d) employment as an apprentice under a written apprenticeship contract.

(3) A young person may be engaged in any of the following

(a) any employment mentioned in subsection (2); and in relation to paragraph (a) of that subsection, any employment suitable to his capacity (whether or not the undertaking is carried on by his family);

(b) employment as a domestic servant;

(c) employment in any office, shop (including hotels, bars, restaurants and stalls), godown, factory, workshop, store, boarding house, theatre, cinema, club or association;

(d) employment in an industrial undertaking suitable to his capacity; and

(e) employment on any vessel under the personal charge of his parent or guardian:

Provided that no female young person may be engaged in any employment in hotels, bars, restaurants, boarding houses or clubs unless such establishments are under the management or control of her parent or guardian:

Provided further that a female young person may be engaged in any employment in a club not managed by her parent or guardian with the approval of the Director.

(4) The Minister may, if he is satisfied that any employment (not mentioned in subsection (2) or subsection (3)) is not dangerous to life, limb, health or morals, by order declare such employment to be an employment in which a child or young person may be, or permitted to be, engaged; and the Minister may in such order impose such conditions as he deems fit and he may at any time revoke or vary the order or may withdraw or alter such conditions.

(5) No child or young person shall be, or be required or permitted to be, engaged in any employment contrary to the provisions of the Factories and Machinery Act, 1967 or the Electricity Ordinance (Sarawak), or in any employment requiring him to work underground.

74. The Minister may prohibit any child or young person from engaging or being engaged in any employment.

Notwithstanding section 73, the Minister may, in any particular case, by order prohibit any child or young person from engaging or from being engaged in any of the employments mentioned in that section if he is satisfied that having regard to the circumstances such employment would be detrimental to the interests of the child or young person, as the case may be.

74A. Number of days of work.

No child or young person engaged in any employment shall in any period of seven consecutive days be required or permitted to work for more than six days.

74B. Hours of work of children.

(1) No child engaged in any employment shall be required or permitted -

(a) to work between the hours of 8 o'clock in the evening and 7 o'clock in the morning;

(b) to work for more than three consecutive hours without a period of rest of at least thirty minutes;

(c) to work for more than six hours in a day or, if the child is attending school, for a period which together with the time he spends attending school, exceeds seven hours; or

(d) to commence work on any day without having had a period of not less than fourteen consecutive hours free from work.

(2) Paragraph (a) of subsection (1) shall not apply to any child engaged in employment in any public entertainment.

74C. Hours of work of young persons.

(1) No young person engaged in any employment shall be required or permitted -

(a) to work between the hours of 8 o'clock in the evening and 6 o'clock in the morning;

(b) to work for more than four consecutive hours without a period of rest of at least thirty minutes;

(c) to work for more than seven hours in any one day or, if the young person is attending school, for a period which together with the time he spends attending school, exceeds eight hours:

Provided that if the young person is an apprentice under paragraph (d) of subsection (2) of section 73, the period of work in any one day shall not exceed eight hours; or

(d) to commence work on any day without having had a period of not less than twelve consecutive hours free from work.

(2) Paragraph (a) of subsection (1) shall not apply to any young person engaged in employment in an agricultural undertaking or any employment in a public entertainment or on any vessel under paragraph (e) of subsection (3)
of section 73.

74D. Employment connected with public entertainment.

(1) No child or young person shall take part or be required or permitted to take part in any public entertainment unless there has been issued by the Director or by such other officers as may be authorized in writing in that behalf by the Director to the person employing such child or young person a licence in that behalf; and the Director may, in addition to such conditions or
restrictions as may be prescribed from time to time under Chapter XVIB impose in respect of such licence (whether at the time the licence is issued or thereafter from time to time) such conditions as he deems fit.

(2) No licence under subsection (1) shall be granted by the Director to any person where he is of the opinion that the employment is dangerous to the life, limb, health or morals of the child or young person.

(3) The Director may cancel any licence issued under this section on any ground for which he could refuse to issue a licence or on breach of any condition thereof, and such cancellation shall take effect forthwith until and unless set aside on appeal.

(4) Any child or young person or the parent or guardian of such child or young person or any other person aggrieved by the decision of the Director may within fourteen days of the making of that decision appeal to the Minister, and the decision of the Minister shall be final.

(5) In the event of an appeal, the child or young person or the parent or guardian of such child or young person shall be entitled to be supplied by the Director the reasons in writing for the cancellation of or refusal to issue a licence or for the imposition of conditions on a licence.

75. Night work of young persons in industry.

- Repealed -

75A. Power to prescribe minimum wages after inquiry.

(1) If representation is made to the Minister that the wages of children or young persons in any class of work in any area are not reasonable, having regard to the nature of the work and conditions of employment obtaining in such class of work, the Minister may, if he considers it expedient, direct an inquiry.

(2) For the purpose of such inquiry, the Minister shall appoint a Board consisting of an independent member who shall be chairman and an equal number of representatives of employers and employees.

(3) The Board shall, after holding the inquiry, report to the Minister its findings and recommendations; and the Minister may, after considering the report of the Board, make an order prescribing the minimum rates of wages to be paid to children or young persons or to both, employed in the class of work in the area.

(4) Upon publication of such order, it shall not be lawful for any employer to pay any child or young person to whom the order applies, wages below the minimum rates specified in the order.

75B. Contractual capacity.

Notwithstanding anything to the contrary contained in the Contracts Act 1950 or the provisions of any other written law, any child or young person shall be competent to enter into a contract of service under this Ordinance otherwise than as an employer, and may sue as plaintiff without his next friend or defend any action without a guardian ad litem:

Provided that no damages and no indemnity under section 13 of this Ordinance shall be recoverable from a child or young person for a breach of any contract of service.

CHAPTER XIA - Employment Of Women

76. Prohibition of night work.

(1) Except in accordance with rules made under this Ordinance or any exemption granted under the proviso to this subsection, no employer shall require any female employee to work in any agricultural, forestry or industrial undertaking between the hours of ten o'clock in the evening and five o'clock in the morning nor commence work for the day without having had a period of eleven consecutive hours free from such work:

Provided that the Director may, on application made to him in any particular case, exempt in writing any female employee or class of female employees from any restriction in this subsection, subject to any conditions he may impose.

(2) Any person -

(a) who is affected by any decision made or condition imposed under the proviso to subsection (1); and

(b) who is dissatisfied with such decision or condition, may within thirty days of such decision or condition being communicated to him appeal in writing to the Minister.

(3) In deciding any appeal made to him under subsection (2), the Minister may make such decision or order, including the alteration or removal of any condition imposed or the imposition of any further condition, as appears just and such decision or order shall be final.

77. Emergencies.

In any serious emergency when the public interest demands it the Minister may by order suspend the operation of section 76 in so far as they affect women.

78. Register of young persons employed in industrial undertakings.

- Repealed -

79. Prohibition of underground work.

No female employee shall be employed in any underground work.

79A. Prohibition of employment.

Notwithstanding the provisions of this Chapter, the Minister may by order prohibit or permit the employment of female employees in such circumstances

or under such conditions as may be described in such order.

80. Restriction on employment of children in ship.

- Repealed -

81. Restriction on employment of young person in ships.

- Repealed -

82. Register of young persons employed in ships

- Repealed -

83. Medical Certificate.

- Repealed -

CHAPTER XIB - Maternity Protection

84. Length of eligible period and entitlement to maternity allowance.

(1) Every female employee shall be entitled to maternity leave for a period of not less than sixty consecutive days (also referred to in this Chapter as to the "eligible period") in respect of each confinement and, subject to this Chapter, she shall be entitled to receive from her employer a maternity allowance to be calculated or prescribed as provided in subsection (2) in respect of the eligible period.

(2) Where a female employee is entitled to maternity leave under subsection (1) but is not entitled to receive maternity allowance from her employer for the eligible period under subsection (5), or because she has not fulfilled the conditions set out in subsection (6), she may, with the consent of the employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner.

(3) Subject to section 88, maternity leave shall not commence earlier than a period of thirty days immediately preceding the confinement of a female employee or later than the day immediately following her confinement:

Provided that where a medical officer or the registered medical practitioner appointed by the employer certifies that the female employee as a result of her advanced state of pregnancy is unable to perform her duties satisfactorily, the employee may be required to commence her maternity leave at any time during a period of fourteen days preceding the date of her
confinement as determined in advance by the medical officer or the registered medical practitioner appointed by the employer.

(4) Where a female employee abstains from work to commence her maternity leave on a date earlier than the period of thirty days immediately preceding her confinement, such abstention shall not be treated as maternity leave and she shall not be entitled to any maternity allowance in respect of the days during which she abstains from work in excess of the period of thirty
days immediately preceding her confinement.

(5) Notwithstanding subsection (1), a female employee shall not be entitled to any maternity allowance if at the time of her confinement she has five or more surviving children.

(6) A female employee shall be entitled to receive maternity allowance for the eligible period from her employer if -

(a) she has been employed by the employer at any time in the four months immediately before her confinement; and

(b) she has been employed by the employer for a period of, or periods amounting in the aggregate to, not less than ninety days during the nine months immediately before her confinement.

(7) A female employee who is eligible for maternity allowance under this section shall be entitled to receive from the employer for each day of the eligible period a maternity allowance at her ordinary rate of pay for one day, or at the rate prescribed by the Minister under Chapter XVIB, whichever is the greater.

(8) A female employee employed on a monthly rate of pay shall be deemed to have received her maternity allowance if she continues to receive her monthly wages during her abstention from work during the eligible period without abatement in respect of the abstention.

(9) Where a female employee claims maternity allowance under this section from more than one employer, she shall not be entitled to receive a maternity allowance of an amount exceeding in the aggregate the amount which she would be entitled to receive if her claim was made against one employer only.

(10) Where there are more employers than one from whom the female employee would be entitled to claim maternity allowance in accordance with this section the employer who pays the maternity allowance shall be entitled to recover from such other employer, as a civil debt, a contribution which shall bear the same proportion to the amount of the maternity allowance paid to the female employee as the number of days on which she worked for such other employer during the period of nine months immediately preceding her confinement bears to the total number of days on which she worked during
that period:

Provided that if the female employee has failed to comply with subsection (1) or (2) of section 88, the employer who pays the maternity allowance shall not thereby be prevented from recovering contribution calculated in accordance that subsection.

(11) For the purposes of this section, "children" means all natural children, irrespective of age.

85. Payment to include rest days and holidays.

- Repealed -

86. Payment of maternity allowance.

The maternity allowance referred to in section 84 and accruing in each wage period under the contract of service of the female employee shall be paid in the same manner as if such allowance were wages earned during such wage period as provided in section 109.

87. Payment of allowance to nominee on death of a female employee.

If a female employee, after giving notice to her employer that she expects to be confined, commences her maternity leave and dies from any cause during the eligible period, her employer or any employer who would have been, but for the death of the female employee, liable to pay any maternity allowance shall pay to the person nominated by her under section 91 or, if there is no such person, to her legal personal representative, an allowance at the rate calculated or prescribed as provided in subsection (7) of section 84 from the day she commenced her maternity leave to the day immediately preceding her death.

88. Loss of maternity allowance for failure to notify employer.

(1) A female employee who is about to leave her employer and who knows or has reason to believe that she will be confined within four months from the date upon which she leaves shall before leaving her employment notify her employer of her pregnancy and if she fails so to do, she shall not be entitled to receive any maternity allowance from such employer.

(2) A female employee shall within a period of sixty days immediately preceding her expected confinement notify her employer of it and the date from which she intends to commence her maternity leave and if she commences such leave without so notifying her employer, the payment of maternity allowance to her may be suspended, notwithstanding section 86, until such notice is given to her employer.

(3) Any female employee whose employer provides free medical treatment for his employees and who, when she is pregnant, persistently refuses or fails to submit to such medical treatment offered free by her employer as a registered medical practitioner certifies to be necessary or desirable in connection with her pregnancy, expected confinement or confinement shall, if she would otherwise be entitled to receive any maternity allowance, forfeit such allowance to the extent of seven days.

(4) The want of or any defect or inaccuracy in any notice required to be given in accordance with this section shall not be a bar to the maintenance oft any claim to maternity allowance unless the employer is proved to have been prejudiced by the want, defect or inaccuracy of such notice.

(5) The failure to give any such notice within the period specified in this section shall not prejudice the right of a female employee to receive any maternity allowance if it is found that the failure was occasioned by mistake or other reasonable cause:

Provided that any dispute as to whether such failure was occasioned by mistake or other reasonable cause shall be referred under section 8A to the Director for his decision.

(6) Notice to an employer or, if there is more than one employer, to one of such employers, may be given either in writing or orally or to the foreman or other person under whose supervision the female employee was employed or to any person designated for the purpose by the employer.

89. Permission for absence to be given by employer.

- Repealed -

90. Forfeiture of benefit.

- Repealed -

91. Payment of allowance to nominee.

A female employee may nominate some other person to whom the maternity allowance may be paid on her behalf and any payment of the maternity allowance made to the person so nominated shall, for the purposes of this Ordinance, be deemed to be a payment to the female employee herself.

92. Notice of termination of employment.

When a female employee absents herself from work in accordance with the provisions of this chapter her employer shall not give her notice of termination of employment during such absence or so that the notice will expire during such absence.

92A. Restriction on dismissal of female employee after eligible period.

(1) Where a female employee remains absent from her work after the expiration of the eligible period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement and to render her unfit for her work, it shall be an offence, until her absence exceeds a period of ninety days after the expiration of the eligible period, for her
employer to terminate her services or give her notice of termination of service.

(2) Subject to subsection (1), where a female employee is dismissed from her employment with wages in lieu of notice at any time during the period of four months immediately preceding her confinement, she shall in computing the period of her employment for the purposes of this Chapter be deemed to have been employed as if she had been given due notice instead of wages in lieu thereof.

93. Benefit unaffected by notice of termination in specified circumstances.

- Repealed -

94. Claim from one employer only.

- Repealed -

95. Conditions contrary to Chapter void.

Any condition in a contract of service whereby a female employee relinquishes or is deemed to relinquish any right under this Chapter shall be void and of no effect and the right conferred under this Chapter shall be deemed to be substituted for such condition.

95A. Register of allowances paid.

Every employer shall keep a register, in a form to be prescribed by the Minister by rules made under this Ordinance, of all payments made to female employees under this Chapter and of such other matters incidental thereto as may be prescribed by such rules.

96. Penalties.

- Repealed -

CHAPTER XII - Repatriation

97. Rights and obligations of worker and employer in respect of repatriation

(1) Every employee who is a party to a contract of service under this Ordinance shall have the right to be repatriated at the expense of the employer in the following cases -

(a) on the termination of the contract of service by expiry of the period for which it was made;

(b) on the termination of the contract of service by reason of the inability of the employer to fulfil the contract of service;

 

(c) on the termination of the contract of service by reason of inability of the employee to fulfil the contract of service owing to sickness or accident;

(d) on the termination of the contract of service by notice or otherwise;

(e) upon cancellation by the Director or expiry of the Licence To Employ Non-Resident Employee; and

(f) on the termination of the contract of service by agreement between the parties.

(2) Every non-resident employee who is ordered to leave Sarawak under or in accordance with this Ordinance or any rules made under this Ordinance or any provision of any written law for the time being in force relating to immigration, shall be repatriated at the expense of the employer to his country or state of origin.

(3) Where any dependant of the employee has been brought to the place of employment by the employer, or by any person acting on behalf of the employer, such dependant shall be repatriated at the expense of the employer whenever the employee is repatriated or in the event of his death.

(4) The expenses of repatriation shall include -

(a) traveling and subsistence expenses during the journey;

(b) subsistence expenses during the period, if any, between the date of termination of the contract of service or the cancellation or expiry of the Licence to Employ Non-Resident Employee and the date of repatriation; and

(c) provision of decent interment and the payment of the reasonable expenses of burial in the event of death of an employee occurring during the course of, or pending repatriation.

(5) The employer shall not be liable for subsistence expenses in respect of any period during which the repatriation of the employee has been delayed -

(a) by the employee's own choice; or

(b) for reasons of force majeure, when the employer has been able during the said period to use the services of the employee at the rate of wages stipulated in the expired contract.

CHAPTER XIII - Domestic Service

101. Domestic servants.

The Minister may make rules applying all or any of the provisions of this Ordinance to all domestic servants or to any group, class or number of domestic servants, and such rules may provide generally for the engagement, repatriation and working conditions of domestic servants.

CHAPTER XIV - General Provisions Relating To Contract Of Service

102. Worker not liable for default of another.

- Repealed -

103. Limitation on advances to employees.

(1) No employer shall during any one month make to an employee an advance or advances of wages not already earned by such employee which exceeds in the aggregate the amount of wages which the employee earned in the preceding month from his employment with such employer, or if he has not been so long in the employment of such employer, the amount which he is likely to earn in such employment during one month, unless such advance is made to the employee-

(a) to enable him to purchase a house or to build or improve a house;

(b) to enable him to purchase land;

(c) to enable him to purchase livestock;

(d) to enable him to purchase a motorcar, a motorcycle or a bicycle;

(e) to enable him to purchase shares of the employer's business offered for sale by the employer;

(f) for any other purpose-

(i) in respect of which an application in writing is made by the employer to the Director;

(ii) which is, in the opinion of the Director, beneficial to the employee; and

(iii) which is approved in writing by the Director, provided that in granting such approval, the Director may make such modifications or impose such conditions as he may deem proper;

(g) for such other purpose as the Minister may, from time to time, by notification in the Gazette, specify either generally in respect of all employees, or only in respect of any particular employee, or any class, category or description of employees.

(2) No employee shall be held to be liable for the amount of any advance made to him by his employer which exceeds the amount authorised under subsection (1).

(3) No non-resident employee shall be held to be liable for the amount of any moneys expended on his behalf prior to his arrival in Sarawak in consideration of his engagement to work within Sarawak, other than an advance of wages as may be approved by the Director.

(4) Any advance of wages may be recovered in instalments by deduction from wages in such manner as may be approved by the Director.

104. Holidays.

(1) Every employee shall be entitled to a paid holiday at his ordinary rate of pay on the following days in any one calendar year:

(a) on sixteen of the gazetted public holidays as specified under the Public Holidays Ordinance (Sarawak), four of which shall be -

(i) the National Day;

(ii) the Birthday of the Yang di-Pertuan Agong;

(iii) the Birthday of the Yang di-Pertua Negeri Sarawak;

and

(iv) the Workers' Day:

Provided that the other twelve public holidays referred to in this paragraph be fixed with regard to the religion and customs of the employees; and

(b) on any day in addition to the gazetted public holidays referred to in paragraph (a) declared as a public holiday by the Government of the State:

Provided that if any of the public holidays referred to in paragraphs (a) and (b) falls on a rest day, the working day following the rest day shall be a paid holiday in substitution of that public holiday.

(2) The employer shall exhibit conspicuously at the place of employment before the commencement of each calendar year a notice specifying the remaining twelve gazetted public holidays in respect of which his employees shall be entitled to paid holidays under paragraph (a) of subsection (I):

Provided that by agreement between the employer and an employee any other day or days may be substituted for one or more of the remaining twelve gazetted public holidays provided for in paragraph (a) of subsection (1).

And provided further that the employer may grant the employee any other day as a paid public holiday in substitution for any of the public holidays referred to in paragraph (b) of subsection (1).

(3) Where any of the public holidays or any other day substituted therefor as provided in subsection (1) or (2) falls within the period during which an employee is on sick leave or annual leave to which the employee is entitled under this Ordinance, or falls during the period of temporary disablement under the Workmen's Compensation Act 1952, or under the Employees' Social Security Act 1969, the employer shall grant another day as a paid holiday in substitution for such public holiday or the day substituted therefor.

(4) Any employee who absents himself from work on the working day immediately preceding or immediately succeeding a public holiday or two or more consecutive public holidays or any day or days substituted therefor under this section without the prior consent of his employer, shall not be entitled to any holiday pay for such holiday or consecutive holidays unless he has a reasonable excuse for such absence.

(5) An employee on a monthly rate of pay shall be deemed to have received his holiday pay if he receives from his employer his monthly wages, without abatement (other than as provided under subsection (4)) in respect of the holiday, for the month in which the holiday falls.

(6) Notwithstanding subsections (1), (2) and (3), any employee may be required by his employer to work on any paid holiday to which he is entitled under those subsections, and in such event he shall, in addition to the holiday pay he is entitled to for that day -

(a) in the case of an employee employed on a monthly, weekly, daily, hourly, or other similar rate of pay, be paid two days' wages at the ordinary rate of pay; or

(b) in the case of an employee employed on piece rates, be paid twice the ordinary rate per piece, regardless that the period of work done on that day is less than the normal hours of work.

(7) For any overtime work carried out by an employee referred to in

paragraph (a) of subsection (6) in excess of the normal hours of work on a paid public holiday, the employee shall be paid at a rate which is not less than three times his hourly rate of pay.

(8) For any overtime work carried out by an employee referred to in paragraph (b) of subsection (6) in excess of the normal hours of work on any paid holiday, the employee shall be paid not less than three times the ordinary rate per piece.

(9) An employee who works on a holiday shall be entitled to a travelling allowance for that day if payable to him under the terms of his contract of service with his employer but such employee shall not be entitled under this subsection to receive an increased rate of any housing allowance or food allowance.

(10) For the purposes of this section if any such holiday falls on a half working day, the ordinary rate of pay payable shall be that of a full working day.

105. Hours of work.

(1) Except as provided in this section, an employee shall not be required under his contract of service to work -

(a) more than five consecutive hours without a period of leisure of not less than thirty minutes duration;

(b) more than eight hours in one day;

(c) in excess of a spread over period of ten hours in one day;

(d) more than forty-eight hours in one week:

Provided that -

(aa) for the purpose of paragraph (a), any break of less than thirty minutes in the five consecutive hours shall not break the continuity of that five consecutive hours;

(bb) 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; and

(cc) where, by agreement under the contract of service between the employee and the employer, the number of hours of work on one or more days of the week is less than eight, the limit of eight hours may be exceeded on the remaining days of the week, but so that no employee shall be required to work for more than nine hours in one day or forty-eight hours in one week.

(2) The Director may, on the written application of an employer, grant permission to the employer to enter into a contract of service with any one or more of his employees, or with any class, category or description of his employees, requiring the employee or employees, or the class, category or description of employees, as the case may be, to work in excess of the limit of hours prescribed under paragraphs (a), (b), (c) and (d) of subsection (1) but subject to such conditions, if any, as the Director may deem proper to impose, if he is satisfied that there are special circumstances pertaining to the business or undertaking of the employer which renders it necessary or expedient to grant such permission; and the Director may at any time revoke the approval given under this subsection if he has reason to believe that it is expedient to do so.

(3) Any person who is dissatisfied with any decision of the Director under subsection (2) may, within thirty days of such decision being communicated to him, appeal in writing to the Minister.

(4) On an appeal made to him under subsection (3), the Minister may make such decision or order as appears just, and such decision or order shall be final.

(5) An employee may be required by his employer to exceed the limit of hours prescribed in subsection (1) and to work on a rest day in the case of -

(a) any accident, actual or threatened, in or with respect to his place of work;

(b) any work, the performance of which is essential to the life of the community;

(c) work essential for the defence or security of Malaysia;

(d) urgent work to be done to machinery or plant;

(e) any interruption of work which was impossible to foresee; or

(f) work to be performed by employees in any industrial undertaking essential to the economy of Malaysia or any of the essential service as defined in the Industrial Relations Act 1967:

Provided that the Director shall have the power to enquire into and decide whether or not the employer is justified in calling upon the employee to work in the circumstances specified in paragraphs (a) to (f).

(6) For any overtime work carried out in excess of the normal hours of work, the employee shall be paid at a rate which is not less than one and a half times his hourly rate of pay irrespective of the basis on which his rate of pay is fixed.

(7) No employer shall require or permit an employee to work overtime exceeding such limit as may be prescribed by the Minister from time to time by rules made under this Ordinance and the rules so made may provide different limits for different classes, categories or descriptions of employees, and such rules may also provide for such classes, categories or description of employees, as may be specified, to be excluded from their application:

Provided that any work carried out on a rest day, or any of the gazetted public holidays referred to in subsection (1) of section 104, or on any paid holiday substituted therefor under subsection 104, shall not be construed as overtime work for the purposes of this subsection:

And provided further that the Director may, on application made to him in writing by an employer or by an employee or a group of employees, permit any particular employee, or any group, class, category or description of employees in any particular industry, undertaking or establishment to work overtime in excess of the limit of hours so prescribed, subject to such conditions, if any, as he may deem proper to impose.

(8) Any person who is dissatisfied with any decision of the Director made under subsection (7) may, within thirty days of such decision being communicated to him, appeal in writing to the Minister.

(9) In deciding any appeal made to him under subsection (8), the Minister may make such decision or order as appears just and such decision or order shall be final.

(10) The Minister may make rules for the purpose of calculating the payment due for overtime to an employee employed on piece rates.

(11) Except in the circumstances described in paragraphs (a), (b), (c), (d) and (e) of subsection (5), no employer shall require any employee under any circumstances to work for more than twelve hours in any one day.

(12) This section shall not apply to employees engaged in work which by its nature involves long hours of inactive or stand-by employment.

(13) For the purposes of this Chapter, "hours 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.

105A. Shiftwork.

(1) Notwithstanding paragraphs (b), (c) and (d) of subsection (1) of section 105, but subject to paragraph (a) of subsection (1) of that section, an employee who is engaged under his contract of service in shift work may be required by his employer to work more than eight hours in any one day or more than forty-eight hours in any one week but the average number of hours worked over any period of three weeks, or over any period exceeding three weeks as may be approved by the Director, shall not exceed forty-eight hours per week.

(2) The approval of the Director in subsection (1) may be granted if the Director is satisfied that there are special circumstances pertaining to the business or undertaking of the employer which render it necessary or expedient for him to grant the permission subject to such conditions as he may deem fit to impose.

(3) The Director may revoke the approval given under subsection (2) at any time if he has reason to believe that it is expedient so to do.

(4) Except in the circumstances described in paragraphs (a), (b), (c), (d) and (e) of subsection (5) of section 105, no employer shall require any employee who is engaged under his contract of service in shift work to work for more than twelve hours in any one day.

105B. Rest Day.

(1) Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week, the last of such rest days shall be the rest day for the purposes of this Chapter:

Provided that this subsection shall not apply during the period in which the employee is on maternity leave as provided under section 84, or on sick leave as provided under section 105E, or during the period of temporary disablement under the Workmen's Compensation Act, 1952, or under the Employees' Social Security Act 1969.

(2) Notwithstanding sub-section (1) and the interpretation of the expression "day" in section 2, in the case of an employee engaged in shift work any continuous period of not less than thirty hours shall constitute a rest day.

(3) Notwithstanding sub-section (1), the Director, on a written application by an employer and subject to any conditions he may deem fit to impose, may permit the employer to grant the rest day for each week on any day of the month in which the rest days fall and the day so granted shall be deemed to be the employee's rest day for the purposes of this section.

(4) The employer shall prepare a roster before the commencement of the month in which the rest days fall informing the employee of the days appointed to be his rest days therein, and where the same day in each week has been appointed as the rest day for all employees in the place of employment, the employer may, in lieu of preparing a roster, display a notice at a conspicuous place in the place of employment informing the employees of the fixed rest day so appointed.

(5) Every such roster and every particular recorded therein shall be preserved and shall be made available for inspection for a period not exceeding six years from the last day of the month in respect of which the roster was prepared or cause to be prepared.

105C. Work on rest day.

(1) Except as provided in subsection (5) of section 105, no employee shall be compelled to work on a rest day unless he is engaged in work which by reason of its nature requires to be carried on continuously or continually by two or more shifts:

Provided that in the event of any dispute the Director shall have power to decide whether or not an employee is engaged in work which by reason of its nature requires to be carried on continuously by two or more shifts.

(2) An employee employed on a daily, hourly or other similar rate of pay who works on a rest day, he shall be paid for any period of work -

(a) which does not exceed half his normal hours of work, one day's wages at the ordinary rate of pay; or

(b) which is more than half but does not exceed his normal hours of work, two days' wages at the ordinary rate of pay.

(3) An employee employed on a monthly rate of pay who works on a rest day shall be paid for any period of work -

(a) which does not exceed half his normal hours of work, wages equivalent to half the ordinary rate of pay for work done on that day; or

(b) which is more than half but which does not exceed his normal hours of work, one day's wages at the ordinary rate of pay for work done on that day.

(4) For any work carried out in excess of the normal hours of work on a rest day by an employee mentioned in subsection (2) or (3), he shall be paid at a rate which is not less than two times his hourly rate of pay.

(5) An employee employed on piece rates who works on a rest day he shall be paid twice his ordinary rate per piece.

105D. Annual leave.

(1) An employee shall be entitled to paid annual leave of -

(a) eight days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of less than two years;

(b) twelve days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of two years or more but less than five years; and

(c) sixteen days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of five years or more, and if he has not completed twelve months of continuous service with the same employer during the year in which his contract of service terminates, his entitlement to paid annual leave shall be in direct proportion to the number of completed months of service:

Provided that any fraction of a day of annual leave so calculated which is less than one-half of a day shall be disregarded, and where the fraction of a day is one-half or more it shall be deemed to be one day:

And provided further that where an employee absents himself from work without the permission of his employer and without reasonable excuse for more than ten per centum of the working days during the twelve months of continuous service in respect of which his entitlement to such leave accrues he shall not be entitled to such leave.

(2) The paid annual leave to which an employee is entitled under subsection (1) shall be in addition to rest days and paid holidays.

(3) Where an employee who is on paid annual leave becomes entitled to sick leave or maternity leave while on such annual leave, the employee shall be granted the sick leave or maternity leave, as the case may be, and the annual leave shall be deemed to have not been taken in respect of the days for which sick leave or maternity leave is so granted.

(4) The employer shall grant and the employee shall take such leave not later than twelve months after the end of every twelve months continuous service and any employee who fails to take such leave at the end of such period shall thereupon cease to be entitled thereto:

Provided that an employee shall be entitled to payment in lieu of such annual leave if, at the request of his employer, he agrees in writing not to avail himself of any or all of his annual leave entitlement.

(5) Notwithstanding sub-section (4), upon the termination of an employee's contract of service, the employee shall be entitled to take before such termination takes place the paid annual leave due to be taken in the year in which the termination takes place in respect of the twelve months of service preceding the year in which the termination takes place, and, in addition, the leave accrued in respect of the completed months of service during the year in which the termination takes place.

(6) The employer shall pay the employee his ordinary rate of pay for every day of paid annual leave, and an employee on a monthly rate of pay shall be deemed to have received the annual leave pay if he receives his monthly wages, without abatement in respect of such annual leave, for the month in which he takes such annual leave.

(7) If the contract of service has been terminated by either party before an employee has taken the paid annual leave to which he is entitled under this section, the employer shall pay the employee his ordinary rate of pay in respect of every day of such leave:

Provided that this subsection shall not apply where an employee is dismissed under paragraph (a) of subsection (1) of section 14.

(8) Where an employee is granted leave of absence without pay by his employer during any period of twelve months and the period of absence exceeds in the aggregate thirty days, that period of leave of absence shall be disregarded for the purpose of computing his length of service with the employer under this section.

(9) The Minister may, by notification in the Gazette, fix the periods when and prescribe the manner in which annual leave shall be granted to employees in different types of employment or in different classes of industries.

105E. Sick leave.

(1) An employee shall after examination at the expense of the

employer -

(a) by a registered medical practitioner duly appointed by the employer; or

(b) if no such registered medical practitioner is appointed or, if having regard to the nature or circumstances of the illness, the services of the registered medical practitioner so appointed are not obtainable within a reasonable time or distance, by any other registered medical practitioner or by a medical officer, be entitled to paid sick leave-

(aa) where no hospitalisation is necessary -

(i) of fourteen days in the aggregate in each calendar year if the employee has been employed for less than two years;

(ii) of eighteen days in the aggregate in each calendar year if the employee has been employed for two years or more but less than five years;

(iii) of twenty-two days in the aggregate in each calendar year if the employee has been employed for five years or more; or

(bb) of sixty days in the aggregate in each calendar year if hospitalisation is necessary, as may be certified by such registered medical practitioner or medical officer:

Provided that the total number of days of paid sick leave in a calendar year which an employee is entitled to under this section shall be sixty days in the aggregate:

And provided further that if an employee is certified by such registered medical practitioner or medical officer to be ill enough to need to be hospitalised but is not hospitalised for any reason, the employee shall be deemed to be hospitalised for the purposes of this section.

(2) An employee shall also be entitled to paid sick leave under paragraphs (aa) and (bb) of subsection (1) after examination by a dental surgeon as defined in the Dental Act 1971:

Provided that the entitlement for such sick leave shall be inclusive of the number of days provided for under paragraphs (aa) and (bb) of subsection (1).

(3) An employee who absents himself on sick leave-

(a) which is not certified by a registered medical practitioner or a medical officer or a dental surgeon as provided under subsections (1) and (2); or

(b) which is certified by such registered medical practitioner or medical officer or dental surgeon but without informing or attempting to inform his employer of such sick leave within forty-eight hours of the commencement thereof,

shall be deemed to absent himself from work without the permission of his employer and without reasonable excuse for the days on which he is so absent from work.

(4) The employer shall pay the employee his ordinary rate of pay for every day of such sick leave, and an employee on a monthly rate of pay shall be deemed to have received his sick leave pay if he receives from his employer his monthly wages, without abatement in respect of the days on which he was on sick leave, for the month during which he was on such sick leave.

(5) No employee shall be entitled to paid sick leave for the period during which the employee is entitled to maternity allowance under section 84 or for any period during which he is receiving any compensation for temporary disablement under the Workmen's Compensation Act 1952, or any periodical payments for temporary disablement under the Employees' Social Security Act 1969.

105F. Termination, layoff and retirement benefits.

(1) The Minister may by rules made under this Ordinance provide for the entitlement of employees to, and for the payment by employers of -

(a) termination benefits;

(b) lay-off benefits; or

(c) retirement benefits.

(2) Without prejudice to the generality of subsection (1), rules made by virtue of subsection (1) may provide -

(a) for the definition of the expressions "termination benefits", "lay-off benefits", or "retirement benefits", as the case may be, and for the circumstances in which the same shall be payable;

(b) for the application thereof to employees who were in employment under a contract of service immediately before the commencement of such rules and who continue in such employment after such commencement;

(c) for the application thereof to all employees generally or to any particular class, category or description of employees;

(d) for the exclusion from the application thereof of any particular employee or employees or any class, category or description of employees; and

(e) for the payment of different rates or amounts of termination benefits, lay-off benefits or retirement benefits, as the case may be, to different classes, categories or descriptions of employees.

106. Task work.

(1) - Repealed -

(2) Nothing contained in this Chapter shall prevent any employer from agreeing with any employee that the wages of such employee shall be paid at an agreed rate in accordance with the task, that is, the specific amount of work to be performed, and not by the day or by the piece.

107. Working board.

- Repealed -

108. Period for which wages payable.

Unless the contract of service otherwise stipulates, and subject to the provisions of section 105, wages shall only be payable for days actually worked, for paid holidays, for days other than Sundays or other rest days on which through no fault of the employee no work is provided by the employer and for the time spent in attending before any court if such court certifies that his attendance was necessary for the ends of public justice.

108A. Wage period.

(1) A contract of service shall specify a wage period not exceeding one month.

(2) If in the contract of service no wage period is specified, the wage period shall, for the purposes of the contract of service, be deemed to be one month.

108B. Wages not due for absence from work through imprisonment or attendance in court.

Wages shall not become payable to or recoverable by any employee from his employer for or on account of the term of any sentence of imprisonment undergone by him or for any period spent by him in custody or for or on account of any period spent by him in going to or returning from prison or other place of custody or for or on account of any period spent by him in going to, attending before or returning from a court otherwise than as a witness on his employer's behalf.

109. Payment of wages.

(1) The wages of an employee shall be paid not later than seven days after the expiration of the wage period in respect of which they are due.

(2) All wages due to an employee whose contract of service is terminated by expiry of the period for which it was made shall be paid to him on the day on which such contract of service terminates:

Provided that if the Director is satisfied that payment within such time is not reasonably practicable, he may, on the application of the employer, extend the time of payment by such number of days as he thinks fit.

(3) All wages due to an employee whose contract of service is terminated by his employer shall be paid to him on the day on which such contract of service is terminated or, if this is not possible, on the first day, not being a rest day or gazetted holiday, after the day on which such contract of service is terminated.

(4) All wages due to an employee who terminates his contract of ; service with his employer after he has given due notice to such employer under the provisions of section 12 shall be paid to him on the day on which such contract of service is terminated.

(5) If an employee terminates his contract of service without giving notice to his employer as required under the provision of section 12 or, if the required notice having been given, the employee terminates his contract of service without waiting for the expiry of such notice, all wages due shah be paid to him before the expiry of the seventh day after the day on which he
terminates his contract of service:

Provided that the employer may, subject to any order made by a court or the Director to the contrary, deduct from the wages due to the employee such sum as the employee is liable to pay in lieu of notice according to the provisions of section 13 or the terms of his contract, if any.

110. Restriction on places at which wages may be paid.

No employer shall pay wages to employees in taverns or other similar establishments or in places of amusement or in shops or stores for the retail sale of merchandise except in the case of employees employed in such establishments, places, shops or stores.

111. Wages to be paid in legal tender.

(1) Except where otherwise expressly permitted by this Ordinance the entire amount of the wages earned by, or payable to, any employee in respect of any work done by him shall be actually paid to him in legal tender and every payment of, or on account of, any such wages made in any other forms shall be illegal, null and void.

(2) Every employee shall be entitled to recover in the courts or before the Director acting under section 8A so much of his wages, exclusive of sums lawfully deducted under section 114, as shall not have been actually paid to him in legal tender or paid to him by any of the ways under section 111A.

(3) Where payment of wages is made in cash it shall be made on working days only and at or near the workplace.

111A. Payment of wages through bank.

(1) Nothing in section 111 shall operate so as to render unlawful or invalid any payment of wages by the employer to the employee with the employee's written consent in any of the following ways:

(a) payment into an account at a bank or a finance company licensed under the Banking and Financial Institutions Act 1989 in any part of Sarawak being an account in the name of the employee or an account in the name of the employee jointly with one or more other person, not being his employer;

(b) payment by cheque made payable to or to the order of the employee.

(2) The consent of the employee under this section may be withdrawn by him at any time by notice in writing given to the employer; and such notice shall take effect at but not before the end of the period of four weeks beginning with the day on which the notice is given.

(3) The consent of the employee to the mode of payment of wages under subsection (1) shall not be unreasonably withheld or, if granted, shall not be unreasonably withdrawn by the employee notwithstanding subsection(2).

(4) Any dispute as to whether an employee has unreasonably withheld or withdrawn his consent to the mode of payment of his wages under subsection (1) shall be referred to the Director whose decision on the matter shall be final.

112. Agreement and contracts to pay wages otherwise than in legal tender illegal.

- Repealed -

113. Conditions restricting place at which, manner in which, and person with whom wages paid to be spent, illegal.

No employer shall impose any condition in any contract of service as to the place at which, or the manner in which or the person with whom, any wages paid to the employee are to be expended and any such condition in a contract of service shall be void and of no effect.

114. Lawful deductions.

(1) No deductions shall be made by an employer from the wages of an employee otherwise than in accordance with the provisions of this Ordinance.

(2) It shall be lawful for an employer to make the following deductions;

(a) deductions to the extent of any over payment of wages made during the immediately preceding three months from the month in which deductions are to be made, by the employer to the employee by the employer's mistake;

(b) deductions for the indemnity due to the employer by the employee under subsection (1) of section 13;

(c) deductions for the recovery of advances of wages made under section 103 provided no interest is charged on the advances;

and

(d) deductions authorised by any other written law.

(3) The following deductions shall only be made at the request in writing of the employee:

(a) deductions in respect of the payments to a registered trade union or co-operative thrift and loan society of any sum of money due to the trade union or society by the employee on account of entrance fees, subscriptions, installments and interest on loans or other dues; and

(b) deductions in respect of the payments for any shares of the employer's business offered for sale by the employer and purchased by the employee.

(4) The following deductions shall not be made except at the request in writing of the employee and with the prior permission in writing of the Director:

(a) deductions in respect of payments into any superannuation scheme, provident fund, employer's welfare scheme or insurance scheme established for the benefit of the employee;

(b) deductions in respect of repayments of advances of wages made to an employee under section 103 where interest is levied on the advances and deductions in respect of the payments of the interest so levied;

(c) deductions in respect of payments to a third party on behalf of the employee;

(d) deductions in respect of payments for the purchase by the employee of any goods of the employer's business offered for sale by the employer; and

(e) deductions in respect of the rental for accommodation and the cost of services, food and meals provided by the employer to the employee at the employee's request or under the terms of the employee's contract of service.

(5) The Director shall not permit any deduction for payment under paragraph (e) of subsection (4) unless he is satisfied that the provision of the accommodation, services, food or meals is for the benefit of the employee.

(6) Where an employee obtains foodstuffs, provisions or other goods on credit from a shop the business of which is carried on by a co-operative society registered under the Co-operative Societies Act 1993, it shall be lawful for his employer, at the request in writing of the employee and with the agreement of the manager of the co-operative shop to make deductions
from the wages of the employee of an amount not exceeding the amount of the credit and to pay the amount so deducted to the manager in satisfaction of the employee's debt.

(7) Notwithstanding sub-sections (2), (3), (4) and (6) the Director, on an application by an employer or a specified class or classes of employers, may permit any deduction for a specified purpose from the wages of an employee or a specified class or classes of employees subject to such conditions as he may deem fit to impose.

(8) The total of any amount deducted under this section from the wages of an employee in respect of any one month shall not exceed fifty per centum of the wages earned by that employee in that month.

(9) The limitation in subsection (8) shall not apply to:

(a) deductions from the indemnity payable by an employer to an employee under subsection (1) of section 13;

(b) deductions from the final payment of the wages of an employee for any amount due to the employer and remaining unpaid by the employee on the termination of the employee's contract of service; and

(c) deductions for the repayment of a housing loan which, subject to the prior permission in writing of the Director, may exceed the fifty per centum limit by an additional amount of not more than twenty-five per centum of the wages earned.

115. Interest on advances forbidden.

No employer shall -

(a) make any deduction; or

(b) receive any payment,

from any employee by way of discount, interest or any similar charge on account of any advance or advances of wages made to an employee in anticipation of the regular date for the payment of wages, where such advance or advances do not exceed in the aggregate one month's wages.

116. Deductions for fines, etc.

Except where otherwise expressly permitted by the provisions of this Ordinance or any rule made hereunder, no employer shall make any deduction or make any contract of service with an employee for any deduction from wages to be paid by the employer to the employee or for any payment to the employer by the employee for or in respect of any fine, or of bad or negligent work or of injury to the materials or other property of the employer.

117. Remuneration other than wages.

(1) Nothing in this Chapter shall render illegal a contract of service with an employee under which the employer agrees to provide the employee with house accommodation, food, fuel, light, water, medical attendance, or any approved amenity or approved service in addition to wages but no employer shall provide any employee with any intoxicating liquor as part of the terms of a contract of service.

(2) The Director may, on application made to him in writing by an employer, approve in writing any amenity or service as an approved amenity or approved service, and in granting such approval the Director may make such modifications or impose such conditions as he may deem proper.

(3) Any person who is dissatisfied with any decision of the Director under subsection (2) may, within thirty days of such decision being communicated to him, appeal in writing to the Minister.

(4) On any appeal made to him under subsection (3), the Minister may make such decision or order as appears just, and such decision or order shall be final.

117A. Priority of wages over other debts.

(1) Where by order of a court made upon the application of any person holding a mortgage, charge, lien or decree (in this section referred to as "the secured creditor") or in the exercise of rights under a debenture the property of any person (in this section referred to as "the person liable") liable under any of the provisions of this Ordinance to pay the wages due to any
employee or to pay money due to any sub-contractor for labour is sold, or any money due to the person liable is attached or garnished, the Court or the receiver or manager shall not authorise payment of the proceeds of the sale, or of the money so attached or garnished, to the secured creditor or the debenture holder until the Court or the receiver or manager has ascertained and caused to be paid, out of such proceeds or money, the wages of such employee, or the money due to any sub-contractor for labour under a contract between him and the person liable, which the person liable was liable to pay at the date of such sale, attachment or garnishment:

Provided that this section shall only apply to the sale of a place of employment on which -

(a) any employee to whom wages are due as aforesaid;

(b) any employee to whom wages are due by such sub- contractor for labour as aforesaid;

(c) any sub-contractor for labour to whom money is owed on account of the sub-contract by the sub-contractor for labour as aforesaid,

was employed or worked at the time when such wages were earned or such money accrued due, and to the proceeds of the sale of any products of such place of employment and of any movable property therein used in connection with such employment and to any money due to the person liable on account of work performed by such employee or sub-contractor for labour or derived from the sale of the products of such work:

Provided further that -

(a) where the person liable is an employer the total amount of the wages of any employee to which priority over the claim of a secured creditor is given by this section shall not exceed the amount due by the employer to the employee as wages for any four consecutive months' work;

(b) where the person liable is a principal and where the wages are claimed from such principal under section 117C, the total amount of the wages of any employee to which priority over the claim of a secured creditor is given by this section shall not exceed the amount due by the principal to the contractor at the date of the sale, attachment or garnishment unless the contractor is also a sub-contractor for labour;

(c) where the person liable is a contractor or subcontractor who owes money to a subcontractor for labour, the total amount due to such subcontractor for labour to which priority over the claim of a secured creditor is given by this section shall not exceed the amount due by such subcontractor for labour to his employees (including any further subcontractors for labour under such first-mentioned subcontractor for labour) for any four consecutive months' work.

(2) In this section, except for the second proviso to subsection (1), "wages" includes termination and lay-off benefits, annual leave pay, sick leave pay, public holiday pay and maternity allowance.

117B. Reference by the Court to Director.

(1) For the purposes of ascertaining the amount due to any employee or sub-contractor for labour under section 117A, the court or the receiver or manager may refer the question to the Director with a request that he hold an inquiry into the matter and forward his findings to the court or the receiver or manager, and the Director shall comply with any such request.

(2) For the purpose of any inquiry under subsection (1), the Director shall have all the powers conferred upon him by paragraph (f) of section 8F and section 80 shall have effect as if the inquiry were being held under section 8A.

117C. Liability of principals and contractors for wages.

(1) Where a principal in the course of or for the purposes of his trade or business, contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, and any wages are due to any employee by the contractor or any subcontractor under the contractor for work done in the course of the performance of the contract, the principal and the contractor and any such subcontractor (not being the employer) shall be jointly and severally liable with the employer to pay such wages as if that employee had been immediately employed by the principal and by the contractor and any such subcontractor:

Provided that-

(a) in the case of a contract for constructional work, the principal shall not be liable for the payment of wages under this subsection unless he is also a constructional contractor or a housing developer;

(b) the principal, and the contractor and any subcontractor (not being the employer), shall not be liable to any employee under this subsection for more than the wages due to him for any three consecutive months; and

(c) the employee shall have instituted proceedings against the principal for the recovery of his wages or made a complaint to the Director under Chapter IIA within ninety days from the date on which such wages became due for payment by his employer in accordance with the provisions for the payment of wages contained in Part IV.

(2) Any person, other than the employer, who has paid wages under this section to the employee of any employer may institute civil proceedings against such employer for the recovery of the amount of wages so paid.

118. Employer's Shop

-Repealed-

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