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Sarawak Labour Ordinance (ACT A1237) - Chapter 76: Labour, Page 4

PART V - PROCEDURE, OFFENCES, PENALTIES, RULES, SAVINGS AND REPEAL

CHAPTER XVI - General

123. Costs of proceedings.

- Repealed -

124. Convictions and penalties.

- Repealed -

124A. Prosecution.

No prosecution shall be instituted for an offence under this Ordinance or any rules made under this Ordinance without the consent in writing of the Public Prosecutor.

124B. Power of court imposing fine.

When under this Ordinance any court imposes a fine or enforces the payment of any sum secured by bond, the court may, if it thinks fit, direct that the whole or any part of such fine or sum when recovered be paid to the party complaining.

124C. Effect of imprisonment.

From and after the determination of any imprisonment suffered under this Ordinance for non-payment of the amount of any fine, together with the costs assessed and directed to be paid by any order of court, the amount so ordered shall be deemed to be liquidated and discharged, and the order shall be annulled.

125. Right of audience.

The Director, or any officer authorized in writing by the Director, shall have the right to appear and be heard before a Magistrate Court or a Sessions Court in any civil proceedings under or arising out of this Ordinance, or any rules made under this Ordinance; and such right shall include the right to appear and represent an employee in any such proceedings.

125A. Public Servants.

For the purposes of this Ordinance, the Director and all officers duly appointed or authorized under this Ordinance shall be deemed to be public servants within the meaning of the Penal Code.

125B. Protection of Director and Officers.

No suit shall lie against the Director and all officers duly appointed or authorised under this Ordinance for anything done or omitted to be done by him in good faith without negligence and in the intended exercise of any power conferred or performance of any duty imposed by this Ordinance.

126. Public Place

- Repealed -

127. Saving clause as to civil jurisdiction of courts.

Nothing in this Ordinance shall be construed as preventing any employer or employee from enforcing his civil rights and remedies for any breach or non-performance of a contract of service by any suit in Court in any case in which proceedings have not been instituted before the Director under section 8A or, if instituted, have been withdrawn.

128. Onus of proof.

(1) In all proceedings under this Ordinance, the onus of proving that he is not the employer or the person whose duty it is under this Ordinance or under any rule made hereunder to do or abstain from doing anything, shall be on the person who alleges that he is not the employer or other person as the case may be.

(2) A certificate purporting to be under the hand of the Director stating that any return required under section 60 has not been forwarded or is incorrect shall, until the contrary is proved, be evidence of the truth of the facts stated in such certificate.

129. Service of summons.

(1) A summons issued by the Director in accordance with section 7 and Chapter IIA may be served on any person by delivering or tendering to him a copy thereof signed by the Director:

Provided that -

(a) if the person to be summoned has an agent, authorised to accept service of the summons on his behalf, service on such agent shall be sufficient;

(b) if the person to be summoned cannot be found and has no agent authorised to accept service of the summons on his behalf, service on any adult male member (not being a domestic servant) of the family of the person to be summoned who is residing with him shall be sufficient.

(2) When such summons is addressed to a corporation it may be served -

(a) by leaving a copy thereof, signed by the Director, at the registered office, if any, of the corporation;

(b) by sending such copy by post in a letter addressed to the corporation at its principal office, whether such office be situated within Malaysia or elsewhere; or

(c) by delivering such copy to any director, secretary or other principal officer of the corporation.

(2A) When such summons is addressed to a firm, it may be served -

(a) by leaving a copy thereof, signed by the Director, at the principal place at which the partnership business is carried

(b) by sending such copy by registered post in a letter addressed to the firm at its principal office, whether such office be situated within Malaysia or elsewhere; or

(c) by delivering such copy to any one or more of the partners in such firm or to any person having, at the time of service, the control or management of the partnership business at the principal place at which the partnership business is carried on within Malaysia.


(3) When the serving officer delivers or tenders a copy of the summons to the person to be summoned or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.

(4) If -

(a) such person refuses or is unable to sign the acknowledgement; or

(b) the serving officer cannot find the person to be summoned and there is no agent empowered to accept service of the summons on his behalf nor any other person on whom the service can be made, the serving officer shall affix a copy of the summons on the outer door of the house in which the person to be summoned ordinarily resides and then return the original to the Director with a return endorsed thereon, or annexed thereto, stating that he has so affixed the copy and the circumstances under which he did so.

(5) The serving officer shall, in all cases in which the summons has been served under subsection (3), endorse or annex, or cause to be endorsed or annexed, on or to the original summons a return stating the time when and the manner in which the summons was served.

(6) When a summons is returned under subsection (4), the Director shall, if the return under that subsection has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on affirmation touching his proceedings and may make such further enquiry in the matter as he thinks fit, and shall either declare that the summons has been duly served or order such service as he thinks fit.

(7) When the Director is satisfied that there is reason to believe that the person to be summoned is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Director may order the summons to be served by affixing a copy thereof in some conspicuous place, or near the office of the Director, and also upon some conspicuous part of the house, if any, in which the persons to be summoned is known to have last resided, or in such other manner as the Director thinks fit, or may order the substitution of service of notice by advertisement in the Gazette and in such local newspaper or newspapers as the Director may think fit.

(8) The service substituted by order of the Director shall be as effectual as if it had been made personally on the person to be summoned.

(9) Whenever service is substituted by order of the Director, the Director shall fix such time for the appearance of the person to be summoned as the case may require.

(10) Any order or notice in writing made or issued by the Director in the exercise of powers conferred by this Ordinance may be served as if the same were a summons, and the provisions of this section, other than subsection (9) shall apply to the service of any such order or notice.

129A. Incapacity of Director hearing inquiry.

Where the Director has, for the purpose of inquiring into any matter under this Ordinance, taken down any evidence or made any memorandum and is prevented by death, transfer or other cause from concluding such inquiry, any successor to such Director or other officer may deal with such evidence or memorandum as if he had taken it down or made it and proceed
with the inquiry from the stage at which such Director left it.

130. Application for fines.

- Repealed -

CHAPTER XVIA - Offences And Penalties

130A. Under sections 4 to 7

Any person who -

(a) refuses the Director exercising his powers under this Ordinance, access to any premises or any part thereof;

(b) assaults, obstructs, hinders or delays the Director in effecting any entrance into any premises or any part thereof which he is entitled to effect;

(c) furnishes the Director as true, information which he knows or has reason to believe to be false; or

(d) fails to produce, or conceals or attempts to conceal any document which he may be required to produce under this Ordinance or hinders or obstructs the Director in effecting possession of the documents, commits an offence and shall be liable to a fine of ten thousand ringgit and in the case of a continuing offence, to a fine of one hundred ringgit for every day during which such offence is continued after conviction.

130B. Offence in connection with inquiry or inspection.

In any inquiry, investigation, entry or inspection made by the Director, or by any officer lawfully exercising the powers of the Director under this Ordinance, any person committing with respect to such inquiry, investigation, entry or inspection any offence described in Chapter X of the Penal Code shall on conviction be punished as prescribed in such Chapter. 130C. Under Chapter IIA

If-

(a) any person fails to comply with an order or decision of the Director made under subsection (1) of section 8A, subsection (1) of section 8C or subsection (1) of section 80;

or

(b) any employer prevents or attempts to prevent any employee from appearing before the Director under Chapter IIA, he commits an offence and shall be liable on conviction, to a fine not exceeding ten thousand ringgit or in default thereof to imprisonment for six months or to both and in the case of a continuing offence, be liable to a daily fine not exceeding one hundred ringgit for each day during which such offence is continued after conviction.

130D. Under Chapter IV

Every employer who -

(a) fails to make payment in accordance with the provisions of section 11 or contravenes the provisions of section 14; or

(b) fails to comply with the provisions of Chapter IV (other than section 11 and 14); commits an offence, and shall be liable on conviction to a fine not exceeding ten thousand ringgit.

130E. Under Chapter X

An employer who -

(a) being an owner of any estate, mine or factory to which section 58 applies, fails to comply with the requirements of that section;

(b) fails to keep a register required under section 59 or 95A, or to preserve the register for a period of not less than six years;

(c) destroys, alters or mutilates the register referred to in paragraph (a), or causes or permits the register to be destroyed, altered or mutilated;

(d) fails to comply with any rules made under section 59A;

(e) fails, without reasonable cause (proof of which shall lie on him), to forward to the Director such returns as are prescribed under section 60 or forwards any of the returns knowing that it contains any false particulars; or

(f) fails to give notice under section 60A or gives such notice containing any false particulars, commits an offence and shall be liable on conviction to a fine not exceeding ten thousand ringgit.

130F. Under Chapter XI

(1) Any person contravening any of the provisions of Chapter XI or of any rule or order made thereunder or who being the parent or guardian of a child or young person knowingly acquiesces in any such contravention in respect of such child or young person commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to
imprisonment for a term not exceeding two years or to both.

(2) On the conviction of any person for an offence under subsection (1) the Director shall, if the person convicted is the holder of a licence under any written law in force on entertainment inform the licensing authority concerned of the particulars of such conviction and the licensing authority may take such action as it considers appropriate.

130G. Under Chapter XIA

An employer of a female employee commits an offence if the female employee is employed contrary to section 76, 79 or 79A and shall be liable on conviction to a fine not exceeding ten thousand ringgit.

130H. Under Chapter XIB

Any employer who -

(a) fails to grant maternity leave to a female employee employed by him and entitled thereto under Chapter XIB;

(b) fails to pay the maternity allowance to a female employee employed by him and entitled thereto under Chapter XIB or to her nominee, or to her personal legal representative;

(c) fails to pay maternity allowance in the manner prescribed in section 86;

(d) dismisses a female employee from her employment during the period in which she is entitled to maternity leave; or

(e) contravenes the provisions of section 92A or 95A, commits an offence and shall be liable on conviction, to a fine not exceeding ten thousand ringgit and shall also -

(aa) in the event of a conviction for an offence under paragraph (a), be ordered by the court before which he is convicted to pay to the female employee concerned the maternity allowance to which she may be entitled under Chapter XIA in respect of every day on which the female employee had worked during the eligible period referred to in paragraph

(b) of subsection (1) of section 84, the payment so ordered being in addition to the wages payable to her, and the amount of maternity allowance so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court; and

(bb) in the event of a conviction for an offence under paragraph (b), be ordered by the court before which he is convicted to pay to the female employee concerned the maternity allowance to which she is entitled, and the amount of maternity allowance so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court.

1301. Under Chapter XII

Any employer who contravenes or fails to comply with the provisions of sections 97 and 99 shall be liable on conviction to a fine not exceeding ten thousand ringgit.

130J. Under Chapter XIV

Any employer who -

(a) makes to any employee any advance of wages in excess of that permitted under section 103;

(b) contravenes any of the provisions of section 105B;

(c) fails to pay the wages or indemnity due to any employee within the time prescribed in section 109;

(d) pays wages, imposes any condition in a contract of service or makes any deduction or receives any payment in contravention of section 110, 111, 111A, 113 or 115;

(e) makes deductions from the wages of an employee other than such deductions as are authorized by section 114;

(f) gives any remuneration for services or receives any payment from an employer contrary to the provisions of this Ordinance;

(g) fails to comply with any order of the Director;

(h) provides any employee as part of the terms of his contract of service with any amenity or service or any intoxicating liquor in contravention of section 117; or

(i) requires any employee to work on any occasion or under any circumstances which it is unlawful for him to require such employee to work, commits an offence and shall be liable on conviction to a fine not exceeding ten thousand ringgit.

130K. Penalties for failure or non compliance in relation to rest days, overtime, holidays, annual leave and sick leave.

(1) Any employer who fails to pay to any of his employees wages for work done by his employee on a rest day or pays wages less than the rate provided under section 105C, commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the wages due for work done on every rest day at the rate provided under section 105C, and the amount of such wages shall be recoverable as if it were a fine imposed by such court.

(2) Any employer who fails to pay to any of his employees any overtime wages as provided under this Ordinance or any subsidiary legislation made thereunder, commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the overtime wages due, and the amount of overtime wages so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court.

(3) Any employer who fails to pay to any of his employees wages as provided under section 104, commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the wages due for any work done on any such holiday at the rate provided under section 104, and the amount of wages so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court.

(4) Any employer who fails to grant to any of his employees annual leave or any part thereof as provided under section 105D, commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the ordinary rate of pay in respect of every day of such leave not so granted, the payment so ordered being in addition to the wages payable to the employee for the work done on any such day, and the amount so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court.

(5) Any employer who fails to grant sick leave, or fails to pay sick leave pay, to any of his employees, as provided under section 105E, commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the sick leave pay for every day of such sick leave at the rate provided under section 105E, and the amount so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court.

130L. Under Chapter XIVA

An employer who fails to comply with Chapter XIVA, or any person who forges, alters or tampers with a Licence To Employ Non- Resident Employee or any person in possession of a forged, altered or tampered Licence To Employ Non- Resident Employee, commits an offence and shall be liable on conviction to a fine not exceeding ten thousand ringgit or to imprisonment for six months or to both.

130M. General Penalty.

Any person who commits any offence under this Ordinance or any rule, order or other subsidiary legislation made thereunder, in respect of which no penalty is provided, shall be liable, on conviction, to a fine not exceeding ten thousand ringgit.

130N. Power to compound offences.

(1) The Director, Deputy Directors of Labour or Senior Assistant Directors of Labour appointed under paragraph (a) or (b) of subsection (1A) of section 3 may, compound any offence committed by a person which is punishable under this Ordinance or any rule made under this Ordinance.

(2) The Director, a Deputy Director of Labour or a Senior Assistant Director of Labour may, in a case where he deems it fit and proper so to do, compound an offence by making a written offer to the person who has committed the offence to compound the offence on payment to the Director, Deputy Director of Labour or Senior Assistant Director of Labour as the case may be, within such time as may be specified in the offer, of such sum of money, as may be specified in the offer, which shall not exceed fifty per centum of the amount of the maximum fine (including the daily fine, if any, in the case of a continuing offence) to which the person would have been liable if he had been convicted of the offence.

(3) An offer under subsection (2) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted, and where the amount specified in the offer is not paid within the time specified in the offer, or within such extended period as the Director, Deputy Director of Labour or Senior Assistant Director of Labour may grant, prosecution for the offence may be instituted at any time thereafter against the person to whom the offer was made.

(4) Where an offence has been compounded under subsection (2) -

(a) no prosecution shall thereafter be instituted in respect of the offence against the person to whom the offer to compound was made; and

(b) any book, register or document seized in connection with the offence shall be released immediately.

(5) Any moneys paid to the Director, Deputy Directors of Labour or Senior Assistant Directors of Labour, pursuant to subsection (2), shall be paid into and form part of the Federal Consolidated Fund.

CHAPTER XVIB - Rules

130O. Power to make rules.

(1) The Minister may from time to time, after consultation with the State Authority, make such rules as may be necessary or expedient for giving full effect to the provisions of this Ordinance, or for the further, better or more convenient implementation of the provisions of this Ordinance.

(2) Without prejudice to the generality of the foregoing, the Minister may make rules -

(a) limiting the powers of officers appointed under subsection (1A) of section 3;

(b) prescribing the conditions under which female employees may work at night;

(c) prescribing the rate of the maternity allowance to which female employees shall be entitled during the eligible period;

(d) prescribing the maximum period during which notice of dismissal given by her employer to a female employee who is absent from her work as a result of illness certified by a registered medical practitioner to arise out of her pregnancy or confinement shall not expire;

(e) prescribing the times which employees shall be entitled to take off from work for meals and which they shall be entitled or required to take off for rest;

(f) prescribing the form of any register, summons or order required to be kept, issued or made under this Ordinance;

(g) prescribing the procedure for sending summonses, warrants and orders issued or made under this Ordinance in Sarawak for service or execution in the Republic of Singapore and Brunei, and making provisions for the service or execution in Sarawak of summonses, warrants and orders issued or made in the Republic of Singapore and Brunei;

(h) prescribing fees to be paid for riling of claims under section 8A and for copies of notes of evidence recorded under Chapter IIA;

(i) prescribing the contents of a written contract required under subsection (3) of section 19;

(j) to provide for the application of all or any of the provisions of the Ordinance to all domestic servants and to provide generally for the engagement, repatriation and working conditions of domestic servants;

(k) to provide for the entitlement of employees and the payment by employers of termination, lay-off and retirement benefits;

(I) to prescribe the conditions for the employment of part-time employees, including the manner in which the hours of work of such employees are to be computed for the purposes of determining whether such employee falls within the definition of a part-time employee;

(m) to regulate the employment of children and young persons and may specify -

(i) the form of licence to be issued under section 74D and the conditions and restrictions to be attached to such licence;

(ii) the time which children and young persons employed shall be entitled to take off from work for meals or rest periods; and

(iii) the procedure to be followed by any Board appointed under subsection (2) of section 75A;

(n) to regulate the manner and form in which applications shall be made for a Licence To Employ Non-Resident Employee under this Ordinance and may -

(i) specify the particulars to be furnished upon every such application;

(ii) specify the conditions under which any licence may be issued;

(iii) prescribe the form of licence;

(iv) prescribe the fees payable therefor and the particulars to be set forth therein;

(v) determine the security to be furnished by applicant for licence;

(vi) require records to be kept by licensee; and

(vii) prescribe the maximum duration for the employment of non-resident employee;

(o) to provide for the establishment of a Fund or Board or other method of recovering the discharge of any liabilities and the expenses of recruitment and repatriation of employees upon such terms and conditions and subject to such control as he deems necessary; and

(p) to prescribe for the calculation of overtime for piece rated employees under subsection (10) of section 105.

(3) Any such rule may provide a penalty for the breach or contravention thereof not exceeding a fine of ten thousand ringgit.

CHAPTER XVII - Savings And Repeal

131. Existing Ordinances not affected.

Nothing in this Ordinance shall operate to relieve any employer of any duty or liability imposed upon him by the provisions of any other written law for the time being in force or to limit any powers given to any Federal or State Government officer by any such written law.

132. Saving and transitional.

Any contract of service lawfully entered into between any employer and any employee and any licence issued under section 119 valid and in force before the date of the coming into force of this Ordinance shall, if it is still legally binding upon the parties, continue to be in force after such date and, subject to the express provisions contained in such contract or licence, the parties thereto shall be subject and entitled to the benefit of the provisions of this Ordinance within six months from the date of coming into operation of this section.

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