Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Weekly Rest (Industry) Convention, 1921 (No. 14) - Malaysia - Sarawak (Ratification: 1964)

Article 2 of the Convention. Weekly rest entitlement. Uniformity of the weekly rest period. In its previous comments, the Committee noted that due to the restrictive definition of the term “employee” in the Labour Ordinance Sarawak (Act A1237 of 2005), certain categories of workers do not benefit from the legal protection afforded in section 105B(1) of the Act which provides that every employee shall be allowed in each week a rest day of one whole day. In particular, it noted that this was the case for non-manual workers who are employed in industrial undertakings and whose monthly wages exceed 2,500 Malaysian ringgit (MYR) per month, as they were excluded from the definition of “employee” (section 2 and Schedule). Recalling that the Convention applies to “the whole of the staff employed in any industrial undertaking” (Article 2(1)), it requested the Government to indicate how it ensured the weekly rest entitlement of those workers who are not covered by the Labour Ordinance. The Committee also recalled that the Convention provides that the period of weekly rest shall, wherever possible, be granted simultaneously to the whole of the staff of each undertaking, and that it shall, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district (Article 2(2) and (3)). It asked the Government to specify how these principles are given effect in law and practice. The Committee notes that the Government indicates in its report that (i) for those employees excluded from the scope of application of the Labour Ordinance, their working conditions are determined by the terms and conditions of the labour contract or collective agreement; those employees are entitled to weekly rest day if it is spelled out in the contract of employment; (ii) the Labour Ordinance does not prescribe when the weekly rest day is to be taken; and (iii) the day of rest is to be determined by the employer from time to time. The Committee therefore notes with concern the absence of progress towards full application of Article 2. The Committee requests the Government to take the necessary measures to ensure that: (i) the whole of the staff employed in industrial undertakings would be entitled to weekly rest; (ii) the period of weekly rest would, wherever possible, be granted simultaneously to the whole of the staff of each undertaking; and (iii) the weekly rest would, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district.

Article 5. Compensatory rest. In its previous comments, the Committee noted that section 105C of the Labour Ordinance Sarawak only provides for monetary compensation, and not compensatory rest, for workers performing work on their weekly rest day. The Committee recalled that Article 5 calls for compensatory periods of rest to be provided, as far as possible, to workers performing work on their weekly rest day and requested the Government to consider the possibility of amending the Labour Ordinance Sarawak in order to give full effect to the requirements of Article 5. The Committee notes that the Government indicates that there is no provision in the legislation which provides for the duty of the employer to provide for compensatory rest. In the absence of progress, the Committee requests the Government to take the necessary measures in order to ensure that compensatory rest is granted to workers who have to work during their weekly rest day, irrespective of any monetary compensation.