Scribd Logo
Upload

Welcome to Scribd!

  • 44 views

    Contract of Employment: Noor Zira Azlin Bte MD Zaki Lecturer FBMP, Msu

    Uploaded by

    natniy my new mail
    This document discusses the key differences between a contract of service and a contract for service under employment law. It begins by defining a contract of employment or contract of service, noting that it is usually taken to mean the same thing as a contract of service. It then contrasts this with a contract for services, which implies a self-employed relationship rather than an employed one. The main differences highlighted are that a contract of service establishes a relationship of subordination between employer and employee, where the employer has power over the employee. In contrast, a contract for services establishes a commercial exchange between two parties with equal bargaining power. The document then provides examples of the types of terms that may be included in a contract of

    Copyright:

    © All Rights Reserved
    Download as PPT, PDF, TXT or read online from Scribd

    Contract of Employment: Noor Zira Azlin Bte MD Zaki Lecturer FBMP, Msu

    Uploaded by

    natniy my new mail
    44 views18 pages
    This document discusses the key differences between a contract of service and a contract for service under employment law. It begins by defining a contract of employment or contract of service, noting that it is usually taken to mean the same thing as a contract of service. It then contrasts this with a contract for services, which implies a self-employed relationship rather than an employed one. The main differences highlighted are that a contract of service establishes a relationship of subordination between employer and employee, where the employer has power over the employee. In contrast, a contract for services establishes a commercial exchange between two parties with equal bargaining power. The document then provides examples of the types of terms that may be included in a contract of

    Original Description:

    Original Title

    Contract of Employment (1)

    Copyright

    © © All Rights Reserved

    Available Formats

    PPT, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    This document discusses the key differences between a contract of service and a contract for service under employment law. It begins by defining a contract of employment or contract of service, noting that it is usually taken to mean the same thing as a contract of service. It then contrasts this with a contract for services, which implies a self-employed relationship rather than an employed one. The main differences highlighted are that a contract of service establishes a relationship of subordination between employer and employee, where the employer has power over the employee. In contrast, a contract for services establishes a commercial exchange between two parties with equal bargaining power. The document then provides examples of the types of terms that may be included in a contract of

    Copyright:

    © All Rights Reserved
    Download as PPT, PDF, TXT or read online from Scribd
    Download as ppt, pdf, or txt
    44 views18 pages

    Contract of Employment: Noor Zira Azlin Bte MD Zaki Lecturer FBMP, Msu

    Uploaded by

    natniy my new mail
    This document discusses the key differences between a contract of service and a contract for service under employment law. It begins by defining a contract of employment or contract of service, noting that it is usually taken to mean the same thing as a contract of service. It then contrasts this with a contract for services, which implies a self-employed relationship rather than an employed one. The main differences highlighted are that a contract of service establishes a relationship of subordination between employer and employee, where the employer has power over the employee. In contrast, a contract for services establishes a commercial exchange between two parties with equal bargaining power. The document then provides examples of the types of terms that may be included in a contract of

    Copyright:

    © All Rights Reserved
    Download as PPT, PDF, TXT or read online from Scribd
    Download as ppt, pdf, or txt
    of 18

    CONTRACT OF

    EMPLOYMENT

    NOOR ZIRA AZLIN BTE MD ZAKI


    LECTURER
    FBMP, MSU
    DEFINITION

    • "the relation between an employer and an


    isolated employee or worker is typically a
    relation between a bearer of power and one
    who is not a bearer of power. In its inception it
    is an act of submission, in its operation it is a
    condition of subordination, however much the
    submission and the subordination may be
    concealed by the indispensable figment of the
    legal mind known as the 'contract of
    employment'.
    • A contract of employment is usually
    defined to mean the same as a "
    contract of service".

    • A contract of service has historically


    been distinguished from a "contract for
    services", the expression altered to
    imply the dividing line between a
    person who is "employed" and
    someone who is "self employed".
    Contract for Service vs. Contract of Service

    ASSIGNMENT 1 :

    Distinguishing between a contract of


    service AND contract for service in terms
    of Employment law relationship.

    (20 marks)
    Due date : 29/06/10
    INTRODUCTION
    • The contract of employment, which is the product of
    the industrial revolution and the doctrine of laissez-
    faire as its justification, has been described as 'the
    cornerstone of the edifice of labour law‘.
    • The relationship between the employer and
    employee is founded on contract and therefore, the
    general principles of the law of contract applies to
    contracts of employment .
    • A contract may be created without a formal
    document or even an express agreement, written or
    oral. It can also arise from non-verbal action, namely
    conduct. For a contract to bind the parties, they must
    intend to create a legally binding obligation.
    CONTRACT VS CONTRACT OF EMPLOYMENT

    • entered into freely and • individual employees rarely have


    bargaining power.
    voluntarily.
    • the employer, to dictate the terms.
    • is based on the notion that
    • contract of employment is not
    people are at liberty to do simply a commercial exchange in
    as stated in the contract. the market place of goods and
    services
    • Case :Vernon v Bethell
    • They should be left "with "necessitous men are not, truly
    their own business; lead Speaking free men, but to answer
    their own lives a
    Present exigency, will submit to
    unhampered by any
    government intervention" terms that the crafty may impose
    Sources of terms under contract of
    employment.

    a. Letter offer
    b. Legislation
    c. Work Rules
    d. Collective Agreements
    e. Awards
    TERMS & CONDITION

    EXPRESS TERMS IMPLIED TERMS

    •Wages •Duties of
    •Leave employers.
    •Entitlements
    •Overtime • Duties of
    •Public holidays employees.
    •Rest Days
    •Bonuses
    * Every employer is legally obliged to comply with these provisions which is
    have been set with EA & IRA.
    Section 7A, Employment Act 1955 – constitute the basic and
    the minimum terms and conditions of employment. But it has
    been stated that any term or condition of service which is less
    favourable to an employee than a term or condition of service
    prescribed shall be void.

    Section 17, IRA 1967 - is a mandatory section, any term in


    employment contract is inconsistent with this terms of collective
    agreement , the terms of a collective agreement will prevail. But
    the term under collective agreement will not prevail if they are
    less favourable to the employee than the terms prescribed by
    EA.

    Case : Casuarina Beach Hotel v National Union of Hotel, Bar &


    Restaurant Workers.
    Case : Rothmans of Pall Mall Bhd v
    Rothmans Employees Union

    “The terms and conditions of


    employment may include not only the
    contractual terms and conditions but
    those terms and conditions which are
    understood and applied by the parties
    in practice, or habitually or by common
    consent, without ever being
    incorporated into the contract”.
    WAGES

    HOURS OF WORK

    OVERTIME

    TERMS & HOLIDAYS


    CONDITION
    LEAVE
    (express term)
    TERMINATION/ DISMISSAL

    CASE : Brenda Dunne Ltd v Fitzpatrick


    CASE : GENTING BERHAD V GENTING
    EMPLOYEES UNION

    Principle :
    Industrial Court has reminded employers that
    they are required under the EA to notify their
    employees in writing of their terms and
    conditions regulated by EA .

    Please refer to :Regulation 5(b), Employment


    Regulations 1957
    Details of terms and conditions of employment.
    WAGES – SEC 18-23, EA 1955
    •DEFINITION : A wage is a compensation, usually
    financial, received by workers in exchange for their
    labour.
    •Sec 2 EA 1955

    •Compensation in terms of wages is given to workers


    and compensation in terms of salary is given to
    employees.

    •In Malaysia - Wages Council Act 1947.

    • only protects certain categories of workers such as


    catering and hotel, cinema workers and shop
    assistants.

    • In Malaysia, wage is determined largely through


    market forces. In situations where there are unions, the
    salary will be determined through Collective Agreement
    (CA).
    THE WAGE PERIOD – SECTION 18, EA 1955
    The employment contract must specify a
    wage period not exceeding one month.

    THE PAYMENT OF WAGES– SECTION 19, EA


    1955
    Payment must be made not later than
    seventh day after the last day of any wage
    period of wages.

    Case : Malaysian Tobacco Co v National Union of Tobacco


    Workers

    The Industrial Court has commented on what wages as


    defined in the EA and basic wages which is not defined in the
    Act mean.
    LEAVE / REST DAY
    •DEFINITION - a period of time that one is to be away from one's primary
    job while maintaining the status of employee.

    1.Annual leave- Sec 60E

    The most common leave. According to the Malaysia Employment Act 1955,
    an employee is entitled to annual leave after twelve months of continuous
    service.

    2. Sick/medical leave – Sec 60F

    A leave taken due to sickness, covering both outpatient and hospitalization.


    Eligibility:
    Less than two years of service – 14 days
    Between 2 year and 5 years of service – 18 days
    More than 5 years – 22 days

    3. Maternity leave – Sec 37(1)(a)


    A woman with not more than 5 surviving children is entitled for a 60 days
    maternity leave subject to certain conditions. First, there is a confinement
    after 28 weeks of pregnancy. And secondly, she should have been
    employed by her company for at least 3 months prior to confinement.
    Con’t LEAVE
    4. Paternity leave

    Leaves for male employees with newborn baby. Private sector offers 1-3
    days. Government employees get longer.

    5. Compassionate leave

    Leaves in case of deaths or mishaps among family members. 1-3 days,


    subject to employer’s jurisdiction.

    6. Unpaid leave

    Often taken by employees who either have consumed all annual leaves
    entitlement, or those taking leaves at the beginning period of their
    employment.

    7. Emergency leave
    Leaves taken without proper notice. Some companies don’t give this and
    grant the employees with the unpaid leaves instead.
    PUBLIC HOLIDAYS

    • Under EA, an employee is entitled to a


    paid holiday at his ordinary rate of pay on
    the following days in any one calendar
    year. – Sec 60D

    •Case : Lion Metal Industries Bhd v Metal


    Industry Employees Union.
    TERMINATION

    An employee is deemed to be terminated and to be entitled to


    termination benefits if his contract is terminated for any reason. – Reg
    4, Termination and Layoff Benefit Regulations 1980.

    • Termination due to misconduct Termination misconduct the


    failure of conducting due inquiry prior to the termination is a
    statutory breach. Therefore, employer is not exempted from paying
    termination benefit. -

    Case : YeoYeoHiapHiapSengSengTrading Trading


    SdnSdnBhdBhdvs. Lim Lee vs. ChoonChoon(2004) 1CLJ

    You might also like