EMPLOYERS, EMPLOYEES & WAGES DURING MOVEMENT CONTROL ORDER (MCO)

1.-Payment of employee’s wages are governed by the Employment Act 1955 or employment contract which comes under purview of Ministry of Human Resources.

2.-Section 2(1) of the Employment Act 1955 define wages as “basic wages and all other payments in cash payable to an employee for work done”.

3.-In a contract, one consideration (work done) is exchanged for another consideration (wages) based on employment contract.

4.-The question is whether the employees are entitled for the wages for unattended work due to the MCO?

5.-The MCO was issued pursuant to the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967.

6.-The Prevention and Control of Infectious Diseases Act 1988 comes under purview of Ministry of Health.

7.-The Police Act 1967 comes under purview of Ministry of Home Affairs.

8.-The Employment Act 1955, Prevention and Control of Infectious Diseases Act 1988, Police Act 1967 and MCO is silent on the employee’s wages in the event of business shut down due to the MCO.

9.-Whether it is lawful for employers to exercise deduction of wages or non-payment of wages of the employees in the event of business shut down due to the MCO?

10.-The High Court case of Viking Askim Sdn Bhd v National Union of Employees in Companies Manufacturing Rubber Products (1991) 3 CLJ (Rep) 195 held as follows:

“…[6] if an employee is ready to perform his services during the period covered by his contract of employment, which provides for payment of wages at certain times, he is entitled to the wages, although the employer has no work for him…”

11.-In applying the above case into the current situation where businesses are shut down due to the MCO, none of the employees are considered to be ready to perform their duty and services.

12.-So, it is plain and obvious that the employees are not entitled to wages for unattended work due to the MCO.

13.-The announcement of MCO is a situation that is beyond the control (force majeure) of both the employers and employees which could cause the suspension of employment contractual obligations.

14.-The doctrine of frustration is applies where the performance of the employment contract becomes impossible by both employers and employees.

15.-It is therefore, any guides issued by the Ministry of Human Resources that related to employment and wages during MCO must not misconceived in law and fact. It is trite law that one cannot widen or narrow the scope of legislation through the issuance of guidelines.