Employment Act 1955: Manual Labour

According to the Cambridge Dictionary, an ‘employee’ is defined as “someone who is paid to work for someone else”. While the word in itself appears to encompass all employees, not all employees are provided for under the Employment Act 1955 (“the Act”). The relevant portion of the Act which goes into detail as to which employees are covered under the Act can be found in the First Schedule of the Act (“the Schedule”).

Who is covered under the Act?

The Schedule first distinguishes 2 groups of employees who are covered by the Act based on wages earned. Wages are defined in Section 2 of the Act as “basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service…”[1]. The Schedule distinguishes the employees as follows:

1. Employees whose wages do not exceed RM2,000; and

2. Employees whose are covered by the Act irrespective of the amount of wages.

In relation to the first group, the first paragraph of the Schedule is clear that irrespective of the employee’s occupation, so far as the employee is being paid wages of no more than RM2,000, the said employee would fall under the ambit of the Act and would be protected under the Act and any subsequent regulations.

With regards to the second group of employees, the Schedule goes on further to clarify that in certain occupations the amount of wages being paid is irrelevant as the work being done by them would immediately render them to fall under the ambit of the Act[2]. They are, inter alia, as follows:

(a) Engaged in manual labour;

(b) Engaged in the operation or maintenance of any mechanically propelled vehicle for transport of passengers or goods;

(c) Supervising another employee who is engaged in manual labour;

(d) Engaged in any capacity in any vessel; and/or

(e) Engaged as a domestic servant.

In this article, we focus on (a) and (c) when discussing what amounts to ‘manual labour’ and how it applies to supervisors.

Manual Labour

As stated above, the Schedule is clear that an employee engaged in manual labour or such employee’s supervisor would be protected by the Act irrespective of their wages. The Schedule also goes on further at paragraph 2 (1) to state the following:

“2. (1) he is engaged in manual labour including such labour as an artisan or apprentice

Provided that where a person is employed by one employer partly in manual labour and partly in some other capacity such person shall not be deemed to be performing manual labour unless the time during which he is required to perform manual labour in any one wage period exceeds one-half of the total time during which he is required to work in such wage period.”

It is apparent that based on a cursory reading of the Schedule, employees who are engaged in ‘manual labour’ have to be solely or for a majority of their time employed, be engaged in ‘manual labour’.

The Test

The High Court in the leading case of Colgate Palmolive Sdn Bhd v Cheong Foo Weng[3] set forth a test to determine when an employee would be deemed to be engaged in ‘manual labour’. The test to consider was this – “what is the substantial/dominant purpose of the employment, to the exclusion of the matters which are incidental or accessory to the employment?”

In short, the test is to determine if the employee is engaged in a purely physical capacity or one of a physical capacity that is still reliant on acquired skill, knowledge or experience. Furthermore, the Court went on to clarify that where an employee is employed on a partly physical basis and partly in the other capacity, the Court must ascertain as to which part is the employee mainly or wholly engaged for (i.e. more than 50% of the total time of wage period of the employee). Notably however, the High Court in Leighton Contractors (M) Sdn Bhd v Gnanapragasm a/l Arukiam & Ors[4] have also slightly expanded the scope of ‘manual labour’ by appreciating that no work can altogether be mindless.

In the case of Colgate, the Court had to consider several roles/positions whereby it was held that the employees were not engaged in manual labour. Taking an example from the case, the Court here considered the role of a Boiler Attendant where the employee’s role was primarily focused on updating and maintaining a record of boilers, to check and order fuel and to perform several tests. The Court held that his work did not amount to ‘manual labour’ as he was primarily engaged in non-manual work for the most part of his employment. As such, it is evident that a Court would consider the totality of the work done by the employee when determining whether that employee is engaged in ‘manual labour’.

While the title of the position and the job description in itself may indicate that the role is more physical in nature, the Courts were clear that making an assessment based on them alone would not be good practice and in fact, any assessment of the role should be on a case-by-case basis and viewed in its totality. Other occupations decided in this case which did not amount to ‘manual labour’ include Waste Water Technician, Instrument Technician, Electrical Technician and Senior Craftsman.

Courts have also held that where the role requires for the employee to have acquired skill, knowledge or experience, the employee would not fall under the realm of ‘manual labour’. The case of Chareon Pokhand Jaya Farm (M) Sdn Bhd v Chung Lin[5] held as such in overturning the decision of the Industrial Court. An electrical technician was not considered to be ‘manual labour’ as his work required particular knowledge and skills; whereas the hands-on aspect of his work were merely incidental to performing his duties. It was also noted again that the same does not necessarily apply to all technicians and should be evaluated on a case-by-case basis.

Supervisors

Paragraph 2 (3) of the Schedule also states that the supervisors of employees who are engaged in manual labour falls under the remit of the Act. In this regard, the Courts would have to consider if the employees under this supervisor would meet the requirements of being ‘engaged in manual labour’, therefore applying the test above.

Notably in the case of Ong Siew Giek v International Footwear (PG) Sdn Bhd[6], the Court has accepted a modern expansion of ‘supervision’ under paragraph 2 (3). It was held that so far as the supervisor is responsible for those under him and performs for the benefit of the employees who are engaged in ‘manual labour’, the supervisor would fall under the remit of the Act.

However, if the supervisor is engaged in another capacity beyond his supervisory roles, the Courts are then unlikely to find that the employee falls under the Act. The case of Colgate Palmolive (M) Sdn Bhd v Yap Shyan Meng held as such wherein the employee had various administrative, supervisory and managerial duties, he did not fall under paragraph 2 (3) of the Schedule[7].

Conclusion

In a nutshell, the scope of ‘manual labour’ is presently narrow and would only apply to those who are either solely engaged in manual labour or spend a majority of their time engaged in that sort of work. The Courts have strictly observed the test set out in the case of Colgate Palmolive Sdn Bhd v Cheong Foo Weng and have also consistently stated that in assessing if an employee falls under the scope of ‘engaged in manual labour’ or ‘supervising another employee engaged in manual labour’ is to be determined on a case-by-case basis.

Infographic

Here are some key takeaways from the article above.

Written by Yip Wei Jian

[1] Section 2 of the Act [2] Paragraph 2 of the Schedule [3] [2001] 1 LNS 394 [4] [2018] 2 ILR 193 [5] [2006] 1 CLJ 784 [6] [2004] 8 CLJ 468 [7] [2007] 2 ILR 313