Part-time employees are defined under the Employment Act 1955 (“Employment Act”) as employees whose average hours of work per week are between 30% -70% of the normal hours of work per week of a full-time employee employed in a similar capacity in the same enterprise.
What is “normal hours of work”?
Normal hours of work means the number of hours of work as agreed between an employer and an employee in the employment contract. Where the normal hours of work of a full time employee cannot be ascertained or there is no full time employee employed in a similar capacity in the same enterprise, the normal hours of work of a full time employee shall be deemed to be 8 hours in 1 day or 48 hours in 1 week.
For example, if a “full time” employee in your organisation would be someone who works from Monday to Friday, 9 am to 6 pm, an employee who is having the same job functions but only needs to work on Mondays, Tuesdays and Wednesdays would be considered a “part-timer”.
If the employee works for a short period, is the employee considered as a part-timer?
A common mistake that employers often make is confusing part-time employees with employees who are on a short, fixed-term contract by virtue of the fact that the employee works for a “short period” – eg: an employee who is on a 6 month contract. However, there is a big difference between the two.
Fixed-term employees are employed for a specific period who are likely to have hours of work similar to full-time employees. Upon expiry of the contract term, the contract automatically ends, and the individual concerned ceases to be an employee.
The situation is different with part-timers; they will remain as an employee as long as their contract is not terminated.
Are part-time employees the same as casual workers?
Casual workers are sometimes referred to as “freelancers” and generally provide one-off services or have hours of work less than part-time employees. Casual workers are those who are engaged occasionally or on an irregular basis, as and when needed. They are not the same as part-time employees as casual workers are not regarded as an employee under the Act.
What is the law governing part-timers?
It depends on the nature of the employee’s work and the employee’s salary amount. If a part-timer would fall under the definition of the Employment Act (eg: monthly wages does not exceed RM2,000, or the employee is engaged in manual labour, then the part-timer would be afforded the protections under the Employment (Part-time Employees) Regulations 2010 (“Regulations“).
If the part-timer does not fall within the scope of the Employment Act, the Regulations do not apply to them and their rights will be determined by contract.
What are the minimum benefits provided to part-timers under the Regulations?
Among some of the protections provided under the Regulations are:
Annual leave (number of days given depends on length of service)
|Annual leave||Length of service|
|Not less than 6 days||Less than 2 years|
|Not less than 8 days||More than 2 years, less than 5 years|
|Not less than 11 days||More than 5 years|
Sick leave (number of days given depends on length of service)
|Sick leave||Length of service|
|Not less than 10 days||Less than 2 years|
|Not less than 13 days||More than 2 years, less than 5 years|
|Not less than 15 days||More than 5 years|
Part-time EA-employees are entitled to not less than 7 of the gazetted public holidays and any holidays declared under the Holidays Act. Of the 7 gazetted holidays, 4 of them shall be:
(i) the National Day;
(ii) the Birthday of the Yang di-Pertuan Agong;
(iii) the Birthday of the Ruler or the Yang di-Pertua Negeri, as the casemay be, of the State in which the part-time employee wholly or mainly works under his contract of service, or the Federal Territory Day, if the part-time employee wholly or mainly works in the Federal Territory; and
(iv) the Worker’s Day
Part-timers are also entitled to any public holiday declared under section 8 of the Holidays Act 1951.
Notwithstanding the above:
- Employers may substitute the holidays (other than the mandatory 4 days mentioned above) – ie: employer may grant the part-timer any other day as a paid public holiday in substitution;
- Employers may require the employee to work at his normal hours of work on any paid holiday, provided that the employee shall be paid not less than 2 days’ wages in addition to the holiday pay he is entitled to for that day.
For more detailed explanation of an employee’s right vis-à-vis public holidays, please refer to our previous article on this issue.
Are part-timers entitled to overtime?
If a part-timer falls within the scope of the Employment Act, the Regulations entitle the part-timer to overtime as follows:
- For work that exceeds his normal hours of work, but does not exceed the normal hours of work of a full time employee employed in a similar capacity in the same enterprise: overtime payable at his hourly rate of pay for each hour or part thereof
- For work that exceeds the normal hours of work of a full time employee employed in a similar capacity in the same enterprise: overtime payable at a rate of 1.5x the hourly rate of pay for each hour or part thereof
An employer who does not pay overtime to his part-timers commits an offence and shall, upon conviction, be liable to a fine not exceeding RM10,000.00.
How about termination or dismissal of part-timers?
Like any other employee in Malaysia, a part-timer can only be dismissed by their employer if there is “just cause and excuse”. In other words, the employer must have a good reason to terminate the part-timer – for example: misconduct, poor performance or redundancy.
This article was written by Donovan Cheah (Partner) and Adryenne Lim (Legal Executive). Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific 2017 and 2018. He has written for publications such as the The Edge and the Star, as well as for the Malaysian-German Chamber of Commerce and Industry.