A very lengthy stretch of Public Holidays occurred this week with Labour Day’s falling on a Sunday and most states replacing it on a Monday and Hari Raya falling the next two days concurrently. This was also compounded with the fact that certain states like Johor that had subsequently announced “cuti peristiwa” granting yet another day of leave until the 4th of May. Therefore, most employees had few days of public holidays that fell together in one continuous stretch.
This makes it the best time to do a bit of a refresher of the various types of Public Holidays in Malaysia. Our country is so rich with culture, and celebrating the various festivals involves employers having to be aware that Malaysia on an average has around 19 public holidays a year not including any suddenly declared ones.
There are three (3) types of Public Holidays in Malaysia: –
1) Non-replaceable holidays;
2) Replaceable holidays; and
3) Sudden declared holidays.
How strictly the laws surrounding public holidays is dependent on whether an employee falls within the scope of the Employment Act 1955 (i.e., earning less than RM2,000, manual workers operators of MPV’s, and etc.) or otherwise.
What are non-replaceable public holidays?
A non-replaceable public holiday is a term provided for in the Employment Act 1955, whereby employers are not allowed to substitute/replace said public holidays to another date at their convenience.
The exception is if the said public holiday/s falls on an employee’s official rest day or another public holiday where the public holiday/s is then permitted to be substituted/replaced to the nearest working day.
The five (5) non-replaceable holidays identified under s.60D(1)(a) of the Employment Act 1955 are:
- National Day;
- The Birthday of the Yang di-Pertuan Agong;
- The Birthday of the Ruler of the State or the Federal Territory Day;
- Workers’ Day; and
- Malaysia Day.
Employers with employees outside the scope of the Employment Act are not bound by its restrictions when it comes to non-replaceable public holidays and may if for business reasons find it necessary to allow replacements to occur.
What are replaceable public holidays?
These are your general public holidays that are published by the Prime Minister’s office at the beginning of each calendar year. Under the Employment Act, employers are required to provide employees with a minimum of 11 public holidays, 5 have already been pre-determined by virtue of being non-replaceable but the balance 6 days or more are at the discretion of the employers to select.
These are public holidays declared by the Federal Government under S.8 of the Holidays Act 1951 such as the Prophet Muhammad’s Birthday. Though not compulsory, employers are advised to also observe state specific public holidays as granted by an individual state under S.9 of the Holidays Act 1951.
Whether or not an employer is required to observe all gazette public holidays depends on the individual organisation’s policies. If an employer observes ALL the public holidays, they are contractually bound to allow employees to take all public holidays declared by both federal government and state government.
Nevertheless, the employer still has the option to treat it as a normal working day and replace the holiday to another day. This related to S.60D(1A) of the Employment Act 1955 which provides for this right to replace. Provided, that the employer gets the consent from the employees for such replacement.
The same is applicable to those outside the scope of the Employment Act 1955.
What are suddenly declared public holidays?
As the name suggests, suddenly declared public holidays are just that. Holidays that are not planned for at the beginning of the year and instead declared “suddenly” during the year for specified reasons- e.g., winning sport tournaments, death of state leaders, elections, etc. The “cuti peristiwa” s as declared by various state governments recently falls under this category.
As a suddenly declared holiday is unlikely to be part of the list of public holidays identified by employers at the beginning of the year, the employers have a right to choose whether or not to observe the said holiday or otherwise. Employers are advised to consider the reasons for the said holiday especially if it is to commemorate an important state occasion. This choice would not be available to employers who observe ALL public holidays in their policies.
Managing suddenly declared holidays differ from replaceable public holidays by virtue of employers being able to replace the suddenly declared holiday/s to another date at their discretion without having to get the consent of the employees. Employers are advised to issue a memo to employees as soon as possible providing directions on the employer’s treatment of the announced public holiday.
Regardless of the type of public holidays, if at any time an employer requires an employee within the scope of the Employment Act to work on a public holiday, they are required to be paid the appropriate rates following S.60D(3) Employment Act 1955 in addition to the holiday pay. For those outside the Employment Act, it will be based on the terms of the individual employee contract.
