There is a significant difference between the terms "hours of work" and “normal hours of work”, and it is essential to make this distinction.
Section 60A(9) defines "hours of work" as the time during which an employee is at the employer's disposal and is not free to dispose of his own time and movements.
"Normal hours of work" is defined by section 60A(3)(c) as the number of hours of work agreed upon by an employer and an employee in the contract of service to be the usual hours of work per day. Such hours of work shall not exceed the limits of hours prescribed in section 60A.
In other words, "normal hours of work" refers to the hours agreed upon by an employer and an employee in the contract of service to be the usual hours of work per day.
When these two sections are read together, it is possible to draw the conclusion that hours of work are the amount of time during which the employee is expected to carry out the duties and responsibilities that have been allocated to him by the employer.
It does not include any permissible intervals, such as lunch breaks in which the employee is not on duty. It must be limited entirely to the amount of time spent by the employee carrying out the responsibilities and activities that are at the disposal of the employer.
Therefore, when calculating the total hours of work in a single day, consideration must be given to any overtime work completed on that day. The reason for this is that the employee continues to be subject to the direction and supervision of his employer during the overtime period. Therefore, any extra work performed on a given day will be counted toward the total number of hours worked for that day.
The standard number of hours that an employee and employer have agreed to put in during a single workday is referred to as normal hours of work. In general, lunch breaks are not included in the normal hours of work.
Example:
An employee works from 8.30 am to 5.00 pm and takes his 30-minute break between 12:00 pm and 12:30 pm.
His normal hours of work: 8 hours
Lunch Break: 30 minutes
Given that the employee is not under the control of his employer during his 30-minute break, that break is not considered work time. Consequently, the 30-minute break is not paid.
Nevertheless, normal hours of work can include meal breaks so long as the parties to the contract have agreed that the meal breaks are to be counted as part of their normal hours of work.
Example:
An employee works from 9.00 am to 5.00 pm and takes his 30-minute break between 12:00 pm and 12:30 pm.
His normal hours of work: 8 hours [can include meal breaks so long as the parties to the contract have agreed]
Lunch Break: 30 minutes
This is consistent with the position taken by the High Court in the case of Kesatuan Sekerja Pembuatan Barang Galian Bukan Logam v. Malex Industries Bhd. & Anor. in which the court stated that it is up to the parties to negotiate and agree with one another regarding whether or not a meal and tea breaks are to be counted as working hours.
Kesatuan Sekerja Pembuatan Barang Galian Bukan Logam ("the Union") and the Malex Industries Bhd.
A dispute arose between the Kesatuan Sekerja Pembuatan Barang Galian Bukan Logam ("the Union") and the Malex Industries Bhd. ("the Company") over the working hours of the union members working with the Company.
In this case, the Company allows a lunch break of one hour for office staff and thirty minutes for production staff in addition to tea breaks of 15 minutes for the office staff and 10 minutes for the factory staff.
The Union claims that the time allowed for the tea breaks should be counted as working hours as it falls short of thirty minutes given by section 60A (1) (a) of the EA 1955.
Industrial Court learned Chairman held that:
since the parties have accepted that the time for tea breaks was not counted as working hours. Therefore it must be the intention of the parties that time for tea breaks was not to be counted as working hours.
As to the operation of section 60A of the 1955 Act, the learned Chairman said the following:
"In the Court's opinion, it is the intention of the legislature that workers must not be made to work for more than five hours without a break for leisure of not less than half an hour.
Therefore a period of leisure of less than thirty minutes does not satisfy this requirement.
Does it, therefore, mean that if it is not a leisure period, it is part of working hours?
If the Company allows only a 15 or 10 minutes break for tea, then it does not satisfy this condition.
However, in this case, the Company allows a lunch break of one hour for office staff and thirty minutes for production staff in addition to the tea breaks.
The Court, therefore, feels that:
this Section of the Employment Act. i.e. Section 60A (1) (a) is not about whether working hours should include meal breaks and tea breaks.
It is an injunction to employers to provide time for meal and tea breaks (as a period of leisure) of not less than 30 minutes after working for a period of 5 consecutive hours.
It is for the parties to negotiate and agree between themselves if the meal and tea breaks are to be considered working hours.
This aspect of the findings made by the Industrial Court was challenged by the Union in the High Court.
In the High Court, the judge said: "I do not think it can be disputed that during those periods of tea breaks, the employees are not "at the disposal of the employer and is not free to dispose off his own time and movements"
Eventually, the High Court held that:
The Industrial Court does not commit any error which necessitates the intervention of this court of judicial review to quash the impugned award and to make a consequential order of mandamus directing it to rehear the dispute between the parties.
The application is dismissed with costs.
Overtime work is not part of normal hours of work
Regarding working overtime, it should be noted that normal hours of work do not include any overtime work.
The reason for this is that overtime work refers to work performed in addition to the normal hours of work; as a result, it is entirely distinct from conventional working hours and does not count toward them in any way.
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