Section 60A(1)(c) of the Employment Act 1955 ("the Act") states that an employee may not be forced to work for more than ten hours in a single day under the terms of his contract of service unless otherwise provided herein.
You might be wondering what precisely is meant by the phrase "spread over period of ten hours" and who exactly this pertains to.
Section 2(1) defines “spread over period of ten hours” as a period of ten consecutive hours to be reckoned from the time the employee commences work for the day, inclusive of any period or periods of leisure, rest or break within such period of ten consecutive hours.
Plaza Hotel Kuala Lumpur v. National Union of Hotel, Bar, & Restaurant Workers
In the case of Plaza Hotel Kuala Lumpur v. National Union of Hotel, Bar, & Restaurant Workers, the Industrial Court provided an example to provide light on the meaning of this rule.
The Court stated that the term "spread over period" applies in certain industries, such as the food and catering business, where employees are required to serve tables, for example, for lunch between the hours of 11:00 a.m. and 3:00 p.m., wait for a period until dinner time, and then work from 7:00 p.m. to 11:00 p.m.
The employees have complete freedom to pursue their own interests during the break period from 3:00 p.m. to 7:00 p.m.
Their shift is split into two; that is why it is also called a "split shift".
For the above illustration, the total amount of work spread out over a period of time is 12 hours (the two extra hours are considered over time).
According to the findings of the Industrial Court, the practice of split duty is exclusive to the hospitality sector and, more specifically, to the restaurant sector of the industry.
This is because business is concentrated during lunch and dinner, with a significant lull in activity in between. Therefore, employees are required to report for work twice a day, even though the real number of hours worked each day is greater than eight.
They are expected to remain on duty even while eating their meals. They toil away while everyone else is eating.
And they take their break for meals before or after everyone else does.
In this case, the Court was of the view that:-
the limitation of a spread over a period of ten hours concerning the normal hours of work per day and the requirement to pay overtime above a spread over a period of ten hours per day as contemplated by Section 60A of the Act is not designed to cover cases where an employee is called upon to work two shifts within a period of 24 hours.
Since the normal hours of work for one shift is eight hours, Section 60A (7) permits the Claimant another four hours of overtime for the day.
The "Spread Over Period of Ten Hours" rule was not permitted to be applied by the Company.
Intraline Resources Sdn. Bhd. v Mohamad Shah Gubah Ahmad [2007] 1 MELR 158
In Employment Act 1955, s. 60A provides, inter alia, "60A . Hours of Work.
(1) Except as hereafter provided, an employee shall not be required under his contract of service to work:-
more than five consecutive hours without a period of leisure of not less than thirty minutes duration;
more than eight hours in one day;
in excess of a spread over period of the hours in one day;
more than forty-eight hours in one week;
Provided that -
for the purpose of sub section (1)(a), any breach of less than thirty minutes in the five consecutive hours shall not breach the continuity of that five consecutive hours;
an employee who is engaged in work which must be carried on continuously and which requires his continual attendance may be required to work for eight consecutive hours inclusive of a period or periods of not less than forty-five minutes in aggregate during which he shall have the opportunity to have a meal; and
where, by agreement under the contract of service between the employee and the employer, the number of hours of work on one or more days of the week is less than eight, the limit of eight hours may be exceeded on the remaining days of the week, but so that no employee shall be required to work for more than nine hours in one day or forty eight hours in one week
(1A) ... (1B) ... (1C) ...
The provision on “spread over period of ten hours” in one day, as stated by section 60A(1)(c) above, is attempted to be clarified by the Industrial Court in this case, which was heard in 2007.
The court was of the view that section 60A(1)(c) should be read independently for the reason that it does not synchronise with the other sub-sections 60A(1)(a), 1(b) and 1(d).
To read it conjunctively or together with the other 3 sub-sections 60A(1)(a), (1)(b), and (1)(d) would render these 3 sub-sections meaningless as it is contradictory to them.
Therefore, the claimant cannot claim that his working hours could not be more than 8 hours in one day under sub-sections 60A(1)(b) when the normal hours of work as agreed between him and his employer in the contract of service was the normal working hours of the company's working hours.
The Court, thus, found that the normal hours of work or working hours as scheduled by the company to be from 8 am to 6 pm of 10 hours per day to be within the meaning of "spread over period of ten hours" as defined under s. 2(1) above.
This Court held that the claimant cannot rely on s. 60A(1)(b) and (d) of the Employment Act 1955 to construe that his working hours should not exceed 8 hours a day or 48 hours a week in the circumstances of this case.
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