Should the private sector follow the special holiday declared by the state government?

Under the Employment Act 1955, Section 60D(1)(b), which applies to the private sector Peninsular Malaysia and Federal Territory of Labuan:

Every employee shall be entitled to a paid holiday at his ordinary rate of pay on the following days in any one calendar year:

1. on eleven of the gazetted public holidays, five of which shall be—
   1. the National Day;
   2. the Birthday of the Yang di-Pertuan Agong;
   3. the Birthday of the Ruler or the Yang di-Pertua Negeri, as the case may be, of the State in which the employee wholly or mainly works under his contract of service, or the Federal Territory Day, if the employee wholly or mainly works in the Federal Territory;
   4. the Workers’ Day; and
   5. Malaysia Day; and
2. on any day appointed as a public holiday for that particular year under section 8 of the Holidays Act 1951 [Act 369]:

Section 8 of the Holidays Act 1951 allows the Minister to appoint extra public or bank holidays as needed by issuing a notification.

Section 9 allows each State Authority and the Minister for Federal Territory to declare public holidays limited in scope to their respective state or territory.

So if Kelantan appoints a public holiday under Section 9, the holiday will be observed in Kelantan only. It’s not applicable in other states.

The key differences between Sections 8 and 9 of the Holidays Act 1951 are:

Section 8:

• Allows appointing public or bank holidays for the whole of Peninsular Malaysia, Federal Territory, or a particular state.
• Minister has the power to appoint holidays under this section.
• Can appoint new holidays or replace existing scheduled holidays.
• Appointed holidays have nationwide or statewide effect.

Section 9:

• Provides for declaring public holidays specific to a particular state only.
• The State Authority has the power to appoint state-level public holidays.
• Appointed holidays are only applicable within the boundaries of that state.
• Federal Minister can appoint public holidays limited to the Federal Territory only.
• Other states are not affected by holidays appointed under this section.

In summary:

• Section 8 gives the federal Minister power to appoint nationwide or statewide public and bank holidays.
• Section 9 gives State Authorities and the Minister (for FT) power to appoint public holidays limited to their respective state or territory only.
• Section 8 holidays have wider effect, while Section 9 holidays are more localised.

So in essence, the main difference is that Section 8 is for larger scale public/bank holidays, while Section 9 is for state-specific localised public holidays.

Does the private sector have to observe holidays declared by Selangor, Negeri Sembilan, Kelantan, Terengganu, and Kedah on 14 August after the state’s election?

Here is my view:

• A state public holiday declared under Section 9 of the Holidays Act 1951 by Selangor, Negeri Sembilan, Kelantan, Terengganu, or Kedah after the state elections on 14 August applies to the government sector.
• However, the private sector in those states is not obliged but encouraged to observe.

Here are the options available to private sector employers

• Option 1: Provide paid time off to employees to observe the state holiday. This would promote employee goodwill and morale.
• Option 2: Allow employees to utilise annual leave or unpaid leave to observe the holiday voluntarily.
• Option 3: Remain fully operational as the holiday is not obligatory for the private sector. However, consider providing some form of bonus leave or extra time off in lieu of the holiday as an employee motivation measure.
• Option 4: Continue operations as usual without any additional provisions. While lawful, it may negatively impact employee motivation and retention if regular working days are not adjusted in any way to account for the public holiday.

Conclusion:

In conclusion, while private companies are not legally required to observe such state holidays, providing some flexibility or additional leave would boost employer-employee relations.

However, the exact approach depends on each organisation’s priorities and constraints. Clear communication and empathy in policymaking is advisable.

The ideal approach would balance employee rights, organisational needs, social responsibility and good employee relations. Consultation with staff can help formulate a suitable solution.

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