‘Wages for work done’: Is it time to legislate?
List of Authors
  • Nazruzila Razniza Mohd Nadzri , Rohaida Nordin

Keyword
  • employment law, employment relationship, employment contract, wages

Abstract
  • This study is designed to address one of the major issues regarding employment contracts that have been widely debated when most businesses were forced to shut down by the state authorities as part of the containment measures of the Covid-19 pandemic. The issue is on the entitlement of employees to secure their full wages while they can't perform their work at all or partially perform the assigned tasks from home. Therefore, this paper explores the issue by examining the legal position of 'wages' in employment contracts under the Malaysia employment legal framework. As a contract of employment is generally built on the exchange of labour for wages or is better known as the work for wages rule or work-wage bargain, it is pertinent to evaluate the extent the rule affects the contractual parties of employment in such circumstances. This research is purely doctrinal legal research that applies a critical analysis approach. Apart from the reference to the relevant statutory provisions and case laws within Malaysian and foreign jurisdictions in particular the United Kingdom and Australia, the issue is evaluated through the theory of employment relationship. This paper generally has found the inadequacy of the Malaysian labour law in dealing with the issue effectively and calls on the legislative to pursue considerable thoughts that enable statutory provisions for the same issues to be dealt with better in the future.

Reference
  • 1. Adams, Zoe., C. Barnard, S., & Deakin, S. (2021). Fraser Butlin. Deakins and Morris’s Labour Law. London: Bloomsbury Publishing.

    2. Altaf Ahmad Mir & Nik Ahmad Kamal. (2006). Employment law in Malaysia. Malaysia: International Law Book Services.

    3. Bird, R. C. (2005). Employment as a relational contract. U. PA. Journal of Labour and Employment Law, 8(1), 149-217.

    4. Brodie, D. (2011). How relational is the employment contract?. Industrial Law Journal, 40(3), 232-253.

    5. Brodie, D. (2005). The Employment Contract: Legal Principles, Drafting, and Interpretation. Oxford: Oxford University Press.

    6. Chan, Dawn. (2021). “30 pct of shops at malls have closed; 300,000 workers lost jobs over past 16 months.” New Straits Times, June 22, 2021. https://www.nst.com.my/news/ nation/2021/06/701290/30-pct-shops-malls-have-closed-300000-workers-lost-jobs-over-past-16.

    7. Collins, H., Ewing, K. D. & McColgan, A. (2019). Labour Law (2nd ed.). Cambridge: Cambridge University Press.

    8. Countouris, N. (2007). The Changing Law of the Employment Relationship: Comparative Analyses in the European Context. England: Ashgate.

    9. Department of Statistics of Malaysia. (2020). “Summary of findings: Special survey effects of Covid-19 on economy and companies/business firms (Round 1),” https://www.dosm. gov.my/v1/uploads/files/covid-19/Infographic.pdf.

    10. Ewing, K. D. & Hendy, J. (2020). Covid-19 and the failure of labour law: Part I. Industrial Law Journal, 49 (4), 497.

    11. Fahn, M. (2017). “Minimum wages and relational contracts,” The Journal of Law, Economics, and Organization 33 (2), 301-331.

    12. HM Revenue & Customs. (2021). “Guidance Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme,” last updated October, 15. https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme#who-can-claim.

    13. Kuriakose, Smita & Tan, Trang. (2021). “Impacts of COVID-19 on firms in Malaysia: Results from the 1st round of Covid-19 Business Pulse Survey,” World Bank Group, https://openknowledge.worldbank.org/bitstream/handle/10986/34965/Impacts-of-COVID-19-on-Firms-in-Malaysia-Results-from-the-First-Round-of-COVID-19-Business-Pulse-Survey.pdf?sequence=1&isAllowed=y.

    14. Mark, J. (2020). “Payment of ‘wages for work done’: A tale of two approaches,” Legal Network Series 1, lxxvi.

    15. Perkeso. (2020). “Soalan-soalan lazim (FAQ) program subsidi upah 2.0 Sistem Insurans Pekerjaan (SIP),” Perkeso, last updated September 25. https://www.perkeso.gov.my/images/penjana/psu/25092020_FAQ_PSU_2.0_BM.pdf.

    16. Priscilla, Shasha Devi, Tie Fatt Hee & Sharifah Suhanah Syed Ahmad (2019). Employment relationship in Malaysia: A classical contract or contractual hybrid?. Industrial Law Journal Article, 3(3).

    17. Razzolini, O. (2010). The need to go beyond the contract: “Economic” and Bureaucratic” dependence in personal work relations. Comparative Labor Law & Policy Journal, 31, 267-301.

    18. Stewart, A. (2021). Stewart’s Guide to Employment Law (7th ed.). Sydney: The Federation Press.

    19. Su Tiang Joo. (2020). Validity of the Ministry of Human Resources Directive on Forced Leave During the MCO Period. Legal Network Series 1, xxxv, 1-8.

    20. Vanitha Sundra-Karean. (2012). Employment Law and Theory: A Malaysian Focus with A Comparative Perspective. Malaysia: CLJ Publication.