SOME of the directives issued by the Ministry of Human Resources (MOHR) for work during the Movement Control Order (MCO) do not have the force of law, according to an article in CLJ, an online legal publisher.
Among these directives are that the employer must pay full wages of the employee during the period of the MCO. Employers who breached the directives would have committed an offence pursuant to Regulation 7 of the Prevention and Control of Infectious Diseases (Measures Within The Infected Local Areas) Regulations 2020 and can be fined up to RM1,000 or imprisoned for up to six months, or both.
“The MOHR ought to categorically state under what law it is relying upon when disseminating such a directive using words that seek to advise the employers and employees of their legal rights and liabilities. This would help to avoid sowing seeds of expectations that could very likely lead to discord and disharmony in industrial relations,” said CLJ.
It added that there was no provision in the Prevention and Control of Infectious Diseases Act 1988 (PCID Act) that confers upon the Minister the power to declare or make regulations to impose liability, both civil and criminal, to regulate the paying of salaries by employers where both employers and employees cannot or are prevented from working.
In the UK, the government has come up with a policy that it would pay up to 80% of the wages of the employee to assist the employer to hold onto its business so that the employee has a job to go back to once the pandemic is over.
In Thailand, where there is forced closure of business by the authorities, the simple rule they abide by is “no work, no pay”.
The relationship of employer and employee is principally governed by contract subject to certain statutory constraints such as the Employment Act 1955, Industrial Relations Act 1967 and the regulations made thereunder.
The PCID Act and the Regulations made thereunder and the Employment Act do not have any statutory provisions that specifically provide that if an employer is lawfully prevented from giving work to his employee who, in turn, is lawfully prevented from working, the employer must still pay the wages of the employee.
To the contrary, section 2 of the Employment Act defines wages as “basic wages and all other payments in cash payable to an employee for work done…” Section 57(2) of our Contracts Act 1950 provides that a contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
CLJ said another provision can be found in section 52 of the Contracts Act 1950 which provides that when a contract consists of reciprocal promises to be simultaneously performed, no promisor (employer) need to perform his promise unless the promisee (employee) is ready and willing to perform his reciprocal promise.
With the employee prevented from doing his work by reason of the MCO, he can hardly be said to be ready to perform his promise.
Case law has also supported the notion that the employer was not liable to pay wages if the work was not performed. In the English case of Browning And Others v. Crumlin Valley Collieries, Limited. is rather instructive. In this case, the workplace which is a mine was found to be unsafe for work and had to be closed down through no fault of the employer and for safety measures to be undertaken.
The court asked the question: “Is it to be implied in the engagement that the wages are to be paid when through no fault of the employer the work cannot be done?”.
The court held that the men did not work, that they were not ready and willing to work in the state the mine was in, and the agreement was silent on whether they were in these circumstances entitled to be paid wages and that in business transactions such as this, the law should not impose on one side all the perils of the transaction or to emancipate one side from all chances of failure.
The court went on to order that to give effect to the presumed intention of both parties to the contract of employment, it was necessary to imply a term that, in the event which happened, the mine owners “should not be liable to pay wages or damages to their workmen during the time which was reasonably required to put the mine into a safe condition.”
In summary, there is no law as it stands that provides the Minister with the power to impose liability on the employer to pay wages for work not done and which could not be done through no fault of the employer. — April 27, 2020
