Is it legal to pay full salaries during MCO period?

I refer to the FAQ and Guidelines issued on March 19 2020 by the ministry of human resources pertaining to Cobid-19 and the movement control order.

The guidelines forces employers to pay full wages and allowances to all employees during the duration of the order from March 18-31 although workers are barred from working, as the vast majority of the offices, factories and businesses are ordered closed.

Employees working in some specific industries and offices are exempted, including those in the essential services category. Some employees are allowed to work from home, basically those in the information technology sectors.

The question is: under what statute, law or regulation did MoHR order full payment of wages and allowances? The Employment Act 1955 specifically, clearly and explicitly states that “wages are to be paid for work done”.

The MCO was issued pursuant to the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967. I have perused the order and both the Acts and there is no mention at all on the status of workers salaries and allowances.

Furthermore, the Prevention and Control of Infectious Diseases Act 1988 comes under the purview of the health minister and not the MoHR and the Police Act 1967 is under the purview of the home minister.

Thus, I am bewildered and lost as to what principle of law the MoHR used to issue the FAQ and Guidelines.

In fact, under the law of contract, wages or salary may be treated as ‘consideration’ for the work done by the employees during the stipulated working hours i.e. the agreed terms & conditions of the employment contract. Based on this, the need to pay full wages or salary is questionable.

It is also noteworthy to look at ‘force majeure’ and the doctrine of ‘frustration of contract’. This is also relevant to determine the legality of the recent guideline issued by MoHR.

The making of any law starts with the Attorney-General’s Chambers and then it is to be approved by Dewan Rakyat and Dewan Negara before it is presented to the King for Royal Assent, and it is enforceable only after it has subsequently been gazetted.

Can the MoHR please tell us what is the gazette number and date of gazette for this new and strange order to pay full wages and allowances during the 14-day MCO?

Most businesses are facing a hard time due to the economic meltdown arising from trade wars and sharp decline in oil prices. It will not be too long before many businesses shut down leaving millions of our rakyat unemployed.

As it is we already have hundreds of thousands of graduates and young people who do not have any jobs and the human resources ministry’s actions during these bad times will really piss off many employers.

Roslan Sharif is an FMT reader.

The views expressed are those of the author and do not necessarily reflect those of FMT.

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