Put simply, the effect is as follows:
Previously, the protections provided by the Employment Act (i.e. work hours, overtime pay, holiday, termination benefits etc) are generally only applicable to employees with wages RM2000 and below, with some limited exceptions that apply to all employees regardless of wages (i..e maternity leave, sexual harassment etc). However, with the Amendment, the situation is now flipped. All the provisions in the Employment Act will now apply to all employees with some limited provisions not applicable to those employees with wages RM4000 and above (generally).
For lawyers, as long you are employed under a contract of service (which can be an oral or written contract), you will be protected under the Employment Act beginning 1.9.2022.
For pupils, you would not be considered an employee (in my view) and it is doubtful if you’d be considered an apprentice under the Employment Act. If you’re considered an apprentice, then you’d be protected under the Employment Act as well. Previously, apprenticeship contracts have to be a minimum of 2 years thereby excluding pupillage which is only 9 months, but now the definition has been amended to be minimum 6 months and maximum 24 months. That being said, “apprenticeship contract” is defined under the Act as “a written contract entered into by a person with an employer who undertakes to employ the person and train or have him trained systematically for a trade for a specified period which shall be for a minimum period of six months and a maximum period of twenty four months in the course of which the apprentice is bound to work in the employer’s service.” Emphasis being “written contract” and “bound to work in the employer’s service”
And under Bar Council Ruling 10.09, it is specifically provided as follows:
“Save for a letter of appointment or agreement to reflect the provisions of paragraph 6 of the “Guidelines and Recommendations of Responsibilities between Masters and Pupils” issued by the Bar Council on 23 February 2022, a master shall not enter into any contract of or for service with his/her pupil.” Simply, a master is prohibited from entering a contract of or for service with his/her pupil, and therefore, not allowed to enter into an apprentice contract without breaching the Bar Council Ruling. Moreover, some may argue that pupillage is a specific mechanism created for the admission of lawyers in Malaysia and is governed exclusively by the Legal Profession Act, and therefore, does not fall under the ambit of the Employment Act.
This article is written by Louis Liaw ([email protected]), a Senior Associate with Chong + Kheng Hoe focused on Employment Law.