Unfair to exclude meal breaks in calculating 45-hour work week

It has been brought to the attention of the MTUC Penang Division, that the Labour Department (Jabatan Tenaga Kerja, or JTK) under the Ministry Of Human Resources is advising employers that they can “exclude” meal breaks, in determining the reduced weekly working hours of 45 hours pursuant to the amended Section 60A of the Employment Act, 1955 which comes into force on the 1st of September this year. Essentially, what JTK is misrepresenting is that the current working hours — of 48 hours per week — be maintained, and just barely making any significant changes, by only deducting the meal breaks of 45 minutes in the aggregate. However, the supposed intention of Parliament as we are given to believe is to reduce the totality of the weekly working hours to 45 hours.

Having regards to the provisions of Section 60A of the Employment Act, 1955, it is our opinion that in nowhere is there an aforementioned section that has an explicit provision “excluding” meal breaks in determining the weekly working hours of workers. On the contrary, Section 60A(1)(d)(ii) of the Employment Act, 1955 with all clarity states that :-
“an employee who is engaged in work which must be carried on continuously and which requires his continued attendance may be required to work for eight continuous hours inclusive of a period or periods of not less than forty-five minutes in the aggregate to have a meal”.

It is an indisputable fact that workers are inevitably engaged by the very nature of their employment in work, which must be carried on continuously and requiring their continued attendance e.g. workers who are required to work on rotating shifts and in assembly lines. Therefore, it is heavily implied that a 45 minutes break to enable them to have a meal, is “inclusive” of the amended 45 hour weekly working hours, and leaves no room for other interpretations.

Regarding this particular issue, we wish to place emphasis on the fact that the 45 minutes break is mandated solely for the workers to avail themselves of the opportunity to have a meal and “not free to dispose of his own time and movements”, as provided under Section 60A(9) of the Employment Act, 1955.

Given the plain language of the law, we are baffled as to how JTK is misleading employers to surmise meal breaks as “exclusive” of the amended 45 hours working week. We believe that the Minister Of Human Resources — in moving the motion to reduce working hours — was guided by the objective of reducing real time spent by workers at the workplace. Since that is the obvious objective, employers should not be permitted to circumvent the said amendment on the basis of the misplaced advise of JTK, as such a proposition is diametrically opposed to the objectives of the said amendments to strike a work-life balance of working class citizens.

From our perspective, the reduction of hours spent at the workplace must be real and not illusionary. It must, in reality, translate to a 45 hours working week inclusive of meal breaks and nothing less!

To maintain the current status quo such as the weekly 48 hours while tolerating that it is permissible just by deducting the statutory 45 minutes meal break is — in our view — unacceptable and undemocratic, as workers should have more of a say in their everyday lives that they are subjected to.

MTUC therefore implores upon the Honourable Minister Of Human Resources to direct his officers at the JTK to stop their misrepresentation of the progressive objectives of the said amendment, least we stand to be shamed as hypocrites in the matter!

K. Veeriah
Secretary
Malaysian Trade Union Congress (Penang Division)
24.8.2022

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