MINIMUM RETIREMENT AGE ACT 2012

LAWS OF MALAYSIA ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 753 MINIMUM RETIREMENT AGE ACT 2012 As at 1 November 2016 2 MINIMUM RETIREMENT AGE ACT 2012 Date of Royal Assent … … … … … 5 August 2012 Date of publication in the Gazette … … … 16 August 2012 Latest amendment made by P.U.(A) 249/2016 which came into operation on … … … … 1 October 2016 3 LAWS OF MALAYSIA Act 753 MINIMUM RETIREMENT AGE ACT 2012 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and commencement 2. Non-application 3. Interpretation PART II MINIMUM RETIREMENT AGE 4. Minimum retirement age 5. Premature retirement 6. Optional retirement 7. Invalidity of term of contract of service and collective agreement PART III COMPLAINTS AND INQUIRIES 8. Director General’s power to inquire into complaints 9. Reference to High Court on question of law 10. Appeal 11. Non-compliance with direction of Director General 4 Laws of Malaysia PART IV INVESTIGATION AND ENFORCEMENT Section 12. Power of Director General 13. Power to require attendance of persons acquainted with case 14. Power to require production of document PART V GENERAL 15. Exercise of Director General’s powers by labour officer 16. Prosecution 17. Compounding of offences 18. Exemption 19. Power to make regulations SCHEDULE ACT 753 5 LAWS OF MALAYSIA Act 753 MINIMUM RETIREMENT AGE ACT 2012 An Act to provide for the minimum retirement age and for any related matters thereto. [1 July 2013; P.U.(B) 422/2012] ENACTED by the Parliament of Malaysia as follows: PART I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Minimum Retirement Age Act 2012. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette and the Minister may appoint different dates for the coming into operation of different provisions of this Act. Non-application 2. (1) This Act does not apply to the person specified in the Schedule. (2) The Minister may, by order published in the Gazette, amend the Schedule. 6 Laws of Malaysia ACT 753 Interpretation 3. In this Act, unless the context otherwise requires— “prescribe” means prescribed by regulations; “Directior General” means— (a) in respect of Peninsular Malaysia, the Director General of Labour appointed under subsection 3(1) of the Employment Act 1955 [Act 265]; (b) in respect of Sabah, the Director of Labour appointed under subsection 3(1) of the Sabah Labour Ordinance [Sabah Cap 67]; and (c) in respect of Sarawak, the Director of Labour appointed under subsection 3(1) of the Sarawak Labour Ordinance [Sarawak Cap 76]; “contract of service” means any agreement, whether oral or in writing, and whether express or implied, whereby one person agrees to employ another person as an employee and that person agrees to serve his employer as an employee; “employer” means any person who has entered into a contract of service to employ another person as an employee and includes an agent, a manager or factor of the first-mentioned person; “Minister” means the Minister charged with the responsility for human resources; “labour officer” means the officer appointed under subsection 3(2) of the Employment Act 1955, subsection 3(1A) of the Sabah Labour Ordinance or subsection 3(1A) of the Sarawak Labour Ordinance; “employee” means any person who has entered into, and works under, a contract of service with an employer irrespective of his wages but does not include the person specified in the Schedule; “collective agreement” has the same meaning assigned to it in section 2 of the Industrial Relations Act 1967 [Act 177]; Minimum Retirement Age 7 “retirement” means termination of a contract of service of an employee on the ground of age; “premature retirement” means a retirement not in accordance with section 5; “minimum retirement age” means the minimum retirement age provided under subsection 4(1) and where the Minister prescribes a higher minimum retirement age under subsection 4(2), such higher minimum retirement age. PART II MINIMUM RETIREMENT AGE Minimum retirement age 4. (1) Notwithstanding any other written law, the minimum retirement age of an employee shall be upon the employee attaining the age of sixty years. (2) The Minister may, by notification in the Gazette, prescribe a minimum retirement age higher than the minimum retirement age provided under subsection (1). (3) When the Minister prescribes a higher minimum retirement age under subsection (2), the prescribed minimum retirement age shall supersede the minimum retirement age provided under subsection (1). Premature retirement 5. (1) An employer shall not prematurely retire an employee before the employee attains the minimum retirement age. (2) An employer who contravenes subsection (1) commits an offence and shall, on conviction, be liable to the fine not exceeding ten thousand ringgit. 8 Laws of Malaysia ACT 753 (3) A premature retirement shall not include an optional retirement under section 6 and a termination of a contract of service for any reason other than on the ground of age. Optinal retirement 6. Notwithstanding the minimum retirement age, an employee may retire upon attaining the age of optional retirement as agreed in the contract of service or collective agreement. Invalidity of term of contract of service and collective agreement 7. (1) Any retirement age in a contract of service or collective agreement made before, on or after the date of coming into operation of this Act which is less than the minimum retirement age provided under this Act shall be deemend to be void and substituted with the minimum retirement age provided under this Act. (2) Any term in a contract of service or collective agreement relating to retirement age shall be void if it excludes or limits the operation of any provision of this Act. PART III COMPLAINTS AND INQUIRIES Directior General’s power to inquire into complaints 8. (1) An employee who has been prematurely retired by his employer has, whithin sixty days from the date of the retirement, the option to complain in writing to the Director General. (2) If an employee opts to make a complaint to the Director General under subsection (1), the employee shall not make a representation under section 20 of the Industrial Relations Act 1967 until his complaint to the Director General under this section has been resolved. Minimum Retirement Age 9 (3) If an employee has made a representation under section 20 of the Industrial Relations Act 1967 and also made a complaint under subsection (1), the Director General shall not conduct an inquiry on the complaint made by the employee. (4) Subject to subsection (3), the Director General may conduct an inquiry, in the manner prescribed by the Minister, to determine whether there is prima facie evidence that an employee has been prematurely retired by his employer. (5) Upon an inquiry under subsection (4), if the Director General— (a) is satisfied that the complaint by an employee is not substantiated, the Director General shall dismiss the complaint; or (b) is satisfied that the employee has been prematurely retired by his employer, the Director General may direct the employer— (i) to reinstate the employee in his former employment and to pay the employee any arrears of wages calculated from the date the employee has been prematurely retired to the date of the reinstatement; or (ii) to pay the employee a compensation in lieu of reinstatement, not exceeding the amount of total wages of the employee calculated from the date the employee has been prematurely retired to the date the employee attains the minimum retirement age. (6) Notwithstanding subsection (2) and any limitation period provided under subsection 20(1A) of the Industrial Relations Act 1967, an employee may make a representation under section 20 of the Industrial Relations Act 1967 if the Director General has dismissed his complaint under paragraph (5)(a), and such representation shall be made within thirty days after the dismissal of the complaint under paragraph (5)(a) is communicated to the employee. 10 Laws of Malaysia ACT 753 (7) If an employee has made a representation under section 20 of the Industrial Relations Act 1967 after his complaint has been dismissed under paragraph (5)(a), the employee is not entitled to appeal under section 10 of this Act, against the dismissal of his complaint by the Director General. (8) If the Director General has made a representation under paragraph (5)(b), the employee is not entitled to any other remedy for a dismissal without just cause and excuse under the Industrial Relations Act 1967. (9) For the purpose of this section, “wages”— (a) for the employee specified in the First Schedule to the Employment Act 1955, in the Schedule to the Sabah Labour Ordinance or in the Schedule to the Sarawak Labour Ordinance, has the meaning assigned to it respectively in section 2 of the Employment Act 1955, section 2 of the Sabah Labour Ordinance or section 2 of the Sarawak Labour Ordinance; and (b) for the employee not specified in the First Schedule to the Employment Act 1955, in the Schedule to the Sabah Labour Ordinance or in the Schedule to the Sarawak Labour Ordinance, means the rates of wages agreed upon in his contract of service. Refence to High Court on question of law 9. (1) In any inquiry under subsection 8(4), the Director General may, if the thinks fit, refer any question of law for the decision of a Judge of the High Court and if the Director General does so he shall make his decision in the inquiry in conformity with the decision of the Judge of the High Court. (2) An appeal on any decision of a Judge of the High Court under subsection (1) shall lie to the Court of Appeal. Minimum Retirement Age 11 Appeal 10. (1) A person who is dissatisfied with the decision of the Director General under subsection 8(5) may appeal to the High Court. (2) Subject to any rules made under section 4 of the Subordinate Court Rules Act 1955 [Act 55], the procedure in an appeal to the High Court shall be the procedure in a civil appeal from a Sessions Court with such modifications as the circumstances may require. Non-compliance with direction of Director General 11. (1) An employer who fails to comply with the direction of the Director General under paragraph 8(5)(b) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit. (2) If an employer has been convicted of an offence under subsection (1), the court before which the employer has been convicted may order the employer to pay to the employee the amount directed by the Director General to be paid under paragraph 8(5)(b). (3) If an employer fails to comply with an order made under subsection (2), the court may, on the application of an employee, issue a warrant to levy the employer’s property for the amount ordered to be paid under subsection (2) in the following manner: (a) by way of distress and sale of the employer’s property in accordance with the same procedure of execution under the *Subordinate Courts Rules 1980 [P.U.(A) 328/1980] and this execution shall apply mutatis mutandis notwithstanding the amount ordered to be paid; or (b) in the same manner as a fine as provided under section 283 of the Criminal Procedure Code [Act 593]. * NOTE— The Subordinate Courts Rules 1980 [P.U.(A) 328/1980] was repealed by the Rules of Court 2012 [P.U. (A) 205/2012] 12 Laws of Malaysia ACT 753 PART IV INVESTIGATION AND ENFORCEMENT Powers of Director General 12. The Director General shall have all the powers— (a) to investigate into any offence under this Act; and (b) to enforce any provision of this Act. Power to require attendance of persons acquainted with case 13. (1) The Director General in making an investigation under this Act may, by order in writing, require the attendance before himself of any person who appears to him to be acquainted with the facts and