We have to thank the State Government for declaring Christmas Eve as a holiday in Sabah because, among other things, it has forced many to visit the Sabah government website everyday. We were among those eagerly anticipating the publication of the gazette since the Chief Minister declared it on 11th December 2019. When we wrote our previous article ‘Cuti Umum Tambahan Sempena Hari Krismas di Sabah‘ it was not yet gazetted. We had to repeatedly stare at the page showing the last gazette dated 7th November 2019. Then, it came out yesterday evening. Mind you, not just 1 gazette, but 6 volumes all at once! Well, well, well….Mr Government Printer – you have been holding out on us! I wonder why…..
Holidays (Amendment of First Schedule) Order 2019
Anyway, here is the amendment to the Sabah Holidays Ordinance. The title of the Order is long – Holidays (Amendment of First Schedule) Order 2019. But the details are short and sweet.
What does it mean?
It can be confusing to many. Hence, it’s good that issues arise out of this because it really is a learning opportunity for many, especially HR practitioners. We have received several questions on this from various persons, known and unknown. Here are our humble opinion on this matter.
When is this Christmas Eve holiday in Sabah?
Evidently, there is no date stated in the gazette. Neither is there any date mentioned in the First Schedule.
Official dates of public holidays for the following year are usually published by the government several months earlier. In the case of Sabah, the dates of holidays in 2020 were published on 1st August 2019.
So, when is Christmas Eve?
The word ‘eve’ is defined in Cambridge dictionary as:
“the period or day before an important event”
Therefore, it is the day before Christmas. As Christmas is celebrated on the 25th December of each year, Christmas Eve in this case falls on 24th December.
Does this only apply to the public sectors?
So many employees are excited with the news. Employers, on the other hand, have mixed feelings. Those whose business operates on a daily basis, such as restaurants and outlets at shopping malls, could be financially impacted by this holiday.
S.3 of the Holidays Ordinance (Sabah Cap. 56) states:
“Public Holiday” means a day which, subject to the provisions of section 4, shall be a dies non and shall be kept as a holiday by all banks, educational establishments, public offices and Government departments.”
Referring at the above, we can reasonably conclude that the Ordinance automatically applies to those who work at the banks, educational establishments, public offices and Government departments.
So what about employees at the private sectors?
Private sectors’ employees may enjoy Christmas Eve holiday if the terms and conditions in their employment contract or their collective agreement state that they are entitled to all state holidays.
Are all employees in Sabah entitled to enjoy this Christmas Eve holiday?
As much as we would like to say, “Enjoy your Christmas Eve holiday everyone!” – that is not possible.
The fact is, Holidays Ordinance is not binding on the private sectors. Companies or employers can choose whether they want to observe all the holidays stated in the Ordinance or not.
However, in respect of employees who fall under the Schedule in the Sabah Labour Ordinance, this holiday will be among the minimum 14 paid holidays that they are entitled to. For those celebrating Christmas, they can pick this holiday next year as the proviso in S.103(1)(a) states:
“Provided that the other ten public holidays referred to in this paragraph be fixed with regard to the religion and customs of the employees.”
Employees in the private sectors can automatically enjoy the Christmas Eve holidays if the terms and conditions of their contract of service, company handbook or collective agreement state that they are entitled to all gazetted state public holidays.
Otherwise, it’s up to their employers’ discretion.
What about Employees in the Federal Territory of Labuan?
Labuan was part of Sabah before it became a Federal Territory in 1984. In terms of minimum wages, before it was standardized to RM1050 last year, Labuan followed Sabah. However, in terms of employment laws, by virtue of the Federal Territory of Labuan (Extension and Modification of Employment Act) Order 2000, Employment Act 1955 applies to employees in Labuan. Therefore, we are of the opinion that this Christmas Eve holiday announcement does not apply to FT of Labuan, unless agreed to by the Federal Government.
Fyi, Labuan still enjoys Kaamatan as one of their 19 public holidays. However, unlike Sabah, Labuan does not observe ‘Good Friday’ as a public holiday.
Unfortunately, with the recent announcement of new minimum wages of RM1200 in 57 council areas and the upcoming amendments to labour laws (among other things), many employers may decide against granting this holiday to their staff. The high probability of increasing costs of doing business next year simply makes it too costly,