Employment Act amendments: 12 points of improvement

We note the tabling of the Bill to amend the Employment Act 1955 as announced in parliament on 25th October 2021.

While some positive reforms have been included, the Bill falls short of in many areas. We highlight the following concerns and recommendations.

Maternity leave

1. Maternity leave has been extended from 60 to 90 days. This is welcomed, though it falls short in the International Labour Organisation (ILO) standard of 98 days.

2. Section 37aa is being revised. Currently, Section 37aa permits women who are not entitled to maternity leave pay to return to work during her maternity period (to earn income), if declared fit. The proposed new Section 37aa would permit any woman (including women entitled to maternity leave pay) to return to work during the maternity leave period. On paper, this gives women a choice, but there may be room for abuse – if employers coerce women to return to work early.

3. Section 44A – which extends maternity benefits to all women workers regardless of income – is being deleted. The explanatory statement of the Bill notes this is because the blanket wage cap is being revised or lifted. However, the First Schedule – where the wage cap is – is not being amended by the Bill. This must be clarified, or it could mean that maternity benefits would only apply to women workers earning RM2,000 or less.

4. The Bill does not include protection against discrimination for job-seekers. This means employers can continue to discriminate against pregnant (and potentially pregnant) women looking for jobs.

Paternity leave

5. The Bill introduces three days of paternity leave. Although this is progress, three days is not enough. We urge the government to introduce at least seven days of paid paternity leave – the same as what public sector workers currently enjoy.

Anti-discrimination

6. The Bill empowers Labour Department Director General to investigate employer-employee disputes on discrimination. However, discrimination is not defined. Discrimination must be defined to include direct and indirect discrimination, and grounds for discrimination (includinng gender, religion, race, or disabilities) should be spelt out.

7. Concerningly, the Bill does not prohibit discrimination. Employers can be penalised for failing to comply with the Director General’s order, following an investigation. But the employer will not be penalised for the discrimination itself.

8. As noted in point 4 above, job seekers will not be protected against discrimination. This means employers can discriminate during recruitment – whether on the basis of race, religion, gender, disability, or other status.

Sexual harassment

9. The Bill requires employers to post up a notice to raise awareness on sexual harassment. Without any standards and accountability, this change is almost meaningless. Employers should be required to adopt sexual harassment policies with minimum standards, and display that policy conspicuously.

10. The Bill increases the fine for employers who do not comply with sexual harassment provisions in the Act. However, employers can only be fined for not investigating or responding to a complaint of sexual harassment. An employer can avoid a penalty for example, simply by carrying out a shoddy investigation. The Director General must be given powers to review sexual harassment investigations and decisions by employers.

Domestic workers

11. The Bill replaces the term “domestic servant” with “domestic employee”. However, domestic workers still do not enjoy many rights of other employees. The Bill must amend the First Schedule to extend these rights to domestic workers.

Restrictions on women’s work

12. The Bill deletes provisions that  restrict women’s employment at night and in underground work. While this is positive, the Bill should also include standards or steps that need to be taken to ensure the safety of women workers.

We urge the government and Members of Parliament to address these concerns before passing the Bill into law.

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About Women’s Aid Organisation (WAO)

Since 1982, Women’s Aid Organisation has provided free shelter, counselling, and crisis support to women and children who experience abuse. We help women and their children rebuild their lives, after surviving domestic violence, rape, trafficking, and other atrocities. Learning from women’s experiences, we advocate to improve public policies and shift public mindsets. Together, we change lives.

Call the WAO Hotline at 03 3000 8858 or SMS/Whatsapp TINA at 018 988 8058 if you or someone you know is experiencing abuse. For more information, visit wao.org.my.

For more information, please contact:

Yu Ren Chung, Advocacy Director
renchung@wao.org.my / +6016 718 3247

Rusni Tajari, Senior Advocacy Officer
rusnitajari@wao.org.my / +6013 380 2287