Employment Act Amendments – Progress but Gaps Remain

The Employment (Amendment) Bill 2021 was passed in the Dewan Rakyat today. The Bill includes significant reforms that will positively impact millions of workers and families throughout the country.

Nonetheless, many issues still need to be addressed. Of particular urgency, the Minister’s Order amending the First Schedule (which defines who an employee is, and who the act applies to) must be published without delay.

• 98-day maternity leave. The Bill initially increased maternity leave from 60 days, to 90 days. During the debate yesterday, the Dewan Rakyat further increased this to 98 days – inline with international labour standards. This will help ensure working mothers have adequate time to care for their newborn and recuperate.

• 7-day paternity leave. The Bill initially introduced three days of paternity leave. During the debate, the Dewan Rakyat further increased this to seven days. Creation of paternity leave is a milestone policy development, and seven days is a good first step. Paternity leave will help fathers play their part during the first days following childbirth, and help change norms towards men playing more equal roles at home.
• Who the Act applies to (wage ceiling). Sections 44A and 81G – which extend maternity benefits and sexual harassment protections to all workers regardless of income – have been deleted. The explanatory statement of the Bill notes this is because the blanket wage cap is being lifted. In his speech in Parliament yesterday, the Deputy Minister of Human Resources stated that the wage cap will be removed through a Minister’s Order. If the Order is not made, the Act would not apply to workers earning above RM2,000. Thus, the Ministry must produce the Order for scrutiny and enactment without delay.

• Protection from termination during pregnancy. The Bill prohibits employers from terminating an employee when she is pregnant, except under specific circumstances. Further, it will be incumbent on employers to prove that the termination was not due to pregnancy. This is welcomed, although the Bill does not protect against discrimination during recruitment.

• Removal of restrictions on women’s work. The Bill deletes provisions that restrict women’s employment at night and in underground work. While this is a welcomed amendment – as restricting women’s work undermines women’s economic rights – we must ensure policies are in place to ensure spaces are safe for women – for example employers must be required to ensure safe transportation for women workers.

• Process to report discrimination. The Bill empowers the Labour Department Director General to investigate employer-employee disputes on discrimination. However: 

1. 1. • 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.
      • 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.
      • The Bill also does not include protection against discrimination for job-seekers. This means employers can continue to discriminate against persons looking for jobs – whether on the basis of gender, race, religion, disability, or other status.

• Returning to work during maternity leave. Section 37aa has been revised. Section 37aa had permitted women who were not entitled to maternity leave pay to return to work during her maternity period (to earn income), if declared fit. The amended new Section 37aa permits any woman (including women entitled to maternity leave pay) to return to work during the maternity leave period. While this gives women a choice on paper, we urge the government to take steps to ensure women are not coerced to return to work early.

• Sexual harassment. The Bill requires employers to post up a notice to raise awareness on sexual harassment, and increases the fine for employers who do not comply with sexual harassment provisions. The sexual harassment provisions in the Employment Act remain weak and limited in scope. To better address sexual harassment, the Anti-Sexual Harassment Bill 2021 must be improved and passed.

The Bill has been in development since 2016. WAO with partners had undertaken several initiatives to improve this law towards improving gender equality in the country. The Bill now moves to the Dewan Negara.

We look forward to continuing to work with the many stakeholders who have worked on this effort – including ministers, ministries, members of parliament, labour organisations, women’s groups, civil society groups, affected persons, media, influencers, the public, and others – towards further improving employment conditions for women and all persons.

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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:
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