Employment Act amendments: 12 points for improvement

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Domestic workers still do not enjoy many rights of other employees - MOHAMED HASSAN/PIXABAY

We, the Women’s Aid Organisation (WAO), note the tabling of the bill to amend the Employment Act 1955, as announced in Parliament on 25 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

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

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.

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.

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.

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Paternity leave

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

The bill empowers the 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 the grounds for discrimination (including gender, religion, race or disabilities) should be spelt out.

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.

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

The bill requires employers to post up a notice to raise awareness of 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.

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.

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Domestic workers

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

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. – WAO

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