Clear up grey areas in amended Employment Act to protect more workers, government urged

Yu, who benefited from three months paid paternity leave himself, has been actively campaigning for seven days paternity leave for dads for the past five years. Photo: AZMAN GHANI/ The Star

Longer maternity leave for new mothers (98 days from the current 60 days) and seven days paid paternity leave for all new dads were among the major amendments to the Employment Act 1955 that was passed by the Dewan Rakyat on Monday. Presently, dads in the private sector are not entitled, by law, to paid paternity leave.

This, say women’s rights activists and labour unions, is a significant reform in the law. Although paternity leave is just seven days, it is still significant and the mandate acknowledges the role that fathers must play in households. They hope that this may signal a change in mindsets about prescribed gender roles at home and eventually ease the burden that women face and create a more balanced workforce.

“We are very pleased with these two amendments in particular. While extending the maternity leave was something that the government has been promising for many years, paternity leave was never really in the policy picture. Although it has been recommended by MTUC and WAO from as far back as 20 years ago – at that time it was for 14 days, actually – it was not really in the policy picture.

“This will of course benefit families but it may also change norms in the long run... men doing more at home so women can focus on their careers. It is part of the bigger picture of changing social norms,” says deputy executive director of Women’s Aid Organisation (WAO), Yu Ren Chung.

Yu acknowledges that achieving real gender equality will require more than changes to laws but rather, changes to ingrained socio-cultural norms and attitudes, strong advocacy and leadership. But he is positive this would be “a start”.

WAO was among the NGOs leading the #7daysfordads campaign to push for seven days’ paternity leave since 2017. But the campaign, Yu says, has been “a shared agenda with labour unions and groups, in particular the Labour Law Reform Coalition (LLRC)”.

“Paternity leave was probably the most mentioned item by many MPs during the reading of the bill and most were for it, which was really good. Of course Human Resources Minister Datuk Seri M. Saravanan and even previous minister, M. Kulasegaran, were key persons in pushing this through,” says Yu.

Co-chair of the LLRC, N. Gopal Krishnam also welcomed the amendments, saying that they were “a long time coming”, even though there is room for improvements.

“It’s good to see some major reforms taking place after so many years, in particular the maternity and paternity leave. These are long outstanding and I am happy that the government has the courage to make these amendments,” he said.

Question marks

However, it is unclear if the increased maternity leave will cover all women in the workforce.

While maternity provisions previously applied to all women regardless of their wages under Section 44A of the act, this seems to have been removed from the amended act that was passed on Monday.

Many Twitter users too have raised their concerns that though the increase in maternity and introduction of paternity leave may seem positive, it could only be enjoyed by some workers. And this, they say, would make the amended law more regressive.

“We are not clear who will benefit from what provisions, including the maternity and paternity leave allocations,” says Gopal.

Employment law in Malaysia is generally governed by the Employment Act 1955 which sets out certain minimum benefits that are afforded to applicable employees.

However, the Act does not apply to all employees. Prior to the amendments passed on Monday, many of the protections apply to employees whose monthly salary does not exceed RM2,000, among other stipulations.

Although Human Resources Deputy Minister Datuk Awang Hashim gave an assurance that the RM2,000 wage threshold would be lifted, no one is clear on what the new wage threshold, if any, will be.

“The Deputy Minister said (the RM2,000 threshold) would be lifted, through a Ministerial Order, and that will happen before the Bill is implemented.

“However we haven’t seen the Order. Although it’s most likely the RM2,000 condition will be lifted, but there may be some provisions that will still be limited to a salary bracket. NGOs are worried about this,” says Yu.

LLRC cordinator Ng Yap Hwa said the coalition too is concerned about the haziness of the new law and hope that the ministry can amend Schedule 1 of the Law (which stipulates who benefits from the provisions).

“We have brought this up with the Ministry and we still hope that it can be included in the law. At the moment, we have no idea if the provisions will benefit all workers as previously promised by the government,” says Ng.

Adds Gopal: “Also, at present the threshold is RM2,000 for workers in Peninsula Malaysia and RM2,500 for those in Sabah and Sarawak. I don’t think there should be this disparity as we are all part of the Malaysian Family,” says Gopal, adding that LLRC has been lobbying for is equal protection for all workers. “LLRC calls on the Minister to immediately issue the Order to remove the wage ceiling. If the bill goes through Dewan Negara and is gazetted before the amendment of the first schedule through a Ministerial Order, women workers with wages higher than RM2,000 will be excluded from maternity protection,” he says.

What about job seekers?

There are other positive changes to the law that were welcomed: the inclusion of flexible working arrangements, for example, where employees have the right to request for flexible working arrangements from their employers.

“This is gender neutral, for both men an women workers. It’s not guaranteed but it does give workers the option of applying for it and it requires employers to respond,” says Yu.

Expectant women in the workforce also have some measure of security under the new amendments which prohibit discrimination on the basis of pregnancy.

“What this means is that a woman cannot be fired because she is pregnant. The onus is on employers to prove that the termination is for reasons other than the worker’s pregnancy. This has been another amendment we have been pushing for since 2015,” says Yu.

However, the new provision only covers those in the workforce already and does not cover job seekers. And there have been cases of women who have had their job offers retracted once they’d informed their prospective employers that they were pregnant.

“Clearly there is room for improvement. However, at least expectant women in the workforce will have some protection from discrimination,” says Yu.

He adds that although there is a new process for workers to report and lodge a complaint if they experience discrimination, there is no clear definition of what kinds of discrimination this covers,” says Yu.

Why not just include all forms of discrimination, asks Gopal.

“Why is the government do reluctant to include, clearly, a provision that protects workers from all forms of discrimination, such as on the basis of race, religion, disability, gender,” he says.

Another area that is lacking, they say, is the provision on sexual harassment which merely require employers to post a notice to raise awareness on sexual harassment.

“It isn’t strong. There is a provision to increase penalties for employers found guilty of harassment but there is room for improvement, which is why we are now pushing for amendments to the Sexual Harassment Bill,” he says.