THE Dewan Negara should send the recent amendments to the Employment Act 1955, which were passed on Monday, back to the Dewan Rakyat for review and changes.
The Employment Act 1955 has been long overdue for amendments and updates, which would bring Malaysia’s employment legislation to the standards expected of a modern and progressive country.
For example, one of the definitions of an employee under the First Schedule is a person who has entered into a contract of service with an employer under which a person’s wages do not exceed RM2,000 a month. A wage cap should not be a precondition for a person to be considered an employee under the law. How about those who earn more than that amount?
However, the relevant paragraph on employee definitions in the First Schedule were not amended. Legally, it would mean that the entitlements, benefits and protections described under the Employment Act would only be applicable to those defined as employees in the legislation.
This could also mean that both women and men who earn more than RM2,000 would not be entitled to the newly agreed-upon maternity leave of 98 days and paternity leave of seven days. The same exclusion would occur in the protection from pregnancy discrimination in the proposed Section 41A, which prohibits the termination of a female worker’s employment on the grounds of pregnancy.
Meanwhile, Section 44A, which deliberately and explicitly extended maternity leave and allowance entitlement to all female employees irrespective of how much she earns, notwithstanding the First Schedule paragraph, was strangely removed without a suitable replacement under this amendment.
This is extremely worrying. Legally, this would deprive new mothers, who earn more than RM2,000, of these entitlements when previously they were provided with 60 days’ maternity leave.
A Minister’s Order, to be issued after the Bill has been successfully passed into law and gazetted, is supposed to address these gaps. However, it is odd that these changes were not simply included in the proposed amendments Bill as they are known beforehand and are necessary.
What is likely to happen is that companies will retain the 60 days’ maternity leave and not give the additional 38 days and paternity leave, as there is no legal obligation until there is a Minister’s Order.
What is the rationale behind this approach? Why is there a need for a separate Minister’s Order when you can just incorporate the changes into this round of amendments to the Employment Act?
AZRUL MOHD KHALIB
CEO, Galen Centre for Health and Social Policy