KUALA LUMPUR, March 22 – The Dewan Rakyat yesterday bizarrely passed amendments to the Employment Act 1955 that effectively removed legal entitlement to any paid maternity leave for women employees earning more than RM2,000 a month.
Clause 15 of the Employment amendment Bill 2021, which was passed in a voice vote in the Lower House yesterday, deleted Section 44A of the Employment Act 1955 (Act 265) that explicitly extends maternity leave and allowance entitlement — full pay for each day of eligible maternity leave — to every female employee “irrespective of her wages”, notwithstanding paragraph 1 of the First Schedule.
Paragraph 1 of the First Schedule of the Employment Act — which was not amended by the Dewan Rakyat yesterday — defines an “employee” as anyone, irrespective of occupation, entering into a contract of service with an employer under which their wages do not exceed RM2,000 a month.
Deputy Human Resources Minister Awang Hashim, when tabling the Employment amendment Bill for second reading yesterday, said the proposed amendments would increase the minimum paid maternity leave entitlement from the current 60 days to 98 days, in line with the International Labour Organisation (ILO) Convention.
However, because the Employment amendment Bill does not change the definition of “employee” to cover workers earning more than RM2,000 a month, this means that, legally, only female workers earning close to the proposed minimum wage of RM1,500 will be entitled to the higher maternity leave protection of 98 days.
On the other hand, women earning more than RM2,000 a month will lose legal entitlement to any maternity leave whatsoever if the Dewan Negara passes the Employment amendment Bill, compared to previously when they were legally entitled to 60 days’ paid maternity leave.
In the explanatory statement of the Employment amendment Bill, point 13 explains that Section 44A, along with certain other clauses, are deleted to take into account the “expansion of scope” of the Employment Act to allow any workers to bring any disputes to the Director-General regardless of their wage levels, compared to the current provisions that limited this to those earning RM5,000 a month or less.
Awang, in his speech when tabling the second reading of the Employment amendment Bill in Parliament yesterday, said that Section 44A, along with certain other clauses, would be deleted to expand protections under the Employment Act to all workers in the private sector regardless of their wage levels, “subject to certain conditions”.
He explained that the First Schedule of the Employment Act would be amended via a minister’s order – which can be gazetted without parliamentary approval – so that the Employment Act, in general, applies to all private sector employees regardless of their wage levels.
“The draft of the order is currently being prepared by the Human Resources Ministry and will be in effect together with the effect of the amendment to Act 265 once it is approved by Parliament and assented to by the Yang di-Pertuan Agong on a date that will be decided in due time.”
In 2012, then-Human Resources Minister Dr S. Subramaniam gazetted an order to amend the First Schedule of the Employment Act to change the definition of “employee” from those earning not more than RM1,500 a month to RM2,000.
According to the Department of Statistics of Malaysia’s Salaries & Wages Survey Report 2020, women’s median and mean monthly salaries in 2020 exceeded RM2,000, at RM2,019 (median) and RM2,889 (mean) respectively.
Ministers’ orders to amend certain legislations in the past have also never been gazetted, such as Schedule 7 of the Private Healthcare Facilities and Services Regulations that was amended to raise the fee ceiling for general practitioners (GPs) practicing in clinics. But this amendment was never gazetted, leaving GPs stuck with low consultation fees of RM10 to RM35 for decades. The Telemedicine Act 1997 also was never gazetted, which means it is not yet in force.
Paternity Leave, Protection From Pregnancy Discrimination Only Available To Workers Earning RM2,000 And Below
The deletion of Section 44A in the Employment Act, coupled with MPs’ failure to expand the definition of “employee” in the First Schedule of the Employment Act, also means that protection from pregnancy discrimination in the new Section 41A proposed in the amendment Bill – which prohibits the termination of a female employee on the grounds of pregnancy – is also not available to women earning more than RM2,000 monthly.
A new Section 60FA in the Employment Bill introduces paid paternity leave entitlement for married male employees, which Awang said yesterday would be set at seven days instead of the initially proposed three days. Eligibility for paternity leave would be limited to five births.
However, again, because the Employment Act limits the definition of “employee” to those earning RM2,000 or less a month, only men earning under this wage limit will be legally entitled to full-pay paternity leave.
The Employment amendment Bill also introduces a new Section 81H under the existing provisions on sexual harassment that requires employers to exhibit “conspicuously” a notice at the workplace to raise awareness on sexual harassment.
The Employment Act mandates inquiries into complaints of sexual harassment, including dismissals of those accused of sexual harassment if the employer is satisfied that sexual harassment is proven, as well as entitlement to wages and termination benefits for complainants who quit if the Director-General decides that sexual harassment is proven.
Despite the Human Resources Ministry’s failure to amend the First Schedule of the Employment Act to cover all employees regardless of wage levels in the principal law itself – as opposed to a minister’s order with an unspecified timeline – the Opposition, who comprise nearly half of the Dewan Rakyat, supported the proposed amendments.
Women’s group the Women’s Aid Organisation (WAO) similarly rested its hopes on the Human Resources Ministry’s verbal statements that legal entitlements to maternity leave and allowance would be available for all female employees regardless of wage levels.
“The Ministry has confirmed that a Minister’s order (pursuant to subsection 2(2) of the Employment Act) will be made to amend the First Schedule of the Employment Act to enable all provisions in the Act to generally apply to employees (unless specifically excluded). This was confirmed in an email from the Ministry to WAO, as well as in a meeting with the Minister of Human Resources,” WAO said in a statement last January 25.
However, an FAQ on the Human Resources Ministry’s website, last updated on December 25, 2021, states: “Workers covered under the Employment Act 1955 are all workers whose earnings do not exceed RM2,000.00 a month and all manual workers irrespective of their earnings.”