KUALA LUMPUR, March 23 – Proposed amendments to the Employment Act 1955 strip both female and male employees earning more than RM2,000 monthly legal recourse for sexual harassment in the workplace.
Clause 35 of the Employment amendment Bill 2021, which was passed by the Dewan Rakyat last Monday, repeals Section 81G of the Employment Act that explicitly extends sexual harassment provisions to every employee irrespective of their wage levels, 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 — 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.
The Employment amendment Bill did not contain any explanatory statement on the rationale for Clause 35 deleting Section 81G that specifically extended protections from sexual harassment to all employees regardless of their earnings.
Instead, the proposed amendments to the Employment Act simply introduced a new Section 81H that requires employers to “conspicuously” display a notice at the workplace to raise awareness on sexual harassment.
Under the Employment Act, employers are mandated to inquire into complaints of sexual harassment, but may also refuse to do so if the complaint was previously inquired into and no sexual harassment was proven, or if the employer believes the complaint is frivolous, vexatious, or not made in good faith. Employers are obliged to inform the complainant of the reasons for refusal of inquiry.
If the employer is satisfied that sexual harassment is proven, the employer can dismiss the employee accused of sexual harassment without notice, downgrade the accused, or suspend the accused without wages for not more than two weeks.
The Employment Act also empowers employees to file sexual harassment complaints to the Director-General who may direct an employer to inquire into the complaint.
In sexual harassment cases where the accused is a sole proprietor, the Director-General is required to inquire into the complaint themselves, but may also refuse to make an inquiry if the complaint was previously inquired into and no sexual harassment was proven, or if the Director-General believes the complaint is frivolous, vexatious, or not made in good faith. The Director-General is obliged to inform the complainant of the reasons for refusal of inquiry.
If the Director-General decides that sexual harassment is proven, the complainant may terminate their contract of service without notice. With this, the complainant is entitled to wages as if the complainant gave notice of termination, as well as termination benefits and indemnity.
Deputy Human Resources Minister Awang Hashim, when tabling the Employment amendment Bill for second reading in the Dewan Rakyat on Monday, said 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.
However, he did not commit to a timeline.
Ova reported yesterday that the Employment amendment Bill effectively stripped legal entitlement to any paid maternity leave for women employees earning above RM2,000 a month.
This is because the amendment Bill deleted Section 44A that extends maternity protections to all women employees regardless of their wage levels, which means that the new provision raising paid maternity leave from 60 days to 98 days only applies to female employees earning RM2,000 or less monthly.
Exemption from the First Schedule definition of employees based on their wages is only granted in the Employment Act on two occasions: Section 44A for maternity protection and Section 81G for sexual harassment.
After the Employment amendment Bill was passed by the Lower House, reporters asked the Ministry of Human Resources (MOHR) to confirm whether protections from sexual harassment, legal entitlement to paid maternity leave and paternity leave, protection from termination on grounds of pregnancy, as well as all clauses in the Employment Act, would only apply to workers earning RM2,000 or less a month.
However, an MOHR spokesperson told the ministry’s media WhatsApp group yesterday that it was unable to respond to such questions, pending passage of the Employment amendment Bill through Parliament and royal assent.
The Dewan Negara is set to debate the second reading of the Employment amendment Bill today.
There is a separate Anti-Sexual Harassment Bill 2021, under the Women, Family and Community Development Ministry, pending second reading in the current Dewan Rakyat meeting that ends tomorrow.
The Anti-Sexual Harassment Bill relates specifically to a sexual harassment tribunal, comprising members appointed by the Minister, that has the power to hear “any” complaints of sexual harassment by anyone.
This means that the tribunal is not limited to complaints of sexual harassment at work, unlike the Employment Act that specifically deals with sexual harassment complaints involving employer-employee or employee-employee relations.
Under the Anti-Sexual Harassment Bill, the tribunal is empowered to order the respondent to pay damages of not more than RM250,000 to the complainant.
The tribunal cannot hear sexual harassment complaints that are the subject of court proceedings that began before the complaint was brought to the tribunal, unless the claims before the court are dropped, or if the complaint is of a criminal nature under any written law.
Women’s groups previously called for a review of the Anti-Sexual Harassment Bill to, among other things, extend the definition of sexual harassment, saying that the proposed law should recognise instances where the harassment is not directed at a particular individual, but creates an offensive, hostile, or intimidating environment.
