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The New Employment Law Amendments: What Have Been Missed Out? [Part 2]

In Part 1, we discussed the issues of the coverage of the employment law and the status of labour workers. In Part 2, we will address the issue of leaves and discrimination at work. The objective of this article is to help you understand the important issues that have been missed which may impact you directly or indirectly and why they ought to have been included in this round of the employment law amendments.

Leaves

(a) Paternity Leave

The employment law prescribes different types of paid leaves which include sick leave, paid annual leave, maternity leave etc. However, it did not include paternity leave. Under the Amendment Law, it initially introduced 3 days of paternity leave and it was subsequently increased to 7 days after a few rounds of discussions by the MPs. While this is a celebrated move, the MPs also put forward a few suggestions which can be incorporated to enhance the paternity protection:

(i) Introduce an Australian concept of Flexible Parental Leave Pay (90 days leave with 30 days working from home leave);

(ii) to make the 7 days paid leaves non-consecutively (because not everyone needs to take one whole week off);

(iii) introduce longer paternity leave such as 14 days leave practiced by Norway and Sweden; 5 days leave by Myanmar; 10 days leave by South Korea, etc.

(iv) introduce a shareable parental leave of up to 30 days. (i.e. mother and father can share and swap depending on their needs and availability).

(b) “Cuti Iddah

One MP proposed to include “Cuti Iddah” as a compulsory leave in the Amendment Law. He suggested to provide 30 days of “Cuti Iddah” to female employees who unfortunately lost their husbands. This leave will enable them to better cope with sadness and to manage their emotions due to the passing of their loved ones. If this is the case, female employees will be entitled to two benefits which are maternity leave and “Cuti Iddah”.

Some companies in Malaysia do provide in their employment contract at least 3 days bereavement leave in the event an employee’s spouse or other family members pass away, so that the employee can take some time off to settle and manage the funeral process. However, bereavement leave is not offered by all companies because it is not a compulsory leave mandated by law yet. That said, we also take the view that while such leave is good to have, to offer 30 days leave might seem a little unduly long.

Workplace Discrimination

(a) The definition of “discrimination”

Although Section 69F in the Amendment Law empowers the Director General of Labour to investigate disputes regarding discrimination in the workplace, the word “discrimination” itself is not defined at all in the Amendment Law. A clear definition would prevent any form of arbitrary interpretation and give more certainty to implementation and enforcement. The Deputy Minister of Human Resources subsequently indicated that his Ministry is preparing a specific guideline on the definition and elements of discrimination in workplace, which is a laudable approach in our view.

Having said that, we also take the view that any important definition should have been properly dealt with in the Amendment Law itself, rather than leaving it to another piece of guidelines or orders, especially we note that a definition of “Discrimination” was actually included in the draft Amendment Law proposed back in 2018.

(b) Discrimination on job seekers

The protection against discrimination is only relevant for discrimination at work, available for employees who fall under the employment law. Papar MP Haji Ahmad bin Hassan suggested that the discrimination provision should also extend to job seekers as well, since many job seekers encountered certain forms of unfair discrimination by potential employers, such as discriminatory remarks in the form of gender, religion, disability, marital status, pregnancy and language. In fact, this suggestion is in line with the draft amendment that was proposed back in 2018.

Since our employment law only governs employment relationship, it covers only employment discrimination and it may be difficult for it to also extend to job seekers as there is no existing employment relationship in the first place. Nevertheless, the Deputy Minister of Human Resources suggested that job seekers who experienced any form of unfair discrimination can choose to lodge a complaint via an app called “Woking for Workers” developed by the Ministry of Human Resources.

(c) Wearing Tudung to Work

Pasir Mas MP, Ahmad Fadhli bin Shaari suggested that the right of Muslim female employees wearing tudung to work should be protected and if any employer prevents any Muslim female employee from wearing tudung to work, that should constitute an offence under the employment law.

This suggestion would not only protect the right of Muslim female employees in honouring their religious practice, but it would also echo the spirit of preventing discrimination at work. However, Sepang MP Mohamed Hanipa bin Maidin said that this right need not be specifically stated in the employment law as the newly inserted provision relating to employment discrimination would cover this issue.

(d) The Enforcement Authority

The enforcement authority on the issue of discrimination in the workplace is the Director General of Labour. This raises the question of whether the Director General is the most suitable person to deal with this issue. For instance, in the United States, the Equality Employment Opportunity Commission is tasked to handle any issue of workplace discrimination against job seekers and employees in the workplace. In Hong Kong, the Equal Opportunities Commission was established to implement and enforce the anti-discrimination laws.

It is interesting to note that back in 2018, the Department of Labour from the Peninsular Malaysia had conducted a comprehensive study on the implementation of Equal Employment Opportunities (EEO) in Malaysia where the said study referred to the practices in several countries such as the United States, the United Kingdom and Singapore. However, we have yet to see any development on this front yet and it is hoped that the Government would implement an EEO to prevent workplace discrimination in the near future.

Some of these key points as discussed here and in Part 1 appear to be quite important but it is unfortunate that our Parliament did not seize the opportunity to have them included this round. It is hoped that the Government will review the suggestions proposed by our MPs and propose further amendments again in the future.

 

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About the author:
This article was written by Edwin Lee Yong Cieh, Partner and Wong Shen Ming, Trainee Lawyer – law firm in Kuala Lumpur, Malaysia.
 
The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.

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