Press Statement by Labour Law Reform Coalition on 27 October 2021 via Zoom. The above picture shows the press conference on the same day.
While LLRC welcomes the positive amendments in the Employment Bill, we urge the government to restore the previous proposals by the Ministry of Human Resources
Labour Law Reform Coalition (LLRC), a coalition of 58 trade unions and NGOs, welcomes the positive amendments in the Employment Bill 2021 (EB2021), which was tabled for first reading at Parliament on 25 October 2021.
We are glad that the government responded to our demands for accelerating the reforms of Employment Act 1959 and Trade Union Act 1959. LLRC submitted on World Day for Decent Work a memorandum to the Prime Minister on 7 October 2021.
We would like to point out several provisions that are expected to have positive impacts on the rights of workers :
1.1 The increase of appeal period from 14 days to 21 days (Section 4)
1.2 The increase of maternity leave from 60 days to 90 days (Section 37)
1.3 The introduction of paternity leave of consecutive 3 days for spouses (Section 60FA)
1.4 The introduction of new section on forced labour (Section 90B), which can deter unscrupulous employers from restricting the movement of workers
1.5 The introduction of discrimination in employment provision (Section 69F)
1.6 The amendment of “domestic servant” to “domestic employee” (Section 2 & consequential)
1.7 The increase of penalty from RM10,000 to RM50,000 (in general)
1.8 The introduction of flexible working arrangement (Section 60P)
However, we are concerned that the EB2021 has dropped several significant reforms, which were included in the previous proposal of the Ministry of Human Resources (MOHR). For instance :
2.1 The 44 hour work week (Section 60A)
Initially, the MOHR proposal suggested maximum weekly working hours to be reduced from 48 hours to 44 hours, which is equivalent to 5 and a half days work. But the EB2021 shows it has been reduced to 45 hours. We call on the government to keep the original proposal of 44 hours. It is crucial to protect our workers’ right to leisure and family time. A survey shows that Malaysian workers are overworked and sleep deprived.
2.2 Equal protection for all workers (First schedule)
The EB2021 fails to mention amendment of the First Schedule, primarily the cap on salary. The former Prime Minister had announced earlier that the Act would be amended to apply to all private sector workers without a salary limit. This is a big concern that ought to be clarified by the government, because Section 69B that extended the Director-General’s power to investigate complaints whose monthly wages below five thousand was removed. The EB2021 also deletes sections 44A and 81G, which currently extend maternity protection and sexual harassment provisions to all employees.
2.2 Employers’ responsibility for workers who work at night (60A)
While we support the removal of Section 34-36 on prohibition of night work for women, as a step towards gender equality and compliance with ILO standards, we are surprised that section 60A(10) in the MOHR proposal that requires employers to ensure safety and provide transport service for workers involved in night work was removed from the EB2021. It is the responsibility of employers to implement measures to ensure workers’ safety regardless of gender if workers are required to work at extraordinary hours.
2.4 The provision of pre-employment provision (Part IA of MOHR proposal)
MOHR proposed a new section IA titled Pre-Employment that prohibits discrimination at the pre-employment stage of employment recruitment process. The section emphasizes that an employer shall not discriminate against a job seeker on the grounds of gender, religion, race, disability, language, marital status and pregnancy. The proposal upholds article 8 of The Federal Constitution that all persons are equal before the law and entitled to the equal protection of the law. This progressive section should not have been excluded from EB2021.
2.5 Lack of definition and criteria in anti-discrimination provision (Section 69F)
Section 69F stipulates that “the Director General may inquire into and decide any dispute between an employee and his employer in respect of any matter relating to discrimination in employment”. However, there is neither a definition of discrimination in section 2, nor a criteria of grounds for discrimination such as gender, religion, race, or disabilities stated in the MOHR’s previous proposal. The current section in EB2021 is relatively weak in comparison with the original proposal.
2.6 The provision of written code on sexual harassment
MOHR’s original proposal of section 81H contained a paragraph that requires employers to prepare a “written code on prevention of sexual harassment at the place of employment”. The section has been watered down and now only requires an employer to exihibit a notice to raise awareness on sexual harassment. If the government is envisioning Malaysia to be a civilized nation and a “Malaysian family” that respects everyone’s dignity, a written code on sexual harassment at workplaces will show the government’s commitment. Necessitating a written code provides a definition and guidelines of what constitutes sexual harassment at one’s workplace, therefore making the process of grievance against harassment clearer.
2.7 Paternity leave
The introduction of paternity leave is meaningful, but the 3-day consecutive paternity leave gives very limited benefits to spouses if wives are giving birth on Friday. The spouses can only enjoy one day extra leave. Therefore, the government should increase paternity leave to 7 days or more.
2.8 Domestic workers’ rights
During consultation meetings with domestic workers advocacy groups, MOHR promised that the new bill will include a provision that protects domestic workers’ right to a rest day, but the EB2021 excluded this change for domestic workers with the exception of changing the term from “domestic servant” to “domestic employee”. The government should clarify this matter.
2.9 Termination of employment of foreign employee (Section 60KA)
We hope that the government can insert a subsection that in the event there is a labour dispute lodged at the labour office or industrial court, the director-general shall request the immigration to issue a special pass for foreign workers until the dispute is resolved. This is very important because when some Malaysian employers failed to fulfill their duty to pay wages and benefits to foreign workers, they terminated foreign workers and deported them immediately. This is unjust, foreign workers have the right to seek redress through our labour management system.
In addition, there are at least two provisions in the Employment Bill that lack clarity and purpose :
3.1 Interpretation and calculation of monthly wages (Section 60I)
With the change of section 60A(1) relating to hours of work, there should be a consequential change in the Section 60I on calculation of monthly wages. However Section 60I remains unchanged. Given that some companies require workers to work on alternate Saturdays, the proportional wages should be divided by 24 days instead of 26 days. The weekly rate of pay should also be divided by 5.5 instead of 6. These changes are vital to avoid different interpretations and misuse of the section for exploitation.
3.2 Presumption as to who is an employee and employer until the contrary is proved (Section 101C)
The MOHR should clarify the intended area of application of this provision. Although the new section is seemingly aiming at regulating all types of work in the absence of a contract (for instance in regard to e-hailing workers) and in line with ILO Employment Relationship Recommendations 2006, MOHR should clarify whether it would lead to expansion of contractors for labour phenomenon. Moreover, the Minister should use its power under section 2 to define e-hailing workers as workers to protect their right to form unions and bargain collectively.
We call on the government to restore the above reforms stated in the previous proposal of the Ministry of Human Resources. The government should show its commitment in enhancing the well-being of workers in Malaysia by including the provisions before the bill is passed in both houses.
The government should make consequential amendments to Section 60I since the hours of work have been changed. It is important to understand the original purpose of the Section 101C and the intended area of application.
Furthermore, we acknowledge that labour law reform is a continuous process. When this round of Employment Act amendments is concluded, the Ministry of Human Resources should continue to engage stakeholders to deliberate further reforms of the Act.
We sincerely urge the government to accept our following reform proposals in the next phase of labour law reform exercise :
4.1 The government should either abolish the whole section on contract for labour or minimize its scope of application in consultation with International Labour Organization (ILO), Malaysian Trades Union Congress (MTUC), LLRC, other trade unions and NGOs.
4.2 As Malaysia is on a stable path to becoming a high-income nation, the government should further amend section 60A to implement 40 hours of work per week in the next round of Employment Act amendments.
4.3 Given that the Philippines has increased its maternity leave to 105 days and Thailand has increased to 98 days. Malaysian workers should also be entitled to 98 days paid maternity leave in accordance with ILO Convention 183 on maternity protection. The government should also progressively increase the paternity leave to 14 days.
4.5 As workers in Malaysia have minimum annual leave, the government should ensure workers enjoy all gazetted federal and their state public holidays
4.6 While recognizing the government’s effort to introduce the discrimination provisions, we call on the government to further strengthen the provisions in both pre-employment and in employment discrimination, A clear definition of discrimination should be included to address both direct and indirect discrimination against women. The ILO C111 Convention on Discrimination should be the reference point. Equal pay for work of equal value as defined by Convention 100 should also be included.
4.7 The government should withdraw the restrictions on employment of foreign spouses. The statement of prohibition from employment from the visas of foreign spouses of Malaysians should be removed. This will positively impact women in binational marriages and ensure their economic autonomy.
4.8 The forced labour section should be further strengthened by giving a comprehensive definition and criteria for enforcement. A strong forced labour section in the Employment Act will have an interlocking impact with Passport Act that prohibit confiscation of travel documents. The government should allocate budgets to educate employers and the public to prevent illegal restriction of movement of migrant workers and domestic workers.
N. Gopal Kishnam & Irene Xaiver
Labour Law Reform Coalition