Make contents of legislation affecting women public
Published on: Sunday, March 27, 2022
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Once gazetted, the amendments to the Employment Act 1955, as passed by the Dewan Rakyat on March 21, will have full effect of the law. Regrettably, this well-intended renaissance of maternity rules is not without flaws.
For one thing, Section 44A, which made maternity leave and other maternity protections available to all female employees regardless of their salary, has been repealed.
As a result, the Act’s maternity leave provisions will no longer apply to women earning more than RM2,000 per month, as stated in Schedule 1.
The fundamental objective of the Employment Act is to safeguard workers earning less than RM2,000 per month.
Prior to the 2012 amendment, it was significantly lower at RM1,500.
The idea is that higher-paid employees with monthly earnings over RM2,000 would be governed by the provisions of their employment agreement.
Employers would decide the benefits, and employees would sign on if they agreed to the terms.
On the other hand, those earning less than RM2,000 lack bargaining power when it comes to negotiating employment benefits, and hence rely on the Act’s benefits as a guideline or “bare minimum”.
S44A is special as it makes Part IX of the Act regarding maternity protection applicable to all female employees irrespective of their wages.
When introducing the amendment Bill, deputy Human Resources Minister Datuk Awang Hashim stated that S44A was repealed “with the intention to extend the entire Employment Act to all employees, including those earning more than RM2,000,” which will be accomplished through a Ministerial Order that’s in the drafting stage now.
This results in two significant complications. First, an Order may take months to complete, and it is said to be only in the drafting stage at the moment.
If the amendments to the Act are gazetted before the Order is finalised, the repeal of S44A becomes law, putting all working women earning more than RM2,000 a month in a precarious situation for some time since they are not covered by the Act’s maternity protections.
Second, it creates a paradox. If the upcoming Ministerial Order eliminates all salary levels, the Employment Act will apply to all Malaysian female employees. Not only will this defeat the Act’s stated objective of providing the “bare minimum” legal protection for lower-paid workers, but it will also create turmoil for the country’s Human Resource Departments, which will be forced to adhere to the entire Act immediately, even for employees earning more than RM2,000.
If the upcoming Order simply amends the First Schedule of the Employment Act to widen the definition of “employee” from those earning less than RM2,000 a month to, say, perhaps RM3,000, this would significantly expand the scope of the Act.
It would also mean that some categories of female workers would continue to be excluded from the protection S44A previously provided to them.
At this point, the specific contents of the Order are unknown. The ministry must promise to publish the specific contents prior to the Bill becoming law.
To summarise, do not fix anything that is not broken. S44A worked well and has made a significant improvement in the lives of Malaysian mothers since its implementation in 2012. There is no reason to complicate matters.
During the post-partum phase, mothers are extremely vulnerable. Legislation is intended to protect women during this most challenging period. If the repeal of S44A was an oversight, it would be better to admit it rather than to drag it out indefinitely, thus causing havoc for mothers.
Chan Quin Er, Kuala Lumpur
(The writer is a lawyer and also MCA central committee member.)
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