Thursday, June 18, 2009

Rest Day and other Rights for Domestic Worker - It MUST be legislated.

Let us consider the Malaysian Employment Act 1955 - and consider whether it covers the domestic worker..

YES - it does, and term that is uses is 'domestic servant' - and its definition, in section 2 is as follows:-

"domestic servant" means a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child's nurse, valet, footman, gardener, washerman or washer-woman, watchman, groom and driver or cleaner of any vehicle licensed for private use;

First, we must campaign that the more dignified term, i.e. 'domestic worker', be inserted to replace the term 'domestic servant'.

The definition is wide enough...and is open, and that is good.

PART XI - Domestic Servants, - yes this is in Malaysia's Employment Act 1955

PART XI
DOMESTIC SERVANTS

57. Termination of contract.

And, section 57 is as follows:-
Subject to any express provision to the contrary contained therein, a contract to employ and to serve as a domestic servant may be terminated either by the person employing the domestic servant or by the domestic servant giving the other party fourteen days' notice of his intention to terminate the contract, or by the paying of an indemnity equivalent to the wages which the domestic servant would have earned in fourteen days:

Provided that any such contract may be terminated by either party without notice and without the paying of an indemnity on the ground of conduct by the other party inconsistent with the terms and conditions of the contract.

Thus, the domestic worker is recognized by Malaysian Law - and the porblem is really in the First Schedule - which lists out categories of workers, and the sections within the Employment Act 1955 which is not applicable to them.

Looking at row/number 2 (5)
2. Any person who, irrespective of the amount of wages he earns in a month, has entered into a contract of service with an employer in pursuance of which- ...(5) he is engaged as a domestic servant, it is clearly lists the Provision of the Act not applicable - i.e. Sections 12, 14, 16, 22, 61 and 64 and parts IX, XII and XIIA of the Employment Act.


With regard the domestic servant, it is clearly stated that the following sections of the Employment Act are not applicable to them, being:- Section 12 (Notice of termination of Contract), 14 (Termination of Contract for Special Reasons), 16 (Employees on Estates to be provided with minimum number of days’ work in each month), 22 (Limitation on advances to employees), 61 (Employers Duty to Keep Register), 64 ((Employers Duty to display notice boards), Part IX (Maternity Protection), Part XII (Rest Days, Hours of Work, Holidays And Other Conditions of Service) and Part XIIA (Termination, Lay-Off And Retirement Benefits. (See also earlier post: Domestic Workers entitled to worker rights

Thus, what the fight is for domestic workers to be accorded more rights just like other workers...

Section 59 of the Employment Act 1955 deals with Rest Days ... and we have to consider whether this should be applicable to the domestic worker as it is, or maybe amended.

Few points that need be highlighted..

* Rest Day - this need not be Sundays, and if so there is a requirement that the employer informs the worker in advance as to what will be the rest day. "...employer shall prepare a roster before the commencement of the month in which the rest days fall informing the employee of the days appointed to be his rest days therein, and where the same day in each week has been appointed as the rest day for all employees in the place of employment, the employer may, in lieu of preparing a roster, display a notice at a conspicuous place in the place of employment informing the employee of the fixed rest day so appointed..."

*
Rest Day - is it going to be 24 hours continuous or 30 hours continuous? For the Domestic Worker, like the 'shift worker' - maybe it should be 30 hours continuous.

59. Rest day.

(1) Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week the last of such rest days shall be the rest day for the purposes of this Part:

Provided that this subsection shall not apply during the period in which the employee is on maternity leave as provided under section 37, or on sick leave as provided under section 60F, or during the period of temporary disablement under the Workmen's Compensation Act, 1952, or under the Employees Social Security Act, 1969.

(1A) Notwithstanding subsection (1) and the interpretation of the expression "day" in section 2(1), in the case of an employee engaged in shift work any continuous period of not less than thirty hours shall constitute a rest day.

(1B) Notwithstanding subsection (1), the Director General, on a written application by an employer and subject to any conditions he may deem fit to impose, may permit the employer to grant the rest day for each week on any day of the month in which the rest days fall and the day so granted shall be deemed to be the employee's rest day for the purposes of this section.

(2) The employer shall prepare a roster before the commencement of the month in which the rest days fall informing the employee of the days appointed to be his rest days therein, and where the same day in each week has been appointed as the rest day for all employees in the place of employment, the employer may, in lieu of preparing a roster, display a notice at a conspicuous place in the place of employment informing the employee of the fixed rest day so appointed.

(3) Every such roster and every particular recorded therein shall be preserved and shall be made available for inspection for a period not exceeding six years from the last day of the month in respect of which the roster was prepared or cause to be prepared.

(4) Any employer who contravenes any of the provisions of this section commits an offence.

While, we have started discussing 'Rest Days', it may also be good to talk about PAID Annual Leave, PAID Public Holidays, PAID Sick Leave & Hospitalization Leave, and also Hours of Work.

In fact, there are so many other issues that need to be addressed as well...

It is of new use for the Ministry of Human Resources to come out with yet another Standard Form Agreement, but they need to legislate to ensure that rights and responsiblities of both the domestic worker, and the employer, are clearly in our law. Remember, the Immigration Department (under the Home Ministry) already had such standard Agreements since early 2006 - which could also be found online at their website.

Jordan, apparently, has a specific Act that . South Africa and Jordan has legislations to provide for rights and protections to domestic workers, and in Taiwan, a Bill for Household Services was tabled before Parliament sometime in 2006 (not sure what happened to that).

In any event, as a guideline, the South African law that governs domestic workers..could be found at http://www.labourguide.co.za/domestic_section.htm

1 comment:

Bob said...

CH
Curious to know what will happen when these maids take their day off. Those who have Filipino maids, have seen vultures descend among them trying to woo them over food/chocolates/candy to spend time with them and ease their loneliness.
I have no issue with maids having time off, but not with them having to take a day off outside of my home is worrisome.