Thursday, September 06, 2012

Despite CEDAW, women workers in the private sector are not protected from discrimination

Women in Malaysia, despite Malaysia's ratifying of CEDAW, continue to be discriminated against. This would include women workers in the private sector..

Even though, Malaysia's constitution guarantees is not for all. Some in Malaysia can discriminate on grounds of gender, etc and it is allowed..and legal.

8.  Equality.

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
[Am. Act A1130]
(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.

(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.

(5) This Article does not invalidate or prohibit -
(a) any provision regulating personal law;
(b) any provisions or practice restricting office or employment connected with the affairs of any religion or of an institution managed by a group professing any religion, to persons professing that religion;
(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;
(d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;
(e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day;
(f) any provision restricting enlistment in the Malay Regiment to Malays.
And, the fact is that this guarantee of equality and/or non discrimination only is for workers employed by government and government agencies - not to workers employed in the private sector. This came to light, amongst others, in the Beatrice Fernandez case. Recently the same was reiterated in the Guppy Plastic case - whereby this case challenged the fact that women were required to retire at 50 and men at 55 claiming that this was discrimination on the grounds of gender...

To invoke art. 8 of the Federal Constitution, the applicant must show that some law or action of the Executive discriminates against her so as to controvert her rights under the said article. Constitutional law, as a branch of public law, deals with the contravention of individual rights by the Legislature or the Executive or its agencies. Constitutional law does not extend its substantive or procedural provisions to infringements of an individual' s legal right by another individual. - BEATRICE  FERNANDEZ v. SISTEM PENERBANGAN MALAYSIA & ANOR, Federal Court, 11 May 2005
We want the guarantee of equality and non-discrimination on the basis of gender, etc for everyone in Malaysia. It must be a guarantee enjoyed by all workers, both in public and private sector.

Laws can be enacted that rights contained therein will supercede existing contracts and agreements, and as a precedence we have that in Malaysia's Employment Act 1955, whereby section 7 does this...It matters not what your employment contract says, you can rely on better terms, conditions and rights contained in the law...

7.  More favourable conditions of service under the Act to prevail.
Subject to section 7A, any term or condition of a contract of service or of an agreement, whether such contract or agreement was entered into before or after the coming into force of this Act, which provides a term or condition of service which is less favourable to an employee than a term or condition of service prescribed by this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder shall be void and of no effect to that extent and the more favourable provisions of this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder shall be substituted therefor.

7A.  Validity of any term or condition of service which is more favourable.
Subject to any express prohibition under this Act or any regulations, order or other subsidiary legislation whatsoever made thereunder, nothing in section 7 shall be construed as preventing an employer and an employee from agreeing to any term or condition of service under which an employee is employed, or shall render invalid any term or condition of service stipulated in any collective agreement or in any award of the Industrial Court, which is more favourable to the employee than the provisions of this Act or any regulations, order, or other subsidiary legislation whatsoever made thereunder.
Likewise, should not the fundamental rights/liberties guaranteed in our Constitution, i.e. the guarantee of equality and equal treatment...the guarantee that there will be NO discrimination on the basis of GENDER, etc also apply to all in Malaysia. 

We have been independent for 55 years, but the government has failed to ensure that women are not discriminated against on the basis of their gender... 

WOMEN workers not being employed by government or government agencies are still being discriminated against in Malaysia

Malaysia ratified/aceded/signed the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995, and in 2001, the Federal Constitution to include 'gender' in Art 8(2)...but in reality private corporations and employers are still free to discriminate women - women workers...

When Malaysia ratifies/signs a UN Convention, it is best that an Act be enacted that clearly states that all rights and obligations contained therein is now part of Malaysian law, and overrides all provisions in other existing laws and subsidiary legislation that is contrary to the said Convention. Now, what is done is that the Government makes amendment in this law and that to ensure compliance - and, of course, some may be missed out by the law makers/drafters - but if there exist a law that immediately puts into effect UN, ILO or other Conventions and/or Instruments that Malaysia has already publicly adopted/accepted/acceded to/signed/ratified, it would be good for all in Malaysia and  these can be raised in courts... And, the courts' findings will assist the government to make the necessary amendments to the laws to bring it in line with the said Convention...

This really is not a new thing. For even today, many existing laws/regulations/etc are being challenged as being contrary to the Federal when CEDAW was ratified, by law it should have immediately been put into effect by such a law... Slowly, the government law drafters can vet the hundreds of existing law and make necessary amendments as they find inconsistencies and non-compliance with CEDAW...

I am sure CEDAW does not women workers, by virtue of they being in the private sector and not in the public sector, to be discriminated by reason of their gender. This state of affairs itself is DISCRIMINATION - for people are being discriminated on the basis of who their employer is, i.e. the government or some private corporation/company/person..

What is scary is that every worker, not in the employ of government or government bodies, can be discriminated against on the basis of religion, race, descent, place of birth or gender

I wonder also why  Art. 8(2) only refers to citizens and not all persons as in Art. 8(1)

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