SEXUAL HARASSMENT - The Malaysian Bar at its recent AGM also passed a Resolution, which reaffirms commitment to combat sexual harassment at the workplace, and also about the development of an effective mechanism of complaint and redress for victims of sexual harassment - see the said RESOLUTION at the Malaysian Bar Website.
Whilst the Bar Resolution seems concerned about internal mechanisms, one must never forget that the Employment Act today has law that covers all workplaces - and that includes all law firms as well. That law gives rights to employees - but alas, in law firms there are non-employees, being pupils and interns as well.
Malaysia currently has law governing the complaints mechanisms/procedure concerning sexual harassment of the workplace in the Employment Act 1955, which, I verily believe, is in serious need for reform. The following Chapter and sections came into force since April 2012.
There are many serious problems with this current law
1- Complaints are inquired into by the EMPLOYER - not the DG of Human Resources. The only exemption is when the complaint is against the sole proprietors, then the DG will look into it.
Section 81D(1) - (1) If a complaint of sexual harassment is made to the Director General, the Director General shall assess the complaint and may direct an employer to inquire into such complaint.
Section 81D(3) - (3) If a complaint of sexual harassment received by the Director General is made against an employer who is a sole proprietor, the Director General shall inquire into such complaint himself in a manner prescribed by the Minister.
2. In and when the DG inquires into a complaint, then finds that the complaint is true - the penalty stipulated for the PERPETRATOR - what happens - well the complainant may resign without notice. What about the perpetrator? Nothing happens?
81E(1) Where the Director General decides under subsection 81D(4) that sexual harassment is proven, the complainant may terminate his contract of service without notice.
3) If the inquiry was conducted by the EMPLOYER - then no remedy for the VICTIM is provided, and for the perpetrator, well, disciplinary action against perpetrator if employee. If not perpetrator not employee, then refer to relevant disciplinary authority only. What be the minimum penalty?
81C Findings of inquiry by employerWhere the employer conducts an inquiry into a complaint of sexual harassment received under subsection 81B(1) and the employer is satisfied that sexual harassment is proven, the employer shall-
(a) in the case where the person against whom the complaint of sexual harassment is made is an employee, take disciplinary action which may include the following:
(i) dismissing the employee without notice;
(ii) downgrading the employee; or
(iii) imposing any other lesser punishment as he deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of two weeks; and
(b) in the case where the person against whom the complaint of sexual harassment is made is a person other than an employee, recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to.
- Note there is no minimum penalty provided for the perpetrator
- Non-employees - this could also be Company Directors - anyway, what exactly is an 'appropriate disciplinary authority' - if such even exists for certain categories of 'perpetrators'
- Is there NO REMEDY for the victim of sexual harrassment in this law? Or must the victim commence another civil suit for damages to get justice?
4) OTHER problem is that both Employer and/or DG can refuse to inquire for certain reasons:-
If by DG
if-
(a) the complaint of sexual harassment has previously been inquired into by the Director General and no sexual harassment has been proven; or
(b) the Director General is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.
If by employer...
'...an employer may refuse to inquire into any complaint of sexual harassment as required under subsection (1), if-
(a) the complaint of sexual harassment has previously been inquired into and no sexual harassment has been proven; or
(b) the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith...'
If unhappy with decision of employer not to inquire - can refer to DG and DG then will direct the employer to inquire....
ALL IN ALL THE LAW IS LACKING - Should it not provide for ADEQUATE REMEDIES for VICTIMS, and set clear deterrent penalties for PERPETRATORS?
Should not all the INQUIRIES be not conducted by the DG - as in all other complaints of worker rights violations? Will employers even be able to conduct inquiries against some senior employees, their fellow Directors or shareholders, or an 'important' customer or business fried?
SEXUAL HARRASSMENT really should also be CRIMINALIZED - it should be made into a criminal offence...
SADLY even the worker representative of Malaysia(Malaysian Trade Union Congress - MTUC) voted against the ILO Convention on Sexual Harassment and Violence - and our government(then the PH Plus government) embarrassingly abstained.
Does this all mean that trade unions, employers and even the Malaysian government is simply not bothered enough about SEXUAL HARASSMENT?
Remember that just recently Malaysian government ABSTAINED, and the Malaysian worker and employer representatives OPPOSED an ILO Convention on Sexual Harassment..
The government took a neutral stand on the ILO Convention on Sexual Harassment and Violence because it did not wish to be in conflict with its stakeholders. Human Resources Minister M Kulasegaran also pointed to a similar stance by Singapore when explaining the heavily criticised decision by the Malaysian government to abstain from voting on it with the MTUC and the MEF voting to reject the clause. - - Malaysiakini, 27/6/2019
With regard to Trade Unions, well there are still some that are concerned about the issue of SEXUAL Harassment - and in a media statement today - is calling for the enactment of a SEXUAL HARASSMENT ACT.
The Jawatankuasa Wanita IndustriALL Malaysia(IndustriALL Women's Committee in their statement today calls for the empowerment/strengthening of the provisions in the Employment Act 1955 and/or the enactment of specific law on Sexual Harassment to combat and end sexual harassment...sadly, the statement below was available to me only in the Malay language at the time of posting. (see full statement below)
Kami menyeru kerajaan sekurang-kurangnya memperkasakan mekanisme siasatan gangguan seksual dalam Akta Kerja 1955, malah kami juga memberi sokongan sepenuhnya kepada inisiatif menggubal satu Akta Anti-Gangguan Seksual tersendiri.
Malaysia can act against sexual harassment and even enact an act without even having to ratify/sign any UN or ILO Convention. Even when UN/ILO Convention is ratified/signed by Malaysia, Malaysians benefit nothing until the relevant laws are amended or enacted...a sad state of affairs it is.
Maybe Malaysia need to enact a law that immediately makes the rights and obligation provided for in such UN or ILO convention becoming legally enforceable in Malaysia.
There are rumours that a Sexual Harassment Bill will soon be tabled in the Parliament - but again, I stress, that it is important that such proposed Bills be available to the public for their comments/inputs. The tabling of Bills in Malaysian Parliament sometimes is done so fast - that even Members of Parliament do not have sufficient time to have consultation with their constituents.
See also relevant earlier posts:-
Why 'Sexual Harassment' proposed amendments to Employment Act must be withdrawn and repealed?
Why 'Sexual Harassment' proposed amendments to Employment Act must be withdrawn? (this is a re-posting of an earlier Blog Post - still most relevant..)
(see also:- .JAG :- Employment Act amendments piecemeal and unjust)
SHAMEFUL when MTUC vote against abolition of harassment at work?Government abstains?See full Convention
Marital Rape should be a crime - but Malaysia, unlike Singapore, says 'NO'?
Kenyataan Media Jawatankuasa Wanita IndustriALL Malaysia pada 22hb Mac 2021 di Petaling Jaya
Pekerja wanita sektor pembuatan menggesa kerajaan menjamin cuti bersalin 98 hari berbayar dan memperkenalkan Akta Anti-Gangguan Seksual
Jawatankuasa Wanita IndustriALL Malaysia, mewakili beribu-ribu pekerja-pekerja wanita di sektor pembuatan di Semenanjung Malaysia, menggesa kerajaan Malaysia segera meratifikasikan Konvensyen 183 dan Konvensyem 190 Pertubuhan Buruh Antarabangsa (ILO) demi perlindungan hak-hak wanita.
Walaupun Malaysia telah dikategori sebagai negara berpendapatan menengah ke atas (upper-middle income countries), hak-hak dan faedah-faedah pekerja wanita masih ketinggalan zaman. Misalnya cuti bersalin berbayar Filipina telah bertambah ke 105 hari, di Thailand telah bertambah ke 98 hari, pekerja wanita Malaysia di sektor swasta masih menikmati cuti bersalin berbayar 60 hari sahaja di bawah Akta Kerja 1955. Lain pula dengan sektor awam yang mendapat cuti bersalin 90 hari.
Konvensyen 183 berkenaan perlindungan materniti mewajibkan kerajaan menjamin cuti bersalin berbayar 98 hari (14 minggu), ia menjadi satu piawaian antarabangsa apabila ILO meluluskan Konvensyen tersebut pada tahun 2000.
Sebenarnya, Konvensyen 103 ILO pada tahun 1952 telah mewajibkan cuti bersalin berbayar 84 hari (12 minggu). Jelasnya, undang-undang sedia ada kita telah gagal mencapai piawaian antarabangsa 70 tahun dahulu.
Selepas MTUC dan MEF menolak Konvensyen 190 berkenaan keganasan dan gangguan (seksual) dan kerajaan Malaysia mengambil sikap berkecuali dalam persidangan ILO di Geneva pada Jun 2019, pimpinan baru badan-badan tripartit belum menunjukkan pendirian jelas mereka dalam isu ratifikasi Konvensyen 190.
Ratifikasi Konvensyen 190 adalah penting kerana undang-undang Malaysia kini tidak mencukupi untuk membanteras perlakuan gangguan seksual di tempat kerja dan di ruang awam.
Akta Kerja 1955 meletakkan semua tanggungjawab ke atas majikan dalam siasatan gangguan seksual, mekanisme ini tidak mencukupi melindungi hak-hak pekerja wanita sebab jika pihak atasan di tempat kerja merupakan pelaku gangguan seksual, umumnya pihak pengurusan akan berpihak kepada pihak atasan.
Kerajaan harus memahami hubungan kuasa tidak sama rata di tempat kerja dan cuba menyelesaikan punca masalah ini.
Setelah meratifikasi Konvensyen 190, kerajaan harus menggubal atau meminda undang-undang untuk mencegah keganasan berdasarkan gender dan gangguan seksual di dunia kerja.
Kami menyeru kerajaan sekurang-kurangnya memperkasakan mekanisme siasatan gangguan seksual dalam Akta Kerja 1955, malah kami juga memberi sokongan sepenuhnya kepada inisiatif menggubal satu Akta Anti-Gangguan Seksual tersendiri.
Kuasa kepada wanita, Hak saksama antara wanita dan lelaki!
Idawati Idrus & Selvakumari Abraham
Pengerusi Bersama
Jawatankuasa Wanita IndustriALL Malaysia
Nota: Jawatankuasa Wanita IndustriALL Malaysia mewakili pekerja-pekerja wanita di:
- Gabungan Kesatuan Sekerja Industri Elektronik (EIEU),
- Kesatuan Pekerja-Pekerja Perusahaan Letrik (EIWU),
- Kesatuan Kebangsaan Pekerja-Pekerja Syarikat-Syarikat Pembuat Keluaran Getah (NUECMRP),
- Kesatuan Pekerja-Pekerja Pembuatan Kertas dan Produk Kertas (PPPMEU),
- Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan Alat-Alat Pengangkutan dan Sekutu (NUTEAIW).
In Malaysia, virtual International Women’s Day celebration repeats calls for Sexual Harassment Bill to be tabled, end to child marriages
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KUALA LUMPUR, March 8 — The 2021 International Women's Day (IWD) celebration kicked off under the new normal today, with women mostly taking to social media platforms to express their grouses, demands and hopes for the fairer sex and sexual minorities.
Despite being off the streets this year due to the Covid-19 pandemic, the virtual march dubbed the Women's March KL 2021 still made its "assembly" very much felt, with many sharing photos of the public gatherings which took place in the previous years, echoing similar sentiments and demands, accompanied by #WomensMarchMY.
Illustrator and designer Ann Li designed digital placards for social media users to type their messages and demands, sharing the designs on her Twitter account.
"Not sure if anyone’s interested in these but I made pride themed pickets for #WomensMarchMY! You’re more than welcome to write your demands onto the picket and share without credit," Li tweeted.
Li also welcomed direct messages from those who have specific design requests.Trans-activist Dorian Wilde meanwhile called for an end to all forms of regressions against the often oppressed group.
"Malaysia in the 80s was a very different time for a trans person. You could access legal gender recognition, hormones, surgeries and counselling, no issues. Stop the regression! #WomensMarchMY #PerarakanWanitaMY Thank you @kawliflower for the template!" he tweeted.
Twitter user Tabung Pelangi called for more diversity and equality among the country's leaders, to be able to better represent the diverse community here.
"Happy International Women's Day! There should be more diversity and equality amongst our national leaders to better represent us. Do participate in #WomensMarchMy #PerarakanWanitaMY with your voice!" the tweet read.
As with previous years, many also called for an end to child marriages and for better access to education for girls, tabling of the much awaited Sexual Harassment Bill and to end violence against the LGBT community members.
Social activist Ivy Josiah called on men to join the cause and be part of the solution to the problems faced by women.
"Happy International Women’s Day. #ChooseToChallenge Challenge men to advocate for gender equality. Men must choose to be part of the solution not the problem. #WomensMarchMY," she tweeted.
Those participating in the online campaign today also did not face the onslaught of hate, anger and online abuses, contrary to the animosity they faced in the previous years.
In 2019, organisers of the IWD march, which was held in the city, were investigated by the police under the Peaceful Assembly Act 9 (5) and Sedition Act 4 (1).
The organising committee said public statements by police, politicians and various parties had mischaracterised the march as an “illegal LGBT assembly”, which had caused multiple forms of backlash and had shifted the focus away from the five demands made on the day.
In terms of their demands this time around, the organising committee had in a statement yesterda, stressed that their seven requests from 2020 still remain relevant today, asserting repeated violations of women’s rights and rampant abuse during the ongoing pandemic.
Among their requests include putting an end to violence based on gender and sexual orientation, a ban on all child marriages, calling for the right and freedom to make choices over one’s own body and livelihood, equal pay for work of equal value, and for the administration to legislate the Gender Equality Act.
The committee is also pushing for the government to declare that a climate crisis exists and to formulate a national plan to mitigate its effects and for equal participation between men and women in the public and political circle.
Abuses cited by the committee include incidents of sexual harassment
by policemen at roadblocks, apparent neglect and failure by the Women,
Family, and Community Development Ministry in prioritising the rights of
women and girls, encroachment and deforestation of Orang Asli and Orang
Awal lands, while also bemoaning the lack prosecution of against
perpetrators of sexual harassment and blackmail. - Malay Mail, 8/3/2021
Fresh push for Sexual Harassment Bill (Updated)
Dedicated law needed to address incidence of cases outside workplaces, say women rights groups
PETALING JAYA: There is a greater urgency now to table the delayed Sexual Harassment Bill, given the sharp rise in complaints recently.
All Women’s Action Society (Awam) said it received 162 complaints of sexual harassment last year, which was a 218% increase from 51 cases it had from 2017 to 2019.
There were seven sexual harassment cases reported during the first movement control order (MCO) from March 18 to 25 last year, but the figure spiked to 54 during MCO 2.0 and its extension from Jan 13 to Feb 28 this year.
“During those two periods was when it could also be seen that more online harassment was taking place,” Awam information and communications officer Tan Chia Ee said yesterday.
Activists are also urging the government to have a specific legislation on sexual harassment beyond the workplace.
Currently in Malaysia, the only acknowledged form of sexual harassment is listed under the Employment Act, which relates to sexual harassment at the workplace.
“A comprehensive definition of sexual harassment should not be limited to workplaces but should include public spaces,” Tan said.
“This is because the act can be through various mediums and means such as stalking, sending out personal information, pictures or videos online.”
She said under Section 2 of the Employment Act, sexual harassment means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person that is offensive or humiliating or is a threat to his or her wellbeing, arising out of and in the course of his or her employment.
Association of Women Lawyers exco member Daniella Zulkifli said the rise in complaints could be attributed to awareness campaigns by non-profit organisations and the media’s role in highlighting the issue through its platforms.
However, there is still much to be done as most who chose to file a report still worry about being blamed, shamed or feeling guilty.
“It takes courage to speak out, and survivors need to be given space to do so,” she said.
Daniella and Tan agreed that the Sexual Harassment Bill, in the form of a separate document, is needed to address matters related to it.
The bill is expected to be ready this month and will be tabled in the next Dewan Rakyat session, Bernama reported.
Women,
Family and Community Development Minister Datuk Seri Rina Mohd Harun
said the draft of the bill was in the final stage for scrutiny by the
Attorney-General’s Chambers. - The Sun Daily, 5/3/2021
New Malaysian Bar president vows to strengthen internal mechanism on sexual harassment complaints
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KUALA LUMPUR, March 13 — The new Malaysian Bar president AG Kalidas today vowed to enhance and strengthen the legal body’s sexual harassment complaints mechanism, following numerous cases against lawyers.
Kalidas said the Malaysian Bar has already “worked on something” to address the issues and is treading carefully on the matter.
He said complainants who are not Malaysian Bar members can also file their complaints with the body’s disciplinary board.
“What we intend to do is we will look into our internal mechanism to see if we can somehow entrench the rights of those who should not be harassed in the first place, sexual harassment victims in other words.
“We want to see what we are going to pass will not be deemed ultra vires,” he said, assuring that the Malaysian Bar would look at formulating rulings.
“Perhaps soon we will come up with a ruling as far as sexual harassment is concerned,” he told reporters during his first press conference as Malaysian Bar presidents.
During the Malaysian Bar’s 75th annual general meeting (AGM) earlier, motions requesting that the body make a stand on issues of sexual harassment and on minimum wage for chambering pupils, abolishing the practice of child marriages were passed.
There were seven other motions presented during the AGM, which was held online for the first time due to the Covid-19 pandemic.
The motion demanding that the Malaysian Bar clarify the validity of its 14-year-old internal sexual harassment mechanism which came into being in 2007, was passed with 444 votes in favour of it, while 38 voted against, with 21 abstaining.
Two other motions requesting the Bar to take a stand on minimum remuneration for pupils and also clarify a policy as to how this would be implemented were also passed.
The former was passed with 465 votes in favour with 228 voting against and 48 abstentions. The latter motion was passed with 436 votes in favour with 182 voting against and 29 abstentions.
A motion to abolish the practise of child marriages in Malaysia was
also tabled, with 462 lawyers voting in support, 17 against the motion,
with nine abstaining from voting. - Malay Mail, 13/3/2021
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