EMPLOYMENT (AMENDMENT) ACT 2022 passed by Parliament, gazetted in May BUT our Minister of Human Resources Saravanan decided that it will only come into force in 2023. It could have come into force in May, but 1st the Minister delayed it to September and then to January 2023. WHY is this HR Minister not allowing Malaysian workers to enjoy the better rights NOW ...
* The amendment reduces working hours from 48 hours to 45 hours a week > This means that if the employer(with worker's consent) want worker to still work 48 hours >> workers will have to be paid an additional 3 HOURS OVERTIME - beneficial to workers. With the 3 hours saved, workers could also do their own business and other part-time job. But Saravanan, the HR Minister with the power, decides to delay enjoyment of better rights for workers
* Maternity leave increases to 98 days, from 60 days
* 41A. Restriction on termination of pregnant female employee
Now, the amendment brings in more rights for workers, and duties for employers - as such, there really is NO JUSTIFICATION FOR DELAY. These law amendments took a long time, and employers knew about it for a very long time >> a request for delaying putting into force by employers is really not justified - WHY? Do they want to deny worker rights longer? And HR Minister - does this not indicate an anti-worker and their families position >> remembering that the HR Minister has full power to delay putting laws passed by Parliament and King into force.
As such, will workers protest - and they and their family in GE 15 will reject HR Minister Saravanan, and of course, the Prime Minister and his Cabinet who could have insisted that the Minister speedily enforce these laws. In this case, it seems that the delay in enforcement is because of the HR Minister only...
The state of worker rights in Malaysia is bad - and the government vide the Employment Act and other legislation do set MINIMUM worker rights that workers in Malaysia should enjoy.
Recently, after much delay, some new rights came in after Parliament(Dewan Rakyat, Senate and King) passed it and it became law - the final step was with Human Resource Minister Saravanan to put it into force ...so that workers can begin to enjoy this MINIMUM rights in law.
In terms of worker rights, this is set by the agreement/contract between employer and individual worker. Better rights the worker will enjoy if their TRADE UNION managed to fight for it, and included it in the Collective Bargaining Agreement....The State comes in by law to make sure that workers at the very least enjoy MINIMUM rights
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.
What this means is simply that if the rights provided by Employer is better, that applies. But when the rights provided by employer is worse that rights provided by law, then the rights provided by law applies.
With good employers, or maybe stronger workers or trade unions, then workers can enjoy even better rights that what is provided by law.
In terms of better worker rights, did MTUC and the Trade Unions protest the delay?
Did the other Opposition parties make noise about the postponement of rights? Or are they also not interested in worker rights - just concerned about employer's wellbeing.
Sadly, the Employment Act still generally confers minimum rights in law to workers earning RM2,000 and less > WHY? Should it not be conferring MINIMUM rights to all workers - or at least those earning less than RM5,000? For other workers, their right still generally comes from the employment contracts they signed with their employers..
If you have a Trade Union, then maybe the Collective Bargaining Agreement(CBA) may give you better rights... but alas, how many unions have managed to fight and get 45 day week, higher maternity benefits in their CBA?
GE15 - Workers and their family members can VOTE for candidates that will help advance worker rights - and reject Ministers like Saravanan, and the Cabinet.
He said this was to assist industry players who previously urged the ministry to delay the implementation until after the economy recovers....“After discussing with the Cabinet today, we agreed to postpone it by four months,” he said at a press conference.
Putting in force amendments - well, this can be done in stages, i.e. maybe put in force some sections, but delay other sections. So, why did the Minister do this? Pregnant women still at risk of being terminated because of their pregnancy....as new section 41A still not in force yet...
"41A. Restriction on termination of pregnant female employee
(1) Where a female employee is pregnant or is suffering from an illness arising out of her pregnancy, it shall be an offence for her employer to terminate her services or give her notice of termination of service, except on the grounds of-
(a) wilful breach of a condition of the contract of service under subsection 13(2);
(b) misconduct under subsection 14(1); or
(c) closure of the employer's business.
(2) Where the service of a female employee under subsection (1) is terminated, the burden of proving that such termination is not on the ground of her pregnancy or on the ground of illness arising out of her pregnancy, shall rest on the employer.".
GE15 - Workers and their families must decide on who to vote > Vote for those who promote and defend worker rights or those that do not - it is your choice.
Minimum Rights in Employment Act only for workers earning RM2,000 or less generally - That was the rationale long time ago because they believed other workers are SMART enough to fight and get their own worker rights from their employer > They are also more 'educated' to do so>>> But the reality is that the higher earning workers in Malaysia simply does not have that power > and as such the employers have the upper hand always. So, why don't the MINIMUM WORKERS RIGHTS in law be for all workers - or maybe just for those earning RM5,000 and less...Malaysian workers, generally do not have the 'power' or courage to get better rights from their employers ...So, the law must provide MINIMUM rights at the very least for all workers.
The BN, PH and PN-BN government has ignored worker's loss of 'Employment Security' - For that, all employment must be REGULAR employment until retirement, or until the employer company ceases operations. Now, the trend is 'short-term employment' usually 1 year contract > meaning after a year, a worker may be unemployed - and power is with the employer, and worker further weakened not able to demand better rights ...or even complain about employer's violation of their rights for fear on non-renewal of their 1 year employment contract. Which political parties will fight to PROTECT workers to ensure that all workers are get REGULAR employment...? Vote for them if not ...
Employer 'cheats' workers by not paying say, overtime wages > worker complaints, fights in the Labour Court all expending monies and time, and what do workers get at the end of the day? The law says 'pay to the employee concerned the overtime wages due'. What justice? So, employer pays the worker the same amount that he was to pay >> should it not be punitive > like maybe 5 times the overtime due? So, does these kind of penalties deter an employer >>> No, after all, if the worker complaints and fights for their rights - the employer at the end of the day have to pay simply what they should have paid earlier. How many workers will complain and fight? 1-5% >> so, at the end of the day, the employer UNTUNG...
Section 100(2)Employment Act - Any employer who fails to pay to any of his employees any overtime wages as provided under this Act or any subsidiary legislation made thereunder commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the overtime wages due, and the amount of overtime wages so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court.
Which political party ...MP candidates will change this? And make the penalty deterrent > pay the worker 5 times the amount the employer should have paid...
MINIMUM WAGE - Cost of living went up so much > but PN-BN Plus government did not speedily respond by increasing minimum wage > maybe for just the factories, foreign companies, GLCs and bigger companies. Small business(sundry shops, retail shops, market vendors, etc may be excluded as they struggle to recover from Covid-19...) I have always been against the same Minimum Wage across the board - different minimum wages according to regions, kind of work(manual work higher minimum wage), etc , and Minimum Wage not for all employers - not for the smaller employer, not for the small employer in rural areas, etc Some bigger employers can afford to pay more ...
The problem with many Malaysian voter is that they foolishly cast their VOTE - not really looking at what the MP candidate or political party have been doing for the betterment of their rights and life >>> PH GE14 only promised increased minimum wage ...but there are so many other rights of workers????
VOTE SMARTLY not simply based on ethnicity, religion, gender, 'name' but look at what the said candidate/party have been fighting for and will deliver if they win GE15.
Enforcement of Employment Act amendment postponed to Jan 1
KUALA LUMPUR: The enforcement of the amendments to the Employment Act has been postponed to Jan 1, says human resources minister M Saravanan.
He said this was to assist industry players who previously urged the ministry to delay the implementation until after the economy recovers.
“After discussing with the Cabinet today, we agreed to postpone it by four months,” he said at a press conference.
He added that the amendments will be enforced in January “by hook or by crook”, giving time for the country to address the shortage of workers.
The government had previously announced that amendments to the Employment Act, which will see weekly working hours reduced from 48 to 45 hours, will be enforced from Sept 1.
This is after amendments were made to the Employment Act 1955, which aims to safeguard the welfare of workers. The amendments are in line with the International Labour Organization (ILO) Convention.
The amendments would also allow employees to work flexible hours and give them the ability to choose location, time and number of work days.
According to Saravanan, the reduced work hours should also apply to migrant workers.
“When it comes to workers we cannot discriminate between local or foreign workers. We are trying our best to come out of Tier 3 (of the US State Department’s annual human trafficking report) and avoid forced labour,” he said.
He added that the ministry was also looking into changing the term “pekerja asing” to something less discriminatory like “pekerja luar negara” or “pekerja imigran”.
Saravanan also pointed out that discriminatory clauses against foreign maids in the First Schedule of the Act will be addressed once the amendments are enforced in January.
“We will see how to revise and make it better across the board,” he said. - FMT, 26/8/2022
The Employment (Amendment) Act 2022 will come into force on Sept 1, Human Resources Minister M Saravanan said.
Speaking to Malaysiakini, Saravanan said the ministry was in the midst of ensuring that changes to the First Schedule of the Act are carefully worded so as not to confuse or mislead on the categories of employees that will fall under the Act’s ambit
Key amendments that were passed in the March Parliament sitting include the extension of maternity leave from 60 days to 98 days, restriction on the termination of pregnant employees and the introduction of paternity leave for married male workers.
One key amendment may rehabilitate Malaysia’s notoriety as being among the countries with the highest number of weekly work hours in the world.
When the amendments come into force, the maximum weekly hours of work expected of employees in Malaysia should drop from 48 hours to 45 hours.
Since the passing of the amendments in both Houses of Parliament, the Employment (Amendment) Act 2022, also known as Act 265, received royal assent on April 26 and was published in the Federal Government Gazette on May 10 this year.
Also, on Sept 1 the minister will issue an order to amend the changes to the First Schedule.
At present, the First Schedule categorises the various groups of workers as those who earn RM2,000 and below, workers with no fixed wages like those involved in manual labour and those who supervise them, workers who operate motor vehicles and domestic workers.
However, Saravanan confirmed that restrictions placed on domestic workers in the first schedule would remain, with no indication of changes in the near future.
The restriction placed on domestic workers has harmed local women more than migrants working in this sector, whose terms are reflected in their respective contracts.
Act 265 denies domestic workers basic rights enjoyed by all other workers and these include maternity leave, one day of rest per week, hours of work and even holidays.
Long wait for Sabah and Sarawak workers
Malaysian workers who punched the air with elation in March this year over Parliament’s passing of the most progressive amendments to the country’s 67-year-old labour legislation will have to wait a little more than two months for the changes to come into force.
However, workers in Sabah and Sarawak, who are governed by the Sabah and Sarawak Labour Ordinances, respectively, have a long wait.
In order for the amendments to Act 265 to be reflected in these two state labour ordinances, they would have to be tabled and passed in Parliament. However, this was not done in March.
Sarawak MTUC secretary Andrew Lo said Sarawak was lagging in labour law reforms.
“We call on both federal and state governments to negotiate and accelerate the amendments to the Sarawak Labour Ordinance,” he said.
Lo, who was addressing a press conference after a consultation meeting on the state’s labour ordinance, said there was an urgent need for the amendments to be reflected in Sarawak’s labour law.
He said the amendment bill should be tabled during the next Parliament sitting scheduled to commence on July 18.
The Labour Law Reform Coalition organised the consultation meeting and 40 participants from more than 20 Sarawak Trade Unions and NGOs across the state took part.
Describing workers from the two states as those who were left behind in labour reforms, the coalition’s co-chairperson, Gopal Kishnam, said workers across Malaysia must stand in solidarity with workers in Sabah and Sarawak.
“In the future, amendments to
all three laws, Act 265 and the two Labour Ordinances must be tabled in
Parliament as a ‘bundle’ to eliminate discriminatory practices,” Gopal
said. - Malaysiakini, 15/6/2022
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