The law has changed for soon-to-be mothers. Maternity leave has been increased to 98 days, up from 60 days previously. Once gazetted, the amendments to the Employment Act 1955 as passed by the Dewan Rakyat on March 21st 2022 will have full effect of the law. Regrettably, this well-intended renaissance of maternity rules is not without flaws. For one thing, S44A has been repealed from the Employment Act.
Section 44A made maternity leave and other maternity protections available to all female employees regardless of their salary. With the repeal of S44A, the Employment Act’s maternity leave provisions will no longer apply to women earning more than RM2,000 per month, as stated in Schedule 1 of the Act.
The fundamental objective of the Employment Act, is to safeguard low-wage workers earning less than RM2,000 per month. Prior to the 2012 Amendment, it was significantly lower, set at RM1500. The idea is that higher-paid employees with monthly earnings over RM2000 will be governed by the provisions of their employment agreement, and employers will decide the benefits for these employees, who may agree to them by signing. On the other hand, low-wage workers (those earning less than RM2,000) lack bargaining power when it comes to negotiating employment benefits and hence rely on the Employment Act’s benefits as a guideline or “bare minimum.” S.44A is special as it makes Part IX of the Act regarding maternity protection applicable to all female employees, including those earning more than RM2000 a month.
But Deputy Human Resources Minister Awang Hashim stated in introducing the bill that S. 44A was repealed “with the intention to extend the entire Employment Act to all employees, including those earning more than RM2,000,” which will be accomplished through a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 currently in the drafting stage.
This results in TWO significant
complications. First, an order may take months to complete, and we do not know
how long it will take. It is stated to be only in the drafting stage at the
moment. If the amendments to the Act is gazetted before the Order is made, the
repeal of S.44A becomes law, putting all working women earning more than RM2000
a month in a precarious situation for some time, as they are not covered by the
Act’s maternity protections such a maternity leave.
Second, it creates a paradox. If
Deputy Human Resources Minister Awang Hashim’s upcoming “ministerial
order” eliminates all salary levels, the Employment Act will apply to all
Malaysian female employees, not merely those earning less than RM2000 per
month. Not only does 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 RM2000.
If Deputy Human Resources Minister Awang Hashim’s upcoming “ministerial order” simply amends the First Schedule of the Employment Act to widen the definition of “employee” from those earning less than RM2000 a month to say perhaps RM3000, this would significantly expand the scope of those covered by the Employment Act, but would also mean that some class of female workers would continue to be excluded from the protection S.44A previously provided them. At this point, the specific contents of the ministerial order are unknown. The ministry must promise to publish the specific contents of the order prior to the bill becoming law.
To summarize, do not fix anything that is not broken. S.44A 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 this postpartum phase, mothers are extremely vulnerable. Legislation is intended to protect women during this most challenging period. If the repeal of S.44A was an oversight, it would be better to admit it than to drag it out indefinitely and cause a severe predictable lapse in the entire maternity protection policy’s execution, thus causing havoc for moms.
Chan Quin Er
