JUST IN: Another Step Taken Towards Gender Equality

On 21st March 2022, the Dewan Rakyat approved the Employment (Amendment) Bill 2021- which sought to amend the Employment Act 1955 (“the Act”). This article discusses the amendments which mostly affect women, particularly in relation to maternity and paternity leave, as well as restrictions in terminating a pregnant woman. I have previously discussed about rights as an employee if you are a woman here.

Pregnancy and Maternity

The previous title for Part IX of the Act- Maternity Protection will now be replaced with Pregnancy and Maternity. The duration for maternity leave for each confinement is increased from 60 to 98 days. 

Section 37(1)(aa) now reads:-

“Where a female employee is entitled to maternity leave under subparagraph (a)(i), whether or not she is entitled to receive maternity allowance from her employer for the eligible period under paragraph (c), or whether or not she has fulfilled the conditions set out in paragraph (2)(a), she may, with the consent of her employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner”

This means that the female employee may return to work at any time so long as the employer agrees and she is certified as fit to resume work by her doctor, regardless of whether she is entitled to maternity allowance. Previously, this was only possible if she was not entitled to maternity allowance. I am of the view that this amendment is not particularly helpful. Although it potentially allows women to decide when to resume work, it is unclear as to whether she will receive the maternity allowance (where she is entitled) in addition to her salary or whether her entitlement to the maternity allowance will lapse, should she choose to return to work.

Termination

The amendment also seeks to include a new section 41A as follows:

(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.

While it may seem that the amendment seeks to extend the restrictions in terminating a pregnant employee, it does nothing other than merely clarifying what has already been provided by the Act. Originally, the Act indeed allowed for an employer to terminate its employee, whether pregnant or not, on the 3 grounds as stipulated in the new Section 41A(1). Similar to a claim for unfair dismissal, the employer bears the burden of proof in justifying the reason for terminating the employee. 

Paternity Leave

In my opinion, the only significant improvement brought by the amendment in this respect is the allowance for paternity leave through the insertion of Section 60FA, albeit not without its own flaws. The paternity leave is only for a period of 7 days for each confinement, restricted to only 5 confinements. The male employee must be employed by the employer for 12 months and must have notified the employer of the pregnancy of his spouse at least 30 days from the expected confinement to be entitled to the paternity leave. 

Conclusion

Though the call for 7-days paternity leave has been answered and maternity leave has significantly increased, there is little improvement on things that could be done to protect female employees who are pregnant. Although it took us 67 years to have only come so far, we can find comfort in these little steps while remaining hopeful for greater improvements.