LETTER | Few amendments of Employment Act 1955 need to be reviewed

LETTER | The National Union of Bank Employees (NUBE) welcomes the proposed amendments to the Employment Act 1955 (EA 55), which was tabled for the first reading at the Dewan Rakyat last October, and the second reading is expected from Dec 16 to 18.

The aim of the amendments is to ensure the EA 55 complies with international standards and practices therefore, a few of the amendments need to be reviewed before the MPs can pass them. 

As much as NUBE welcomes the proposals, there are some areas of concern in the proposed amendments.

A new Section 69F is introduced in respect of discrimination in employment. The proposed section states:

(1) The director-general may inquire into and decide any dispute between an employee and his employer in respect of any matter relating to discrimination in employment, and the director-general may, pursuant to such decision, make an order.

(2) An employer who fails to comply with any order of the director-general issued under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding RM50,000; and shall also, in the case of a continuing offence, be liable to a daily fine not exceeding RM1,000 for each day the offence continues after conviction.

The above provision is interesting. It is certainly welcoming that discrimination provision is finally being introduced. We often see job advertisements stating Chinese preferred, Malay preferred, Indian preferred. 

We also see job advertisements stating preferably female or male employee preferred. These are all discrimination of race and sex.

However, the proposed new Section 69F only kicks in when there is a subsisting employment relationship, hence pre-employment discrimination can’t be lodged at the Labour Department. Further, there is no definition of discrimination. There is no definition of what the protected characteristics are.

The position in the UK under the Equality Act 2010 provides for protected characteristics, such as age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. The UK position pursuant to the Equality Act 2010 is that it establishes the ingredients for direct discrimination and indirect discrimination.

The proposed new Section 69F is completely silent. As such, the amendment if passed will mean the scope of discrimination law will be very wide in a subsisting employment relationship and it would have to be developed by the courts, on a case-to-case basis.

This will be an unnecessary cost for the worker and the union. However, there is an anomaly as it does not prescribe what kind of an order which the director-general can make.

The position in the UK is that the Employment Tribunal can make an order of declaration, recommendation, compensation which is based on financial loss and injury to feelings. The proposed amendment is completely silent.

Surely any employee is entitled to know the remedy they will be entitled to obtain from the labour Department and not be groping in the dark about the remedy.

For example, if a female married employee and a male single employee both have the eligible experience and qualification to obtain a promotion but the male employee is selected because the company feels the male employee would be able to travel to other branches of the company as opposed to the female married employee.

Here, there is discrimination based on sex and marriage. So, if she files a complaint, which could take months or possibly even up to a year to resolve, what possible remedy could she obtain at the end of the day.

Can the JTK order her to be promoted, that seems unlikely since the male single employee would already be serving in the promoted position. Can compensation be ordered, if yes on what basis? Or is it merely a warning to the employer?

As such, there must be clarity in terms of remedy failing which this proposed new section will sadly be a toothless tiger. Further, this provision once it becomes law could well entail foreign nationals who have been selected for retrenchment first before local citizens in an organisation to argue that there has been discrimination based on nationality.

There is also the introduction of a new Section 60P in respect of flexible working arrangements. Whilst at first glance this provision seems to reinforce the current scenario of work from home as a result of the Covid-19 pandemic, there remain some areas of concern with this provision.

This provision states that an employee can apply to the employer to vary the hours of work, day or work and place of work in relation to his employment and the employer has to give his approval or refusal within 60 days of the application and if the employer refuses to give approval, the employer must state grounds for the refusal.

The amendment stops there and does not state what avenue is available to the employee if the employer refuses to grant approval. There is no provision to state that the employee can lodge a complaint to the JTK in respect of the refusal. The proposed amendments also introduce a new Section 90B on forced labour.

The said provision states: “Any employer who threatens, deceives or forces an employee to do any activity, service or work and prevents that employee from proceeding beyond the place or area where such activity, service or work is done, commits an offence and shall, on conviction, be liable to a fine not exceeding RM100,000 or to imprisonment for a term not exceeding two years or to both.”

It is submitted that the ambit of forced labour cannot be limited to just the situation of “threatens, deceives or forces an employee” but must be much wider than that.

The definition of forced labour should be made to include all the indicators of forced labour by the International Labour Organisation (ILO), which would include among others, debt bondage, withholding of wages, retention of identity documents and excessive overtime.

Also under the proposed amendment, employers can no longer refuse to inquire into any complaint of sexual harassment. Though it requires to have a written code of prevention of sexual harassment and have it placed in a conspicuous place of employment.

But there are no specifics pertaining to what this “notice” must state about workplace sexual harassment, and it can be abused to protect the perpetrators instead of the victims.

Thus, NUBE calls on Human Resource Minister M Saravanan to seek feedback from the union movement, before the second reading of the bill and we hope the parliamentarians will seriously reconsider these few provisions.

J SOLOMON is the general secretary of the National Union of Bank Employees (NUBE).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.