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Malaysian employers have the upper hand
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LETTER | I recently came across the news that the Malaysian Employers Federation (MEF) are calling for employees, including professionals to be more “considerate” and “sympathetic” of their employers in demanding for better salaries and benefits. There was also a call to reduce expectations.

This is a rather strange turn of events and is befuddling in many ways. For one, the reasons given are opaque, at best. The reasons given were the global economy and the Covid-19 outbreak. Now, these are all valid concerns. However, these universal issues are not new in 2020 or even in the years before this. These are concerns that have existed intermittently throughout civilisation. There have been many health pandemics, epidemics and endemics (see: H1NI virus, Ebola outbreak, Sars, Aids outbreaks just to name a few). This cannot be a reason to justify lack of rights in terms of salaries, benefits and even increments for Malaysian employees.

As for the “economy”, according to the Ministry of Finance, Malaysia’s economy is expected to do better in 2020 because the manufacturing sector’s purchasing managers index (PMI) for December 2019 rose to a 15-month high (from 0.5 to 50.0 points in December 2019), which is taken to mean that Malaysia’s gross domestic product will be accelerating. In fact, our minister of finance was quoted as saying (in January): “The government is boosting employment opportunities and income of youth, fresh graduates and women through the RM6.5 billion Malaysia@Work programme.” On this note, MEF’s stand is quite contradictory to the Ministry of Finance’s statistics and numbers.

It is understood that MEF was responding to the 2020 Hays Asia Salary Guide where it was found that professionals in Malaysia are the (the most) unhappy with their current compensation packages compared with other countries in the region. I would argue that this is not without reason. In fact, the minimum wage was only very recently increased (last year).

As it stands, our laws are not particularly regularised in terms of employment. There is the Employment Act 1955 which provides for minimum wage and (theoretically) accounts for employee rights like annual leave, termination rights and remunerations other than wages (Section 29) which would come under the flag of “benefits”. For that matter, there is even section 34 that provides for prohibition of night work for women who work in industrial or agricultural undertakings. Realistically though, how much of this is actually practised?

MEF’s stance aside, recently there have even been louder echoes raised as to female rights in the workplace, especially when it comes sexual harassment (we have to thank the #MeToo movement for this, or else this would – most likely - have been on the backburner indefinitely). This is where things are bleakest. We have Part XVA Employment Act 1955 which supposedly covers “sexual harassment”, where Section 89B provides for the employer to inquire on a complainant. 

This gives a great deal of power and/or discretion to the employer. Yes, it is a given that the employer who fails to hold an inquiry would be subject to an offence (Section 89F) but the very fact that it is in the hands of the employer in itself does not bode well. Alternatively, the complaint could be made to the director-general (Section 89D). Section 89D, though, leaves much to be desired, providing that the director-general may refuse to inquire into any complaint if the complaint has previously been inquired into and “no sexual harassment is proven” as well as if the director-general is “of the opinion” that the complaint is frivolous, vexatious or is not made in good faith. 

We do not know how these assessments are made and how exactly any of this is proven if the case does not make it to the court of law. An issue of vagueness and ambiguity arises becomes apparent here. All in, there are seven (7) provisions that cover what has become heavily accounted for in other countries. 

Aside from this, the sole section is section 509 of the Penal Code, the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (1999) and for public servants, the Public Service Department Circular Updated 2018. Note though that the code has not been updated since 1999. There has yet to be an implementation of a Sexual Harassment Act (although calls have been made for it for what feels like centuries now).

Our stepbrother (who is more popular among our “cousins” and friends and “earns” more than us), Singapore, passed the Protection from Harassment Act (Poha) back in 2014. Ah, but fret not! There seems to be a light though (at the end of the proverbial tunnel) as the Women, Family and Community Development Ministry has announced that the Sexual Harassment Bill is expected to be tabled in March. Bills take time to become law, so we will just have to wait for Parliament to do what needs to be done (keeping in mind the checks and balances that need to exist in our legal system). 

Let’s hope the ambiguities that exist in Part XVA of the Employment Act 1955 will not present themselves in the new Sexual Harassment Bill. The words of the late Antonin Scalia (former US Supreme Court Justice) comes to mind, “Words have their meaning. And their meaning doesn’t change”. Scalia was talking about the US Constitution but the same could apply to any written law. Any lack of clarity can only bring harm.

Lights at the end of the tunnel notwithstanding, notice a pattern here? Employers seem to have an upper hand in almost all aspects. Now, there is no doubt that there are challenges on the part of the employers to maintain a sense of stability in times like these, especially in fiduciary and financial terms. MEF has expressed this dilemma, in not so many words. That does not, however, negate the fact that there is a systemic issue in terms of employment rights. The Employment Act 1955, for example, is not standardised: it does not apply to public servants and further only applies to Peninsular Malaysia and Labuan. 

The limited rights that employees do have are then scattered and not widespread. At the risk of sounding overly earnest, Malaysians already have a range of issues - mental illness is on the rise, the cost of living continues to be on the rise, Milo’s been in the “spotlight” on and off for years now (sugar quantity, price – you name it) and more. 

The least Malaysians could have are their rights in the workplace; to request for incentives, benefits, have a safe work environment and earn a decent income.


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

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