23 July, 2019
In light of the recent high-profile case involving the death of a domestic employee, Adelina Lisao, the Ministry of Human Resources (MOHR) has responded to the call for tighter protection and rights for domestic employees by proposing an Employment (Domestic Employee) Regulations 2019 (“Regulations”).
In this article, we will cover some of the key proposed regulations. This article is based on the proposal released by the MOHR as of 15 June 2019 and does not cover any changes made to the proposal after this date.
Definition of domestic employees
Although the Regulations seek to apply to all domestic employees, the Employment Act 1955 does not provide for a definition of “domestic employees”. However, the current proposed amendments to the Employment Act 1955 released by the MOHR in 2018 sought to change the references of “domestic servants” to “domestic employees”.
As such, these Regulations would be in respect of “a person employed in connection with the work of a private dwelling-house and not in connection with any trade, business, or profession carried on by the employer in such dwelling-house and includes a cook, house-servant, butler, child’s nurse, valet, footman, gardener, washer-man or washer-woman, watchman, groom and driver or cleaner of any vehicle licensed for private use”.
Duty to furnish written Terms and Conditions of service
Under the proposed Regulations, every employer is required to furnish his domestic employee a contract of service on or before the date of commencement of employment. Among others, the contract of service would have to contain terms of conditions such as:
- Personal details of the domestic employee;
- Wages and other payment (if applicable);
- Details of Employment;
- Rest day;
- Notice period and compensation in lieu of termination notice;
- Termination of contract of service by the employer;
- Termination of contract of service by the domestic employee;
- Extension of the contract of service; and
- General provisions and terms of repatriation (if applicable).
Payment of wages
An employer shall not pay less than the fixed monthly wages in accordance with the contract of service even in instances of deduction of any advances taken by the domestic employee.
Adequate meal and medical treatment
An employer is also responsible to provide at least 3 adequate meals a day and any medical examination or medicine required by the domestic at the expense of the employer.
Accommodation and adequate rest
Under the proposed Regulations, the employer is obligated to provide a decent and reasonable accommodation for the domestic employee. Any employer who fails to do so would also be deemed to commit an offence.
Furthermore, the proposed Regulations also provide that an employer would have to allocate the domestic employee with adequate rest daily.
Rest day
The proposed Regulations provide that an employer shall grant the domestic employee a mutually agreed rest day for every week. However, an employer is not obligated to grant a rest day if the employer and domestic employee has a prior written agreement which is mutually agreed upon that the domestic employee is to be compensated for working in lieu of the rest day.
Prohibition of ill-treatment
In order to protect the health and safety of domestic employees, the Regulations provide that an employer shall not ill-treat the domestic employee. It also goes on an extra mile to provide that the employer shall also not cause or knowingly permit the domestic employee to be ill-treated by any other person.
The Regulations define that a domestic employee is ill-treated if:
- They are subjected to physical or sexual abuse, or to criminal intimidation;
- Employer or other person does or causes the domestic employee to do, any act which causes or is likely to cause injury to the health/safety of the domestic employee;
- Employer or other person neglects or abandons the domestic employee in circumstances which may cause injury to the health/safety of the domestic employee; or
- The employer or other person commits an act detrimental to the welfare of the domestic employee.
Respect sensitivity of religious beliefs
The employer of a domestic employee shall also at all times respect and pay due regard to the sensitivity of religious beliefs of the domestic employee. This includes the right to perform prayers and to refuse to handle and consume non-halal food or execute any duties incompatible with religious beliefs.
Offence and Penalty
Any failure to comply with the provisions of the Regulations would commit an offence and be liable to a fine not exceeding RM 30,000.
Commentary
The Regulations would serve as useful guidelines to employers on how to treat their domestic employees. However, the Regulations in their current form do seem ambiguous which leaves much room for dispute down the road: for example, there is no clear definition as to what amounts to “adequate rest” or “decent and reasonable accommodation”. Interpretations of these terms may differ from one individual to the next, so it would be ideal if the Regulations spelled out specific minimum requirements that need to be met by employers.
Given that the Regulations is only at its preliminary stage of consultation, it is also uncertain when the Regulations comes into effect.
Nonetheless, it is time for adequate protection to be granted to the domestic employees following the increase in demand for their services and to also prevent unfortunate situations, like what happened to Adelina Lisao, from reoccurring.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
