24 January, 2017
In line with the growing recognition of the need to re-evaluate existing gender roles (more specifically to increase women’s participation in the workforce), the law has hearkened to the calls for equality and laid down some rights designed to minimize the asymmetry in opportunities experienced by female employees as a result of their pregnancy.
Maternity leave
The toll that pregnancy takes on women’s health and the consequent effect on their ability to work have undoubtedly been a source of anxiety for many women. In fact, some employers unfortunately still view pregnancy as an inconvenience which disrupts business operations, as they need to hire temporary staff or reassign duties in the pregnant employee’s absence.
However, regardless of what employers feel about providing maternity leave, it is not a term of employment open for negotiation because the Malaysian Employment Act 1955 (“Act”) provides all female employees with the right to a minimum amount of paid maternity leave. Under the Act, any attempt by an employer to remove or reduce such maternity benefits will be rendered void. An employer is also prohibited from terminating the service of a female employee while she is on maternity leave (unless the termination is due to closure of the employer’s business).
Conditions for entitlement
Having said that, there are certain conditions that have to be met before a female employee is entitled to paid maternity leave, and they are as follows:
(i) Length of service: not less than 90 days (in the aggregate) during the 9 months immediately before confinement; AND
(ii) Status of employment before confinement: being in the employ of the employer at any time in the 4 months immediately before confinement.
Once these conditions are met, a female employee is entitled to not less than 60 consecutive days of paid maternity leave. This entitlement is available unless she has 5 or more surviving children at the time of her confinement.
Commencement of maternity leave
Female employees may commence their maternity leave at any time as long as it is not earlier than 30 days before confinement or later than the day immediately following confinement. Absence from work outside of these periods would not be treated as maternity leave and would not entitle the employee to maternity allowance.
However, female employees may be required to commence their maternity leave earlier (up to 14 days before confinement) than their preferred date if a medical officer determines that they are unable perform their duties satisfactorily as a result of their advanced state of pregnancy.
Restriction on the right to dismiss for absenteeism
If a female employee remains absent from work after she has exhausted her maternity leave due to a pregnancy related illness (as certified by a registered medical practitioner), she shall be protected from dismissal for a period of up to 90 days after the expiration of her maternity leave.
Opportunity to resume work post child birth
Legislative initiatives and support have the ability to shape public perception and bring about a shift in attitude towards women so that child rearing is viewed as society’s shared responsibility not to be shouldered by women alone. The entitlement to paid maternity leave, for example, has since assumed the status of a right, not charity, because society recognizes that women should not be disadvantaged and risk losing income on account of her choice to found a family which arguably benefits society as a whole.
The importance of this right is reflected in the Maternity Protection Convention, 2000 (No. 183) (“Convention”) which provides that a woman shall be entitled to a period of maternity leave of not less than 14 weeks. As of May 2016, some 32 countries have ratified the Convention but Malaysia is not one of them.
However, the expiration of maternity leave often leads to the same pattern of bifurcation in choices for women: to resign and care for their child or to resume work and leave her child under the care of her family or a hired carer. Women are forced to make this difficult choice because the duties of child care is still regarded to be the sole responsibility of women.
The absence of provisions for paternal leave in the Act illustrates this point. By comparison, other jurisdictions like Norway, for example, provides both parents with parental leave for a total of 12 months.
Apart from providing maternity leave and some protection against dismissal on the ground of pregnancy, the Act goes no further and is for this reason ill equipped in removing gender inequality. By failing to provide for favourable conditions for the resumption of work, such as the right to daily reduction of hours of work to breastfeed (see Article 10 of the Convention), or flexible work arrangements (see s19 of the Equal Opportunities Act 2010-state legislation enacted in Victoria, Australia- which states that an employer must not unreasonably refuse to accommodate the responsibilities that the employee has as a parent or carer), the strain of child care may be too exacting on women, forcing women out of the workforce.
Thus, for the time being, employers do not owe female employees any obligations other than those provided under the Act to help employees with their parental responsibilities. Until there are legislative changes to remove this disadvantage, women may continue to be underrepresented in the Malaysian workforce.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
