Are Malaysian employment laws and policies in keeping with the new
models or do they still carry signs of the traditional master-servant
model and archaic gender stereotypes?
WE hear of female civil servants taking optional retirement but that is because the
Public Service Commission allows for that.
And when they go, they get a pension.
But
to be forced to retire in the private sector before your male
colleagues? That goes against the grain and, surely, Article 8 of the
Federal Constitution which guarantees gender equality.
And yet that is the case for female workers in some industries in the private sector.
In
June 2001, the Guppy Plastics Industries' new employee handbook
stipulated that the retirement age for its female and male workers was
50 and 55 respectively. Apparently, women are prone to medical problems
after 50.
Tan: The argument that female workers lose their ability at 50 is not backed by scientific fact.
The
fact that the Federal Constitution was amended a month later to include
gender in Article 8's equality provision and that Malaysia is a
signatory to the
United Nation's Convention on the Elimination of
Discrimination Against Women (Cedaw) before that was of no consequence
to them or the
Court of Appeal.
On March 21 this year,
the
second highest court in the country dismissed an appeal by eight female
employees against their forced retirement from Guppy in July 2001,
saying the plastics company had merely followed its handbook and early
retirement for female workers was industry practice.
The fact
that other industries also have similar retirement policies is a matter
for concern. Apart from a clear case of gender bias, some could, like
Guppy had done, re-employ the terminated workers on a contract basis,
depriving them of benefits they would have got otherwise.
The women are not giving up, though. They are applying for leave to appeal in the Federal Court.
Lawyer
Honey Tan says the Guppy case reinforces the male and female
stereotypes. “The argument that female workers lose their ability at 50
is not backed by scientific fact,” she says.
“If age was a bona fide occupational qualification, then both male and female workers should retire at the same time.”
Should our employment laws remain in the dark ages, leaving a worker with social security that is nebulous at best?
Tan
will be raising the Guppy case and other cases of sex discrimination at
the workplace for discussion and debate at a conference on “Challenges
in
Employment Law: Proposals for Reform” on July 2.
The one-day
conference is organised by the Malaysian Chapter of the International
Society of Labour and
Social Security Law (MSLSSL) and Current Law
Journal.
Roy: There is a great need to create public awareness of labour laws and social security.
Participants
will hear from Susila Sithamparam, Industrial Court president, Lawasia
Committee on Labour Law chair Bernard Banks, Human Resources Ministry
officials, unionists, lawyers, employers and an Industrial Court
chairman.
The other topics that will be debated are minimum wage,
contract labour and labour claims under Section 69 of the Employment
Act.
“There is a great need to create public awareness of labour laws and social security,” says conference organising
chairman Datuk Roy Rajasingham.
As
such, the Malaysian chapter of the international society was set up in
2011 to promote the study of labour and social security laws here and at
the international level, adds Roy, who is also MSLSSL vice-president.
“It
seeks to provide lawyers, labour practitioners and others working in
the fields of labour and social security law with a forum for discussion
and debate.”
Membership is open to all who, because of their
scholarly work or judicial or professional activities, are interested in
furthering the aims and purposes of the society.
Besides them,
the Malaysian
Employers Federation (MEF),
Malaysian Trades Union
Congress (MTUC), Human Resources Ministry,
Employees Provident Fund and
Social Security Organisation are entitled to nominate one representative
each to be a member.
Conference participants can expect to look
at proposals for reform in the changing field of social security,
employment, and human resources management.
One of the long-time bones of contention has been whether to introduce a minimum wage.
Recently,
the Government ended that dispute by announcing a minimum wage for the
private sector but whether this is the best thing for workers here and
Malaysia's competitiveness remains to be seen.
Lo: The matter of what constitutes minimum wage has to be resolved.
“Even
though the rate has been announced, the matter of what constitutes
minimum wage has to be resolved,” says
Andrew Lo, who will be speaking
on the topic.
“Does it include, for example, shift allowance,
service charge, overtime payment, performance bonus? How about
accommodation, transport and meals provided by employers?” says Lo,
chief executive officer of the
Sarawak Bank Employees Union.
Also speaking is MEF
executive director Shamsuddin Bardan and participants can expect a robust discussion on who benefits most.
For
example, would a minimum wage increase the standard of living for the
poor and increase domestic consumption, which is the engine of economic
growth?
Or would it destroy jobs?
Lo notes that some employers are already claiming that up to four million jobs are at risk and 200,000 businesses may close.
As
such, he speculates, some companies may adopt more capital intensive
and efficient production systems and reduce the number of workers
needed.
MSLSSL
president Datuk Dr Cyrus Das says it would be good for all stakeholders to remember that a minimum wage is tied to a “living wage”.
“Every
society that prescribes to social justice must accept a minimum wage
structure and employment. You can't pay a worker RM300 and expect him to
survive on that today.”
Another major concern currently is the over-dependence on contract labour and foreign labour.
Dr
Das says contract labour should not be introduced for the local
workforce as that would mean bypassing trade union membership by
workers, who would otherwise be eligible to join a trade union.
“The
mechanism of trade union membership and terms of employment guaranteed
by a collective agreement are generally regarded as minimum safeguards
to an industrial workforce,” he adds.
Dr Das: You can’t pay a worker RM300 and expect him to survive on that today.
Lo,
who is also MTUC Sarawak secretary-general, claims that the supply of
foreign workers is controlled by syndicates and is a multi-million
industry.
“Employment agents are exploiting foreign workers as
they charge more than what the workers would have earned during their
employment contract.”
One of the recent amendments to employment
law is that which allows labour supply companies to source and employ
foreign workers and farm them out to work for a fee.
“The problem
arises when these labour contractors abscond, leaving their workers
unpaid. The company where the employees have been working will deny
responsibility as they are not the employer, leaving employees high and
dry,” Lo says.
This amendment and others were greeted with
protest and concern but were passed by Parliament anyway, ostensibly to
facilitate the easier registration of labour contractors.
The
question now, says Lo, is whether the amendments will ensure greater
accountability and protection for workers or would they be legalising an
undesirable practice.
He adds that the conference will look into
whether a Royal Commission would be appropriate to provide an
independent, in-depth inquiry to assist the Government in formulating a
robust, effective, enforceable, and sustainable foreign labour policy.
By SHAILA KOSHY koshy@thestar.com.my
>
Register before June 11 for an early bird fee. For conference details, contact 03-4270 5400 or e-mail priority@cljlaw.com
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