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 in last October, and the second reading is expected from 16-18 December 2021. 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 members of parliament pass it.
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:
69F (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 fifty thousand Ringgit; and shall also, in the case of a continuing offence, be liable to a daily fine not exceeding one thousand Ringgit 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 advertisement stating Chinese preferred, Malay preferred, Indian preferred. We also see job advertisement 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 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 are the protected characteristics. The position in 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 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 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 remedy they will be entitled to obtain from the labour Department and not be groping in the dark about the remedy.
Eg. If a female married employee and a male single employee have both 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 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 citizen in an organisation to argue that there has been discrimination based on nationality.
There is also introduction of a new Section 60P in respect of flexible working arrangement. 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 remains 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 one hundred thousand Ringgit 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 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 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 Datuk 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.
NATIONAL UNION OF BANK EMPLOYEES (NUBE)