FEMALE

The Federal Constitution

The Federal Constitution does not include sex under its enumerated grounds of discrimination, implying that it is permissible to discriminate on the ground of sex. Clause 1 of Article 8 states that

“. .all persons are equal before the law and entitled to the equal protection of the law”,

However, Clause 2 continues, “except as expressly authorized by this constitution,

There shall be no discrimination against citizens on the ground only of religion, race, decent or place of birth in any law”.

The Employment Act 1955 sets out minimum standards for working conditions.

No employer shall require any female employee to work in any industrial or agricultural undertaking between the hours of ten o’clock in the evening and five o’clock in the morning nor commence work for the day without having had a period of eleven consecutive hours free from such work

Any person aggrieved by such decision may appeal to the Minister within thirty days of such decision or condition.

No female employee also shall be employed in any underground working.

Every female employee shall be entitled to maternity leave for a period of not less than sixty consecutive days (also referred to in this Part as the eligible period) in respect of each

confinement. After amendment- up to 90 days. Subject to 300 days.

Where a female employee is entitled to maternity leave, but is not entitled to receive maternity allowance from her employer she may, with the consent of the employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner.

Maternity leave shall not commence earlier than a period of thirty days immediately preceding the confinement of a female employee or later than the day immediately following her confinement:

Provided that where a medical officer certifies that the female employee as a result of her advanced state of pregnancy is unable to perform her duties satisfactorily, the employee may be required to commence her maternity leave at any time during a period of fourteen days preceding the date of her confinement as determined in advance by the medical officer.

1) Maternity allowance

A female employee shall be entitled to receive maternity allowance for the eligible period from her employer if—

(i) she has been employed by the employer at any time in the four months immediately before her confinement; or

(ii) she has been employed by the employer for a period of not less than ninety days during the nine months immediately before her confinement.

A female employee who is about to leave her employment and who knows or has reason to believe that she will be confined within four months from the date upon which she leaves shall before leaving her employment notify her employer of her pregnancy and if she fails so to do, she shall not be entitled to receive any maternity allowance from such employer.

She will also be able to go on maternity leave from the 22nd week of pregnancy (previously 28th). This is to cater for situations where premature births or miscarriages might occur.

Any employer who dismisses a female employee from her employment during the period in which she is entitled to maternity leave commits an offence.

If a female employee, after giving notice to her employer that she expects to be confined, commences her maternity leave and dies from any cause during the eligible period, her employer liable to pay maternity allowance to the person nominated by her or to her legal personal representative.

The allowance is at the rate calculated from the day she commenced her maternity leave to the day immediately preceding her death.

Where a female employee remains absent from her work after the expiration of the eligible period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement and to render her unfit for her work, it shall be an offence, until her absence exceeds a period of ninety days after the expiration of the eligible period, for her employer to terminate her services or give her notice of termination of service.

There is only one law in existence that comes close to dealing with the issue of sexual harassment in Malaysia - Penal Code. However, it only deals with physical harassment.

The Penal Code, section 509 provides that :"Whoever, intending to insult the modesty of any women, utters any words, makes any sound or gesture or exhibit any object, intending that such word or sound shall be heard, or such gesture or object shall be seen by such woman, shall be punished with imprisonment for a term which may extend to 5 years or with fine, or with both".

The Ministry of Human Resources is using its influence to encourage employers to adopt the Code of Practice against sexual harassment and an internal mechanism to prevent sexual harassment at the workplace. This code was introduced in 1998.

The Code of Practice outlines the statement of purpose, legal definition of harassment, descriptions of behavior that constitutes harassment, how employees should handle harassment, how the company handles complaints, what kind of disciplinary action and name and phone numbers to lodge a complaint.

The Code of Practice on Prevention and Eradication of Sexual Harassment maintains that sexual harassment (including verbal, visual and physical harassment) in the workplace is unacceptable. While the Code has been effective in broadening awareness of the issue, as a voluntary code, its implementation has not been widespread.

The Bill introduces a long awaited amendment to the Act; making sexual harassment at the workplace illegal, regardless of the wages of the employee.

"Sexual harassment" is defined as any unwanted conduct of a sexual nature, whether verbal, visual, gestural or physical, which is directed at a person and is either offensive, humiliating or a threat to his/her well-being, which occurs during or in the course of employment

The Bill requires an employer to conduct an inquiry into any complaints of sexual harassment in the workplace.

Where an employer refuses to do so, the employer must inform the employee of his reasons for refusal and the aggrieved employee may refer the matter to the DG. The individual found guilty of sexual harassment may be dismissed without notice, demoted or penalized with a lesser punishment, e.g. suspension without pay for a period of up to 2 weeks