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employment of women and children

  1. 1. f. The Malaysians Laws relating to the employment of women, children and youngpersons are sufficient in protecting their rights. Discuss.INTRODUCTIONMalaysia is known as a country that has achieved industrialization at a faster pace than itscounterparts in Asia. The development policies, which have strong focus on human resourcedevelopment, made a positive impact on Malaysian’s economic growth. A medium-termeconomic plan centred on training policies is formulated in pursuing industrialization in 1966(the First Malaysia Plan). During the Second Malaysia Plan on 1991, the industrial foundationwas firmly established. The manufacturing and service sectors achieved remarkable growth,with the former accounting for 33.4% of Gross Domestic Product (GDP) and the latter for52.4% on 2000. The percentage of workers employed in these two sectors in the totalworkforce also rose sharply, respectively. Supported by stable economic growth, the labour market has enjoyed near fullemployment with the unemployment rate shifting from 2% to 3.5% since the middle of the1990s. However, the employment of women, children and young person also increase infigures, although in Malaysia, the employment of women is not as high as in the welldeveloped country like Japan and America. Meanwhile, the employment of children andyoung persons are rare compared to African countries. According to Maimunah Aminuddin(2007), due to poverty, mostly child labours occur in developing countries. The ratio of male over female is equal in Malaysia according to the 1991 census.Education factors also contribute to females’ employment. Improving education levels amongMalaysians females also lead to greater demand for labour supply to achieve theorganizational goals, vision, mission, and objectives. The government has also stronglyemphasized on efforts in the field of education, works, production, utility of resources and soon to become a well developed country. Thus, we can see the active participation of womenand rise of young person in the labour force. There are several Malaysian Laws relating to 1
  2. 2. the employment of women, children and young person, but I agree that it is not sufficient toprotect their rights.EMPLOYMENT OF WOMENEmployment Act (EA) 1955, enforced by the Labour Department, was established to providea number of minimum benefits for those workers covered by the Act and to establish certainrights for both employers in general and employees particularly. Section 2(1) of the EA haslimited the application of Employment Act, 1955 (Act 265 & Regulations) only to employeesearning one thousand five hundred Malaysian ringgit a month (unless exceptions apply). Toanalyze the application of EA, it was thought prudent to select a group of participants whowould fall under this group of wage earners that is persons earning MYR 1, 500 and less. For the employment of women, the Act mostly concern on working hours andmaternity benefits rather than discrimination and equality of pay. An employer may not permitwomen to work between 10.00 p.m. and 5.00 a.m. in industrial and agricultural undertakings,and shall be given rest eleven consecutives hours before her start the new (Section 34(1)).However, since 2003, the Director-General of Labour has exempted female workers fromthe prior mentioned, if she made a written application to the Director General and within 30days she may imposed to the Minister if she does not satisfied with the decision. Femaleemployees are also restricted by law to be employed in any underground work (Section 35).The underground work may include the quarrying. For maternity protection, provided in that every female workers, married or unmarried,is entitled to maternity leave period for not less than 60 consecutive days in respect of eachconfinement under Section 37(1)(a) and under Section 37(2), shall received the maternityallowance from the employer. She will not be entitled to maternity allowance if at the time ofconfinement she has five or more surviving children (Section 37(1)(c)). She is of courseentitles to maternity leave. Children mean natural children; adopted children are not includedhere. Confinement means parturition resulting after at least twenty-eight weeks of pregnancyin the issue of a child or children, whether alive or dead, and shall for the purpose of this Act 2
  3. 3. commence and end on the actual day of birth and where two or more children are born atone confinement shall commence and end on the day of the birth of the last born of suchchildren, and the word ‘confined’ shall be construed accordingly. A pregnant women who gave births after two months working for an employer, is notentitled to maternity allowance. Although she has been employed by the employer at anytime in the four moths immediately before her confinement; but she is not employed by theemployer, for a period of, or periods amounting in the aggregate to, not less than ninety daysduring the months immediately before her confinements as she has work only for twomonths, the law says it must be at least 90 days. Women workers in the private sector aregiven 90 days maternity leave while those in the public sectors are given 42 days maternityleave. All are given leave for five surviving children. There are also provisions prohibiting anemployer from dismissing women when she is pregnant or when on maternity leaves. Although women’s employment rights are mentioned under the EA, howeverSarvinder Kaur Sandhu (2007) in his study related to the Malaysian Employment Legislationfor Women at Work, to they are not sufficient. For instance, the act provides for maternitybenefits such as maternity leave of only 60 days, which falls far below the requirement set bythe convention of the International Labour Organization (ILO) under provisions C 183Maternity Protection Convention (2000), which requires member states to provide at least 14weeks of maternity leaves. There are no mentions of nursing allowance, care or facilities fornursing mothers in the EA. Besides, he also comes out with the issue of inequality of wages,inequality of the employment opportunity, lack of maternity benefits, lack of child carefacilities, and the presence of sexual harassment. In addition, Sandhur (2007) find out that many women report experiencingrising levels of stress, resentment, guilt, erosion in intimate relationships, and a loss of qualitytime with children and other family members. Pocock (2005) also comes out with the similarreports at the back years that are from the National Study in Australia, it is indicated that in2005, 67% of employees said they did not have enough time with their children, 63% did nothave enough time with their spouse, and 55% did not have enough time for themselves. 3
  4. 4. The issues of maternity leaves in Malaysia is quite pressure, so far no action reallytaken to reveal the issues. Tchung (2006) stated that Datuk Seri Shahrizat has suggestedthat all working women should be entitled to a minimum 60 day’s maternity leave. She addedit is a healthy amount of leave to start with; 2 months should allow a mother to have sufficienttime to bond with their newly-born child, to arrange care for the child upon her returning towork, as well as recover physically from the child birth experience. Moreover, merely havingmaternity leave is not good enough. There are several issues need to be looked at. First, if the maternity leave is granted, will it be paid or unpaid? Obviously, if it isunpaid for women who work as a manager and could earns about MYR 8,000 per month willnot going to take the maternity leave as she will not give up the high pay. Secondly, if thepaid maternity leave is allowed, how much should a mother on leave is paid? Would it be50% of her pay, 30% or a flat rate? The pay rate must be able to satisfy pregnant women inthat it will be acceptable price to pay for taking leave. Lastly the issue of job security that iswhether or not to be able to return to the same organisation, same position due to the longleaves. It is true that the Employment Act does provides that an employer cannot terminatethe contract of employment for women who is taking the maternity leave, however they haveright to replace the position for the organization’s benefit. So what will happen to the womenif she is demoted to the lower position or transferred to other department or position with newjob description and so on after she came back from the leave? Will there be any statutoryprotection to prevent this from happening? Trevino and Nelson (2007) in the books of Ethics in Business Management, there is acase whereby a new mother, named Lisa, whereby her maternity leaves result indiscrimination. As she were on leave, her employer has filled in her position without herknows. In my opinion, that is really unethical. Of course the employer have the right toreplace workers who are on extended leaves because of illness, disability, or other reasonssuch as finishing education, but he should still cover for the rights of the replaced worker. Infact, under the United Kingdom Law, the women are entitled to 1 year maternity leaves. 4
  5. 5. I think Malaysia should not introduce statutory maternity leave. It remains to be seenwhether Malaysian women will be afforded similar benefits and to what extent it will befavourable enough to encourage women to take up maternity leaves. Women seeking toargue for the introduction of maternity leave for all should not be defeated by a statutoryprovision which dates back to 1955. The cut-off point, MYR 1,500 is neither realistic noracceptable today, considering many women now earn more than that, be it per month or perannum. Introducing qualifications based on wages also has the inevitable effect of beingdiscriminatory as it is assumes that women who earn above a certain amount of moneyshould not be entitled to maternity leave and should not even consider getting pregnant sincethey are better off remaining at work. It is also assumed that women who do not earn thatmuch money are better off staying at home and taking care of their children instead ofreturning to work as it would not make any difference. Another dilemma about the maternity leave is that whether the leave given makeseasy or difficult to the women. At the good sight, the maternity leave is given to protect themother’s physical condition during the pregnancy and childbirth, and also to protect bondsbetween the newly birth and the mother. However, in the long run the prospects of career willbe damaged. As we all known, nowadays, mothers are not only to take care of their child, butto give the best to them in terms of financial to support educations and better livings. Tchung(2007) also quoted that Malaysia, being the conservative country, is not ready to introducefamily-friendly policies. With regard to the policies, parents are able to decide who should bethe primary child-carer. Fathers are not entitled to any time off to care their child, assumesthat it is logics as men are still stereotyped as breadwinners in our society. More, he addedthe predominant view is that if anyone should be staying at home, it should be the mothers. Other than that, as mentioned earlier, the Employment Act 1955 does not cover theproblems of sexual harassment at the workplace. It does sets out minimum standards forworking conditions for females, but has no provisions to prohibit sexual harassment ordiscrimination at the workplace. This is very unsatisfactory as the EA itself is limited in scope 5
  6. 6. as it applies only to master-servant relationship, which is stated in Section 2, the contract forservice whereas more and more women working outside these traditional relationships. In order to improve the rights of women at work, acknowledge their contributions tothe economy and their needs to balance work and family life, the Employment Act 1955relating to the employment of women shall be revised. While the concept of maternity leavehas its fair share of advantages and disadvantages, Malaysia should not hesitate to offergreater protection and incentives to women. The Government must take positive measuresto ensure that all female workers are given such maternity rights as well, whereas maternityleave is currently available for civil servants. Striving for equality for all is a must.EMPLOYMENT OF CHILDREN AND YOUNG PERSONSThe exploitation of child labour by unscrupulous and uncaring employer has been highlightedby the media repeatedly from time to time. According to Maimunah Aminuddin (2007),serious labour shortage in 1990s facing the manufacturing sectors forced employers torecruit young people in breach of the law. Recently, the use of foreign workers increasessharply and causes the demand for child labour minimized in Malaysia. The InternationalLabour Organization (ILO) had convention on the employment of children since 1993. InMalaysia however, the government decide to ratify a new convention outlawing the worstform of child labour. There is no such law Malaysia that prohibit children from being employed, but as faras the laws concern, it is necessary to handle the abuse and protect from the exploitation ofchildren and young persons. In the Children and Young Persons Act (1991), also enforced bythe Department of Labour’s, covers employment in West Malaysia only, provides the rulesand condition to hire children and young persons. Similar restrictions also included in Sabahand Sarawak Labour Ordinance. Under Section 1A (1), a child is defined as any person whohas not completed his fourteenth years of age. Young person means any person who, notbeing a child has not completed his sixteenth years of age. So, any person under the age of14 is categorized as a child and those who are 14 to 16 are young person. As he or she 6
  7. 7. attains s the age of 16, in employment is considered as adult and therefore is excluded fromany special considerations. Section 2(2) under the act prescribed the conditions of employment for a child. Theyare employment involving the light work suitable to his capacity in any undertakings carriedout by his family, employment in public entertainment, in accordance with the terms andconditions if a license granted in that behalf under this Act, employment requiring him toperform work approved or sponsored by the Federal Government or the Government of anyState and carried on in any school, training institution or training vessel, and employment asan apprentice under a written apprenticeship contract approved by the Director General withwhom a copy of such contract has been filed. Children shall not work between the hours of 8.00 p.m. and 7.00 p.m. and they mustbe permitted a rest of 30 minutes after every three consecutive hours of work. They may notwork more than 6 hours per day. But for child working in any public entertainment therestriction of night works does not applied. These can be found under Section 5(1) and (2) ofthe Act. Further under Section 3 of the Act prescribed the employments engagement foryoung persons. They are allowed to engage in all as mentioned in the previous section,whether or not the takings is carried on by their family. They are allowed to be a domesticservant employed in any office shop, cinema, club and factory and so on. For females theymay not work in hotels, bars, restaurant or clubs unless this organization is controlled by theirparents. It is provided that with the approval by Director General, a female young person canengage in any employment in a club (entertainment premise) which is not managed by herparents or guardian. For young people, under Section 6(1) of the act, are not permitted to work between8.00 p.m. and 6.00 a.m. and are entitled to rest break of at least 30 minutes every 4 hours ofwork. The maximum hours of work allowed are 7 in a day but for apprentice they may workfor full 8 hours per day. The restriction of night work does not apply to young personemployed in public entertainment and agriculture sector is stipulated under Section 6(2). The 7
  8. 8. Factories and Machinery Act also helps to protect the rights of young persons, where theyare prohibited to carry out work involving machinery or in proximity to such machinery. As the parents concern, they prefer their children to work for the reason of to avoidthem from criminals and other unsociable activities, and to use their time productively whichis better for them since they cannot cope with the school. On the other hand, some parentsmight pressure their child to work for supplement family’s income. However, the existence ofchild labour reflected the bad sight of economics development. According to the ILO, 250million children from 5 to 15 do works. In Malaysia, the last nation-wide survey in 1980 found73,475 child workers between the ages of 10 to 14 working full-time. According to Doraisamy(2006), three-quarters of children work in family enterprises, especially stores, stalls,agricultures, and light industries. International reasons for child labour are poverty, war anddislocation of shattered family structures or a combination of all three. There are reasonswhy they have to work which includes comes from broken families, alcoholic parents, largerfamily size, non mandatory schooling and several other reasons. A child who has entered into a contract of service may sue the employer in the eventof breach in his personal capacity because such contract of service cannot be enforcedagainst a child by the employer. This is clearly stated in the Act under Section 2(a). The childmay also bring a complaint against an employer pertaining to the wages to the Minister ofHuman Resources, who will setup a board of inquiry to deliberate on the complaint anddeliver an order. Admittedly, this provision under Section 8 has never been used. Therefore,as I further discuss, loopholes exists in the Acts that might be used by the employers toescape conviction. Under the United Nation Convention on the Rights of the Child (CRC), the loopholesbeing highlighted in the Employment for Children and Young Person Act include theminimum age to work. Under the Act there is no minimum age stipulated. Children areconsidered all those under the age of 14 and below, and this is completely unacceptable,especially since as a signatory to the CRC, the Sate Party must imposed a minimum age isrequired for entry into the workforce under Article 38. But, Malaysia does not accede to the 8
  9. 9. ILO Convention No. 138 which imposed a minimum age for entry into the workforce. Also, nolegislation is provided governing minimum wage for minors who work. Thus, children maywork for long hours for little or no pay at all. Indeed the Act allowed children to work forlonger hours than adult. For example apprentice may work 8 hours a day. Benefits such as holiday, annual leaves, or other benefits to children and youngpersons who work also not prescribed under the Act. This made certain to the employer thatchildren are the cheapest form of labour and can be found in more hazardous occupation.The Employment Act 1955 and The Workmen’s Compensation Act 1952 and other ‘adults’act only apply to those of 18 years of age and above. Therefore the children and youngperson are not bound to inform to register children with SOCSO or with EPF. Thus theemployers are not liable to provide any neither compensation nor protection in case theywere injured. Only the children in the entertainment industry like circus is accepted to theprevious rule since the children must obtain a license from the Ministry before they perform.The penalties of MYR 2,000 or 6 months jail for the first offend and MYR 3,000 or 2 years jailfor second or subsequent offends are completely inadequate to safeguard and protectchildren. Furthermore, cases may only be brought before a Magistrate who has limited powerto penalize. The Child Protection Act 1991 (CPA) covers a wide range of types of abuse andneglect namely physical, emotional or sexual abuse, exposure to moral danger,abandonment, exposure to untreated illness, lack of remedial action by the guardian, or evenwhere the child is found begging. Other Sections raise presumptions where the law canintervene if the child is being transferred to traffic out of the country. The trafficked mayincludes seriously dangerous commonly relating to drugs and weapons. The CPA is uniquebecause in that doctors and medicals practitioners are under a legal duty to report anysuspected child abuse and neglect cases to the protector and police have to be alert for themto carry out investigations. If the medical practitioners failed to do so, he would be liable to afine of MYR 1,000. It is significant that very few countries have mandatory reporting. 9
  10. 10. However, despite this provision, doctors still remain mum until they finalised theirobservations.CONCLUSIONIn these Millennia, the participation of women, children and young person in the labour forcehas become the big issues in industrials undertakings. Their contributions help our country toincrease the national income. At some point, their rights are seen as being neglected inemployment. To reduce cost, irresponsible employers exploited these workers for a minimumgain and for their own benefits. Therefore serious attention should be given pertaining theissues of rights for the women, children and young person. Inadequate guidelines or 10
  11. 11. provisions provided by the Act has lead to serious problems but we must aware that thoughthere are as many laws enacted, but not enforced, then it is much a wasteful steps. Toprotect their interests, I believe that government especially the Labour Department playsimportant roles. The effectiveness of the Labour Department itself can help to protect theirrights in many ways.REFERENCES 1. Maimunah Aminuddin. (2007) Malaysian Industrial Relation and Employment Law. 6th ed. Kuala Lumpur: McGraw Hill. 2. Siti Zaharah Jamaluddin. (2002) Pengenalan kepada Akta Kerja 1955. 2nd ed. Kuala Lumpur: Penerbit Universiti Malaya. 3. Trevino L.K. and Nelson K.A.. (2007) Managing Business Ethics: Straight Talk about How To Do It Right. 4th ed. USA: John Wiley & Sons. 11
  12. 12. 4. Sarvinder Kaur Sandhu. (2007) Malaysian Employment Legislation for Women at Work: A Socio-Legal Study on Malaysian Secretaries/Clerks. Kuala Lumpur: UIAM.5. Pocock B. (2005) The Work/Life Collision: What Work is doing to Australians and What to Do about It. Sydney: Federation Press Report.6. Zarizana Abdul Aziz and Anna Marison. (2001) Status of Women under Malaysian Laws. Penang7. Tchung W..(2006) Maternity Leaves for Malaysian Women [online] http://wengtchung.blogspot.com on 13 August 2010, 2.00 p.m.8. Doraisamy S.. (2006) Situation of Young Workers in Malaysia [online] http://www.mtuc.org.my/young_workers.html9. Women’s and Children’s Rights and the Protection Offered by Domestic Law [online] http://www. Lawyerment.com.my/library/publ/fmly/review/d_5.html10. Outline of Labour Market [online] http://www.mhlw.go.jp/english/topics/globalization/dl/38-08.pdf 12