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Paternity leave for malaysian dads


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paternity leave in Malaysia

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Paternity leave for malaysian dads

  1. 1. Paternity Leave for Malaysian Dads: International Instruments and Domestic Laws in Selected Countries Siti Nur Jannah Binti Hasanuddin G1813858
  2. 2. Contents 1) An overview of paternity leave 2) International instruments on paternity leave - ILO convention - Unicef 3) Domestic Laws in Selected Countries - UK - Singapore 4) Differences 5) Recommendation and Conclusion
  3. 3. • There are several types of employee leaves. • Some mandated by law, others offered as a company benefit. Either it is paid or unpaid leave. But all are seen as an important attraction and retention tool for employers. • Either paternity, maternity or parental: the issue circulated in this area is the duration of the leave – lengthy or shorter paid or unpaid Contract of or contract for
  4. 4. Recent news • The UK's Prince Harry will reportedly take two weeks of paternity leave when his wife, Meghan Markle, gives birth. • A friend of the Prince is reported to have said, "He doesn't need to take paternity leave because he doesn't work in the way most people do, but he thinks it's a very modern dad thing to do."
  5. 5. Why male employees are not taking Paternity Leave? 1) Social stigma/workmates - man as the breadwinner and the woman as the caregiver 2) Financial inability logical choice is to have the father continue to work and have the mother's recovery period double as the period of time the newborn can bond with a parent 3) Employee knowledge men's lack of awareness of the Act's coverage and its applicability to their situations. 4) Employer’s view less likely to be recommended for rewards, may get passed over for promotion, or are otherwise seen as less competent at their jobs, fear of being laid off, and fear of not looking committed to the job
  6. 6. Importance of Paternity leave • Ensure that fathers share child care responsibility with mothers and allows for greater involvement of men in the critical early stages of an infant’s development -father-child engagement – bring wife home, register birth certificate… • Positive and meaningful interaction with mothers and fathers from the very beginning helps to shape children's brain growth and development for life, making them healthier and happier, and increasing their ability to learn. • Facilitate the return of mothers to the workplace - share the burden of child-rearing • Possibly help promoting gender equality in employment
  7. 7. 1) An Over View Of Paternity Leave Paternity Leave means; • Paternity/Paternal leave is generally a short period of leave for the father immediately following childbirth • Paternity leave is a short period of leave to care for the child and the mother around the time of childbirth. It is offered to male employers. • Paternity leave is a father-specific right to take time off work soon after the birth of a child
  8. 8. • The type of leave - depends on the workplace/employer’s discretion and state (mandatory PL – Chile 5 days) - • Several companies offer general emergency leave or family / parental leave instead of dedicated paternity leave - in addition to annual leave, which can be used by new fathers at the time of childbirth. • For example in Croatia, workers are entitled to 7 days of paid leave for personal reasons instead of PL.
  9. 9. Malaysia • Currently, Malaysian Employment Act 1955 does not provide for mandatory paid paternity leave. • Malaysian civil servants are entitled to 7 days paid paternity leave; some state government employees can take up to 14 days. • PL is not provided in Malaysia statutory law. Only in Pekeliling Perkhidmatan Bil. 9 Tahun 2002 – service circular • Not extended to contract for service (self employed) • For non-government - Some companies only provide 1 to 3 days of paternity leave. • But some multinationals/company are generous where they allow male employees up to 14 days to a MONTH –paid PL-. Such as AXA Malaysia IKEA , CIMB Bank
  10. 10. • In 2017, there was a request for 90 days’ maternity leave for mothers and one month’s paternity leave for fathers by Malaysian Trades Union Congress (MTUC). HOWEVER; • It was rejected by Malaysian Employers Federation (MEF) on the ground that it will burden the employer and would not be a lucrative choice for investors. • Such policies should not be introduced at an economically unstable time like this. He viewed if the government were to share the costs with the companies, then this same system could be practised in Malaysia.
  11. 11. 2) International instruments on paternity leave a) ILO Convention • In 1994, statutory paternity leave provisions existed in 40 of the 141 countries • By 2013, legislation on paternity leave was provided in 79 countries out of the total 167. • No ILO standard exists dealing specifically with paternity leave. • ILO recommended PL be done as with maternity leave concept, risk pooling through social insurance or public funds to mitigate potential discrimination against or disadvantages to men with family responsibilities at work and indirectly boost fathers’ leave take-up rates, • In the 2009 ILC Resolution ILO recognizes that work–family reconciliation measures concern not only women but also men and a variety of new measures (such as provision of paternity leave and/ or parental leave) have succeeded in permitting working fathers to be more involved in the sharing of family responsibilities.
  12. 12. • There a number of countries enjoy PL provided through collective bargaining agreements; such as • In Austria, there is no statutory paternity leave, but public sector workers are entitled to a month of unpaid leave through collective agreements. • In Finland, the length of paternity leave is defined by law, while the level of wage replacement is determined by collective agreements.
  13. 13. B) UNICEF • 92 countries do not have national policies in place that ensure new fathers get adequate paid time off with their newborn babies. • Hence, UNICEF is urging governments to implement national family-friendly policies that support early childhood development, including paid paternity and maternity leave, free pre-primary education, and paid breastfeeding breaks. • The rationale? evidence suggests that fathers who play a more active role with their child at the beginning of their lives will develop a stronger bond with them which will boost the child’s psychological development, as well as their self-esteem and life satisfaction in the long-term. • As a champion for early childhood development UNICEF came to realise how important the benefit was to its own employees. • Thus earlier this year, UNICEF modernized its approach to parental leave provisions, with up to 16 weeks of paid leave for paternity across all of its offices worldwide – the first UN agency to extend such leave beyond the standard four weeks.
  14. 14. 3) Domestic Laws in Selected Countries Singapore and UK i. Laws? Paid/unpaid ii. Eligibility iii. Length – duration iv. Job security
  15. 15. SINGAPORE (i) • From 1 January 2017, eligible working fathers, including those who are self-employed, are entitled to 2 weeks of paid paternity leave funded by the Government • Child Development Co-Savings Act (CDCA) (CHAPTER 38A) encourage married persons in Singapore to have more children • Regardless children are born or adopted
  16. 16. (ii) Eligibility for Paternity Leave (A)Fathers of Biological children  For a father to be entitled to paternity leave in respect of a biological child, his child must either:  Be a Singapore citizen from birth. A child will automatically be a Singapore citizen from birth if the child is born in Singapore and at least one parent is also a Singapore citizen; or  Become a Singapore citizen within 12 months of birth.  The child’s parents must also have been married:  At the time of the child’s birth;  For some time between the child’s conception and birth. This can apply even if the parents are now no longer married; or  Within 12 months of the child’s birth. For this scenario, the parents should marry within 1 year of the birth. This is because paid paternity leave has to be taken within 1 year of the child’s birth
  17. 17. • the father must have been working for his employer (if he is an employee) or for himself (if he is self- employed) for a continuous period of 3 months. • CDCA provides that an “ employee” is a person who “works under a contract of service with an employer in Singapore • CDCA defines a “self-employed man” as being a person who engages in or carries on any trade, business, profession or vocation other than employment under a contract of service”. # CDCA requires self-employed fathers to be Singapore residents before they can qualify for paid paternity leave.
  18. 18. (B) Fathers of Adopted Children entitled to paid paternity leave if the child has been adopted within 1 year of the date of the “Formal Intent to Adopt”. The date of the “Formal Intent to Adopt” refers to: • For children who are already Singapore citizens: the date when an application to adopt the child is first made to the court; or • For children who are not yet Singapore citizens: the date when the Immigration & Checkpoints Authority of Singapore (ICA) approves the child’s Dependant’s Pass. The adopted child must also: • Be a Singapore citizen from birth. As mentioned above, a child will automatically be a Singapore citizen from birth if the child is born in Singapore and at least one parent is also a Singapore citizen; or • Becomes a Singapore citizen within 6 months of the date of adoption. However, the adoptive father or mother must also be a Singapore citizen on the date that the child’s Dependant’s Pass is issued. Finally, the adoptive parent(s) also have to be married before or on the date of the “Formal Intent to Adopt”.
  19. 19. (iii) Duration of Paid Paternity Leave Entitlement • Working fathers who meet all the above requirements will be entitled to 2 weeks of paid paternity leave. • This entitlement is calculated on a per-day basis. Therefore, if you normally work 5 days a week, then the Government will compensate either your employer or yourself (for employed fathers and self-employed fathers respectively) for 10 days’ worth of your salary. *If you work 6 days a week, then you will get 12 days of GPPL. • If the employer allows the employed father to take paternity leave flexibly, then he may take the paid paternity leave at any time within 12 months of his child’s birth (or adoption). This can be done either as one continuous 2-week block, or split up into separate working days and taken in any mutually-agreed combination. • Alternatively, parties may opt for the default arrangement. The default arrangement is for the employed father to take 2 continuous weeks of paid paternity leave within 16 weeks of the child’s birth (or adoption). • If an employed father leaves his job (whether by choice or otherwise) after his child is born before fully using his paid paternity leave entitlement, he cannot transfer his remaining paid paternity leave entitlement to any new employer
  20. 20. Additional Leave Arrangements - Shared Parental Leave- • An employed father may, with his wife’s agreement, use up to 4 weeks of her paid maternity leave (and reduce her paid maternity leave entitlement by the same amount of leave). 12 weeks/16 weeks (women) • For an employed father to be eligible for shared parental leave,  The child’s mother must be entitled to paid maternity leave;  The child must be a Singapore citizen; and  The employed father qualifies for paid paternity leave.
  21. 21. (iv) Job Security • if an employed father has been dismissed by his employer because he wanted to claim paid paternity leave, he may be able to bring a claim for unfair dismissal and seek compensation from his former employer. • Employers who deny, without reasonable cause, employed fathers of their paid paternity leave entitlement may be fined up to $5,000 and/or jailed up to 6 months. These penalties increase to fines of up to $10,000 and jail terms of up to 12 months for repeat offenders.
  22. 22. • An employed father may, by mutual agreement with his employer, take any combination of leave which adds up to 4 weeks within 12 months of his child’s birth (or adoption). • Alternatively, employed fathers may choose to take shared parental leave in the default arrangement of a continuous period of 4 weeks within 12 months of their children’s birth (or adoption).
  23. 23. UK (i) • PL in UK became an issue after the prime minister, Tony Blair, and the new leader of the Conservative Party, David Cameron, have had children while in office.
  24. 24. • In 2003, ERA 1966 Part VIII Chapter 3 Section 80A – Paternity leave • Paternity and Adoption Leave Regulations 2002 and the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 came into force • Partner’s having a baby, adopting a child or having a baby through a surrogacy arrangement might be eligible for :  1 or 2 weeks’ Paternity Leave  Paternity Pay  Shared Parental Leave and Pay • However, the employee may not get both leave and pay, and there are rules on how to claim and when the leave can start.
  25. 25. (ii) Eligibility for Paternity Leave Part 2 Section 4 paragraph 2 of Paternity and Adoption Leave Regulations 2002 stated that : The person who taking time off to look after the child is generally one of the following: • the father • the husband or partner of the mother (or adopter) - this includes same-sex partners • the child’s adopter • the intended parent (if you’re having a baby through a surrogacy arrangement)
  26. 26. • The person must:  be an employee and be employed up to the date of birth  earn at least £116 a week (before tax)  give the correct notice  have been continuously employed by the employer for at least 26 weeks up to any day in the ‘qualifying week’ # The ‘qualifying week’ is the 15th week before the baby is due. • Death can still get Paternity Leave or Pay if the baby is:  stillborn from 24 weeks of pregnancy  born alive at any point during the pregnancy • Not eligible The employer must tell you within 28 days if you do not qualify and why using form SPP1.
  27. 27. • If the employer fails to inform employee the decision or employee don’t agree with the employer’s decision on a statutory payment –amount-, the employee can ask the Revenue (Her Majesty’s Revenue and Customs or HMRC) to make a decision on the entitlement. • If the employer hasn’t paid employee then the employee should write to the employer stating that will involve the Revenue. – • If employer still refused to pay - within 6 month from which SP is in dispute fail application to Revenue -Include decision of the employer • Revenue will negotiate with employer. If not working then will issue formal decision. Employer can appeal against this decision in Employment Tribunal (ET) • If the employer fails to pay you a statutory payment, or doesn’t pay employee enough, but admitted that the employee are entitled to it, employee can also enforce their rights at Employment Tribunal
  28. 28. (iii) Duration of Paternity Leave (A) Birth • Employees can choose to take either 1 week or 2 consecutive weeks’ leave. The amount of time is the same even if they have more than one child (for example twins). • The leave must be taken in one go. A week is the same amount of days that you normally work in a week - for example, a week is 2 days if you only work on Mondays and Tuesdays. • Leave cannot start before the birth. The start date must be one of the following:  the actual date of birth  an agreed number of days after the birth  an agreed number of days after the expected week of childbirth  Leave must finish within 56 days of the birth (or due date if the baby is early).
  29. 29. (B) Adopting and Surrogacy Arrangements When adopting, one partner, if they qualify, can take adoption leave as the main adopter and the other may be entitled to paternity leave. A period of paternity leave when adopting a child can start:  on the date of placement  an agreed number of days after the date of placement  on the date the child arrives in the UK or an agreed number of days after (for overseas adoption)  the day the child is born or the day after for surrogate parents. In all adoptions, an employee will need to have taken their Paternity Leave within 56 days of the placement date.
  30. 30. • Additional Paternity Leave Employees can work up to 10 days during their paternity leave. These days are called ‘keeping in touch days’. (KIT) Keeping in touch days are optional - both the employee and employer need to agree to them. The type of work and pay employees get should be agreed before they come into work. The employee’s right to additional paternity leave and pay isn’t affected by taking keeping in touch days.
  31. 31.  Paternity Pay Employees who take time off may be entitled to either Statutory Paternity Pay or Contractual Paternity Pay.  Statutory Paternity Pay Statutory Paternity Pay will be payable if an employee has been:  working continuously for one company for at least 26 weeks ending with the 15th week before the expected week of childbirth  has an average weekly earnings at least equal to the lower earnings limit for National Insurance contributions. *Since April 2018 the rate has been £145.18 per week or 90 per cent of the average weekly earnings, whichever is less. From 6th April 2019, the rate will increase to £148.68 per week.  Contractual Paternity Pay  An employer may choose to offer a rate of pay which is higher than the statutory rate. The amount and the length for which it is paid should be set out in the terms and conditions of employment. Contractual paternity pay cannot be lower than the statutory rate.
  32. 32.  Shared Parental Leave and Pay • Eligible parents can exchange part of their maternity or adoption leave for Shared Parental Leave (SPL) . They can then share this leave with each other in a way that best suit their needs in caring for their child. • Parents can share up to 50 weeks of leave and up to 37 weeks of pay and choose to take the leave and pay in a more flexible way (each parent can take up to 3 blocks of leave, more if their employer allows, interspersed with periods of work). • Eligible parents can be off work together for up to 6 months or alternatively stagger their leave and pay so that one of them is always at home with their baby in the first year.
  33. 33. (iv) Job Security • An employee has the right to not be treated less favourably by their employer for taking, or proposing to take, paternity leave. • An employee’s employment rights like the right to pay, holidays and returning to a job) are protected during paternity leave. • This includes the right to: pay rises, build up (accrue) holiday, return to work • An employee also has the right to return to their own job following a period of paternity leave and their terms and conditions should remain the same. • Annual leave continues to accrue during paternity leave and an employee must be able to take this leave at some point during their leave year.
  34. 34. Unfair treatment during, or because of, paternity leave  First, consider raising the issue informally. Some issues can be resolved quickly through a conversation with a line manager or other person within the business.  Second, if an informal approach does not work, an employee has the option of raising a formal complaint (also known as a grievance). This should be done in writing and can make the employer aware of how strongly the employee feels about the situation, while also giving the employer the opportunity to resolve it.  As a last resort the employee could consider making a complaint to an Employment Tribunal. There is generally a three month time limit for bringing a claim to Employment Tribunal. However this time limit can be paused if Early Conciliation is taking place.
  35. 35. Atkins v Coyle Personnel [2008] All ER (D) 108 • Employee alleged in employment tribunal that he had been unfairly dismissed on account of his having taken paternity leave. • The tribunal dismissed his claim because the reason for his dismissal had not been connected with his paternity leave. • The reason for dismissal had been employer’s frustration, which grew during a heated argument, following the employee's email which had not accurately reflected his work situation. • The employee appealed on the ground that the tribunal had failed to make the necessary findings of fact to justify its conclusions. Held - The appeal was dismissed. When read as a whole, the decision of the tribunal demonstrated that it had approached the issues, the evidence and the law correctly. The instant case was not one where it could be said that the conclusion of the tribunal was one which no reasonable tribunal could have reached. Nor had the tribunal failed to make any necessary findings of fact.
  36. 36. 4) Differences UK SINGAPORE MALAYSIA Law Provided in law - ERA 1966 Part VIII Chapter 3 Section 80A and Paternity and Adoption Leave Regulations 2002 Provided in law - Child Development Co-Savings Act (CDCA) (CHAPTER 38A) Not provided in law – only in PP Bil. 9 Tahun 2002 Payment Not Automatic paid - apply paternity leave & paternity pay Automatic paid for 2 weeks Automatic paid for 7 days Contract - worker Not extend to contract for service (self employed) Extend to contract for service (self employed) Not Extend to contract for service (self employed) Length of PL 1 or 2 weeks, either statutory or contractual 2 weeks paid 1 weeks paid , another one week opt and unpaid Extra leave – shared Parental Leave may share leave - Shared Parental leave may share leave - Shared parental leave No shared parental leave
  37. 37. 5) Recommendation and Conclusion  Ways forward – create family fund – based on employee contribution Two weeks - One weeks paid – one week unpaid (voluntary) PL for Malaysian dads regardless public or private servant– win win situation for both employer and employee – In my opinion, referred to Singapore instead of UK as example. Because UK law is still in unsettle. The current law has been criticized for gender pay gap in employment leave and below the standard of social protection for workers.
  38. 38. •Thank you for your attention !