Malaysian Trade Union Congress Proposal on the Employment Act BILL 2011
Short title and commencement
Section
Amendment on BILL
MTUC Proposal
Reason/Comment
Section 1 (1) & (2)
(1) This Act may be cited as the Employment (Amendment) Act 2011.
(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette, and the Minister may appoint different dates for the coming into operation of different provisions of this Act.
MTUC is of the view that the current title should be maintained with the year 1955.
We ought to take pride in the fact that more than 55 years ago, Government of the day look the initiative to set minimum standards and provide legal safeguards for working people. Furthermore by renaming the Act as 2011, without significant changes to the minimum standards, would not have much meaning.
Amendment of Section 2
Section
Amendment on BILL
MTUC Proposal
Reason/Comment
(a)
in the definition of “confinement”, by substituting for the word “twenty-eight” the word “twenty-two”;
MTUC Accepts
(b)
in the definition of “constructional contractor”, by substituting for the word “assigns” the word “assignees”;
MTUC Accepts
(c )
by inserting after the definition of “contractor” the following definition:
‘ “contractor for labour” means a person who contracts with a principal, contractor or sub-contractor to supply the labour required for the execution of the whole or any part of any work which a contractor or sub-contractor has contracted to carry out for a principal or contractor, as the case may be;’;
MTUC strongly reject this amendment
MTUC concedes that the current definition provided for sub-contractor for labour. Although labour supplier system has been in existence for more than 60 years, this unacceptable and exploitative system became more widespread in the last 10 years and the Home Ministry’s decision to issue more than 200 licenses to bring in foreign workers and lease them out to employers further worsened the situation. MTUC has repeatedly highlighted the abuses of this so called outsourcing agents and the HR Ministry also expressed strong reservation against the Labour Supplier system. Furthermore trafficking clearly in violation of Anti-Trafficking in Persons Act.
Labour Supplier system denies trade union and collective bargaining rights to workers engaged under this system. Kindly note that Government has ratified convention 98 on Collective Bargaining Rights.
(d)
by inserting after the definition of “employee” the following definition:
‘ “foreign domestic servant” means a domestic servant who is not a citizen or a permanent resident;’;
MTUC propose for all Domestic Servants
“remove the word “foreign”
Remain status quo
Reason why only foreign domestic servant and what will happen to local domestic servants?
Why should there be discrimination between foreign and local?
(e)
by inserting after the definition of “medical officer” the following definition:
‘ “Minister” means the Minister charged with the responsibility for human resources;’;
MTUC Accepts
(f)
by substituting for the definition of “part-time employee” the following definition:
‘ “part-time employee” means a person included in the First Schedule whose average hours of work per week as agreed between him and his employer are more than thirty per centum but do not exceed seventy per centum of the normal hours of work per week of a full-time employee employed in a similar capacity in the same enterprise;’;
MTUC Rejects the amendment and maintain the current clause
MTUC proposed for 50% or more BUT not less than 70% and to delete “per week” and replace with “per day”.
Government’s proposal will encourage employers to terminate most of the full time employees.
(g)
by inserting after the definition of “registered medical practitioner” the following definition:
‘ “sexual harassment” means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment;’;
MTUC Rejects
The definition is redundant due to MTUC has rejected the Section 81A –81G
(h)
by deleting the definition of “sub-contractor for labour”.
MTUC strongly reject this amendment
Reason
Same as stated hereabove.
Amendment of Section 4
Section
Amendment in BILL
MTUC Proposal
Reason / Comment
Section 4
(3) Section 4 of the principal Act is amended by substituting for the words “under section 69 or section 73” the words “or decision under section 69, 69B, 69c, 73 or subsection 81D (4)
Refer to the respective individual Section and sub-section on MTUC comments
Substitution of section 19
4. The principal Act is amended by substituting for section 19 the following section:
(19)
“Time of payment of wages”
19. (1) Subject to subsection (2), every employer shall pay to each of his employees not later than the seventh day after the last day of any wage period the wages, less lawful deductions earned by such employee during such wage period.
(2) Wages for work done on a rest day, gazetted public holiday referred to in paragraphs 60d(1)(a) and (b) and overtime referred to in section 60a shall be paid not later than the last day of the next wage period.
(3) Notwithstanding subsections (1) and (2), if the Director General is satisfied that payment within such time is not reasonably practicable, he may, on the application of the employer, extend the time of payment by such number of days as he thinks fit.”.
MTUC rejects the whole Section 19
MTUC propose to maintain the current provision as it has worked well. The developments in accounting and maintenance of attendance and overtime work records companies are able to compute all necessary data instantly. Government’s proposal is retrogressive.
Amendment of section 22
Section22
5. Section 22 of the principal Act is amended—
(a) by numbering the existing section as subsection (1);
(b) by deleting paragraph (c);
(c) by inserting after paragraph (da) the following paragraphs:
“(db) to enable him to purchase a computer;
(dc) to enable him to pay for medical expenses for himself or his immediate family members;
4 (dd) to enable him to pay for daily expenses pending receipt of any periodical payments for temporary disablement under the Employees’ Social Security Act 1969 [Act 4];
(de) to enable him to pay for educational expenses for himself or his immediate family members;”; and
(d) by inserting after paragraph
(f) the following subsection:
(2) For the purposes of this section, “immediate family members” means the employees’ parents, children, siblings or any other person under the employee’s guardianship.”.
MTUC reject this amendment and maintain the current provision.
Amendment of Part V
6. Part V of the principal Act is amended by substituting for the heading “RELATING TO THE TRUCK SYSTEM” the heading “SYSTEM OF PAYMENT OF WAGES”.
Part V
Part V of the principal Act is amended by substituting for the heading “RELATING TO THE TRUCK SYSTEM” the heading “SYSTEM OF PAYMENT OF WAGES”.
MTUC Accepts
Substitution of section 25
7. The principal Act is amended by substituting for section 25 the following section:
(25)
“Wages to be paid through bank”
(1) The entire amount of wages earned by, or payable to, any employee in respect of any work done by him less any lawful deductions, shall be actually paid to him through payment into an account at a bank, finance company, financial institution or other institutions licensed or established under the Banking and Financial Institutions Act 1989 [Act 372] or any other written law, in any part of Malaysia being an account in the name of the employee or an account in the name of the employee jointly with one or more other persons as stipulated by the employee.
(2) Every employee shall be entitled to recover in the courts so much of his wages, exclusive of sums lawfully deducted under Part IV, as shall not have been actually paid to him in accordance with subsection (1).”.
MTUC accepts the amendment BUT need to amend the Social Security Act so as to recognize the employee trips to the bank to withdraw as traveling in the course of employment.
MTUC propose to add in new clause
1(a)
Notwithstanding clause 1, hereinabove, the employee shall have the right to choose the bank of his choice.
MTUC comment, currently provision allowing the employees either go to the court or to Director of Labour acting under this section
Amendment of Section 25A
8. The principal Act is amended by substituting for the section 25A the following section:
“Payment of wages other than through bank”
(1) Notwithstanding subsection 25(1), an employer may, upon a written request of the employee, other than a domestic servant, make payment of his employee’s wages—
(a) in legal tender; or
(b) by cheque made payable to or to the order of the employee.
(2) In the case of a domestic servant, the employer shall, upon the request of his domestic servant, obtain approval from the Director General for the payment of wages of the domestic servant to be paid in legal tender or by cheque.
(3) The request by the employee under subsections (1) and (2) may be withdrawn by the employee at any time, by notice in writing, to the employer.
(4) The notice referred to in subsection (3) shall take effect at, but not before, the end of the period of four weeks beginning with the day on which the notice is given.
(5) The request of the employee to the mode of payment of wages under subsections (1) and (2) shall not be unreasonably withheld by the employer.
(6) Any dispute arising out of the request by the employee under subsections (1) and (2) shall be referred to the Director General whose decision on the matter shall be final.
(7) Section 69 shall not apply in respect of any dispute under subsection (6).”.
25A . MTUC accepts from 1 – 7.
Amendment of Section 31, Amendment of Part VII and New section 33A
Section 31
Amendment of Part VII
New Section 33A
Section 31 of the principal Act is amended by substituting for the words “sub-contractor for labour”, wherever they may appear, the words “contractor for labour”.
MTUC rejects the amendment in line with the rejection of the contractor for labour and proposed to remove the whole clause.
Amendment of Section 37
(37)
12. Section 37 of the principal Act is amended—
(a) by substituting for paragraph (1)(a) the following paragraph:
“(1)(a) Every female employee shall be entitled—
(i) to maternity leave for an eligible period in respect of each confinement; and
(ii) subject to this Part, to receive from her employer a maternity allowance to be calculated or prescribed as provided in subsection (2) in respect of the eligible period.”;
(b) in paragraph (1)(aa), by substituting for the words “paragraph (a)” the words “subparagraph (a)(i)”;
(c) in paragraph (1)(c), by substituting for the words “paragraph (a)” the words “subparagraph (a)(ii)”;
(d) by substituting for paragraph (1)(d) the following paragraph:
“(d) For the purposes of this Part—
(i) “children” means all natural children, irrespective of age; and
(ii) “eligible period” means a period of maternity leave of not less than sixty consecutive days.”;
(e) by substituting for paragraph (2)(a) the following paragraph:
“(2)(a) 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 for a period of, or periods amounting in the aggregate to, not less than ninety days during the nine months immediately before her confinement; and 8
(ii) she has been employed by the employer at any time in the four months immediately before her confinement;”; and
(f) by inserting after subsection (3) the following subsection:
“(4) Any employer who terminates the service of a female employee during the period in which she is entitled to maternity leave commits an offence:
Provided that for the purpose of this section, such termination shall not include termination on the ground of closure of the employer’s business.”.
MTUC accepts the amendment and MTUC is expecting the Government to keep in line with the Government workers 90 days to the private sectors.
Government should take steps to increase the duration of maternity leave to 90 days. The current discriminatory practice should be ended.
Amendment of Section 40 –
Section 40
Section 40 of the principal Act is amended by deleting subsection (3).
MTUC Accepts
Amendment of Section 42 –
Section 42
Subsection 42(2) of the principal Act is amended by substituting for the words “a female employee is dismissed from her employment” the words “the service of a female employee is terminated”.
MTUC Accepts
New Section 44A
New Section 44A
The principal Act is amended by inserting after section 44 the following section:
“Application of this Part irrespective of wages of female employee
44a. Notwithstanding paragraph 1 of the First Schedule, thisPart extends to every female employee who is employed under a contract of service irrespective of her wages.”.
MTUC Accepts
New Section 57A and 57B
“Employment of foreign domestic servant
57a. (1) An employer who employs a foreign domestic servant shall, within thirty days of the employment, inform the Director General of such employment in a manner as may be determined by the Director General.
(2) An employer who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.
Duty to inform Director General of termination of service of foreign domestic servant
57b. (1) If the service of a foreign domestic servant is terminated—
(a) by the employer;
(b) by the foreign domestic servant;
(c) upon the expiry of the employment pass issued by the Immigration Department of Malaysia to the foreign domestic servant; or
(d) by the repatriation or deportation of the foreign domestic servant,
the employer shall, within thirty days of the termination of service, inform the Director General of the termination in a manner as may be determined by the Director General.
(2) For the purpose of paragraph (1)(b), the termination of service by a foreign domestic servant includes the act of the foreign domestic servant absconding from his place of employment.
(3) An employer who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.”.
MTUC Accepts
As for the 57B. (2) MTUC comment, in the event the employees not able to report to work should give reasonable excuse for his absents.
Amendment of Section 59 –
Section 59
Subsection 59(1) of the principal Act is amended in the proviso by substituting for the words “Employees Social Security Act 1969 [Act 4]” the words “Employees’ Social Security Act 1969”.
MTUC Accepts
Amendments of Section 60 (3) (b)
Section 60 (3) (b)
Paragraph 60(3)(b) of the principal Act is amended by inserting after the word “monthly” the words “or weekly”.
MTUC Rejects to this clause
Current provision and practice do not prevent employers from adopting weekly pay system. The proposed amendment can create new problems with attempt by employers to change the formula for computing daily and hourly rates.
MTUC Propose that all gazette Public Holidays by State Government or Federal Government should be given to the employees.
Amendments of Section 60D –
Section 60 D
Section 60d of the principal Act is amended—
(a) in subsection (1)—
(i) by substituting for the words “a this” the words “at his”;
(ii) in paragraph (a)—
(A) by substituting for the word “ten” the word “eleven”;
(B) by substituting for the word “four” the word “five”;
(C) in subparagraph (iii), by deleting the word “and” appearing at the end of the subparagraph; and
(D) by inserting after subparagraph (iv) the following subparagraph:
“(v) Malaysia Day; and”;
(iii) by substituting for paragraph (b) the following paragraph:
“(b) on any day appointed as a public holiday for that particular year under section 8 of the Holidays Act 1951 [Act 369]”; andEmployment (Amendment) 11
(iv) by substituting for the proviso to subsection (1) the following proviso:
“Provided that if any of the public holidays referred to in paragraphs (a) and (b) falls on—
(i) a rest day; or
(ii) any other public holiday referred to in paragraphs (a) and (b),
the working day following immediately the rest day or the other public holiday shall be a paid holiday in substitution of the first mentioned public holiday.”; and
(b) in paragraph (3)(aaa), by deleting the word “in” appearing after the word “referred”.
MTUC Accepts
MTUC would like to highlight that any holiday falls on off-days should be given an addition one (1) day off.
Any working hours a week with two rest day, holiday falls on the day with one of the day will be counted.
Amendment of Section 60I –
Section 60I
Section 60i of the principal Act is amended—
(a) in subsection (1c), by inserting after the words “on a daily” the words “or an hourly”; and
(b) in subsection (1d), by inserting after the words “on a daily” the words “or an hourly”.
MTUC Accepts
Amendment of Section 60K –
Section 60K
(a) in subsection (1), by substituting for the words “the nearest office of the Director General with the particulars of the foreign employee” the words “the Director General with the particulars of the foreign employee by forwarding the particulars to the nearest office of the Director General”; and
(b) by inserting after subsection (2) the following subsections:
(5) An employer who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.”
MTUC Accepts on (1), (2) & (5)
(3) & (4)
“(3) If the service of a foreign employee is terminated—
(a) by the employer;
(b) by the foreign employee;
(c) upon the expiry of the employment pass issued by the Immigration Department of Malaysia to the foreign employee; or
(d) by the repatriation or deportation of the foreign employee,
the employer shall, within thirty days of the termination of service, inform the Director General of the termination in a manner as may be determined by the Director General.
(4) For the purpose of paragraph (3)(b), the termination of service by a foreign employee includes the act of the foreign employee absconding from his place of employment.
But as for the (3) & (4) as follows:-
(3) (c ) should be “upon expiry of employment contract”
(4) Absent of work should with reasonable excuse shall not be deemed as abscond - Refer to 15 (2).
Amendment of Section 69
Section 69
Section 69 of the principal Act is amended in paragraph (2)(ii)—
(a) by substituting for the words “sub-contractor for labour”, wherever they may appear, the words “contractor for labour”; and
(b) by substituting for the word “subcontractor” the word “sub-contractor”.
MTUC rejects this amendment in consistent with our proposal to abolish the contractor in clause to be deleted.
Amendment to Section 69B
Section 69B
Subsection 69b(1) of the principal Act is amended by substituting for the words “one thousand five hundred” the words “two thousand”.
MTUC proposed to five thousand (RM 5,000.00) and does not exceed ten thousand (RM 10,000.00).
This is in line with Government policy to move high income and also to reflect current situation and progressive in nature.
Amendment to Section 73 – to be deleted
Section 73
Subsection 73(1) of the principal Act is amended by substituting for the words “sub-contractor for labour” and “subcontractor for labour” the words “contractor for labour”.
MTUC proposed the whole Section should be deleted
Amendment to Section 77 –
Section 77
Subsection 77(1) of the principal Act is amended by substituting for the words “or 73” the words “,73 or subsection 81d(4)”.
MTUC Accepts
Amendment to Section 79 –
Section 79
Subsection 79(1) of the principal Act is amended by substituting for the words “Electricity Act 1949 [Act 116]” the words “Electricity Supply Act 1990 [Act 447]”.
MTUC Accepts
New Part XV A – SEXUAL HARASSMENT -
New Part XVa
81A – 81 G
MTUC rejects the whole clause Section 81A – 81G
MTUC is of the views that there should be separate stand alone act. JTK do not have sufficient manpower to take the additional load of conducting inquiry.
Amendment of Section 82
Section 82
Subsection 82(1) of the principal Act is amended in paragraph (b) of the proviso by deleting the word “male”.
MTUC Accepts
Amendment of Section 86
Section 86
Section 86 of the principal Act is amended by substituting for the words “section 69” the words “section 69, 69b, 69c or subsection 81d(4)”.
Refer to the respective individual Section and sub-section on MTUC comments
New Section 90A
New Section 90A
The principal Act is amended by inserting after section 90 the following section:
“Protection of officers
90a. No action shall lie or be brought, instituted or maintained in any court against—
(a) the Director General, Deputy Director General or any other officer duly appointed under this Act for Bill 18
or on account of or in respect of any act ordered or done for the purpose of carrying this Act into effect; and
(b) any other person for or on account of or in respect of any act done or purported to be done by him under the order, direction or instruction of the Director General, Deputy Director General or any other officer duly appointed under this Act,
if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served by it.”.
MTUC Rejects this new section
Government general orders and civil laws are currently adequate.
Amendments of Section 101A
Section 101A
Section 101a of the principal Act is amended—
(a) in subsection (1), by substituting for the words “or a Deputy Director General appointed under paragraph 3(2)(a)” the words “, Deputy Director General or any officer authorized in writing by the Director General”;
(b) in subsection (2), by substituting for the words “or the Deputy Director General”, wherever they may appear, the words “, Deputy Director General or any officer authorized in writing by the Director General”;
(c) in subsection (3), by substituting for the words “or the Deputy Director General” the words “, Deputy Director General or any officer authorized in writing by the Director General”; and
(d) in subsection (5), by substituting for the words “or a Deputy Director General” the words “, Deputy Director General or any officer authorized in writing by the Director General”.
MTUC Accepts
New Section 101B – Offence by body corporate, etc.
New Section 101B
“Offence by body corporate, etc.
101b. Where an offence under this Act has been committed by a body corporate, partnership, society or trade union—
(a) in the case of a body corporate, any person who is a director, manager, or other similar officer of the body corporate at the time of the commission of the offence;
(b) in the case of a partnership, every partner in the partnership at the time of the commission of the offence; and
(c) in the case of a society or trade union, every office-bearer of the society or trade union at the time of the commission of the offence,
shall be deemed to have committed the offence and may be charged jointly or severally in the same proceedings as the body corporate, partnership, society or trade union.”.
MTUC Rejects this new section
Current Civil laws are adequate. MTUC rejects this clause.
Amendments of Section 102
Section 102
Subsection 102(2) of the principal Act is amended—
(a) by substituting for paragraph (i) the following paragraph:
“(i) prescribing fees to be paid for filing of claims under section 69, 69b or 69c and for copies of notes of evidence recorded under Parts XV and XVa;”;
(b) in paragraph (j), by substituting for the full stop a semicolon; and
(c) by inserting after paragraph (j) the following paragraphs:
“(k) prescribing the forms of notice and returns of particulars used under section 60k;
(l) prescribing the procedure to inquire into complaints of sexual harassment under Part XVa;
(m) prescribing the terms and conditions of service of a domestic servant.”.
MTUC Rejects
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