*Editor’s note: This article was updated on 15 September 2022

Amendments to Employment Act raise fears that poor implementation will hurt parents instead

In a long-overdue move to meet international labour standards, Malaysia in March passed amendments to the Employment Act 1955. The changes will introduce much-needed family friendly policies and move the needle towards gender equality in the workplace. Originally slated to take effect on 1 September 2022, enforcement has been delayed to 1 January 2023 to account for an “economic recovery phase”, as announced by the Human Resources Ministry after consultations with industry players and stakeholders.

With the delay, employers have more time to prepare for the new regulations. These changes include an extension of maternity leave from 68 days to 90 and an increase in paternity leave from three to seven days. Other provisions involve restrictions on the termination of pregnant women, mandatory notices on sexual harassment in the workplace, the right for employees to apply for flexible working arrangements and a reduction in maximum working hours, among others. Malaysia seems to have finally caught up with global and regional levels of protection for men and women workers. But now comes the harder question: what will these policies look like when implemented?

As it is, employers appear hostile to existing labour protections for women workers with caregiving responsibilities. At least 56% of working women in a survey conducted by the Women’s Aid Organisation and Vase.ai were subjected to some form of discrimination. Looking closer, 31% of respondents reported being passed up on projects or opportunities after returning from maternity leave, with another 27% subjected to comments or questions about their abilities while pregnant.

Even as the amendments to the Employment Act 1955 represent progressive strides, implementation barriers because of pervasive gendered norms usually stand in the way of success. Across Asia, similar trajectories to meet international labour standards have seen policies fall prey to gender bias.

At its worst, women in Japan have reported experiencing “maternity harassment” where they are demoted and driven to quit in the lead up to or after childbirth. Pre-employment discrimination against Japanese women is also common, with employers sorting women into non-career tracks or irregular work, despite the country’s decisive policy direction towards improving women’s labour force participation rate (LFPR) under the mantle of womenomics. In fact, one of the key reasons for womenomics’ failure can be attributed to corporate noncompliance and poor enforcement.

Discrimination fears

Such discriminatory outcomes in employment are not implausible in Malaysia. The Malaysian Employers’ Federation (MEF) has long pushed back on such initiatives, citing the potential costs borne by employers. According to the International Labour Organisation (ILO), leaving employers to assume the full costs of maternity protection can be disincentivising and could severely undermine policy implementation

Firms do this by choosing not to hire married or pregnant women (or women in general) or choose not to retain or promote them. Given that, it may be the case that Malaysia will have to consider paid maternity leave that is funded by either social insurance or public funds, especially for small to medium enterprises.

The amendments to the Employment Act 1955 also lack the necessary provisions to prevent pre-employment discrimination. Jobseekers, especially women, are at a disadvantage when perceived as “assuming” caregiving responsibilities later in their career. Adding racial, ethnic and class differences into the equation only means that women from different groups will have reduced agency and bargaining power with employers – effectively cutting them off from the benefits of labour protections and relegating them to the “motherhood penalty”.

The act, at the bare minimum, must include provisions to prevent pre-employment discrimination. The role of the director-general of labour to decide on employment discrimination, outlined in the new Section 69F, should also be expanded to include disputes on recruitment discrimination.

But this leads us to the thorny issue of how to define employment discrimination which the act fails to do. Without this definition, employment discrimination is left to the subjectivity of interpretation on a case-by-case basis. Workers would likely hesitate to report instances of discrimination or may fail to even recognise it as such and may continue accruing penalties against their career progression. It is precisely these unwanted outcomes that the act must outline clearly and account for to prevent discrimination in practice.

Benefits and accountability for employers

Legislation and policies, however, are effective only to a certain extent. In Singapore, uptake of the two-week paternity leave, while gradually increasing, remains relatively low. Singaporean fathers cited a lack of workplace support, raising fears that their career progression could be jeopardised. This same scenario plays out even in more gender-equal societies, such as the United Kingdom and the European Union.

As such, government action alone is insufficient. Employers also need to be held responsible on this front. Research indicates that organisations that have adopted family friendly policies benefit from improved employee engagement, productivity and retention. It also has the capacity to attract more high-quality workers, diversify the workforce and keep women in leadership roles – potentially enhancing firm profitability.

It is myopic for employers to neglect the importance of such policies and pay the price of workplace discrimination. These costs are likely to grow as survey evidence suggests that a majority of respondents were in support of more gender equal and family friendly workplace policies. In this regard, organisations need to go a step further by improving work culture, being transparent on the effects of paternity leave on career trajectories and helping parents to reintegrate into the workplace after their leave periods.

Reducing burden of care

If Malaysia is truly committed to assisting workers with caregiving responsibilities and improving women’s LFPR – which has stagnated in recent years – the country will have to do more. Efforts to expand early childhood care and education (ECCE) need to be ramped up. Currently, childcare centres are mandated at government offices and grants are available for companies to establish workplace childcare centres. But these initiatives lack the teeth to compel the private sector to invest in workers’ care needs.

Women in the informal sector also do not benefit from these protections and risk being pushed further intro precarity during and after a pregnancy. The government should explore options to provide maternity cash benefits for women in the informal sector to ensure that they too are protected.

At the crux of it, labour protections should not be a privilege that only certain workers can access. If families truly are the backbone of this nation, then their caregiving responsibilities need to be eased and implementation must be met with strong enforcement and support from employers. Only then can the government’s “Keluarga Malaysia” tagline ring true.

This article was also published in Forum, The Edge Malaysia Weekly, on August 1, 2022 – August 07, 2022.

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