9 piques in the Employment (Amendment) Act 2022
The Employment (Amendment) Act 2022 (“the Employment Act”) which came into operation 1 January 2023 has brought noteworthy changes to the existing employment legislation landscape. We explore 9 aspects of the Employment (Amendment) Act 2022 that both employers and employees should be aware of:
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1.???????????? Flexible Working Arrangements
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The amendments have introduced flexible working arrangements, allowing employees to apply to their employers for variations in their hours of work, days of work, or place of work. It is important to note though, that the flexible working arrangement is merely an option that can be provided to employees, and is not mandatory upon the employers. Baby steps – penetrating the remnants and sediments of boomer legacies are a work in progress. We will get there.
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To apply for such an arrangement, the employee must submit a written application in the form and manner determined by the Director General and the employer is then required to respond to the application in writing within 60 days, either approving or refusing the request. If the application is refused, the employer must provide the grounds for the refusal.
While on a cursory glance, these provisions appear to offer employees the opportunity to negotiate a palatable work arrangement which suit specific needs, promoting work-life balance and accommodating personal commitments (bla bla), the non-mandatory nature of these arrangements on employers might limit their effectiveness. It proffers wide latitude in the hands of employers to accept or reject these requests. This (expectedly) would lead to inconsistent application across different organisations. Take law/accounting firms, for example. Yes, that was the end of that self explanatory example.
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One would say, flexible working arrangements are indeed much needed, in current circumstances where urban living edges closer to being impossible, without at least plugging out from the grid every now and then.
From an economic standpoint, flexible arrangements can lead to increased employee satisfaction and productivity. However, the success of such policies hinges on how well they are implemented and whether they are accessible to the broader segment of the workforce.
2.???????????? Pregnancy and Maternity
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Although considered to be long overdue, the Employment Act has significantly expanded the protection provided to expectant mothers. For instance, in the previous Act, a female employee is entitled to 60 days of maternity leave. However, with the Employment Act, the number of days has been increased to 98 days.
Although 98 days could arguably said to remain a far cry for women who are in the midst of post natal recovery and incidentally having to nurture an infant, this is a step forward nonetheless. The additional bonding time with their newborn is a major plus.
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Another fundamental amendment is the inclusion of a new provision in the Employment Act where it is now an offence for an employer to terminate or give a notice of termination to a female employee who is pregnant or is suffering from an illness arising out of her pregnancy, except in situations where:-
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(a)???????? There was a wilful breach of a condition of the contract of service;
(b)???????? There was a misconduct; or
(c)????????? There was a closure of the employer’s business.
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If the female employee is terminated on the above grounds, it is the employees’ responsibility to prove that the termination was not based on the aforesaid reasons.????????????
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The provision strengthens the protection of women in the workforce. However, placing the onus on employees to prove unjust termination might be challenging/onerous, and could deter some from pursuing legitimate claims.
3.???????????? Paid Paternity Leave
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For the first time, the Employment Act now provides for paid paternity leave. This amendment, also a further facet to the other positive developments, entitles fathers to seven (7) days of paid paternity leave under the condition that it is limited to five (5) confinements, notwithstanding the number of spouses.
Amendments on this aspect should be lauded for retaining underlying notions of the sanctity of the constitution of a family, to support the well-being of families and promote a more equitable distribution of childcare and parenting responsibilities, potentially allowing for greater female participation in the workforce.
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4.???????????? Sick Leave and Hospitalisation Leave
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In the previous Employment Act, employees were entitled to a total number of 60 days for both sick leave and hospitalisation leave. With the amendments, the sick leave and hospitalisation leave are now separate and employees are now entitled to 14 to 22 days of sick leave (depending on the number of years of service) if no hospitalisation is required, in addition to 60 days of hospitalisation leave.
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In a cataclysmically soul draining global corporate world, these ‘safeguards’ are pertinent, functioning as balancing provisions for purposes of sustaining cohesiveness of the domestic corporate culture, cultivating more compassionate employment practices. ?
So long as not abused (which abuse, one would argue, can easily be unearthed and made conspicuous by employers), this amendment augurs well with the tenets of employee welfare, cultivating more compassionate employment practices. ?Employers/Businesses need to balance the probable risk of abuse against the benefits of a healthier, more engaged workforce.
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5.???????????? Discrimination in Employment
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One other provision that is newly introduced is where the Director General may now inquire into and subsequently decide on any disputes between an employer and an employee where there is a matter in relation to discrimination in employment, and the Director General can make an order pursuant to such decision.
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If the employer fails to comply with any order of the Director General, the employer then commits an offence and upon conviction, be liable to a fine not exceeding RM50,000.
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If it is a continuous offence, the employer will then be liable to a daily fine not exceeding RM1,000 for each day the offence continues after conviction.
Important to note: this provision in relation to discrimination only applies to discrimination in an employer employee relationship and does not deal with discrimination as a basis for refusal of employment.
6.???????????? Working Hours (reduced)
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Working hours under the Act have been reduced from 48 hours to 45 hours per week, with a maximum of 8 hours per day.
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In terms of employees engaged in shift work, although they may work for more than 8 hours in any one day (but not more than 12 hours per day), the weekly limit remains the same at 45 hours averaged over a period defined in the Employment Act.
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With the amount of public holidays in Malaysia, and the apparent general low work rate across the board, much could be told to butcher the amendment in this aspect. Perhaps, we shall keep civil.
7.???????????? Calculation of Wages for An Incomplete Month’s Work
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One of the key highlights in the Employment Act is the introduction of a formula to calculate wages for an employee who has worked for less than a full month.
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Prior to the introduction of the calculation formula, the previous Employment Act only provided a simple manner of calculation using a denominator of 26 days. The introduction of the formula now makes it clearer and transparent for both employers and employees alike. This is particularly beneficial in scenarios involving part-time or irregular employment. From a business perspective, a standardised formula reduces administrative burdens and potential disputes, leading to smoother operational processes.
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8.???????????? Presumption as to Who is An Employee and Employer.
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For any proceeding for an offence falling under the Employment Act, and in the absence of a written contract of service relating to any employee under the First Schedule, it shall be presumed that a person is an employee:
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This provision seems particularly relevant in the context of the gig economy and other non-traditional employment forms. It provides a safeguard for workers who might otherwise fall outside the purview of traditional employment protections. By setting clear criteria for what constitutes an employer-employee relationship, the Act provides legal clarity, which is beneficial for both parties and reduces the potential for exploitative practices.
Although, this amendment could have significant implications for businesses that already rely heavily on non-traditional labor, potentially leading to increased costs and operational adjustments.
9.???????? Complaints in Relation to Sexual Harassment
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It is mandatory for an employer to, among others, inquire into complaints of sexual harassment and to inform the complainant and the reasons in the event of a refusal. An employer who failed to do so is now liable to a fine of RM50,000 whereby this amount has been increased from RM10,000 from the previous act.
Mandating employers to inquire into complaints of sexual harassment and increasing the fine for non-compliance significantly bolsters workplace safety and underscores the seriousness of such offenses. This amendment places a direct responsibility on employers, fostering a culture of accountability and respect. It's a crucial step in creating safer and more inclusive work environments.
Addressing sexual harassment effectively can lead to a more productive and harmonious workplace. A safe workplace is critical for retaining talent and maintaining a positive organisational reputation.
Epilogue
The amendments reflect an increased awareness of the need for work-life balance, gender equality, and workplace safety. These changes could lead to a more motivated and efficient workforce, although their impact will vary across different sectors.
Needless to say, the success of these amendments will largely depend on their implementation and enforcement. It's crucial that both employers and employees are adequately informed and prepared to adapt to these changes. As with any legislative reform, ongoing evaluation and potential future adjustments will be key to ensuring that the objectives of the Act are fully realised.
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