After MEF's objection, proposed anti-discrimination provision removed

The proposed new provision to curb discrimination in recruitment under the Employment Act 1955 was removed after it received objections from the Malaysian Employers Federation (MEF).

This came after the Human Resources Minister M Kulasegaran had promised to amend the law to address issues related to discrimination at the workplace.

"It is true. There were discussions and then they decided not to pursue the matter (the pre-employment provision). We actually put our position much earlier to the ministry," said MEF executive director Shamsuddin Bardan when contacted.

Malaysiakini has contacted the Human Resources Ministry for comment and is waiting for a response.

According to the proposed amendment to the Employment Act 1955, which was published on the ministry's website in September 2018, there are more than 50 changes proposed.

M Kulasegaran

Among others, there was a new provision on "pre-employment" to be added into the law, stating that "An employer shall not discriminate against a job seeker on the grounds of gender, religion, race, disability, language, marital status and pregnancy".

An employer can be probed by the authorities if there are complaints of alleged discrimination and it would be considered an offence for not complying with directives.

In August, Kulasegaran said the proposed amendments will be tabled at the coming parliamentary session after completing the public engagement and receiving approval from the cabinet.

Employment Act should not regulate 'pre-employment'

Shamsuddin stressed that the Employment Act can only regulate matters between an employer and an employee, and therefore the "pre-employment" provision should not be included.

"The employees must be first employed then the Act applies. It doesn't cover issues about pre-employment," he said.

Shamsuddin (photo) added that the Employment Act will go against its principle and become inapplicable if it sets an example of covering the issue of pre-employment.

Asked about alternative suggestions to tackle the problem of discrimination, he said the government can introduce guidelines to educate the employers.

"The ministry can come out with guidelines so that employers can be more responsible. I believe things should not be just be made into laws. There are many other ways to tackle the issue," Shamsuddin added.

Meanwhile, former Malaysian Bar president Ragunath Kesavan refuted this reasoning and stressed that the anti-discrimination provision is essential.

"Including protection for job seekers against discrimination in the Employment Act is not only reasonable but it must be legislated as well. Even in mature democracies, there are adequate laws to ensure equality and non- discrimination," Ragunath told Malaysiakini via email.

He further explained that the country's employment laws have set minimum standards of employment, statutory duties and obligations which are enforced by the Labour Department.

"Although recruitment processes would be 'pre-employment', there is no bar to impose statutory duties and obligations on employers relating to non-discrimination, equality and so on.

"These statutory duties can be imposed on employers, and perhaps penal provisions can be included in the proposed amendments to take action against employers flouting these provisions," he said.

Introducing new law as an alternative

Currently, the Employment Act only applies to a certain group of workers, such as an employee with a monthly wage of less than RM2,000, and employee in manual work including artisan, apprentice, transport operator, supervisors or overseers of manual workers, persons employed on vessels and even domestic servants.

Ragunath (photo) said the non-discrimination provision should also be added into the Industrial Relations Act to protect labour rights in a wider sense.

“If it is deemed to be 'too difficult’, we may look at the option of the Equality Act, as in the United Kingdom," he added.

Suhakam commissioner Jerald Joseph, who was among those who attend to the public consultation meetings with the ministry, confirmed that a ministry official told the stakeholders the provision to protect job seekers would not be included in the final bill.

“We were informed that the government has decided to withdraw the provision from the bill. (However), the ministry official told us that they are not withdrawing the protection for job seekers. This is still an important point they want to pursue.

"They are thinking of introducing the new provision in another act or bill. But, when we asked them when and how long will it take, they have no answer yet," he said.

Joseph stressed that Suhakam supported the anti-discrimination provision and agreed to include it in the Employment Act.

He said the government should introduce policies that would create incentives to encourage employers to employ people with disabilities or other minority groups, together with provisions to penalise discriminating behaviours.

"Some jobs are difficult for people with disabilities, but some jobs they can do with a little bit of adjustment by the employers," Joseph added. - Mkini