Dewan Negara passes amendments to Malaysia’s Employment Act relating to maternity and paternity leave

28 April 2022

On 30 March 2022, the Employment (Amendment) Bill 2021 (“Bill”) was passed by the Dewan Negara (Senate). The Bill seeks to amend the Employment Act 1955 (“Act”) to comply with international standards and practices as required by the Trans-Pacific Partnership Agreement, the Malaysia-United States Labour Consistency Plan and the International Labour Organization.

The key amendments to be made to the Act under the Bill are as follows:

  • Amendment to section 37 to extend paid maternity leave from 60 days to 90 days.
  • New section 60FA provides that a married male employee is entitled to three consecutive days of paid paternity leave for up to five confinements, subject to the male employee:
    • being employed by the same employer for at least 12 months immediately before the commencement of such paternity leave; and
    • notifying his employer of the pregnancy of his spouse at least 30 days from the expected confinement or as early as possible after the birth.
  • New section 41A restricts the termination of pregnant female employees.
  • Amendments to sections 60A and 60C provide for the reduction of an employee’s maximum working hours in one week from 48 hours to 45 hours.
  • New Part XIIC to the Act provides for an employee’s entitlement to apply for a flexible working arrangement to vary the hours of work, days of work or place of work in relation to his or her employment, subject to Part XII of the Act or anything contained in the employee’s contract of service.
  • Substituted section 60K provides that prior approval from the Director General of Labour appointed under section 3(1) (“Director General”) is required for the employment of a foreign employee. The employer may be required to comply with certain conditions including satisfying the Director General that the foreign employee has no outstanding matter or case relating to any conviction for any offence under the Act, the Employees’ Social Security Act 1969, the Employees’ Minimum Standards of Housing, Accommodations and Amenities Act 1990 or the National Wages Consultative Council Act 2011.
  • New section 81H provides that an employer is required to display, at all times, a notice to raise awareness on sexual harassment, at the place of employment.
  • New section 90B on forced labour provides that any employer who threatens, deceives or forces an employee to do any activity, service or work and prevents that employee from proceeding beyond the place or area where such activity, service or work is done, commits an offence and will, on conviction, be liable to a fine not exceeding RM100,000 and/or imprisonment for a term not exceeding two years.
  • New section 101C provides for the presumption as to who is an employee and employer in the absence of a written contract of service relating to any category of employee under the First Schedule of the Act. It is presumed that a person is an employee if, among other things, his manner or work is subject to the control or direction of another person or his work is performed solely for the benefit of another person.

The provisions of the Bill are not yet in force.