An analysis of the legal protection of pregnancy and maternity at the workplace in Malaysia
thesisposted on 2017-03-01, 04:01 authored by Bhatt, Jashpal Kaur
This thesis examines the scope of the legal protection of pregnancy and maternity with respect to private sector workers in Peninsular or West Malaysia. The analysis focuses on how effectively the law deals with the adverse or unfavourable treatment of women workers in respect of pregnancy and maternity. The feminized workplace in Malaysia is assessed to determine the manner in which women’s ‘double burden’ in productive and reproductive labour results in the various legal issues faced by women workers in respect of pregnancy and maternity. The current legal approaches to pregnancy and maternity protection, comprising statutory and negotiated entitlements in collective agreements and employment contracts are reviewed, together with the dispute resolution bodies and remedies that apply. In addition, the constitutional rights to equality and gender non-discrimination are analysed to determine whether claims of discriminatory treatment relating to pregnancy and maternity may be brought to the courts as violations of those rights. These legal approaches are then benchmarked against international law to determine the extent to which Malaysia meets international approaches to pregnancy and maternity protection. The analysis reveals that the multi-faceted approach in Malaysia is inadequate. The various statutory rights and the remedial approaches that apply are deficient and lack comprehensiveness. Negotiated pregnancy and maternity entitlements are subject to employer and statutory restrictions, while the Industrial Court has been inconsistent and unaccommodating in resolving disputes involving collective agreements. The right to equality and the prohibition against gender discrimination under the Federal Constitution have been narrowly interpreted by the courts. As a result, the benchmarking of the domestic approach to pregnancy and maternity protection against international law shows that Malaysia falls short in terms of satisfying the international labour standards and its international human rights obligations. The first recommendation focuses on the role and responsibility of the State in either, amending the various statutory entitlements to benefit women workers, or, alternatively, legislating a parental leave act, which applies to working parents. Further, the jurisdictional limits and the conciliation and arbitration procedures of administrative bodies empowered to settle pregnancy and maternity related disputes, must be improved. The second recommendation involves pregnancy and maternity entitlements negotiated by trade unions in collective agreements. Management prerogatives which impact on pregnancy and maternity must be limited in respect of collective bargaining and women’s low membership rates in trade unions must be addressed, to better address pregnancy and maternity workplace issues. In addition, the Industrial Court must exercise its role and powers in a more consistent and accommodative manner when dealing with pregnancy and maternity related matters in collective agreements. The third recommendation refers to the vital need for judicial recognition and adoption of international developments with respect to pregnancy and maternity, which have led to new understandings of equality and sex discrimination.