Provisions in Employment Act must extend to all job seekers
KUCHING: The Women’s Aid Organisation (WAO) is urging the Minister of Human Resources to include job seekers in the proposed amendments to the Employment Act to protect job seekers from discrimination.
WAO has also urged the Minister to include disability status as a protected ground - in addition to gender, race, and religion.
In September 2018, the Ministry of Human Resources proposed amending the Employment Act to protect job seekers and employees from discrimination - on the basis of gender, religion, race, disability, marital status, pregnancy and language.
However, in August 2019 the Ministry said it planned to exclude job seekers from the anti-discrimination provisions. This means that individuals who experience discrimination during recruitment will remain unprotected.
Additionally, the Ministry also confirmed that the proposed anti-discrimination provisions would include gender, race, and religion as protected grounds - but not disability status.
In a recent survey of 1,010 Malaysian women, conducted by WAO and Vase.ai: 47 per cent of survey respondents were asked about their marital status during a job interview; 22 per cent were asked about their ability to perform certain tasks as a woman; 15 per cent were asked about their plans to have children; 13 per cent were asked if they would require a long maternity leave if they got pregnant; 22 per cent had experienced racial or religious discrimination during the recruitment process; and 20 per cent of women with a permanent disability were told by their interviewer/recruiter that they should consider freelancing instead as their disability was an issue.
“If we extend antidiscrimination protections to job seekers, we would help create a more equal and robust workforce - by ensuring that qualified candidates are not excluded from job opportunities,” WAO said in its open letter to the Minister of Human Resources.
The Malaysian government had cited legal barriers to including job seekers in the Employment Act. However, organisations including SUHAKAM, unions, and representatives of the Bar Council, have noted that there are no legal or technical barriers to including job seekers in the Employment Act.
Former Malaysian Bar president Ragunath Kesavan stated, “including protection for job seekers against discrimination in the Employment Act is not only reasonable but it must be legislated.”
Many countries have laws protecting job seekers from discrimination. Among these are Japan, South Korea, Australia, the US, Canada, and South Africa, which have employment laws that prohibit discrimination during both the recruitment process and employment.
In 2008, Malaysia passed the Persons with Disabilities Act. Despite this, persons with disabilities (PWDs) continue to face discrimination. According to SUHAKAM, the law lacks legal remedies and redress mechanisms for acts of discrimination against PWDs.
Protecting PWDs from discrimination in the Employment Act would help remedy some of the shortcomings in the Persons with Disabilities Act.
If we extend anti-discrimination protections to job seekers, we would help create a more equal and robust workforce – by ensuring that qualified candidates are not excluded from job opportunities. WAO
KUALA LUMPUR: The need for dispute resolution and arbitration related to various commercial claims and legal defences will increase as an unintended consequence of the economic and health impact of the Covid19 pandemic, said a London-based independent economist and writer Mushtak Parker.
He said when these disputes involve the state and foreign investors, and international companies, the implications are indeed complex.
“The indications are that dispute resolution through mediation is set to increase as a result of the economic impact of the pandemic in international trade and business transactions,” he said in a Thoughts column featured on the Bernama website.
Quoting Kwadwo Sarkodie, a partner in the international law firm Mayer Brown, Parker said the pandemic has given rise to a significant drop in many commodity prices, as a result of a sharp decline in demand, and restrictions on travel due to lockdowns are likely to restrict the ability of parties to deliver on contracts.
Sarkodie said there will inevitably be non-compliance even with the best of intentions.
“We will see an increase in commercial disputes and in the uptake of dispute resolution.”
Datuk Professor Sundra Rajoo, one of Malaysia’s and the region’s prominent arbitration experts, concurred that there is likely to be a lot of Covid-19-related disputes concerning various claims and defences.
Due to this potential disruption,
he is concerned of the financial impact on the dispute resolution mechanism itself.
This is especially if litigants or parties, already faced with serious financial and business liabilities due to the pandemic, have difficulty in paying even professional and other fees relating to the mediation process and any settlement agreement.
“Dispute resolution in Malaysia is currently faced with a number of challenges, including the uncertainty of the continued impact of the pandemic and the drain on resources; the hiatus surrounding the Asia International Arbitration Centre (AIAC), formerly the Kuala Lumpur Regional Centre for Arbitration; and the launch of the United Nations (UN) Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention on Mediation), which came into force on Sept 12, 2020”.
On that note, Rajoo said the Singapore Convention is welcomed by the developing countries as shown by the fact that they are the main countries who signed the convention.
A lot also depends on China on how it will use it in its Belt and Road Initiative, explained Rajoo.
The Singapore Convention, of course, differs from the AIAC in that the former is a UN treaty, whereas the latter is an arbitration institution.
Meanwhile, Sarkodie said the Singapore Convention would facilitate international trade and commerce by enabling disputing parties to easily enforce and invoke settlement agreements across borders.
“Businesses will benefit from mediation as an additional dispute resolution option to litigation and arbitration in settling cross-border disputes,” he added.
As of October 2020, 53 countries, led by the US and China, have signed up to the Singapore Convention.
The Singapore Convention is a uniform and efficient framework for international settlement agreements resulting from mediation, where it applies to international settlement agreements emanating from mediation, concluded by parties to resolve a commercial dispute.
It will facilitate international trade and commerce by enabling disputing parties to easily enforce and invoke settlement agreements across borders. — Bernama