By Lim Liyi and Sea Jia Wei
Instagram Usernames: l_y_2122 and j.jiawei_iii
University: Multimedia University
1.0 Introduction
Gender inequality occurs when a person is treated unequally purely on the basis of their gender, and is sometimes known as sex discrimination. Gender inequality in the economy, politics, and society has become a stumbling block in achieving equal opportunities for both genders. Gender discrimination also arose in the workplace where it mostly affected the female employees which caused them to be unfairly treated. Despite feminism’s strides in ensuring women’s rights and empowering women across the countries, women and girls as evidenced today, still live in a world of widespread gender inequality. As we have seen recently, the women in Afghanistan faced widespread discrimination and human rights abuses from Taliban. Over the last few years, we have fallen short of gender equality in the workplace including in Malaysia and not all women are empowered.
2.0 Issues Faced By Women In Workplace
Gender discrimination in the workplace includes many forms such the absence of maternity leave, unequal wages and treatment.
The New Survey Research by Women’s Aid Organisation (WAO) has shown that more than 50 percent of Malaysian women experienced gender discrimination in the workplace. WAO’s Head of Campaigns, Natasha Dandavati, highlighted that 47 percent of women were asked about their marital status during a job interview, while 1 in every 5 women were questioned on their ability to perform certain tasks. Moreover, 55 percent of women said that their child’s father was given either less than one week of paternity leave or no paternity leave at all, indicating that the given paternity leave was insufficient.
Discrimination against women is not limited to the aforementioned above. Koshal et al (1998) has recognised with irritation that women must be more nimble and work harder in order to receive their equal honours with men even though the work is entirely the same. This kind of gender bias fostered feelings of unappreciation and a lack of visibility in comparison to men among the female workers.
An employer is urged to look into this matter and identify the gender participation barriers by considering the traits of organisations and leaders that are most successful in achieving gender diversity. Gender equality in this context simply refers to recognising the difference in ability and the way of treating people in the degree of fairness so that they can achieve the same outcome. For instance, the existence of biological sex make it reasonable for males and females to have distinct legal rights under some instances. Women have the right to request maternity leave specifically for pregnancy and childbirth.
Additionally, unequal remuneration is another concern. In 1997, Malaysia ratified The Equal Remuneration Convention (No. 100) and pursuant to Article 2(1) of the Convention, it entitled all workers with a right to equal remuneration for work of equal value regardless of their gender. However, the enforcement of this convention is weak and thus the problem of wage gap between gender persists. Next, the provisions in the Employment Act 1955 (EA) do not clearly mention that there should be an equal remuneration between men and women.
The Star Online published an article and included a report highlighting the difference or gap in median salaries. According to a survey of over eight million working adults in the country, the pay gap can be between 7.1 percent and 34.9 percent, depending on the industry. Despite more women graduating from university, the wage gap between women and their male counterparts in professional and management sectors is 20.3 percent and 15 percent respectively.
Therefore, we can observe that Malaysia’s position in eliminating gender discrimination is remains relatively vague. Without express law, women often face exploitation and receive unequal pay for their work which is entirely the same as men.
3.0 Ratification of United Nations Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW)
Malaysia ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995 with the objective to eradicate discrimination against women. In regards to the discrimination against women in the workplace, Article 11(1) of the CEDAW depicts that countries that have acceded to the convention, shall take appropriate measures to protect women from discrimination and grant women the same rights as men, namely (a) the right to work, (b) the right to equal job opportunities, (c) the right to free choice of employment, (d) the right to equal remuneration, (e) the right to social security and (f) the right to protect health and safety at the workplace.
Besides, Article 11(2) of the CEDAW states that, in order to protect women from discrimination on the basis of marriage or maternity, State Parties shall take several steps, including the following: (a) prohibiting dismissal on the basis of pregnancy, maternity leave or marital status, (b) to provide maternity leave with benefits, (c) to encourage the provision of the necessary supporting social services; (d) to provide privilege and special protection to women during pregnancy.
From the above analysis, we can see that CEDAW has strongly prohibited discrimination in workplace such as leave entitlement, job promotion and job distribution. In Article 8(2) of the Federal Constitution (FC), the word “gender” was inserted to reflect Malaysia’s obligations under CEDAW to prohibit genders discrimination and to ensure gender equality in the workplace.
Besides, Section 37 of the EA covers maternity rights, maternity allowance and the eligibility period of maternity leave. Hence, a female employee in the private sector is guaranteed a 60 days paid maternity leave (PML), while a female employee in the public sector will be allowed to have additional 30 days of PML if she gets the approval.
3.0 Case analysis
Despite having such privilege leave, the law is often criticised for the absence of employment security throughout the period of pregnancy and maternity leave, especially in cases involving specialised occupations like flight stewardesses where there is no prohibition against termination due to pregnancy.
In the landmark case of Beatrice A.T. Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 3 MLJ 681, the appellant was a flight stewardess who was dismissed from work due to pregnancy. However, the court in this case did not exercise judicial creativity and her service was terminated since her employment contract has allowed the termination upon pregnancy. This contravention of the Federal Constitution has infringed the rights of a private individual and was discriminatory.
In analysing the case above, there is no existence of legal terms or law requiring the first respondent to offer the applicant with the job during her pregnancy or on maternity leave. It is clear that the court denied the applicant the right to continue her employment upon pregnancy.
On the other hand, recent instances and practices have shown that this is not the case. In another landmark case of Noorfadilla Binti Ahmad Saikin v Chayed Bin Basirun Others [2012] 1 MLJ 832, the plaintiff received an offer for employment but it was immediately withdrawn due to the plaintiff’s pregnancy which could affect her performance adversely. The High Court held that pregnancy is a poor reason to dismiss employment as it violates Article 8 of the Federal Constitution and made reference to the CEDAW. In Mohamad Ezam bin Mohd Noor v Ketua Polis Negara &Other Appeals [2002] 4 MLJ 449, the court recognized the position of CEDAW as an international convention adopted in Malaysia.
Sadly, the award for damages was reduced to RM30,000 because Norfadilla had ‘not been completely honest’ about her pregnancy. However, if we relate to Article 11(2) of CEDAW, member states are required to take measures to prevent discrimination against women on the maternity. Hence, the need to disclose pregnancy required by the High Court is contrary to the Article 11(2) of CEDAW and unquestionably discriminatory. Employers are also prohibited from dismissing employees on the basis of pregnancy under CEDAW. As a result, the High Court decision has harmed Malaysia’s commitment to gender equality.
A further disturbing decision was made by the Court of Appeal in March 2012 where it upheld the right of employer through the case of Guppy Plastics Industries Sdn Bhd [2011] 2 ILJ 515. In this case, the employer enforced the retirement of female employees at an earlier age than male employees. Eight women who were at the age of 50 and above received a letter informing them that they are forced to respond due to their age factor. The action by the company to force the women to retire when they are ageing is an obvious kind of unequal provision of social security.
It is evident from the cases mentioned above that the court should consider the domestic implementation of CEDAW. In light of the foregoing definition of discrimination under Article 1 of the CEDAW, this situation is plainly discriminatory, as the manual stipulates that men and women retire at different ages. This retirement program also contradicts Article 11 of the Federal Constitution since men and women should have equal rights. The court may have made significant progress toward gender equality in Malaysia by leaps and bounds if they analyse and apply the CEDAW provisions to the case at hand.
5.0 Conclusion
In conclusion, gender equality policies need to be improved and Malaysia’s government should take initiatives to increase women’s participation in decision-making practices either in the workplace or in other fields such as the political sector. Women’s voices must be accessible to the public at large and this is time for Malaysia to forge ahead without hesitation and come out with a qualitative plan to improve women rights in the workplace. There are no limits as to what a woman may accomplish, therefore, working women should always be given recognition in society. In short, we should review the EA so that the domestic legislation could reach the effectiveness in integrating women into diverse development processes while narrowing the trend of gender disparities .
‘No humankind shall be inferior in law solely because of gender’.