Discrimination Against Women IN Workforce THE NEED TO MOVE Forward [2017 ] 3 ILJ xlvii PDF

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DISCRIMINATION AGAINST WOMEN IN WORKFORCE: THE NEED TO MOVE FORWARD [2017] 3 ILJ xlvii Industrial Law Journal Article (ILJA) DISCRIMINATION AGAINST WOMEN IN WORKFORCE: THE NEED TO MOVE FORWARD Priscilla Shasha Devi Lecturer, Multimedia University PhD Candidate, University Malaya and CJ Jacobs Senior Lecturer Multimedia University and Rebecca Mathan Deputy Dean(Academic)/ Lecturer Multimedia University and Matthew Jerome van Huizen Chooi & Co and Caleb Goh Hern-Ee Hafarizam Wan & Aisha Mubarak

Gender equality is guaranteed under art 8 of the Malaysian Federal Constitution and the Convention on the Elimination of All Forms of Discrimination Against Women (‘the CEDAW’) has also be ratified by Malaysia. This Convention spells out the rights of women and the states’ obligation in ensuring the rights under this treaty is respected. Notwithstanding Malaysia’s ratification of the convention, the gender discrimination landmark case of Noorfadilla Ahmad Saikin has been rather unsatisfactory as the High Court slashed the amount of award granted by 90%. Despite efforts to eliminate discrimination against women in Malaysia, there is a long way to go particularly due to the patriarchal society. Hence, there is a need for improvement in this area to ensure women’s rights would progress and not be in a state of flux.

INTRODUCTION Sexual discrimination or known in more common parlance as gender discrimination and gender bias is an inherent form of employment discrimination wherein employees, especially female employees, are treated unjustly purely

Page 2 of 9 DISCRIMINATION AGAINST WOMEN IN WORKFORCE: THE NEED TO MOVE FORWARD [2017] 3 ILJ xlvii due to their gender.1 While both men and women together come under the praesidium of legislation relating to gender discrimination, nevertheless, it is as plain as a pikestaff that more often than not, it is the woman who suffers the greatest detriment, being treated roughshod by the highly organised, well established ruling patriarchy.2 Granted it can be said that progress has indeed been made to narrow the chasm between men and women in the workplace as compared to the halcyon days of the post WWII world, where women were first set free from the chains of the kitchen sink by the heady progress under the Millennium Development Goals.3 Yet as we can see today, women and girls still suffer discrimination in every part of the world. Gender inequality, in the context in which we wish to examine it, if further efforts to close the gap in gender inequality continue unabashed, is thankfully one of the dying phenomena characteristic of our time. Still and all it is so familiar notably over the last 20 years, including in Malaysia that we fail to realise how novel and paradoxical it is, and how worthy it is of analysis and critical examination. PROBLEMS FACED BY WOMEN IN WORKFORCE Probably it is familiarity with what we call the ‘woman in the workplace’ that has isolated us from observing the inherent irrationality and contradiction of a statement made by certain people from certain quarters who claim that women do not make a significant contribution to Malaysia’s development. This is demonstrably false, as women do indeed perform highly estimable influences to nearly every facet of Malaysia’s development, be it social, cultural or economical. Plus, it cannot be denied that both in the professional and non-professional segments, it is women who contribute a significant role which gives our nation multiple beneficent effects. However, no matter how enormous the contribution of women to the workplace, they are still no strangers to the institutional and social barriers put in place to restrict their rise in the labour market and therefore their struggle for equality continues ad infinitum. Trite statistics demonstrate that the labour market in Malaysia has had a rise in the labour force4 input rate of 67.5% in 2014. The growth of 0.5 percentage point from 2013 was backed by the rise in the number of employed persons by 322.1 thousand persons to 13.5 million persons out of the total labour force of 13.9 million persons. The rise of female employed persons added to the increase of the overall LFPR. Female LFPR increased by 1.2 percentage points nearing 53.6% in 2014. Female contribution in the labour market was high, going beyond 55.0% for the prime age groups that is 25-34, 35-44 and 45-54.5 As aforementioned above, even though women are more than a significant contributor to the labour market, again according to a survey published however in 2015 by the Department of Statistics Malaysia, in 2014, the average monthly salaries and wages of male employees was RM1,600 in comparison to RM1,500 earned by female employees. In terms of the mean, male employees received monthly salaries and wages of RM2,280, somewhat higher than female employees with RM2,148, making the gender wage gap of 5.8%.6 This gender gap has resisted all attempts to tame it, especially within the miniscule, compressed, and homogenous camaraderie that exists among the upper echelons of the workplace. It is in these higher positions that women tend to play a peripheral role, contributing significantly to the earnings gap. The manpower of women, great quantity of treasure that they are, tends to be concentrated among the subordinate positions, which naturally of course are paid much lesser (Fernandez, 2009). From this study, it is clear that it makes no apology when suggesting that not only does income discrimination exists in all professions, but also that these wage discrimination is more apparent in a male dominated job scope. Equality in education in these genders as well does not appear to be a satisfactory condition for pay equality. To the surprise of many and to the dismay of some, it is also clear that Malaysian women are not alien to discrimination for promotions. Rivers of ink have been spilt in research, for example in, Koshal et al (1998) that have shown beyond suspicion that women are under-represented in all layers of management. Even though these studies have verbosely determined that women continue to produce high workplace perfor mance yet they are manifestly discriminated against when promotion is due. Until recently, this fact was treated by much of the nation with indifference and by many in power with levity, producing an entire generation of women who perceive that it is the norm rather than the exception that there ought to be advancement after recruitment. Hence, we see a great lopsidedness wherein men outnumber women in the senior ranks. Koshal et al (1998) has already realised with irritation the fact that women must be more adroit, work harder and

Page 3 of 9 DISCRIMINATION AGAINST WOMEN IN WORKFORCE: THE NEED TO MOVE FORWARD [2017] 3 ILJ xlvii be more assiduous merely to gain their equal award with men even though the work is entirely the same. Ismail and Ibrahim (2007) in their studies found that 49.9% of women employees in a particular company agreed that women in general have to work more diligently and longer to demonstrate their capabilities in order to achieve the same advancement as men. A study by Ismail and Ibrahim (2007) as a corollary has also revealed that discrimination in the promotion opportunities also exists. The false notion that male workers are more suitable for managerial posts has been so sedulously propagated that, as the study shows, women workers have to put up with more intransigence by the promoters to promote them. These untimely and malicious attitudes towards women who seek higher managerial positions in a particular organisation can only be influenced by the existence of a male managerial model. Employment and promotion to the higher position in the organisations exist due to the bias conception employers have towards employees. Not only that, in the study by Koshal et al (1998), only 66% of men compared to women, (88%) felt comfortable of having a woman as their boss. Unconsciously, this implies that a ‘male managerial model’ is still the preferred model in Malaysia.7 This, interspersed with other factors like a different retirement age wherein women are often subjected to retire at an age much earlier than the male co-workers contributes to the gender gap.8 Besides that, female employees have in the past been denied of a position or are forced to resign due to pregnancy.9 CURRENT LANDSCAPE It is consonant with the fact that gender equality is an essential human right, that for a peaceful, prosperous and sustainable world to exist, it becomes a necessity. As such on New Year’s Day 2016, the 17 Sustainable Development Goals (‘SDGs’) of the 2030 Agenda for Sustainable Development which came into force after being adopted by world leaders in September 2015 at the historic UN Summit. By this it is hoped that over the next decade and a half, efforts to mobilise these goals shall come to its fruition. It is also worth to note that one of the 17 goals for sustainable development is to ‘achieve gender equality and empower all women and girls’.10 Malaysia has ratified The Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’) in 1995. The Convention which was adopted in 1979 by the UN General Assembly and is also known as the International Bill of Rights for Women. This Convention comprises of a preamble and 30 articles which express the meaning of of discrimination against women and an agenda is also set forth to end such discrimination.11 The Convention defines discrimination against women as: ... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.12

Becoming a party to CEDAW would mean that Malaysia commits to undertake the responsibility and to set up ‘measures to end discrimination against women in all forms such as to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women; to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and to ensure elimination of all acts of discrimination against women by persons, organisations or enterprises’.13 CEDAW provides the foundation for realising equality between women and men through ensuring women’s equal access to, and equal opportunities in, political and public life, the right to vote and to stand for election and the right to education, health and employment. Not only that, member states must take all appropriate measures to enable all women to enjoy these rights. This can be done by enactment of legislation and temporary special measures.14 Article 11 of the CEDAW focuses on the elimination of discrimination against women in workforce and spells out

Page 4 of 9 DISCRIMINATION AGAINST WOMEN IN WORKFORCE: THE NEED TO MOVE FORWARD [2017] 3 ILJ xlvii that states parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the right to work as an inalienable right of all human beings; (b) the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; and (f)

the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

Furthermore under para 2 of the same article,15 it is states that state parties shall take appropriate measures to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work. States must take measures to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status,16 to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances,17 to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child care facilities18 and to provide special protection to women during pregnancy in types of work proved to be harmful to them.19 Paragraph 320 to the article provides that legislation is relation to matters under article 11 shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended when necessary. With all these laws in place, one would assume that there will be a change in discrimination against women in Malaysia and that discrimination would be significantly reduced. However, recent cases and practices have proved otherwise. CASE ANALYSIS The rights of women in Malaysia with regards to employment have been, since time immemorial, in a state of flux. This is clearly evident from the case of Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors ,21 wherein the applicant, a Grade B flight stewardess for the respondent was bound by the terms and conditions of the relevant collective agreement (‘the collective agreement’). The collective agreement, inter alia, required all stewardesses in the applicant’s category to resign from their employment upon pregnancy, failure in doing so would result in the right of the respondent to terminate the service or employment. The applicant who was pregnant refused to resign leading the first respondent to terminate her service. The applicant then commenced proceedings at the High Court. The applicant submitted that the provisions of the collective agreement were in contravention to art 8 of the Federal Constitution and was discriminatory. The application was eventually dismissed by the High Court and Court of Appeal. An application for leave to appeal to the Federal Court was then made by the applicant. Among the issues of law raised by the applicant were whether art 8 of the Federal Constitution applied to the terms and conditions of the collective agreement which were itself discriminatory in nature, and whether art 2(3) of the collective agreement (which expressly requires resignation upon a pregnancy) violated art 8(2) as it was discriminatory in nature, whether art 5 of the Federal Constitution and the Employment Act 1955 guaranteed the applicant the right to work and the right to continued employment during her pregnancy, and whether the Convention on the Elimination of all forms of Discrimination Against Women or CEDAW can be applied to the terms and conditions of the aforesaid collective agreement.22 The application for leave to appeal to the Federal Court was dismissed, the Federal Court held that, art 8 of the

Page 5 of 9 DISCRIMINATION AGAINST WOMEN IN WORKFORCE: THE NEED TO MOVE FORWARD [2017] 3 ILJ xlvii Federal Constitution to cover the scope of the aforesaid collective agreement. The rights and liberties under Constitutional law does not encompass its substantive or procedural provisions to the infringement of an individual’s legal right by another individual. Furthermore, the word ‘the law’ in art 8 of the Federal Constitution does not include collective agreements. Secondly, it was pointed out that there were certain special conditions that were uniquely applicable only to the job of flight stewardesses, which the first respondent in his capacity as the employer was fully eligible to impose. Additionally, the court took note of the nature of the job was adverse to the condition of pregnant women. Conclusively, there was thus no fixed distinct clause in the collective agreement that was found to be discriminatory against the applicant, or which provided a reason that would justify judicial intervention. The equal protection before the law in art 8(1) covers only to persons in the same class. It recognises that all of persons, due to ‘either nature, attainment, circumstances or varying needs of different classes of persons, often require separate treatment’. In this case, there was obviously no clear contravention. The applicant who is a Grade B flight stewardess should be treated differently from those who are members of the ground staff or senior chief stewardesses or chief stewardesses, as they were not employed in the same category of work. Furthermore, s 40 of the Employment Act 1955 could not provide any help to the applicant either. This is because there is nothing in the Employment Act 1955 that expressly prohibit terms and conditions of employment that requires flight stewardesses to resign upon becoming pregnant, such clauses are subject to the Contracts Act 1950. Hence, the employment contract would be the source of reference and would be enforceable. In this case, the collective agreement was non-negotiable and would be binding on all women of the same class and in cases of pregnancy, they would have to resign from their position. Indeed, there is a mandatory requirement for employers to pay maternity allowance to female employees and this is indicated under s 37(1) of the Employment Act 1955. Nevertheless, in cases involving special occupation like flight stewardess, there is no prohibition to prohibit terms for resignation due to pregnancy. From the evidence disclosed, there exists no implied terms that obliges the first respondent to offer the applicant with a ground job while she was pregnant or on maternity leave. It was stated in this case that even if the leave to appeal were granted, the applicant cannot possibly succeed in her claim and the applicant had failed to establish any grounds for the court to consider which may allow the court to depart from the established principles of law regarding this matter. In analysing this case, it is as clear as day that the court did not address the point as to whether art 5 of the Federal Constitution and the Employment Act 1955 guaranteed the applicant the right to work and the right to continued employment for the duration of her pregnancy. On another serious note, the court also failed to take the opportunity to discuss the application of CEDAW in this case. The Federal Court would have been able to help the progress of gender equality in Malaysia by leaps and bounds had the court analysed and applied the CEDAW provisions23 to the case at hand. Consequently, the courts went on to state that the collective agreement is not law. However, as it is well understood, the Industrial Relations Act 1967 requires the terms and conditions of the collective agreement to be inline and not in contradiction with any written law. Ergo, the term which requires the applicant to resign when she is pregnant should be void on the grounds of unconstitutionality because the Federal Constitution is, by its own provision, the supreme law24 of the land. The court in this case did not exercise judicial creativity. To explain this point, the authors finds it necessary to discuss the case that Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 which concerns procedural fairness and also the constitutional rights of a civil servant in cases of dismissal. Gopal Sri Ram JCA went on to highlight that: They (Judges) should, when discharging their duties as interpreters of the supreme law, adopt a liberal approach in ord...