COMMENT | The recent events and discussions concerning the minimum remuneration for pupils have engendered a lot of controversies.

We think that as a matter of principle and policy, there should be a minimum remuneration for pupils, especially when Malaysia has recognised and implemented a national minimum wage that covers almost every employee and profession.

A pupil should not be in a lesser position. Even the Federal Government agreed in 2019 to increase the allowance for interns (from RM1.60 an hour to RM5 an hour) undergoing practical training in all its department and agencies.

The International Labour Organisation has even considered a living wage as a basic human right. In fact, Article 23(3) of the Universal Declaration of Human Rights provides:

“(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.”

The Malaysian Bar has always prided itself on its advocacy of international human rights principles in government actions and legislation. We must do so with equal fervour on the issue of minimum remuneration for pupils.

However, Malaysia’s national minimum wage has a blind spot when it comes to pupillage for no reason other than its historical roots. A pupillage is an apprenticeship, not an employement.

This is reflected by the fact that pupillage is governed by the Legal Profession Act 1976 and is exempted from the Employment Act 1955 and the Industrial Relations Act 1967. Our history is both our bane and boon.

Even though much of the legal profession is steeped in tradition, past practices should be constantly reviewed to ensure it is fit for purpose in present times. The pupillage system is no different.

A holistic approach is required to address the many problems currently present within the pupillage system, including the lack of a minimum remuneration.

In this regard, we wish to highlight the following:

1. Pupillage as an apprenticeship

Even though historically, a pupillage is an apprenticeship with a barrister and would not be an employment, one should also take cognizance that we are a fused profession in Malaysia.

For solicitors, a traineeship is effectively an employment. It would be irrational to have a romantic attitude to our barrister past when most firms today practice in a solicitor setup. In light of the above, we should reconsider pupillage as an apprenticeship and whether it is reasonable to deprive pupils of the many protections afforded under employment laws.

2. Pupillage as a continuation of education

Yes, pupillage can be considered as an extension of university education as it exposes a pupil to the practical aspect of the law. However, firms do hire pupils in order to advance their economic pursuit and obtain benefit from pupils.

Granted, with exceptions, firms do not usually make the decision to hire pupils with the sole or predominant purpose of educating them. Education is incidental and comes along with the job, as would any job.

Therefore, we do not think that the education received as part of pupillage, in itself, can be used as a basis to oppose any form of minimum remuneration. As put by Lord Bingham in Edmonds v Lawson [2000] QB 501 (on a similar discussion):

“On balance, we take the view that pupils such as the claimant provide consideration for the offer made by chambers such as the defendants' by agreeing to enter into the close, important and potentially very productive relationship which pupillage involves.”

In the same vein, pupils should not expect to be treated as students and should be expected to exercise the skills required of a competent pupil. Failure to do so should be dealt with in a similar manner to other professions or employment.

In this regard, there is a great need to revamp legal education and introduce a common bar course that would equip prospective entrants with the basic skills required by the industry.

Law firms, who are essentially businesses, should not be expected to conduct a post-graduate course in legal practice for pupils when the universities and course providers continue to obtain commercial gains from law students without catering to the needs of the industry.

3. The quantum

The NYLPC published a report in 2011/2012 that the average pay for pupils in the Klang Valley is between RM1501-RM2000. For outside the Klang Valley it is RM500-1000. We take the position that the national minimum wage of RM1,200 is a good starting point, consistent with other professions.

The minimum remuneration, be it by state or national, should not put off firms from taking on pupils. For the firms who are paying high amounts, we believe they will continue to do so. Market forces will continue to play its role. Any quantum should be at a reasonable amount so the smaller firms can continue to take on pupils.

It is noteworthy that the UK’s Bar Standards Board has for many years fixed a minimum pupillage award, with varying quantum for pupillages in London and outside London.

If the UK, the birthplace of many of the Malaysian Bar’s traditions and customs (including pupillage) has evolved to introduce a minimum remuneration for pupils, there is no reason why Malaysia should not follow suit.

4. Ripple effect on the legal profession and quality of lawyers

Ultimately, how we treat newcomers has an effect on whether the legal profession attracts the best talents and its diversity. Do we want to be known as a profession that allows newcomers to be remunerated below the minimum of what is required to live independently while remaining dignified? Would we rather open the legal profession only to those who are able to afford it?

Some will be driven by passion, but not everyone has enough passion to endure the initial hardship. Passion and pay are not mutually exclusive. The best minds may instead be more interested in other professions.

The legal profession should be diverse because lawyers are guardians of rights and liberties of people of all genders, races, backgrounds or classes.

Society will be affected if the choice of lawyers is limited. There will not be a greater pool of talent to choose from for clients or when it comes to the appointment of judges. The quality will have to be compromised with whatever the supply is. In the long run, it will be detrimental to the legal system in Malaysia.

To quote Lord Falconer: “If you don’t catch people when they’re 15 or 16, when it comes to choosing judges 30 or 40 years later, you won’t have the diversity you need to ensure that judges reflect society”.

Any meaningful discussion on this issue must involve the participation of all stakeholders. Bulldozing this issue through or reminiscing days of yore is unhelpful to finding an effective solution.

This is not about what a fair remuneration for pupils should be. It is about a minimum remuneration to prevent exploitation and to uphold basic human rights.

In moving forward, we would urge the Malaysian Bar to:

1. Accept in principle that pupils ought to be protected with minimum remuneration and take steps towards implementing the same including but not limited to issuing rulings or advocating for legislative amendments; and

2. Look into revamping the current pupillage system in Malaysia, including the introduction of a common bar course, regulating the master-pupil relationship, and the type of training and mentorship required during that period.

The above is signed by:

New Sin Yew

Rajsurian Pillai

Vivian Kuan Hui Xian

Surendra Ananth

Lim Wei Jiet

Sarah Yong Li Hsien

Farhan Haziq Mohamed

Mary Ann Alphonce

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.