The Joint Action Group for Gender Equality (JAG) is deeply concerned over the amendments to the Employment Act (EA) that were recently tabled in parliament, not just in terms of how it affects the rights of the workers but also over the sections pertaining to sexual harassment (SH).
JAG notes the refusal of the minister to acknowledge the validity of the protests from various quarters as to the unjust nature of these amendments. JAG has always highlighted the need for proper legislation against SH and is appalled to see this piecemeal effort despite the submission of a memorandum on the proposed SH Bill by JAG in 2001.
JAG has in the past, engaged the relevant ministries in discussion about the proposed SH legislation via submission of a signature petition, follow-up letters, participation in dialogues, working groups and countless press statements, all of which seem to have mostly gone unheeded by the government.
We had specifically highlighted the reasons why SH requires a specific Act and that it is unsuitable for incorporation in the EA. Despite all these longstanding efforts, we are very disappointed at the government’s blatant disregard of the rights of SH victims as can be seen by the superficial approach to legislate on SH in the EA.
We highlight here some of the major shortcomings of the SH provisions into the EA relating specifically to the mechanism of redress:
- The amendments state that the employer (or any class of employers) must hold an inquiry upon receiving complaint of SH. The amendments do not take into account the tri-partite relationship between the complainant, the harasser and the management. The impartiality of the inquiry is questionable especially if the employer is the harasser.
- The amendments allow the employer to decide on whether or not an inquiry should be conducted. Should the employer decide against holding an inquiry, the complainant can refer the matter to the director-general (DG) who, upon reviewing the matter, may agree with the employer or instruct the employer to conduct the inquiry. Although the employer will then have to hold an inquiry, the objectivity of the inquiry is at risk given that the employer was not willing to carry out the inquiry in the first place.
- The amendments do not detail the mechanism by which a fair and impartial inquiry can be held by the employer. Instead, it details how an employer can refuse to conduct an inquiry (i.e., if the employer is of the opinion that the SH complaint is frivolous, vexatious and not made in good faith). If the opinion of the employer can stop a inquiry into a complaint of SH, what then are the chances of fair redress should the employer be biased towards the perpetrator, not be sensitised to or well-versed with the issue of SH? The same argument can also be applied to the DG who receives a complaint against an employer. The need for an impartial tribunal to ensure reasonable standards of inquiry cannot be overstated.
- The amendments are silent about the right to appeal to an independent third party regarding the outcome of an inquiry held by either the employer or DG into a complaint. So what other avenues to redress does a complainant have should the inquiry outcome not be in the favour of the complainant?
- In the event that the inquiry proves that SH has taken place, disciplinary action will be taken against the perpetrator. However the only supposed remedy available to the victim is that the victim can resign without giving notice and get termination benefits!
It has been 12 years since the government launched the voluntary Code of Practice for the Prevention and Eradication of Sexual Harassment at the Workplace in 1999 in its efforts to curb SH. Clearly the current amendments are a total letdown to a worker who is sexually harassed and wishes to seek redress.
The amendments pertaining to SH in the EA show a lack of understanding on the issue of SH and the complexities involved in investigating and resolving SH complaints. Worse still it makes a mockery of the mechanisms of redress.
JAG finds these amendments unacceptable and urges the relevant ministry to reconsider JAG’s comprehensive Draft Bill. It is the right of every worker to work in an environment free from sexual and other forms of harassment and be guaranteed proper redress mechanisms. This government is duty bound to ensure that workers rights are protected. JAG urges the government to set aside the EA amendments.
The Joint Action Group for Gender Equality (JAG) comprises:
Women’s Centre for Change, (WCC) Penang
All Women’s Action Society (Awam)
Persatuan Kesedaran Komuniti Selangor (Empower)
Women’s Aid Organisation (WAO)
Perak Women for Women Society (PWW)
Sabah Women’s Action Resource Group (SAWO)
Sisters in Islam (SIS)