Is refusing 90 days maternity leave an offense for private employers?

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Refusing 90 Days Maternity Leave is Not Currently an Offense for Private Employers Under Existing Law

The Malaysian Employers Federation (MEF) has stated that private corporations cannot be legally penalised for not providing 90 days of maternity leave, as there is no current legislation mandating it. MEF executive director Datuk Shamsuddin Bardan asserted that while the Federal Constitution is the supreme law, it does not contain specific provisions for a 90-day maternity leave, thus preventing Putrajaya from penalising employers who adhere to the existing 60-day limit. This stance challenges statements made by the Human Resources deputy minister regarding potential investigations and charges against employers for dismissing female staff taking extended leave.
Absence of Specific Legislation

Datuk Seri Ismail Abd Muttalib, the Human Resources deputy minister, had indicated that private sector employers could face investigation and charges for dismissing female staff taking 90 days of maternity leave, referencing Federal Constitution provisions on equal rights. However, he acknowledged that there is currently no specific clause that criminalises employers who refuse to grant this extended leave. MEF executive director Datuk Shamsuddin Bardan countered that such statements lack a legal basis, as the Constitution, while overarching, does not explicitly address maternity leave duration. He argued that a company's refusal to provide 90 days of leave when the law stipulates 60 days does not constitute an offence.
Legal Interpretation of Constitutional Rights

The discussion around maternity leave also touches upon the interpretation of constitutional rights concerning private entities. Former Chief Justice Tun Abdul Hamid Mohamad has argued that constitutional provisions on equality and non-discrimination are primarily applicable to government actions rather than private corporations or individuals. This perspective is supported by legal precedents, including rulings by the Court of Appeal and the Federal Court, which have indicated that constitutional remedies for fundamental rights violations are generally not available against private actors, as such rights are typically understood in the context of State action.
Planned Legislative Process for 90-Day Leave

The proposed extension of maternity leave to 90 days for the private sector, initially announced by Prime Minister Datuk Seri Najib Razak in October during the tabling of Budget 2018, is intended to align with the current provision in the government sector. The framework for implementing this change is planned to occur in two phases. The first phase involves gathering feedback from relevant stakeholders, and the second phase will entail amending existing legislation. Specifically, amendments are planned for Section 37 of the Employment Act 1995, Section 83 of the Sabah Labour Ordinance Chapter 67, and Section 84 of the Sarawak Labour Ordinance Chapter 76.

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Is refusing 90 days maternity leave an offense for private employers?

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