What is new in Gender Discrimination in Employment in Malaysia?
Discrimination generally means treating someone differently and less favorably on the basis of some characteristic such as age, gender, race or religion. Gender-based discrimination is an adverse action or differential treatment against a person that would not have occurred if the person was of another sex. Discriminatory practices in employment may arise in hiring, promotion, job assignment and so on.
“Most anti-discrimination legislation follows a well-trodden path: those who are equal deserve equal treatment, and, conversely, those who are different are treated differently.”
Article 8(1) of the Federal Constitution reads as follows:
“All persons are equal before the law and entitled to the equal protection of the law.”
Article 8(2) of the Federal Constitution reads as follows:
“Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of an trade, business, profession, vocation or employment.”
In the case of Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor, the applicant, a flight stewardess, had 11 years of service with the national carrier, MAS. The terms and conditions of service of the applicant were governed by a collective agreement between the MAS Employees Union (“MASEU”) and MAS. Article 2(3) of the collective agreement required an air stewardess to resign or face termination if she became pregnant. When the applicant became pregnant, she refused to resign and her services were thereby terminated.
One of the issues of law raised by the applicant was whether Article 8 of the Federal Constitution applied to the terms and conditions of the collective agreement thereby rendering the said terms discriminatory in nature and unconstitutional. The Court of Appeal held that a constitutional safeguard fell within the domain of public law and dealt only with the issue of the contravention of individual rights by a public authority. The Federal Court concurred with this and agreed that it was not possible to expand the scope of Article 8 to cover a collective agreement as a collective agreement is not “law” per se
The issue as to whether Article 2(3) of the collective agreement (which required resignation upon pregnancy) violated Article 8(2) of the Federal Constitution as it was discriminatory in nature wa inapplicable to this case as the amendment to Article 8(2) to include gender discrimination was only effected after the filing of the case. This issue was not raised in the application for leave to appeal to the Federal Court.
The decision in the case of Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors was a move towards a rights-centered approach. In this case, the “Guru Sandaran Tidak Terlatih” (“GSTT”) post offered to the plaintiff was revoked and withdrawn by the defendants on the ground that the plaintiff was pregnant. The main issue for the Court’s determination was whether the action or directive of the defendants in refusing to allow a pregnant woman to be employed was tantamount to gender discrimination in violation of Article 8(2) of the Federal Constitution.
The Court noted its duty to take into account the Government’s obligation under the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) in interpreting Article 8(2). CEDAW, which was adopted in 1979 by the United Nations General Assembly, is the foremost United Nations treaty on women’s rights.
Article 1 of CEDAW 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.”
Article 11(1)(b) of CEDAW provides that:
“State 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…the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment.”
Applying Articles 1 and 11 of CEDAW as well as the Canadian Supreme Court case of Brooks v Canada Safeway Ltd, the learned judge held that the refusal to employ a woman on the grounds of pregnancy alone is a form of gender discrimination “because of the basic biological fact that only women have the capacity to become pregnant”. Further, the actions of the defendants fell within the ambit of Article 8(2) of the Federal Constitution as they were public authorities. The Court would have to overcome the public and private law dichotomy had the defendants been private employers as in the case of Beatrice Fernandez.
In light of the public and private law dichotomy, gender equality legislation would be the way forward to afford protection against gender discrimination.