Marcus van Geyzel

Flexible Working Arrangements: What employers should include in a Flexible Working Policy and other recommended documents

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Pursuant to changes contained in the Employment (Amendment) Act 2022 (“the Amendment Act”), which the government has announced will come into force on 1 September 2022, employees in Malaysia will be allowed to apply to their employer for a Flexible Working Arrangement (“FWA”). (For a more comprehensive look at the changes under the Amendment Act, read my earlier article: “Malaysia Employment Act amendments: 7 key changes for employers to note”)

The introduction of FWAs under the Amendment Act is the first time that FWAs have been formally recognised in Malaysia, and may be the first of many such changes — the government has also shared that it is conducting studies on the feasibility of a four-day working week. Malaysian employers can expect FWAs to become more commonplace in the near future, and must start preparing now. Several of my clients are already putting in place the necessary flexible working policies and other related documents to not only ensure that they are not caught unprepared come the 1st of September, but also to lay the foundations for the anticipated changes in the next couple of years.

This article sets out the essential points that need to be covered in a Flexible Working Policy, and also other recommended administrative/HR documents that employers should strongly consider putting into place to smoothly accommodate FWAs.

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Malaysia passes Anti-Sexual Harassment Bill with very minor amendments, despite widespread criticism

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Malaysia’s Dewan Rakyat (House of Representatives) has passed the Anti-Sexual Harassment Bill 2021, despite unaddressed concerns of significant shortcomings in the Bill.

The Bill was initially tabled for its first reading in December 2021 (Read our previous post: “Malaysia’s Anti-Sexual Harassment Bill tabled in Parliament”). It was then withdrawn from a second reading earlier in 2022, with the government indicating that it would be significantly reviewed following robust feedback received from various parties. Unfortunately, the Bill which was passed this week only had very minor amendments from the first draft.

Due to the limited revisions made from the first draft, our summary of the Bill published in December 2021 is still mostly accurate: https://themalaysianlawyer.com/2021/12/15/anti-sexual-harassment-bill/

These are the material changes in the updated version of the Bill:

  1. A new Clause 7(3) is included, introducing a limitation period for sexual harassment complaints: “A complaint referred to the Tribunal under this Act is subject to the Limitation Act 1953.”
  2. While the original version provided that parties at the hearing of a sexual harassment complaint cannot be represented by an advocate and solicitor, this has been revised [at Clause 13(2)] to provide that legal representation will be allowed if “in the opinion of the Tribunal, the matter in question involves complex issues of law”. The revisions also provide that if one party is allowed to represented by an advocate and solicitor, then the other party will also be so entitled.

With these very limited changes, it appears that the concerns raised by numerous rights organisations who had hoped for “a meticulous review of the Bill” have been left unheard. Time will tell whether the new long-awaited law will be comprehensive enough to protect the rights and wellbeing of sexual harassment victims.

Confirmed: New Minimum Wages Order effective 1 May 2022; employers with less than 5 employees exempted

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The widely-anticipated Minimum Wages Order 2022 (“the Order”) was gazetted on 27 April 2022. The Order, pursuant to section 23 of the National Wages Consultative Council Act 2011, increases the minimum wage nationwide to RM1,500 from 1 May 2022. There is a temporary exemption until 31 December 2022 from the increase for employers with less than five employees.

Further details of the Order are set out below.

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Summary of new SOPs and guidelines for Malaysian workplaces from 1 April 2022

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Malaysia today begins its “Transition to Endemic” phase for COVID-19. As mentioned in an earlier update (Malaysia’s updated workplace COVID SOPs from 1 April 2022: Capacity and operating hour limits abolished), there will be only one Standard Operating Procedure (SOP) applicable nationwide for this new phase.

The National Security Council (NSC/MKN) has today released the new SOP and the following guidelines (all available at mysop.gov.my:

  1. Guidelines for indoor work spaces.
  2. Guidelines for outdoor work areas.
  3. Guidelines for religious activities, weddings, and funerals.
  4. Guidelines for hotel and guest accommodations.
  5. Guidelines for events, gatherings, entertainment, and tourist attractions.
  6. Guidelines for sports, recreational, and leisure activities and facilities.
  7. Guidelines for education and childcare.
  8. Guidelines for retail activities, food and beverage.
  9. Guidelines for transport and movement.

SOPs are enforced safety measures, with non-compliance punishable by fines. Meanwhile, the Guidelines serve to illustrate and expand on the requirements in the SOP, and compliance is only encouraged.

This article summarises some of the relevant SOPs and recommended best practices for workplaces generally from 1 April 2022. Business owners/operators and employers should still refer to the SOP document and any applicable guidelines for a comprehensive understanding of the requirements.

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Malaysia’s updated workplace COVID SOPs from 1 April 2022: Capacity and operating hour limits abolished

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[UPDATE: Please refer to this article published on 1 April 2022 which has more up to date information: “Summary of new SOPs and guidelines for Malaysian workplaces from 1 April 2022”]

Malaysia’s Prime Minister announced on 8 March 2022 that Malaysia will begin the “Transition to Endemic” phase for COVID-19 from 1 April 2022 (Click for link to announcement, in Bahasa Malaysia).

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Case Update: Justifying a retrenchment and departure from LIFO

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In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.

Malaysian courts recognise an employer’s right to organise his business in the way he thinks is best, provided that this right is exercised in good faith. The law gives an employer the right to decide on the number of employees his business employs based on business needs and efficiency. When it comes to retrenchments, the courts will be slow to intervene with an employer’s decision to retrench employees, unless there is evidence that the employer acted without proper reason, or otherwise acted in bad faith.

Employees who have been retrenched commonly challenge the legality of the termination on two points: (1) There was no genuine redundancy or other reason to carry out a retrenchment exercise. (2) Where there was a genuine need for a retrenchment, the selection criteria used by the employer in deciding which employees to dismiss was unfair.

Therefore, even though employers generally have the right to decide on their workforce numbers, any decision to retrench employees must be carefully considered and implemented. The recent Industrial Court award in Wong CP & 3 Others v. Taylor’s University Sdn Bhd (Award No. 342 of 2022) is worth considering as a reminder of the issues the Industrial Court will take into consideration where employees challenge the fairness of a retrenchment.

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