Maternity Protection

Maternity protection is covered under Part IX of the Employment Act 1955. Under section 37(1) of the Act, female employees are entitled to maternity leave for a period of not less than 60 consecutive days in respect of each confinement and she shall be entitled to receive maternity allowance in respect of the eligible period.

In simple terms, this means that a female employee is entitled to salaries during confinement, i.e the generally known 60 days paid leave.

I will not deal with the other general issues but would like to highlight the fact that the benefits under s.37 of the Act is not an entitlement as of right. For a female employee to be entitled to maternity protection, there are 2 conditions the female employee must satisfy and this is found under s.37(2)(a) of the EA.

s.37(2)(a) states:-

A female employee shall be entitled to maternity allowance for the eligible period from her employer if –

(i) she has been employed by the employer at any time in the 4 months immediately before confinement; and

(ii) she has been employed by the employer for a period of, or periods amounting in the aggregate to, not less than 90 days during the 9 months immediately before her confinement.

Again, in simple terms, it means the employee must have at least worked for 1 day in the last 4 months and a minimum of 90 days prior to giving birth.

Here are some examples of this scenario:-

(i) Employee has 10 years of service and has worked everyday until the day she gives birth;

(ii) Employee has 10 years of service but for the past 1 year, employee is on unpaid leave;

(iii) Employee has worked for 88 days and on the 89th day, the employee gave birth.

Based on the scenarios provided, only in (i) the employee will be entitled to maternity allowance while (ii) and (iii) failed the test required under s.37(2)(a).

This section is a broad section and insofar as the employee satisfies the requirement, she will be eligible to receive the allowance.

To further elaborate this maternity benefit, I will discuss further into detail and I do hope it is understood by my readers.

If a female employee is pregnant on 1.1.2011 and is due to deliver on 1.10.2011 and she resigns on 1.6.2011 and rejoins another company on 2.6.2011, will she be entitled to maternity leave and allowance?

By applying the test in s.37(2)(a), the employee satisfies the condition both in Company A and B, but does this mean that the employee will be entitled to maternity allowance from both companies?

The answer to this is in the negative. Since maternity benefits is only payable upon giving birth, the latter company will have to pay for it. However, the latter company can claim under s.37(2)(d) for the previous company to contribute to the allowance based on the aggregate which she would be entitled to receive as if her claim was made to 1 employer only.

Therefore, female employees are not eligible to double payments. It is implied that the law provides that as long as the employee performed work in a company during pregnancy, she will be entitled to an allowance irregardless of whether or not the employee is currently in employment with the same company.

Initially, I argued that since this employee is no longer in employment (i.e no longer having an existing contract of service) why would the Employment Act 1955 apply? If the EA is not applied, s.37 is relevant, therefore maternity allowance shall not be recognised in any event.

If you are having the same thoughts as I did, I would like to bring your attention to S2 of the EA defines and employee by referring them to the First Schedule of the Act. For the purposes of explaining this part, I will reproduce the wordings of the definition (only the first part):

Any person, irrespective of his occupation, who has entered into a contract of service with an employer under which such person’s wages do not exceed one thousand five hundred ringgit a month……………………………

The key word = entered!

It is arguable that although the female employee is no longer an employee and no longer has a contract of service, it cannot be denied that the female employee ENTERED into a contract of service before. Due to that word, a female employee who has entered into a contract of service and satisfies the condition in s.37(2)(a) will be entitled to maternity allowance in any circumstance.

 

13 thoughts on “Maternity Protection

  1. hi.. i’m facing the similar issue with my ex-employer and current employe now😦

    Need to clarify further for the meaning of matenrity allowance, what is it means? the salary during the maternity leave?

    1. Hi there.

      Deeply sorry for the late reply.

      There is a difference between maternity leave and maternity allowance. Maternity allowance means that you are being paid for the ‘eligible period’ i.e 60 days. If you do not meet the 2 requirements provided under the Employment Act, you will not be entitled to maternity allowance, but you will still get your maternity leave (unpaid).

      The 2 conditions are as follows:

      (i) You must have at least worked for 90 days for the company during your pregnancy period.

      AND

      (ii) You must have at least worked for 1 day in the last 4 months before giving birth.

      Let me know if you need more help. Will try to reply asap.

      Thanks

  2. Im Joey, i had been forced to tender resignation within 24 hours due to have health problem (skin allergic) during my pregnancy. i urgently need your advice in term of labour law, which as i know the labour law only protect to those with salary below Rm1500.00. In my case wish to inform that my monthly salary is more than RM2000.00, is it still under labour law protection?

    1. My Position in the company is sales coordinator, my job scope to handling customer calls and administrative works in office. My job scope had been changes without any notice or memo to replace a job as storekeeper who resigned 2 months ago.

    2. The management give me the reason is I’m having health prob during my pregnancy and can’t perform the work as storekeeper in the company , even I request to replace by another administrative works or paper work, they refuse to accept and give me excuse that they are nothing others works for me and also can’t continue keep me to work there , that may cause their lost in term of salary pay.

    3. They also give so many excuse that I can’t perform well in my actual job scope as sales coordinator , administration works, stock monitoring Accounting work, but they never mention before or give me any notice or Memo to inform me my position been change or my job scope already change, all the while I just follow their instruction to work even the works is not my parts. Until the incident happened when they forced me work at full of dusty n chemical warehouse along 2 months only get skin allergic and go for consult my doctor .

    3. They give the reason not well perform in my current work scope so they change me to work as storekeeper . But so far they never inform me or give any warning letter to me.

    4.i start work on 5/10/2009 till 1/7/2013. Every year i get my increment and bonus,till this year when company business drop, I din get my increment, but still get my bonus without any documentation given, so is non logically a company will give a bad performance employee an increment .

    5. My company due to business low, starting cut cost in term of employee cost , so whenever who resign, they won get the new employee to replace , only will add additional job to existing employee, mean even I’m doing my current job scope also need do additional work instructed by management to replace a storekeeper who already resigned 2 months ago,started from that moment I takeover his job at warehouse, and need to stay along 6 hours longer per day at dusty n chemical environment every day.

    6. Currently they want me to check a big volume problem cow leather,around 40000 sqft leather equally to 800 pcs cow leather , average 1 pc of leather is around 50sqft, they requested me checked the leather Pc by pc, and also limited time for 1 week to detect all 800 pcs leather which one got what prob n measure the part that can be use. Which is impossible to get done , coz one day only able to check 1200 sqft leather .its take so much time check every Minal prob on full of chemical leather .

    Refer to above mention , I wish can get your kindly consult on my case, so that I can get my compensate that I deserve to get. Yours help will be much appreciated.

    Thank you very much.

    Best regards,
    Joey Liew

  3. Dear Victor,

    Need your reply urgently due to i have a discussion between IR office and my employer on 23/7/13. I need your advice asap, sorry for any inconvenience cause. Many thanks.

    Regards,
    Joey Liew

  4. Hi Victor,

    I plan to tender resignation by Feb 2016 and my due date is 15 Jun 2016. Do I still eligible for maternity allowance after that? My salary is more than RM5k per month and my notice period is 3 months. Thanks and looking forward to hear from you.

    1. Hi Jo,

      If you meet the conditions above then you will be entitled to maternity allowance of 60 days even if you resign in Feb 2016.

      If you serve the notice, you will leave with the additional pay or you can serve 1 month and offset the other 2 against notice.

      Anything please reach me at my mobile 0126536262

  5. Hello Victor, I’m currently caught in a situation and I’m very glad to come across your blog. Hope you could help me.
    I have been working for my company for about 10 years and recently I have been served an “At Risk” letter dated 1st April asking me to secure a position internally within the next 3 months. I’ve been told that on 1st July if I haven’t find a position I’ll be given another letter, a “Redundancy” letter with 3 months notice. My last day on payroll will be 30th Sept. I’m currently pregnant and my due date is 13th Nov. Is my company obliged to pay me maternity allowances? Thank you for your time.

  6. Hi, a friend of mine is due in mid Jan and will be entitled 2 months maternity leave. She is contemplating to leave her job and take care of the baby full time. She’s wondering if it’s legal to resign during her maternity leave, will it be effective?

    For example she started her maternity leave on the 15th Jan which ends circa 15th March. Can she resign on 15th Feb and treat the following 30 days as her notice period? Is it legal to do so?

      1. Hi Anonymous thanks. Is it possible to point me to the direction ie the clause or act that proves it can be done?

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