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.
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.