SARILNEZAM BIN SALLEH 2011457688 NUR HIDAYAHTUL NABIHAH BINTI MANAS 2011440904 SHAHRUL AMIN BIN SHAHRUL NIZAM 2011467662 SITI SALWA BINTI OTHAMAN 2011472106

LWB04E

DEFENCE OF PROPOSAL

LEGAL REVIEW ON THE FIXED-TERM CONTRACT WORKERS: A COMPARATIVE STUDY BETWEEN MALAYSIA AND THE

UNITED KINGDOM.

Fixed-term contract work is a category of employment where the employment relationship between the employer and the employee would last for a specific period of time or until a certain task has been completed (Thawley, 2012).

What is Fixed Term Contract Employment?

•Bonded labour, Indentured labour, Kongsi system and Kanggani system (Hector et al, 2012).

Pre-independenc

e

•Foreign workers in plantation and manufacturing (Lee et al, 1996).

•Local (Lee et al, 1996).

•Banking (Khoo et al, 2012).

•Civil servants (Nik Mahmood ,1997).

1990’s

•Atypical employment has gained popularity as a method of employment recruitment by employers in Malaysia (Hanita Saad, 2011).

2011

Background

•Statutory definition needed to distinguish between fixed-term contract worker in direct and in-direct employment as they were not theoretically different (Hevenstone, 2010).

•Contractor for labour has been given statutory recognition in the new amendment to the Employment Act 1955 (Hector et al, 2011).

No specific piece of legislation

•security of tenure is an absence of apprehension of the risk of unemployment by having a long term contract (Ashgar Ali, 2012).

•The fixed-term contract worker is the casualty and victim when it comes to unfair dismissal and dismissal without just cause and reason, denied of legitimate expectations of permanent job (Olivier, 1996).

Security of tenure

•Deprived of the employment entitlements that were provided for the permanent workers such as legal status, wages, remunerations, promotions and training opportunities (Gericke, 2011).

•Disparity in working condition and job satisfaction (Osawa et al, 2013).

Unequal treatment

•Minimum temporal and administrative contact with the principal employer organisation, but at the same time have minimum physical contact with the contractor for labour that hired them (George, 2005).

Eliminates direct employment relationship

Problem Statement

To critically examine the current employment act 1955 in Malaysia from the aspects of scope, terms, conditions, rights and protections provided for the fixed-term contract.

To critically investigate the employment law in United Kingdom which provides for the fixed-term contract workers from the scope, terms, conditions, rights and protections as the legal benchmark.

To propose additional legislation in order to give adequate protections and rights for the fixed-term contract workers in Malaysia.

Research Objective

•Primary sources: statute and case

•Secondary sources: books, articles, journals

DOCTRINAL QUALITATIVE RESEARCH

•Definition, categorisation and interpretation of fixed-term contract employment

Content Analysis

•Study the past and the present history of employment law in Malaysia.

Historical Analysis

•Compare the fixed term employee rights between Malaysia and United Kingdom.

Comparative Analysis

Research Methodology

MALAYSIA-Employment Act 1955

UNITED KINGDOM-Fixed-Term Employees (Prevention of

Less Favourable Treatment) Regulations 2002

-Agency Worker Regulations 2010

Scope

Time constrainLimitation in data collection

Limitation in literatures collection

Limitation

To contribute to the existing body of literature which address the fixed term employee in Malaysia.

To introduce findings which can be potentially adapted by the Malaysian legislation in reviewing our laws in order to enhance the protection upon the currently vulnerable fixed-term workers.

To benefit the fixed term employees by advocating the better rights and security to the their career as well as providing them with certainties of tenure, salary, and other interests and defence against any unjust employers.

Significance

Literature Review

According to Hector (2011), Lee et al (1996), Amarjit (2013), and Hanita Saad (2012), contract worker has once predominated the employment landscape in Malaysia.

Employment Act 1955, indirectly eliminate contact employment in Malaysia (Hector et al, 2012)

Historical Background

Before independent

1990sAmendment in

2012

Malaysia: Development of Law

Abolish the ‘Contractor for Labour’ System

(2012)Bernama. (2011, 13 November 2011).

Contracts of Employment

Act 1963

Employment Agencies Act 1973

Sex Discriminatio

n Act 1975 and Race

Relations Act 1976

Employment Rights Act

1996Unfair Dismissal and Statement of Reasons for Dismissal

(Variation of Qualifying

Period) Order 1999

Fixed-Term Employees

(Prevention of Less

Favourable Treatment) Regulations

2002Conduct of

Employment Agencies and

Business Regulations

2003

Equality Act 2010

Agency Worker Regulations

2011

Amendments 2012-2013

United Kingdom: Development of Law

Koukiadaki, Aristea. (2010)Round-up of UK Employment Law Developments October

2012. (2012)

The closest reference can be made to the section 11 of the Employment Act 1955, which does not expressly and specifically mentioned the term ‘fixed-term contract’ at all (Maimunah, 2006).

Legal opinion is multi-dimensional, but mostly agrees with the characteristic and detrimental effect to the workers (Hanita Saad (2012), Hevenstone (2010), Leighton (1986) and Dubin (2012).

One size-fit-all approach is inapplicable and they could not be categorised in a single group (Thawley, 2012).

First problem: Statutory definition

Security of tenure is primary injustice that befallen fixed-term contract workers (Forsyth, 1999).

Throwing the employee out of the employment with total disregard of the employee ability to obtain future employment and difficulties in supporting themselves and families is highly undesirable state of affairs, unconscionable and repugnant to notions of social justice and principles of security of tenure of employment (Ashgar Ali, 2012).

It associated with rights or legitimate expectation on the part of the employee to be provided with just cause and reasons for non-renewal of fixed-term employment contract and this include the claim for unfair dismissal (Thawley, 2012).

Second problem: Security of Tenure

Third problem: Deprivation of Employment Rights and Entitlements

Wages and remunerati

on

BenefitsDevelopme

nt opportuniti

es

Regalia, Ida. (2001)

Cho, Kyungbae. (2002)

Waas, Bernd. (2012)

Conley, Hazel. (2006)

Regalia, Ida. (2001)Conley, Hazel. (2006)

Hector, Charles.2012• The

amendment of ‘contractual for labour’ in Sec 2 of the Employment Act eliminate the employee & employer relationship.

Lee,Kiong-Hock .1996• Absence of a

valid contractual agreement between the employee and the principal .

Lee,Kiong-Hock.1996• Contractual for

labour denies the employee’s right to equal payment.

Fourth Problem: Eliminate Direct Relationship

Research PlanSeptember-December 2013