|Case of victory in defeat|
|Wednesday, 22 August 2012 11:18am|
©The Star (Used by permission)
Comment by SHAILA KOSHY
The Minimum Retirement Age Act 2012, which addresses longer life spans, also deals with gender discrimination. But it is of little consolation to a group of female employees who lost their gender discrimination case and will not receive compensation for being forced to retire at 50.
PUBLIC debate on raising the minimum retirement age for the private sector has touched on longer life spans and post-retirement poverty.
There was also talk of ending the discrimination between the private and public sector as the retirement age for civil servants was raised from 55 to 56 in 2005, 58 in 2008 and 60 last year.
There is now heated discussion on when workers can withdraw their savings from the Employees’ Provident Fund.
The irony is that the first application of the Minimum Retirement Age (MRA) Act 2012 was in the Federal Court on Aug 14 in a case on gender discrimination.
The MRA Act, which was passed in the Dewan Rakyat on June 27, received Royal Assent on Aug 5 and was gazetted on Aug 16 but is expected to come into force only next year.
Sadly, the legislative speed from Bill to Act in this case scuppered the case of eight former employees of Guppy Plastic Industries Sdn Bhd challenging their forced retirement at 50 for being female.
They had sought leave to appeal a Court of Appeal decision that retirement at 50 for women in the plastics sectors was industry practice.
They wanted the court to rule the practice was at odds with the Article 8 equality provision in the Federal Constitution, and the Convention on the Elimination of Discrimination Against Women (Cedaw).
In the Federal Court, Guppy Plastic’s counsel Wong Keat Ching submitted the legal questions posed were academic since the new law states that the retirement age for all private sector employees is now 60.
Court of Appeal president Justice Raus Sharif, who chaired the five-man panel, agreed, saying the new Act covered all employees in the private sector, regardless of gender.
“As far as we are concerned, the Government has taken steps and the issue of gender has been addressed.”
Justice Raus made the important point that if Guppy Plastic did not adopt the new retirement age for female employees, they could bring their case to court.
Sadly, this is of no help to Gan Soh Eng, M. Janama, I. Iyyamah, V. Pereyarka, S. Danalachumy, S. Tolasiamah, P. Marri and S. Letchmi, who were forced to retire in July 2001.
Ragunath Kesavan, their counsel, admitted the Federal Court could only consider points of law and not the injustice done to his clients.
He points out the forum for addressing inequality had been the High Court and Court of Appeal.
However, those two courts chose to set aside the Industrial Court award in favour of the women and seemingly uphold industry practice over a constitutional right.
Wong told the court her client had adopted the policy used by other plastics companies as there was no law or ministerial guideline then.
It is not known whether Guppy Plastic has now put into practice the new retirement age for all employees.
The Act only comes into force next year but workers should be talking to their employers about it now.
“Ideally, they should clarify with their employers and sign new contracts so that no arguments will be raised later about the Act not having retrospective effect,” notes lawyer Honey Tan, who held a watching brief for the Malaysian Bar and Suhakam at the Federal Court.
“If no new contracts are signed, there will always be room to argue.
“For those with collective agreements, they may want to sign supplemental agreements just to deal with this retirement age issue.”
The MRA Act has resolved the issue of age-gender discrimination but the fact remains that many women have been discriminated against.
And this happened because they were unaware of their rights; they did not know that agreeing to a term that went against their constitutional right could be held against them in a court of law.
Women’s groups should be passing the word about the new law.
Empower had discussed the Guppy case in earlier training workshops, says executive director Maria Chin Abdullah, but has not come up with a widespread effort to create awareness about the new Act.
MTUC president Mohd Khalid Atan says there are several sectors where different retirement ages exist between male and female employees and this is reflected in collective agreements.
He adds that he has also come across many unions where “female members want to retire earlier.”
“I have had objections from female workers when we fight for the same retirement age,” says Khalid, citing those in his Timber Employees Union Peninsular Malaysia as one.
“We need to educate female employees that they can still contribute to the economy at 45 or 50, unless of course they have some illness.”
Hopefully, MTUC will collaborate with women’s groups to educate as many female employees as possible.
While things are looking better for female employees, the eight who brought the case will not get any form of compensation.
“The Federal Court only decided on the new Act, so no decisions were made on Article 8, Cedaw or stereotypes manifesting themselves in the ‘industry norm’ of different ages of retirement,” says Tan.
We have a new law but the Court of Appeal judgment also stands.
Women employees must still be on their guard since, as Tan points out, employers can use “industry norm” to argue other manifestations of discrimination, for example, no equal pay for work of equal value.
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