A. Introduction
On 15 December 2021, the Anti-Sexual Harassment Bill 2021 (“the Bill”) was tabled for its first reading in the Dewan Rakyat on 15 December 2021 signifying the beginning of the legislative journey to combat the ever-present issue of sexual harassment in Malaysia. The aim of the Bill was to raise awareness on the issue of sexual harassment and to afford specific protection to victims of sexual harassment beyond the provisions of existing laws such as the Employment Act 1955 and the Penal Code. The Bill was tabled for its second reading on 19 July 2022. It was passed by the Dewan Rakyat on 20 July 2022, and later passed by the Dewan Negara on 11 August 2022, marking a major milestone in the journey towards combating the issue of sexual harassment in Malaysia. The Bill received royal assent on 8 October 2022 before the Anti-Sexual Harassment Act 2022 (“the Act”) and was published in the Gazette on 18 October 2022.
B. The Anti-Sexual Harassment Act 2022
On 28 March 2023, several sections of the Act came into force, namely sections 1, 2, 24, 25 and 26. The key definition provided by Section 2 of the Act is the definition of “sexual harassment” which is defined as “any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to his well-being.” It introduces an objective element previously absent in its corresponding definition in the Employment Act 1955.
Section 24 of the Act serves to appoint the Secretary General of the Ministry for Women, Family and Community Development, Datuk Dr. Maziah binti Che Yusoff as the Administrator of Anti-Sexual Harassment (“Administrator”). The functions of the Administrator are set out in Section 25 of the Act which include, among others, formulating policy or issuing guidelines relating to the prevention or awareness of sexual harassment and promoting any activity, including to request any person to display any notice at any place, relating to the prevention or awareness of sexual harassment. Section 26 of the Act further empowers the Minister of Women, Family and Community Development (YB Dato’ Sri Hajah Nancy Binti Haji Shukri) (“Minister”) to make regulations under the Act but it is noted that as at to-date no such regulation has been made.
Save as set out above, the other sections of the Act have not come into force, in particular, the sections relating to the Tribunal for Anti-Sexual Harassment (“Tribunal”). The Tribunal (which has yet to be established) shall have jurisdiction to hear and determine any complaint of sexual harassment made by any person which occurs after the coming into operation of the Act. The members of the Tribunal shall be appointed by the Minister and shall comprise the following:
(a) a President and a Deputy President to be appointed from amongst the members of the Judicial and Legal Service;
(b) not less than five other members which shall comprise of:
- persons who are members of or who have held office in the Judicial and Legal Service; or
- persons who are admitted as advocates and solicitors under the Legal Profession Act 1976, the Advocates Ordinance of Sabah or the Advocates Ordinance of Sarawak, and who have not less than seven years’ standing;
and
(c) not less than five other members, as may be determined by the Minister, who have knowledge of or practical experience in matters relating to sexual harassment.
Upon hearing a complaint, the Tribunal shall make its award without delay and, where practicable, within sixty days from the date of its first hearing. Orders made by the Tribunal can range from a requirement to issue a statement of apology to a requirement to pay compensation or damages not exceeding RM250,000. Awards made by the Tribunal are legally binding. Any person who fails to comply with any such award commits an offence and shall be liable to a fine not exceeding two times the amount of compensation ordered (or RM10,000 where no compensation is ordered), or imprisonment for a term of 2 years, or to both. It is worth noting that in a hearing before the Tribunal, no party shall be represented by an advocate and solicitor unless, in the opinion of the Tribunal, the matter in question involves complex issues of law.
C. Gaps in the Act
The Act received some criticism as there remain gaps in the Act in relation to protections for victims, which will need to be addressed by further regulations, guidelines and policies. In February 2022, there was a memorandum prepared by the Joint Action Group for Gender Equality (JAG), ENGENDER Consultancy and Young Women Making Change (YWMC) on the proposed amendments to be made to the provisions in the Bill and the proposed new provisions to be inserted to the Bill.
In the memorandum, it was stated that the Bill lacks clarity and certain essential provisions, and it is critical for the provisions to be victim-centric and provide for fair and accessible process with sufficient checks and balances.
Among others, the proposed amendments were: to provide for deeper references to the intent of the Bill in the preamble, definition of “sexual harassment” to be extended, the composition of the Tribunal members and the awards that can be made by the Tribunal.
The memorandum also proposed for additional provisions to be inserted into the Bill, which include, amongst others, the explicit prohibition of the act of sexual harassment to be carried out by any person as well as the prohibition of the assistance of the act of sexual harassment. It also proposed for the introduction of an organisational duty, whereby reasonable steps should be taken by the government, individuals, bodies and institutions to prevent sexual harassment and to create a sexual harassment-free environment.
Unfortunately, it appears that these proposals were left unheard as they had not been adopted into the Act.
For further information, please refer to the memorandum.
D. Comparative Study of the Act Against Other Jurisdictions
To briefly summarize at this juncture before delving into a comparative analysis of the Act against other jurisdictions, it is worthwhile to say that what the Act largely achieves is the setting up of a Tribunal and to state how hearings ought to be properly constituted.
The Act also tasks the Administrator as being the person in charge of formulating anti-sexual harassment policies. Yet, the Act makes no mention as to what breaches of such policy may entail.
It would thereby not be incorrect to say at this time of writing that policies made out by the Administrator are forms of ‘soft’ law, i.e. instruments that are not legally binding.
Foremost, the Employment Act 1955 tackles the nuances of sexual harassment more than the Penal Code does, for the Penal Code only causes molestation, assault with intent to dishonour a person, outrages of decency and words/gestures to insult the modest of another as punishable offences.
Therefore, the comparative part of this section will include sexual harassment in the workplace as the nuances of sexual harassment is better captured in our law via the Employment Act 1955. As detailed below, this section will address two major themes that emerged in our comparative analysis followed by a like-for-like comparison with Australia’s Fair Work Commission under the Fair Work Act 2009.
i. Duty on Organisations to Pre-emptively Prevent Sexual Harassment
Several anti-sexual harassment laws from other jurisdictions compel employers to take proactive steps to ensure a safe working environment.
This is out of recognition that sexual harassment is not just a problem between perpetrator and victim, but also is a phenomenon that can be perpetuated by organisational practices, culture and norms.
Article 1010 of China’s Civil Code mandates that state organs, enterprises, schools and other organisations are to bear the burden to take reasonable precautions and other measures to prevent and stop sexual harassment.
This has been recently supplemented by China’s newly legislated Act titled ‘Women’s Protection Law’, the exposure draft of which garnered more than 700,000 comments during the opinion-seeking stage, making it China’s most commented legislative document to-date(1).
Article 25: Employers shall take the following measures to prevent and curb sexual harassment against women:
(1) Formulate rules and regulations prohibiting sexual harassment;
(2) Clarifying the responsible bodies or personnel;
(3) carrying out educational and training activities on preventing and curbing sexual harassment;
(4) taking necessary security measures;
(5) Setting up phone lines, and in-boxes for complaints, clearing the channels for complaints;
(6) Establishing and improving procedures for investigation and handling, promptly addressing disputes and protecting the parties’ privacy and personal information;
(7) Supporting and assisting women victims in lawfully preserving their rights, and when necessary providing psychological counseling to women victims;
(8) Other reasonable measures to prevent and curb sexual harassment.
The same duty on organisations to prevent sexual harassment is also found in s 19 of India’s Sexual Harassment of Women at the Workplace Act 2013, employers are to:
19. Duties of employer.— Every employer shall—
(a) provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;
(b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
(c) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
(f) make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9;
(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
(h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal Committee
ii. Protection of Complainants from Victimisation
Provisions that protect against victimisation of complainants typically accompany laws against sexual harassment.
This is necessary for two reasons: first, victimisation is a common retaliatory response to complainants who assert their rights against sexual harassment; and secondly, victimisation can result in secondary traumatisation among victims.
Section 14.1 of Canada’s Human Rights Act 1985 states that it is discriminatory practice for a person whom a complaint has been filed under, or any person acting on their behalf, to retaliate or threaten retaliation against the complainant.
Retaliation
14.1 It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
In the United States, via Title VI in the Civil Rights Act, the law provides that a complainant may file a retaliation complaint and states that the retaliation victim need not also be the victim of harassment. As such, a person who complained about sexual harassment and was victim to retaliation may have standing, or locus standi, to sue for compensation against victimisation.
3. Third-party retaliation
Finally, under certain circumstances, Title VI’s prohibition on retaliation extends to third parties, which may include lower-level recipient employees, program beneficiaries or participants, organizations with a relationship to the recipient such as contractors, and others. Agency Title VI regulations provide that “[n]o recipient or other person” may retaliate. See, e.g., 28 C.F.R. § 42.107(e) (Department of Justice); 34 C.F.R. § 100.7(e) (Department of Education) (emphasis added). Recipients have two key obligations related to third party retaliation: first, to protect individuals from potential retaliation, recipients are obligated to keep the identity of complainants confidential except to the extent necessary to carry out the purposes of the Title VI regulations, including conducting investigations, hearings, or judicial proceedings; and second, recipients must investigate and respond when a third party engages in retaliatory conduct that Title VI prohibits. As with other types of third party conduct, such as harassment, the extent of the recipient’s obligation is tied to the level of control it has over the bad actor and the environment in which the bad acts occurred.
iii. A Like-for-Like Comparison: The Fair Work Commission under Australia’s Fair Work Act 2009
Under Australia’s newly amended Fair Work Act 2009, the Fair Work Commission (‘FWC’), as the adjudicating body empowered to hear and adjudge on claims of sexual harassment in Australia, offers a like-for-like comparison with the Tribunal as constituted under the Act.
First, hearings conducted by the FWC are de-facto public hearings, except where the FWC makes an order that they be heard privately where it is desirable to do so if evidence is deemed to be confidential, per s 593 of the Fair Work Act. Presently, s 14 of the Act states that all hearings before the Tribunal shall be closed to the public.
593 Hearings
(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.
(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).
Confidential evidence in hearings
(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:
(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the hearing.
(4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).
Secondly, the FWC is bestowed with powers to inform itself to matters as it considers appropriate. This is similar to the Tribunal’s power to admit evidence on oath or affirmation or may itself administer an oath or affirmation per s 9 of the Anti Sexual Harassment Act 2022, except that the FWC may go further to conduct inquiries and undertaking or commissioning research, per section 590 of the Fair Work Act.
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
Lastly, parties before the FWC may be represented by lawyers or paid agents. Again, this is similar to the Act. However, ‘fairness’ is a basis on which the Fair Work Act permits representation, whereas representation is only permitted where complex issues of law arise per s 13 of the Act.
For example, parties may only be represented before the FWC if it would be unfair to not allow representation because the person in question is unable to represent themselves effectively or because it would be unfair to not allow the person to be represented taking into account the fairness between the person and the other persons in the same matter.
596 Representation by lawyers and paid agents
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non‑English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
The Fair Work Act also clarifies that a person will not be deemed to be represented by a lawyer or paid agent if the lawyer or paid agent is an employee or officer of the person or is an employee or officer of an organisation or bargaining representative. By comparison, the Act does not provide for such deeming provisions before the Tribunal as found in the Fair Work Act.
E. Conclusion
Overall, the Act in its present stage is largely Parliament’s provision of an avenue of justice for victims of sexual harassment, given the Act’s focus on the setting up and constitution of a tribunal to hear claims of sexual harassment. Less can be said about whether the Act truly ameliorates the often-times complex nuances of sexual harassment claim nor about whether the Act compels proactivity against sexual harassment at workplaces, schools and public spaces.
This article was published pursuant to Cheang & Ariff’s Continuing Legal Education Initiative series as presented by Thoo Jia En, Zach Teh Zhuo Li, Tan Wenxiu and Claudia Nyon Syn Yue on 18 August 2023.
