Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
The Employment Insurance System Act 2017 (EIS) is an Act that aims to encourage the employees to seek re-employment apart from strengthening their employability in the labour market through placement programmes.
In 2015, more than 44,000 workers were retrenched due to various factors such as restructuring of the finance institutions, falling in the crude oil price and unstable ringgit currency. In 2016, approximately 38,000 workers had lost their jobs with the majority of the lay-offs in manufacturing, trading, wholesale and retail, mining and finance sectors. As a trading nation with an open market economy, Malaysia is no exception to the impact of shift in the economic structure from traditional economy to knowledge-based economy. Loss of employment, especially among low-skilled workers and labour-oriented industry is unavoidable. Among the Association of Southeast Asian Nations (ASEAN), only Thailand, in 2004, and Vietnam, in 2009, had established an unemployment insurance scheme.
The existing Employment Act 1955 (“Act 265”) only provides social security protection to the unemployed workers in private sector whose wages do not exceed RM2,000 or employees in West Malaysia with specific jobs as described in the First Schedule of the Act 265. Furthermore, the Minister of Human Resources (“Minister”) may provide termination benefits, lay-off benefits and retirement benefits to the employees by regulations made under the Act 265. For instance, Employment (Termination and Lay-Off Benefits) Regulations 1980 (“Regulation 1980”) stipulates that an employer should pay termination or lay-off benefits to an employee who has been employed under a continuous contract of service for the past 12 months. However, both the Act 265 and Regulation 1980 only provide a minimum amount of termination or lay-off benefits payment to the employees. The existing laws neither encourage the employees to actively seek re-employment nor strengthen their employability in the labour market. Hence, the Employment Insurance System Act 2017 (“Act”), passed by the Dewan Rakyat on 25 October 2017, the Dewan Negara on 18 December 2017, and came into force on 1 January 2018, is a timely yet comprehensive law to protect the workers in Malaysia. The Act sets out provisions to provide certain benefits and a re-employment placement programme for insured persons in the event of loss of employment which will promote active labour market policies. This article provides an overview of the Act.
1/20/2018 0 Comments
There are situations where one party would unfairly impose an exclusion clause that protects them from any liability whatsoever in the event of a breach of contract
A recent Federal Court Appeal of a suit between an established local bank and two of its customers is generating slightly more than the usual interest in the normally staid realm of Contract Law. That the case should involve an exclusion clause is hardly surprising given the backdrop of judges’ often unfavourable views of the role of such clauses in a contract. Legal arguments involving the principles of fundamental breach and the contra proferentum rule have been accepted by judges to restrict the one-sided and arguably, often unfair application, of widely drafted exclusion clauses. Lord Diplock in his judgement in the case of Photo Production Ltd v Securicor Transport Ltd said “…the reports are full of cases in which what would appear to be very strained constructions have been placed upon exclusion clauses,…”
Notwithstanding such adverse perception, exclusion or limitation clauses can be regarded in one of two ways. On one hand, such a clause is often considered to be a means for the parties to apportion liability under the contract, and is said to reflect the intention of the parties in doing so. On the other hand, such clauses are often inserted into a contract by the stronger party to exclude all possible liabilities under the contract on the part of that party. In many of the latter cases, it would appear that the innocent party would have no recourse for the losses suffered caused by the breach or other wrongful conduct of the other party by virtue of the wide exclusion clause in the respective contract.
In cases involving many consumer contracts, the Parliaments in Malaysia and the UK have legislated to provide a measure of protection to consumers. In Malaysia, Section 24 of the Consumer Protection Act 1999 gives protection to consumers who “acquire[s] goods or services of a kind ordinarily acquired for personal, domestic or household purpose, use or consumption…” However, it is often in those cases involving contracts not governed by such legislations, and where it appears that one party had unfairly imposed an exclusion clause that basically protects them from any liability whatsoever in the event of a breach of contract, that invites strict scrutiny from the courts.
The recent Court of Appeal decision in Anthony Lawrence Bourke And Another v CIMB Bank Berhad (“Bourkes v CIMB”) would appear to be such a case, whereby the court may have felt compelled to intervene judiciously in the application of such an exclusion clause.
ADR is popular in many jurisdictions no longer as an alternative form of dispute resolution, but rather as a primary mechanism.
I. The Development of ADR – A Brief Overview
Alternative Dispute Resolution (‘ADR’) is evidently not a new phenomenon. Societies have been developing informal and non-adversarial processes for centuries to resolve disputes. As a matter of fact, archaeologists have discovered evidence that ADR processes were used in ancient civilisations particularly in Egypt, Mesopotamia and Assyria. To-date, one of the earliest recorded mediations occurred over four thousand years ago in the ancient society of Mesopotamia. It was discovered that the then Sumerian ruler used a mediation process to help avert war and subsequently developed an agreement in a dispute over land.
There are many examples where ADR processes were developed in traditional societies as a mechanism to resolve disputes. The Bushmen of Kalahari, native people of Namibia and Botswana, developed sophisticated systems in order to resolve disputes’ arising that avoids physical harm and the courts. William Ury held that “when a serious problem comes up everyone sits down – all the men, all the women – and they talk, and they talk and they talk. Each person has a chance to have his or her say. It may take two or three days. This open and inclusive process continues until the dispute is literally talked out.” In China, since the Western Zhou Dynasty approximately two thousand years ago, the post of a mediator has been included in all governmental administration. Today, it is estimated that there are 950,000 mediation committees in China, with at least six million mediators. The said committees handle between ten to twenty million cases annually, ranging from family disputes to minor property disputes. Similarly, in India there has also been a long tradition of using ADR as a tool to resolve disputes. The most adopted and used method of dispute resolution, ‘panchayat’, came into existence somewhat 2500 years ago and was widely used to resolve both commercial and non-commercial disputes. In the western world, the development of ADR can be traced to the ancient Greeks. A public arbitrator position was introduced by the city-state around 400 B.C as the Athenian courts became overcrowded.
Today, ADR is popular in many jurisdictions no longer as an alternative form of dispute resolution, but rather as a primary mechanism. ADR has flourished to the point where it has been suggested that the adjective should be dropped altogether and that ‘dispute resolution’ should be used to describe the modern range of dispute resolution methods and choices. The two most common forms of ADR in this era consist of mediation and arbitration.