马来西亚1955年劳工法令
怀孕和生育(雇员生育福利和条例)-产假
第2条文.(释义、定义、解释)
“分娩”意指不少过二十二个星期怀孕后，产一个或多个婴孩，不论婴孩是活着还是死亡。 在此法令中，分娩是开始和终止产子当天。 若生产多过一子，分娩是从产子当天开始和在产最后一子那天终止。“confined¨这个字应照样解释。
第37条文. (合格期间的长短和产假津贴的享有权力)。
(1)(a)每位女雇员有权：
(i)在每次分娩享有合格期间的产假; 和
(ii)除本章另有规定外，她可从雇主处领取在第(2)条款下合格期间之计算或规定的产假津贴金。
(aa)凡是根据(a)(i)条款享有资格拿产假的女雇员, 无论她是否在(c)条款之下从雇主处领取产假津贴金，或她是否符合(2)(a)条款，如果注册医生证明她适合恢复工作，她可以在雇主同意的情况下在合格期间内的任何时间开始工作。
(b)除了第40条的条例另有规定外, 产假不可以在早过分娩前三十天, 或迟过分娩候隔天开始。
*不过, 若政府医生, 或雇主委任医生, 证明女雇员的怀孕已经到了后期而不能工作, 女雇员可以在医生所预算的分娩日期起, 十四天内任何日子, 开始请产假。
(bb)若是女雇员在早过分娩前三十天就没上工而请产假, 那段没上工的日子, 不算是产假, 她也没有权享有产假津贴金。
(c)即使第(a)(ii)条款另有规定, 如果女雇员在分娩时, 已经有了五个, 或更多个还活着的子女, 她就不能享有产假津贴金。
(d)在本章用意而言：
(i)"子女"意指亲生子女, 年龄不苟。
(ii)"合格期间"意指不少于连续九十八天的产假期间。
(2)(a)每位女雇员都有权力领取合格期间内的产假津贴; 如果
(i)她在分娩前九个月里跟雇主工作的一段时期, 或多段时期总共不少过九十天; 和
(ii)她在分娩前四个月里任何时候，有跟雇主工作过。
(b)凡是根据(1)(a)条款有资格享有产假津贴的女雇员, 必须得到每日以平常工资率来计算的产假津贴, 或部长在102(2)(c)条所指定的款项, 视何项较高者。
(c)月薪女雇员在产假期间照常领取工资者, 就视为收到了产假津贴金。
(d)如果女雇员向超过一个雇主追讨产假津贴金, 她所追讨的总额, 不可以超过犹如她只向一个雇主追讨的款额。
(3)当有责任付给产妇生产津贴的雇主超过一人, 任何一位已经付给全部生产津贴者, 有权向另一位雇主讨回该雇主应付给的部分。
*如果女雇员没有依照第40(1)或(2)条去做, 该位付给了产假津贴金的雇主, 仍旧可以向另一方讨回他所付出的款项。
(4)任何在其享有产假期间终止女性雇员服务的雇主等同犯罪：
*就本条文而言，该终止不包括因雇主业务关闭而终止(此解约条文不包括雇主结束营业)。
第38条文. (付给产假津贴金).
在服务契约工资期内所得到的和第37(2)条款所指之产假津贴金，必须按照第19条文付给工资的方法去付给。
第39条文. (女雇员死亡产假津贴金付给提名人).
凡是女雇员在通知雇主她将分娩之后, 而在度产假时因某些原因而死亡, 雇主必须把从产假开始到她死前一天，按照第37(2)条款所计算或规定的产假津贴金, 付给她在第41条文下的提名人。如果无此提名人, 则付给她的法定管理人。
第40条文. (未通知雇主而失去产假津贴金).
(1)任何一个将要辞职的女雇员, 而她知道, 或相信, 她会辞职后四个月内产子, 她必须在离职前, 通知雇主. 若是她没有照做, 她将无权享有产假津贴金。
(2)女雇员必须在分娩前六十天通知雇主, 和通知雇主她将要请产假的日期。如果没有照做, 产假津贴金之付给将被暂停, 直到她通知雇主为止, 即使第38条文另有规定。
(3)废除。
(4)任何女雇员一直拒绝接受雇主所给予对她的怀孕有关的免费医药检查, 将丧失七天之多的产假津贴金。
(5)本条文要求发出的任何通知中的缺乏或任何缺陷或不准确之处, 将不会阻止产假津贴金的追讨, 除非雇主能证明该通知的缺乏或缺陷或不准确, 使他蒙受不利。
(6)如果没有在此章所规定的期间内通知雇主是因为错误, 或由其他合理原因所至, 则将不会使女雇员丧失领取产假津贴金的权力。
*不过, 任何对此未通知是不是因错误或其他原因之争议, 将呈交给总监在第69条下来作裁决。
(7)任何给雇主的通知, 用书写或口述向班长或督工通知均可. 如果有多过一个雇主, 通知任何一人即可。
第41条文. (津贴付给提名人).
女雇员可以提名他人代替她领取产假津贴金。根据本法令，向提名人支付产假津贴金, 视为已付给女雇员本人。
第41A条文. (制约解雇怀孕女雇员).
(1)如果女性雇员怀孕或因怀孕而患有疾病，其雇主终止其服务或发出终止服务通知均属违法行为，除非以下理由：
(a)第13(2)条款规定的故意违反服务契约条例;
(b)第14(1)条款规定的不当行为;或
(c)雇主关闭业务。
(2)如果根据第(1)条款终止了女性雇员的服务，雇主应承担证明这不是因怀孕或因怀孕引起的疾病而终止的责任。
第42条文. (制约在合格期间之后解雇女雇员).
(1)如果雇主终止或发出终止通知在合格期间届满后因生病不能上工的女雇员服务契约, 而医生证明病是由怀孕或分娩所引起时, 雇主即属犯法, 除非终止或通知是发生在合资格期间过后她没有上工的九十天之后。
(2)除第(1)条款另有规定外, 若雇主在女雇员分娩前四个月里以工资补通知方法解雇女雇员, 在计算女雇员的工作期间时, 就犹如雇主有给通知。
第43条文. (违背此章的条件属无效).
凡在服务契约任何条件注明女雇员愿意放弃在此章的权力皆属无效。此章所赋予的权力将取而代之。
第44条文. (津贴登记簿).
每位雇主必须保存一本用来登记所有付给产假津贴金款项的登记簿。登记簿的格式由部长在此法令条例下规定。
第44A条文. 废除。
以上中文翻译版仅限参考用途，若中英文版本出现差异，应以英文版本为标准。
EMPLOYMENT ACT 1955
PREGNANCY AND MATERNITY
Section 2. "confinement" means parturition resulting after at least twenty-two weeks of pregnancy in the issue of a child or children, whether alive or dead, and shall for the purposes of this Act commence and end on the actual day of birth and where two or more children are born at one confinement shall commence and end on the day of the birth of the last-born of such children, and the word "confined" shall be construed accordingly;
Section 37. Length of eligible period and entitlement to maternity allowance
(1) (a) Every female employee shall be entitled—
(i) to maternity leave for an eligible period in respect of each confinement; and
(ii) subject to this Part, to receive from her employer a maternity allowance to be calculated or prescribed as provided in subsection (2) in respect of the eligible period.
(aa) Where a female employee is entitled to maternity leave under subparagraph (a)(i), whether or not she is entitled to receive maternity allowance from her employer for the eligible period under paragraph (c), or whether or not she has fulfilled the conditions set out in paragraph (2)(a), she may, with the consent of her employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner.
(b) Subject to section 40, maternity leave shall not commence earlier than a period of thirty days immediately preceding the confinement of a female employee or later than the day immediately following her confinement:
Provided that where a medical officer or the registered medical practitioner appointed by the employer certifies that the female employee as a result of her advanced state of pregnancy is unable to perform her duties satisfactorily, the employee may be required to commence her maternity leave at any time during a period of fourteen days preceding the date of her confinement as determined in advance by the medical officer or the registered medical practitioner appointed by the employer.
(bb) Where a female employee abstains from work to commence her maternity leave on a date earlier than the period of thirty days immediately preceding her confinement, such abstention shall not be treated as maternity leave and she shall not be entitled to any maternity allowance in respect of the days during which she abstains from work in excess of the period of thirty days immediately preceding her confinement.
(c) Notwithstanding subparagraph (a)(ii), a female employee shall not be entitled to any maternity allowance if at the time of her confinement she has five or more surviving children.
(d) For the purposes of this Part—
(i) "children" means all natural children, irrespective of age; and
(ii) "eligible period" means a period of maternity leave of not less than ninety-eight consecutive days.
(2) (a) A female employee shall be entitled to receive maternity allowance for the eligible period from her employer if—
(i) she has been employed by the employer for a period of, or periods amounting in the aggregate to, not less than ninety days during the nine months immediately before her confinement; and
(ii) she has been employed by the employer at any time in the four months immediately before her confinement;
(b) A female employee who is eligible for maternity allowance under paragraph (1)(a) shall be entitled to receive from the employer for each day of the eligible period a maternity allowance at her ordinary rate of pay for one day, or at the rate prescribed by the Minister under paragraph 102(2)(c), whichever is the greater.
(c) A female employee employed on a monthly rate of pay shall be deemed to have received her maternity allowance if she continues to receive her monthly wages during her abstention from work during the eligible period without abatement in respect of the abstention.
(d) Where a female employee claims maternity allowance under this section from more than one employer, she shall not be entitled to receive a maternity allowance of an amount exceeding in the aggregate the amount which she would be entitled to receive if her claim was made against one employer only.
(3) Where there are more employers than one from whom the female employee would be entitled to claim maternity allowance in accordance with subsection (2) the employer who pays the maternity allowance shall be entitled to recover from such other employer, as a civil debt, a contribution which shall bear the same proportion to the amount of the maternity allowance paid to the female employee as the number of days on which she worked for such other employer during the period of nine months immediately preceding her confinement bears to the total number of days on which she worked during the said period:
Provided that if the female employee has failed to comply with subsection 40(1) or (2), the employer who pays the maternity allowance shall not thereby be prevented from recovering contribution calculated in accordance with this subsection.
(4) Any employer who terminates the service of a female employee during the period in which she is entitled to maternity leave commits an offence:
Provided that for the purpose of this section, such termination shall not include termination on the ground of closure of the employer’s business.
Section 38. Payment of maternity allowance
The maternity allowance referred to in subsection 37(2) and accruing in each wage period under the contract of service of the female employee shall be paid in the same manner as if such allowance were wages earned during such wage period as provided in section 19.
Section 39. Payment of allowance to nominee on death of female employee
If a female employee, after giving notice to her employer that she expects to be confined, commences her maternity leave and dies from any cause during the eligible period, her employer or any employer who would have been, but for the death of the female employee, liable to pay any maternity allowance shall pay to the person nominated by her under section 41 or, if there is no such person, to her legal personal representative, an allowance at the rate calculated or prescribed as provided in subsection 37(2) from the day she commenced her maternity leave to the day immediately preceding her death.
Section 40. Loss of maternity allowance for failure to notify employer
(1) A female employee who is about to leave her employment and who knows or has reason to believe that she will be confined within four months from the date upon which she leaves shall before leaving her employment notify her employer of her pregnancy and if she fails so to do, she shall not be entitled to receive any maternity allowance from such employer.
(2) A female employee shall within a period of sixty days immediately preceding her expected confinement notify her employer of it and the date from which she intends to commence her maternity leave and if she commences such leave without so notifying her employer, the payment of maternity allowance to her may be suspended, notwithstanding section 38, until such notice is given to her employer.
(3) (Deleted by Act A1419).
(4) Any female employee whose employer provides free medical treatment for his employees and who when she is pregnant persistently refuses or fails to submit to such medical treatment offered free by her employer as a registered medical practitioner certifies to be necessary or desirable in connection with her pregnancy, expected confinement or confinement shall, if she would otherwise be entitled to receive any maternity allowance, forfeit such allowance to the extent of seven days.
(5) The want of or any defect or inaccuracy in any notice required to be given in accordance with this section shall not be a bar to the maintenance of any claim to maternity allowance unless the employer is proved to have been prejudiced by the want, defect or inaccuracy of such notice.
(6) The failure to give any such notice within the period specified in this section shall not prejudice the right of a female employee to receive any maternity allowance if it is found that the failure was occasioned by mistake or other reasonable cause:
Provided that any dispute as to whether such failure was occasioned by mistake or other reasonable cause shall be referred under section 69 to the Director General for his decision.
(7) Notice to an employer or, if there is more than one employer, to one of such employers, may be given either in writing or orally or to the foreman or other person under whose supervision the female employee was employed or to any person designated for the purpose by the employer.
Section 41. Payment of allowance to nominee
A female employee may nominate some other person to whom the maternity allowance may be paid on her behalf and any payment of the maternity allowance made to the person so nominated shall, for the purposes of this Act, be deemed to be a payment to the female employee herself.
Section 41A. Restriction on termination of pregnant female employee
(1) Where a female employee is pregnant or is suffering from an illness arising out of her pregnancy, it shall be an offence for her employer to terminate her services or give her notice of termination of service, except on the grounds of—
(a) wilful breach of a condition of the contract of service under subsection 13(2);
(b) misconduct under subsection 14(1); or
(c) closure of the employer’s business.
(2) Where the service of a female employee under subsection (1) is terminated, the burden of proving that such termination is not on the ground of her pregnancy or on the ground of illness arising out of her pregnancy, shall rest on the employer.
Section 42. Restriction on termination of female employee after eligible period
(1) Where a female employee remains absent from her work after the expiration of the eligible period as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement and to render her unfit for her work, it shall be an offence, until her absence exceeds a period of ninety days after the expiration of the eligible period, for her employer to terminate her services or give her notice of termination of service.
(2) Subject to subsection (1), where the service of a female employee is terminated with wages in lieu of notice at any time during the period of four months immediately preceding her confinement, she shall, in computing the period of her employment for the purposes of this Part, be deemed to have been employed as if she had been given due notice instead of wages in lieu thereof.
Section 43. Conditions contrary to Part void
Any condition in a contract of service whereby a female employee relinquishes or is deemed to relinquish any right under this Part shall be void and of no effect and the right conferred under this Part shall be deemed to be substituted for such condition.
Section 44. Register of allowances paid
Every employer shall keep a register, in a form to be prescribed by the Minister by regulations made under this Act, of all payments made to female employees under this Part and of such other matters incidental thereto as may be prescribed by such regulations.
Section 44A. (Deleted by Act A1651).
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