I've a new staff that only told us that she's 4 months pregnant after she started working for 1 week. Can I know if we treat her as Part-timer / contract employee, does she still entitle to Maternity Leave?
It is not her fault that she declared to you after she started to work. Didn't the interviewer ask her during the interview session?
If you have already given her the Employment Contract and she's treated as permanent employee, you can't just change to Part-Time / Contract basis just so that you can avoid the Maternity payment; this is not a fair practice.
We haven't given her the Employment Contract yet.
She asked that if she draft an official letter to the company that she do not want to entitle to the Maternity Leave, will the letter consider valid in Labor Law?
As of 2012, ALL female employees are entitled to the maternity protection provisions of the Employment Act, whether or not they are within the scope of the Act. The provisions apply to full-time and part-time workers as well as those on fixed-term contract.
She shall be entitled to the Maternity Allowance if she fulfills the following:-
1. She must have no more than 5 surviving children at the time she gives birth, and
2. She must have worked with the employer for at least 90 days in the 9 months before she gives birth and at least 1 day in the 4 months before she gives birth.
How about Clause 43. It's stated;
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.
Does that means that if the female employee voluntarily agree, the Maternity Allowance can be void?
No, it means that any agreement by the female employee to give up her maternity rights under the Act, will be void, and she will automatically be granted the maternity rights under the Act. ( Doesn’t matter what her contract says.)
In other words, no one can give up their right to maternity leave even if she write an official letter to you saying that she agrees to void it.