Kamal Halili Hassan

Contractualism in Employment Relationships: A Conceptual Discourse of Common Law and the Shariʿah

Abstract This article discusses contractualism in employment relationships from the perspectives of common law and the Shariʿah. While common law has developed a modern concept of employment relationships—a contract of service as opposed to a contract for services—Islamic history has shown a similar development. In fact, Islam has contributed immensely to the emergence of a contract of service. That contribution is the reason this article adopts an intertwined discourse of both systems. However, there are differences in such relationships; whereas an element of control dominates the contract of service in common law, the Islamic system places more emphasis on the principle of brotherhood. However, when it comes to the mutual trust and confidence of both parties in implementing the implied obligations under contract, both systems share the same values.

The dismissal of a pregnant stewardess: still lawful in Malaysia

Although Malaysian laws generally do not explicitly discriminate against women in employment, such discrimination does occur. The Federal Constitution, being the supreme law of Malaysia, provides a guarantee of equality in employment. However, Article 8, which prohibits gender discrimination in employment, refers to public services. In the case described here a stewardess worked for a private airline and the courts determined that constitutional protection did not extend to her. It would appear that the Malaysian courts strict interpretation of Article 8 renders valid the term of a collective employment agreement requiring a stewardess to resign if she becomes pregnant. This paper examines the interplay between an employment contract, a collective agreement, employment law and the constitutional rights of Malaysian citizens.

Job Security and Temporary Employment Contract in the Context of United Nation’s Instruments

This chapter examines the concept and need for job security and job protection especially for temporary contracts based on three international/United Nation’s instruments, namely, the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), and International Covenant on Economic, Social and Cultural Rights (ICESCR. Job security is an abstract concept which is often not directly mentioned by international instruments and should be examined in the context of other related concepts. Security covers various aspects and this book focuses on job security.

ILO Standards on Job Security and Temporary Employment Contracts

This chapter examines the ILO standards in relation to job security and temporary contracts as well as those covered by the Philadelphia Declaration and other conventions and recommendations.

Job Security and Temporary Employment Contracts in Islamic Jurisprudence

The primary scriptures of Muslims are the Quran that are viewed by them as words of God for the teaching of human being. The Quran provides general concept for Muslim in all parts of their life and the normative examples of it is presented as Sunnah which is called Hadith. The Sunnah comprises of religious behaviour and quotations of Prophet Mohammad S.A.W. and the Imams (which is different between the belief of Shia and Sunni). In order to interpret Sharia law, the Quran is used along with reliable Hadith. There are other sources of Sharia based on different schools of Islam which are not considered in this book. The authors try to provide general Islamic concept which is acceptable by most Muslims. Muslims believe that all concepts are mentioned in the Quran directly and indirectly. In the case of job security and temporary contract, there is no direct mention in the Quran and Hadith. Reference in this chapter is more on the principles of normal contract of employment but it is argued here that the principles are applicable to temporary contracts as well. The authors find the guidance for good template of job security and temporary contract based on Islamic concept which is gained from the Quran and Hadith.

Job Security and Temporary Employment Contracts: A Theoretical Analysis

Analysing legal theory is an essential starting point for any project relating to the legal system (Burge-Hendrix 2012). Bacharach (1989) believes that “theory is a statement of relations among concepts within a set of boundary assumptions and constraints, and a linguistic device to organize a complex empirical world.” This chapter focuses on existing theories on human rights that are related to job security and temporary contracts. The right to life, social justice and equality in the life of a worker, social security, the right to work, and theory of decent work are very much related to each other. Discourse on job security theories in this chapter is as presented in the classical and neo classical eras.

Malaysia with the Trans-Pacific Partnership Agreement: Aftermath of the United States Withdrawal From the TPPA

The Trans-Pacific Partnership Agreement (TPPA) was a very extensive and speculative trade agreement until the withdrawal of the United States. The world economic and trade bloc was of the view that the TPPA would be the greatest ever trade agreement in the 21st century that would have brought major changes to the trading, economic, and investment sectors. TPPA issues relate to trade and also for example to labour standards, the environment, government procurement, and intellectual property rights. It has major implications to existing standards and legal framework in Malaysia, particularly on labour. Several issues have arisen following the US withdrawal from the TPPA mostly on US-Malaysia Labour Consistency Plan which requires amendments to Malaysian labour laws. The discussion in this paper focuses on the impact of the TPPA-11 (TPPA, original member states minus the United States) on the ?Comprehensive and Progressive Agreement for Trans-Pacific Partnership? (CPTPP) on existing Malaysian labour laws. Does Malaysia need to amend the current set of labour laws with the application of TPP-11 and CPTPP or should Malaysia maintain the existing labour framework?

Shari’ah Perspective on Green Jobs and Environmental Ethics

Abstract The concept of green jobs emerged in 2007 as a means for conserving energy, minimizing natural gas emissions, reducing pollution and waste and protecting and improving ecosystems. The practice of decent employment through such jobs has caught on significantly and shown much positive effects. Decent work refers to employment opportunities that provide for fair income, security, improving personal and social development and promoting equality. Combining green job and decent work as a new approach can alter the traditional perspective of labour laws. According to the Islamic view, the Qur’an has taken into account all such concepts directly or indirectly. This article focuses on reviewing green jobs from the Islamic perspective, and concepts and principles such as squander (israf), cleanliness (nizafah), waste (Iitlaf), no-harm (La zarar) and causation (Tasbib) are directly mentioned as a necessary condition for green jobs. This paper examines the concept of green job based on content analysis approach within Islamic jurisprudence.

The Management Process at the Pretrial Stage under Malaysian Rules of Court 2012

The pre-trial stage requires judicial attention as well as attention from solicitors representing the parties to the action to ensure that cases are managed and disposed within strict deadlines. This study recommends the use of management process activities that are commonly used by business organizations to manage civil cases in the Malaysian civil courts at the pre-trial stage. Therefore, the objectives of this study are; first, to examine whether the provisions under the Rules of Court 2012 are capable of delivering quality service in its role as the fortress of justice and how the understanding of management process can assist in the management and disposal of cases efficiently. The findings indicate that the activities of process management (namely planning, organizing, directing and controlling exercises) can be used as a practical guide for the court managers as well as solicitors acting for the parties to the action to understand the importance of abiding by the provisions of the Rules of Court 2012 so that the management and disposal of cases can be done in an efficient manner. Although this study does not analyze the various process management theories, it is expected that the preliminary findings might enrich present literature relating to the conduct of civil litigation and also provide an insight on possible adoption of a framework to be used as a guide in managing cases under the Rules of Court 2012.