Disclaimer: The following was written before the Malaysian Bar passed a resolution that “it accepts in principle that pupils ought to be protected with minimum remuneration.”
The Current Position
As it stands, pupils in Malaysia are only allowed to receive a remuneration from their pupil master. This is provided for in Section 12(3) of the Legal Profession Act 1976 (“LPA 1976”) which states:
“(3) No qualified person shall, without the special leave in writing of the Bar Council, hold any office or engage in any employment of any kind, whether full-time or otherwise, during his period of pupillage, but nothing in this subsection shall preclude a pupil from receiving remuneration from his master.” (emphasis mine)
Two things need to be noted at this point:
(i) The LPA 1976 is silent on the definition of “remuneration” thereby leaving it to the discretion of a master to determine how much (if any at all) a pupil should receive.
(ii) From a plain reading of the provision, it would appear that masters are not
statutorily obligated to remunerate their pupils. Though by convention pupils are remunerated, masters appear to not be required to remunerate their pupils.
Chapter 10 of the Rules and Rulings of the Bar Council, which touches on pupillage, is silent on this matter.
Item (i) has, unsurprisingly, resulted in “wage” inequality. In 2014, a survey by eLawyer revealed that some pupils in certain cities in Malaysia received as low as RM500 a month.[1] Meanwhile, in the Klang Valley, pupils were reportedly receiving around RM2,000 to RM2,800 a month.
More recent data reveals that this wide spectrum still persists – with some pupils in the Klang Valley receiving up to RM5,000 a month[2] while some, also in the Klang Valley, only receive RM400-900 a month.[3]
As at the time of writing, the minimum wage for selected locations in Malaysia is RM1,200.[4] However, this figure only applies to employees who fall under the scope of the Employment Act 1955, the Sabah Labour Ordinance, or the Sarawak Labour Ordinance.[5]
The Position in the UK
Solicitors
Phil Harris, Emeritus Professor of Legal Education at Sheffield Hallam University, notes:
“In 2012, the Solicitors Regulation Authority decided to scrap its minimum wage for trainee solicitors, and replaced it, as from 1 August 2014, with the national minimum wage.”[6]
Though the national minimum wage in the UK is less than the minimum salary set by the Solicitors Regulation Authority,[7] it is at the very least a safety net dictating the minimum hourly rate a trainee solicitor should be receiving.
Barristers
Phil Harris also noted the following:
“Since 1990, the Bar has operated a scheme whereby barristers’ chambers pay their pupils during their pupillage year. Initially, the amount payable was £6,000 per year (although some barristers’ chambers paid pupils rather more than that) and this has now been increased to a minimum of £12,000, with some prestigious chambers paying upwards of £60,000.”[8]
On 6th December 2018, the UK’s Bar Standards Board announced that “… the rate for the minimum pupillage award that will apply from 1 September 2019 will be £18,436 per annum for pupillages in London and £15,728 per annum for pupillages outside London.”[9]
The minimum award is decided according to the rates set by the Living Wage Foundation and will “… then be increased in future with effect from 1 January each year, the first such increase being in January 2020. Increases will be announced in November each year following publication of the Living Wage Foundation’s recommended hourly rate for the year ahead.”[10]
Rates set by the Living Wage Foundation reflect the actual cost of living while the national minimum wage is a “negotiated settlement based on recommendations from businesses and trade unions.”[11] The former being higher than the latter means that at the lowest end of the spectrum, pupil barristers are slightly better off salary wise compared to trainee solicitors.
The Proposals
(a) Amend Section 12 of the LPA 1976 to include a clause requiring pupil masters to remunerate their pupils. The proposed wording of the amendment is as follows:
“A master shall remunerate his pupil during the pupil’s period of pupillage.”
As highlighted above, it appears that a master has no statutory obligation to remunerate his pupil. The introduction of an amendment, to the effect of the above, would protect pupils from unscrupulous masters.
(b) Amend Section 12 of the LPA 1976 to include a clause equating remuneration with the Minimum Wages Order in effect at any given time. The proposed wording of the amendment is as follows:
“The remuneration to be paid by a master to a pupil shall not be less than the amount prescribed in the Minimum Wages Order currently in effect.”
The way the proposed wording is phrased would mean constant amendment to the LPA 1976 vis-a-vis the remuneration amount would be unnecessary.
It cannot be denied that the cost of living has steadily increased over the years. Nationally, the Consumer Price Index has increased by an average of 1.58% a year from 2016 to 2019.[12] Meanwhile, salaries/allowances have not increased proportionately. In fact, a comparison of the real starting salaries for honors degree holders in 2010 and 2018 reveal that the real starting salaries actually declined by 0.3%.[13]
In a policy paper by Bank Negara Malaysia back in 2018, the living wage for a single adult was estimated to be RM2,700.00. [14] This is a far cry from the few hundred ringgit to RM1,000+ that some pupils are currently receiving.
Proposal (b) would ensure that the remuneration pupils receive are, at the very least, the same as those earning minimum wage. In light of the above, and considering pupils are academically qualified and are undergoing the statutorily required period of pupillage in order to be admitted as an Advocate and Solicitor of the High Court of Malaya, the above proposal is equitable and reasonable.
[1] “Salary Survey Report for Malaysian Lawyers 2014.” blog.elawyer.com.my. eLawyer. http://blog.elawyer.com.my/blog/salary-survey-report-for-malaysian-law-firms/
[2] https://m.facebook.com/story.php?story_fbid=10101445416136641&id=37006344
[3] Based on data taken from OfficeParrots.com which were willingly provided by members of the website.
[4] “Minimum Wages Order 2020.” FederalGazette.AGC.gov.my. Federal Gazette. http://www.federalgazette.agc.gov.my/outputp/pua_20200110_P.U.%20(A)%205.pdf
[5] See Section 2 of the National Wages Consultative Council Act 2011
[6] Phil Harris, An Introduction to Law (Cambridge University Press, 2015), p.226
[7] “Impact assessment of the deregulation of the prescribed SRA minimum salary for trainees.” SRA.org.uk. Solicitors Regulation Authority. https://www.sra.org.uk/sra/how-we-work/reports/minimum-salary-trainees/
[8] Phil Harris, An Introduction to Law (Cambridge University Press, 2015), p.226
[9] “Minimum Pupillage Award from 1 September 2019 Announced.” BarStandardsBoard.org.uk. Bar Standards Board. https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/minimum-pupillage-award-from-1-september-2019-announced/; see also “The BSB’s new Bar Qualification Rules.” BarristerMagazine.com. Barrister Magazine. http://www.barristermagazine.com/the-bsbs-new-bar-qualification-rules/
[10] Ibid.
[11] “What is the real living wage?” LivingWage.org.uk. Living Wage. https://www.livingwage.org.uk/what-real-living-wage
[12] “Average CPI Index and Increase for 2016 – 2020.” MEF.org.my. Malaysian Employers Federation. http://www.mef.org.my/kc/cpi.aspx
[13] Athreya Murugasu, Mohamad Ishaq Hakim and Yeam Shin Yau, “Are Malaysian Workers Paid Fairly?: An Assessment of Productivity and Equity.” BNM.gov.my. Bank Negara Malaysia. https://www.bnm.gov.my/files/publication/ar/en/2018/cp01_001_box.pdf
[14] Eilyn Chong and Farina Adam Khong, “The Living Wage: Beyond Making Ends Meet.” BNM.gov.my. Bank Negara Malaysia. https://www.bnm.gov.my/index.php?ch=en_publication&pg=en_work_papers&ac=62&bb=file
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