We, the 23 undersigned groups, organisations and trade unions, note our disappointment in the procrastination and failure of the Malaysian human resources minister, who has still failed to ensure that employers are legally bound to comply with clear regulations and standards to ensure a safe working environment, including safety from infection at the workplace for diseases like Covid-19.
This can so easily be done by the Minister now by making regulations and declarations pursuant to the Occupational Safety and Health Act 1994 [Act 514], without even having to go to Parliament. Mere advice and recommendations, which are legally unenforceable, are simply not sufficient to ensure compliance by employers.
Through a joint statement dated 2 April 2020, by 51 (now 55) groups and trade unions, entitled “Make Covid-19 an occupational disease under law to ensure social protection for all workers and their families“, they also specifically called for the protection of workers from being infected by Covid-19.
This was widely reported by the Malaysian media, but to date, the current human resources minister has still not acted to protect workers from being infected by Covid-19, a disease that to date has resulted in over 119,000 deaths worldwide, and 77 deaths in Malaysia.
Laws to provide social protection after workers infected by Covid-19 – but what about laws to keep them safe from infection?
The Social Security Organisation (Socso) responded by assuring us Covid-19 is a recognised occupational disease under the Employees’ Social Security Act 1969 and the Self Employment Social Security Act 2017, which means workers currently covered under these laws, if they do become victims of Covid-19, can enjoy the benefits provided, including compensation in the event of death (Malay Mail, 8 April 2020).
However, it must be noted that there are still a large number of workers who are not yet covered by these laws at the moment. Further, these laws still discriminate against documented migrant workers, who are currently entitled to lesser benefits compared to local workers. Sadly, domestic workers and some categories of workers are still not covered by these social protection laws.
However, little has been done about protecting workers from being infected by Covid-19 at their workplace, a serious concern now as Malaysia has extended the movement control order and may even allow more workplaces to operate during the third period of the order, which now will continue until 28 April, hence putting even more workers and their families at a higher risk.
Minister has power to make laws to keep workers safe from Covid-19
While Covid-19, or rather Sars, is already recognised as an occupational disease under social security laws, it is still not recognised as an occupational disease under laws that deals with workplace safety like the Occupational Safety and Health Act, which does not even now have a clear definition of occupational diseases. A list of occupational diseases under one law will not automatically become the list under another law.
Under the act, the law that protects workers at the workplace, Covid-19 and Sars are still not occupational diseases. Under the act, there is a declaration of occupational diseases in which the minister declares diseases listed in the schedule to be occupational diseases under the act. Sars and Covid-19 are still not currently listed as occupational diseases, even though some other diseases like Nipah, tuberculosis and Q fever are. Sadly, this declaration is primarily with regard to the duty of medical professionals to report – not so much the obligations of employers to ensure a work environment free from the risk of Covid-19.
The human resources minister can simply make and gazette the inclusion of Covid-19 and/or SARS immediately, without even seeking parliamentary approval; the minister reasonably ought to have done so long ago.
The minister, who is responsible for the safety and health of workers, should have reasonably done so even before the beginning of the movement control order, knowing that so many workplaces that provide essential services were still operating during this pandemic, and as such so many workers were at a higher risk of being infected by this death-causing disease.
Mere advice or recommendation insufficient; legally binding obligations needed
Mere advice through speeches, statements, letters or even ‘frequently answered questions’ are nothing more than mere advice or recommendations, which legally may not even bind any employer or workplace owner or operator. Employers who do not comply with such ‘advice or recommendations’ may not even be held legally liable, or even prosecuted or charged in court.
What we need is legally enforceable standards and regulations, which every employer or operator of a workplace shall have no choice but to comply with, failing which, they will be prosecuted, convicted and sentenced.
Everyone, including workers, will know what employers must comply with by law, and if there are breaches, the people will thus be able to highlight and report the non-compliance to the authorities.
Power of minister to make legally binding regulations that employers must obey
The human resources minister does have the power under Occupational Safety and Health Act to impose legally enforceable measures to deal with Covid-19 and other infectious diseases, under, amongst others, Section 66 of the act.
Section 66(1) states that “the Minister may make regulations for or with respect to the safety, health and welfare of persons at work”.
Section 66(2) makes it clearer as to the kind of regulations that can be made, which includes:
(h) prescribe the arrangements to be made with respect to the taking of any action or precaution to avoid, or in the event of, any accident or dangerous occurrence…
(j) prescribe the requirements with respect to the provision and use in specified circumstances of protective clothing or equipment and rescue equipment…
(l) regulate and require the monitoring by employers or occupiers of conditions at a place of work including the health of their employees…
It is a wide power that the minister has, and he can:
(u) prescribe any other matter which may appear to the Minister to be expedient or necessary for the better carrying out of this Act
The objects of the act include:
(a) to secure the safety, health and welfare of persons at work against risks to safety or health arising out of the activities of persons at work…
(b) to protect persons at a place of work other than persons at work against risks to safety or health arising out of the activities of persons at work…
What regulations are needed especially for private sector employers?
Now, with regard to government departments and agencies, we know that strict rules and measures are in place to protect workers from Covid-19 infections, but will private sector employers do the same without clear legal obligations?
We note that even Ministry of Health officers, despite these strict protective measures, and possible a personal increased awareness of how to stay safe, have also fallen victim to Covid-19. As of 11 April 2020, it was revealed that about 224 medical workers under the ministry tested positive for Covid-19, and this is despite their higher personal awareness and measures already in place (New Straits Times, 11 April 2010). Sixty-six police officers have also been infected (Malay Mail, 8 April 2020).
The risk of workers being infected arises not simply at the workplace, but also on the journey to and from work, and also at worker accommodations provided by employer and their agents.
In Singapore, they recorded the “highest daily increase of infections Thursday with more than 200 of the 287 new cases linked to foreign worker dormitories, where inhabitants often stay in cramped conditions” (The Star, 12 April 2020).
In Malaysia, there are also similar, often cramped, worker living quarters, including apartments, where workers have no choice but to stay in.
In Malaysia, the current regulations during the movement control order, really do not specifically deal with workplaces or worker accomodations.
Comparatively, Singapore, for instance, already now has the Infectious Diseases (Workplace Measures to Prevent Spread of Covid-19) Regulations 2020.
If the human resources minister fails to enact needed regulations that cover workplaces and worker accommodations, then maybe the health minister may do so.
Having reference to steps already being taken by the government at hospitals, airports, supermarkets and a lot of other places, the minister should have a clear idea about the regulations needed to protect workers at their workplaces and at worker accommodations from falling victim to Covid-19.
The regulations to protect the safety and health of workers from Covid-19 (and/or other infectious diseases) could include:
- daily worker screenings
- usage of protective equipment including face masks
- provisions of hand sanitsers
- social distancing requirements
- provision of safe worker transport from home to workplace and back
- restrictions on the presence of workers at workplaces who are now living in areas designated ‘red’ or under enhanced movement orders or whose family members or housemates have been infected (and the individual concerned has yet to be screened or completed his self-quarantine period)
- closure of prayer rooms or restrictions as to the numbers at any one time, noting that all Muslim workers are obligated to pray five times a day
- requirement of daily sanitisation of the workplace and other common areas
- immediate notification and shutdown if any of the workers are infected by Covid-19, whether at the workplace or anywhere else, noting workers generally travel daily from their homes to their workplace. The shutdown shall last for 14 days, and all workers at the workplace shall be quarantined for 14 days
- a daily record of worker contacts and movement of workers (to be kept by employers). If workers are infected, it will be easier for the health authorities to track down close contacts
- for any worker that shows symptoms of illness, employers should immediately send them to hospitals or clinics for testing and medical treatment
- paid sick leave for all workers who are sick or under quarantine, even if they have exceeded their contractual entitlement of paid sick leave
- regulations to be placed on notice boards accessible to all workers. Employers also ought to ensure regulations are translated into the languages of the workers employed
These regulations would apply to all workplaces, and the ministry should also send Department of Occupational Safety and Health officers regularly to specific workplaces to ensure compliance and to develop any additional legally enforceable regulations that may be specific to a workplace.
The “contractors for labour” came into being around 2006. Many Malaysian unions and others including politicians have called for its abolition, but they still exist. These contractors for labour do not effectively have or control any workplace where their employees work, as they merely supply workers needed by other employers. Many of their ‘employees’ return to be housed together with other employees from different workplaces, thus increasing the risk to Covid-19.
The employees of contractors for labour are still not considered as employees of the workplace, which also means their risk to not just employment and income security but also protection and a duty of care for safety and health by workplace employers is lesser and unjust. The government ought to abolish the contractor for labour system, in favour of a direct employment relationship with owner and operators of workplaces.
Regulations are also needed to cover worker accommodations. Many workers have no choice but to stay in such accommodation. Many such places may also be overcrowded.
Malaysia has a sad record when it comes occupational health and safety. There is now a lack of clear legally binding regulations that employers need to comply with to ensure worker safety and health. The belief that employers themselves decide and fix their own standards and regulations ought to be abandoned in favour of more definite legal standards and regulations as determined by Parliament and/or the ministers in charge. Penalties for such offences also need to be increased, as non-compliance puts workers at higher risk of injury and even death.
Companies, owners and directors, being the persons who decide on what companies do or not do, ought to be made personally liable for wrongdoings especially in matters affecting the safety and health of workers. Fines alone may not be sufficient especially where non-compliance with occupational safety and health laws and requirements contribute to the injury or death of workers. A more deterrent sentence, like prison sentences, may be more effective in reducing accidents, injuries and deaths. Some jurisdictions, like Australia, have even today introduced industrial manslaughter laws.
Department of Occupational Safety and Health Department statistics recorded 169 deaths and 3,911 accidents in just the construction sector for 2018. Malaysia’s fatal accident rate was then not only 10 times worse than that of the UK but had in fact deteriorated by 20% since the turn of the century, according to a Construction Industry Development Board report (New Straits Times, 15 February 2020).
Steps need to be taken by a caring government to reduce industrial accidents, injuries and deaths in Malaysia which should include stronger laws.
Therefore, we call on:
- the human resources minister, other ministers and the government to enact regulations that state the specific measures that shall be taken by all employers to ensure that workers are safe from Covid-19, which shall also cover the workplace and worker accommodations
- the Department of Occupational Safety and Health to ensure that their officers inspect all workplaces allowed to operate during this movement control order period to ensure full compliance of the law, and to determine and put into place any other additional regulations needed, specific to each individual workplace
- Malaysia to review and improve its occupational safety and health laws, including by having more regulations which set clear measures and standards for employers to comply with to ensure better workplace safety and health, which will hopefully lead to a reduction of work-site accidents, injuries and deaths
- Malaysia to consider more deterrent sentences for occupational safety and health offences and workplace offences which result in injury and death to workers. Owners and directors of companies, who ultimately decide on the safety measures of their companies, must also be made personally liable for their decisions and omissions to ensure safe working environments
For and on behalf of the following groups:
- Workers Hub For Change (WH4C)
- Persatuan Sahabat Wanita Selangor (PSWS)
- Building and Wood Workers International (BWI), Asia Pacific Region
- National Union of Transport Equipment and Allied Industries Workers (NUTEAIW)
- National Union of Flight Attendants Malaysia (Nufam)
- National Union of Workers in Hospitals Support and Allied Services/Kesatuan Pekerja-pekerja Swasta Perkhidmatan Sokongan di Hospital-Hospital Kerajaan Semenanjung Malaysia
- Timber Employees Union of Peninsula Malaysia
- Malaysians Against Death Penalty and Torture (Madpet)
- Kesatuan Sekerja Industri Elektronik Wilayah Selatan, Semenanjung Malaysia (KSIEWSSM)/Electronic Industry Employees Union Southern Region Peninsular Malaysia (EIEUSRPM)
- Network of Action For Migrants in Malaysia (NAMM)
- Labour Behind the Label
- Maruah, Singapore
- Marvi Rural Development Organization (MRDO), Pakistan
- Persatuan Kesedaran Komuniti Selangor (Empower)
- Tenaganita, Malaysia
- Women of Color/Global Women’s Strike, UK
- International Black Women For Wages For Housework
- Sabah Women’s Action Resource Group (Sawo)
- Saya Anak Bangsa Malaysia (SABM)
- Sabah Timber Industry Employees Union (STIEU)
- Timber Industry Employees Union of Sarawak (TIEUS)
- Union of Forestry Employees of Sarawak (UFES)