Media
Statement - 14/4/2020(Updated)
Minister Fails to Protect Workers from Becoming Victim of Covid-19, only social
protection AFTER worker already infected and/or dies now exists.
Clear Regulations and Standards Needed that Employers Must Comply to
Protect Worker Safety and Health
We, the 26 undersigned groups, organizations and trade unions note our
disappointment in the procrastination and failure of the Malaysian Minister of
Human Resources, who has still failed to ensure that employers are legally
bound to comply 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 of Regulations and Declarations pursuant to the Occupational
Safety and Health Act 1994 [Act 514](OSHA 1994), without even having to go to
Parliament. Mere advice and/or recommendations, which are legally unenforceable,
is simply not sufficient to ensure compliance by employers.
Vide a Joint Statement dated 2/4/2020,
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 HR 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 Safe From Infection?
The Social Security Organization
(SOCSO) responded by assuring us that workers, including documented migrant
workers, that Covid-19 is a recognized 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 of provided, including compensations in the
event of death.(Malay Mail, 8/4/2020).
However, it must be noted that
there are still a large number of workers that are not yet covered by these
laws at the moment. Further, these laws still do 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 this 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(MCO), and may even allow more workplaces to
operate during the 3rd period of MCO, which now will continue until 28th
April, hence putting even more workers and their families at a higher risk.
HR Minister Has The Power To Make Laws That Will Help Keep Workers Safe
From COVID-19
While Covid-19, or rather SARS,
is already recognized as an occupational disease under the Social Security
laws, it is still not recognized as an Occupational Disease under laws that
deals with workplace safety like OSHA 1994, which does not even now have a clear
definition of ‘occupational disease’. A list of occupational disease under one
law will not automatically become the list under another law.
Under, OSHA 1994, the law that protects
workers at the workplace, Covid-19 and/or SARS is still not an occupational
disease. Under OSHA 1994, there is Declaration Of Occupational Diseases (PU(B)
355/2000) where the Minister declares diseases listed in the Schedule to be
occupational diseases under the Act. SARS
and/or Covid-19 is 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 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 Minister can simply make and
gazette the inclusion of Covid-19 and/or SARS immediately, without even seeking
Parliament’s approval, the HR 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 (MCO), 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 – Need Legally Binding Obligations
Mere advice vide 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/operators. Employers who do not comply with such ‘advice
or recommendations’ may not even be held legally liable, or even prosecuted
and/or charged in court.
What we need is legally
enforceable standards and regulations, which every employer or operator of
workplace shall have no choice but to comply, failing which, they will be
prosecuted, convicted and sentenced.
Everyone, including workers, will
know what employers must comply with laws, and if there are breaches, the
people will thus be able highlight and report non-compliance to the authorities.
Power Of The HR Minister to Make Legally Binding Regulations That
Employers Must Obey
The Minister of Human Resources do
have the power under OSHA 1994, to impose legally enforceable measures to deal
with Covid-19 and/or other infectious diseases, under, amongst others, section
66 of the Occupational Safety and Health Act 1994, whereby 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) even makes it
clearer as to the kind of regulations that can be made, which includes, amongst
others ‘…(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;…and (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 OSHA 1994 includes,
‘…(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 Health Ministry
officers, despite these strict protective measures, and possible a personal
increase awareness of how to stay safe, have also fallen victim to Covid-19. As
of 11/4/2020, it was revealed that about 224 medical workers under the Health
Ministry tested positive for Covid-19, and this is despite their higher
personal awareness and measures already in place.(NST, 11/4/2010). 66 police
officers have also been infected.(Malay Mail, 8/4/2020).
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 ‘..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…’(Star, 12/4/2020)
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 MCO, really does 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 Minister of Human Resource
fails to enact needed regulations that cover workplaces and worker accommodations,
then maybe the Minister of Health 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 as to Regulations are
needed that will protect workers at their workplaces, and also worker
accommodations from falling victim to Covid-19.
The Regulations to protect safety
and health of workers from Covid-19 (and/or other infectious diseases) could
include, amongst others,:-
-
Daily worker screenings,
-
Usage of protective equipment including face
masks,
-
Provisions of hand sanitizers,
-
Social distancing requirements,
-
Provision of safe worker transportation from
home to workplace and back,
-
Restriction on the presence of workers at
workplaces who are now living in areas designated ‘red’ or under enhanced
movement orders, or whose family members/housemates have been infected(and
he/she has yet to be screened and/or completed his self-quarantine period),
- Closure of Prayer Rooms or restriction as to the
numbers at any one time, noting that all Muslim workers are obligated to pray 5
times a day;
-
Requirement of daily sanitization of workplace
and other common areas:
- Immediate Notification and Shut Down 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. Shut
down shall last for 14 days, and all workers at the workplace shall be
quarantined for 14 days;
- Employer shall keep a daily record of worker
contacts and movement of workers, for if they are infected, as it will be
easier for the Health authorities to track down close contacts;
- Employer shall cause any worker that shows
symptoms of illness to be immediately sent to hospitals/clinics for testing
and/or medical treatment;
-
All workers, who are sick and/or under quarantine,
shall be accorded paid sick leave, even if they have exceeded their contractual
entitlement of paid sick leave.
- Regulations shall 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 DOSH officers regularly to
specific workplaces, to ensure compliance and also to develop any additional legally
enforceable regulations that may be workplace specific.
The contractors for labours, that
came into being around 2006, which many Malaysian unions and others including
politicians called for its abolition still exist, and 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’ is still not considered as employees of the workplace, which also means
their risks to not just employment and income security, but also protection and
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
direct employment relationship with owner/operators of workplaces.
Regulations are also needed to
cover worker accommodations. Many workers have no choice but to stay in these accommodations,
many of which 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 risks of injury and even death.
For corporations/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 for matters
affecting safety and health of workers. Fines alone, may not be sufficient
especially where the non-compliance with occupational safety and health laws and
requirements contributed to the injury or death of workers – a more deterrent
sentence, like prison sentences, may be more effective in reducing accidents,
injury and death. Some jurisdictions, like Australia, have even today introduced
industrial manslaughter laws.
Occupational Safety and Health
Department’s (DOSH) statistics recorded 169 deaths and 3,911 accidents in just the
construction sector for 2018. Malaysia’s Fatal Accident Rate (FAR) was then not
only 10 times worse than that of the United Kingdom but had in fact
deteriorated by 20 per cent since the turn of the century, according to a
Construction Industry Development Board report.(New Straits Times, 15/2/2020).
Steps needed to be taken by a
caring government to reduce industrial accidents, injury and death in Malaysia which
will include stronger laws.
Therefore, we call for
-
The Minister of Human Resource, other Ministers
and/or the government of Malaysia to forthwith enact Regulations that states
the specific measures that shall be taken by all employers to ensure that
workers are safe from Covid-19, which shall also include the workplace and also
worker accommodations;
-
That the Department of OSH ensure that their
officers forthwith inspect all workplaces being allowed to operate during this
MCO period to ensure full compliance of the law, and to also determine and put
into place any other additional regulations needed specific to each individual
workplace;
-
That Malaysia also review and improve Malaysian
OSH laws, including by having more Regulations which sets clear measures and
standards for employers to comply to ensure better workplace safety and health,
which will hopefully lead to a reduction of work site accidents, injuries and
deaths.
-
That Malaysia will consider more deterrent
sentences for occupational safety and health offences and workplace offences which
result in injury and death of workers. Owners and Directors of companies, who ultimately
decide on safety measures of their companies must also be made personally
liable for their decisions and/or omissions to ensure safe working
environments.
Charles Hector
Apolinar Tolentino
For and on behalf of the following 26 groups
WH4C (Workers Hub For Change)
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
MADPET (Malaysians Against Death
Penalty and Torture)
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), Pakisitan
Persatuan Kesedaran Komuniti
Selangor (EMPOWER)
Tenaganita, Malaysia
NAMM (Network of Action for
Migrants in Malaysia)
Women of Color/Global Women’s
Strike, United Kingdom
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)
MAP Foundation, Thailand
Clean Clothes Campaign(CCC) South
East Asian Coalition
Collectif Ethique sur l'étiquette
(France)
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