Friday, May 01, 2020

Draw up clear laws to prevent injury, death to workers(Malaysian Insight)

Draw up clear laws to prevent injury, death to workers

ON the occasion of the International Workers’ Memorial Day or Workers’ Mourning Day, celebrated annually on April 28, we, the 40 undersigned groups and trade unions, are not happy with the fact that workers’ death at worksites, have not resulted in the government’s enactment of laws, regulations and standards that will prevent future deaths or injury in a similar situation.
International Workers’ Memorial Day or Workers’ Mourning Day is the international day of remembrance and action for workers killed, disabled, injured or made unwell by their work. The slogan for the day is Mourn for the dead, Fight for the living.

While we mourn the loss of lives and injuries of workers, we struggle and fight for the living with the object of reducing risk of future loss of life and injury at the work place.

In Malaysia, in 2018, there were 611 fatal accident cases. In 2017, there were 711 cases. (Bernama, July 11, 2018; The Star, January 7, 2020). Interestingly, the Department of Occupational Safety and Health’s (Dosh) records of fatal accident cases investigated in 2017 and 2018, are only 206 and 260 respectively, which means investigations are yet to be completed – more so in fatal cases. 

The construction sector records one of the highest number of fatalities. Dosh recorded 169 deaths and 3,911 accidents in the construction sector for 2018 (New Straits Times, February 15, 2020). The rate of fatality per 100,000 workers in the construction sector is 13.44 in 2018, as compared to 14.57 in 2017. 

Malaysia’s Fatal Accident Rate was not only 10 times worse than that of the United Kingdom, but had in fact deteriorated by 20% since the turn of the century, according to a Construction Industry Development Board report.

Deaths by reason of trench collapses – death by being buried alive

Jalmi, an Indonesian worker in his 20s, died after he was buried in a 3m drain during excavation works in Shah Alam, Selangor in October 2015 (New Straits Times, October 5, 2015). 

In March 2015, it was reported that two construction workers in Machang, Kelantan – a local man and a Myanmar national – were killed when earth collapsed and buried them in the hole while they were working on a water supply pipe project (New Straits Times, March 30, 2015).  

In September 2015, a Bangladeshi construction worker was killed in Kuala Lumpur after he was buried in a pile of soil, after the victim and his colleague had earlier dug a hole about three-meters deep to install underground pipes (New Straits Times, September 30, 2015)

Nicholas anak Jawan, a 33-year-old worker, was killed in Sarawak after he was buried alive while building a deep monsoon drain (Malay Mail, December 3, 2019)

Md Shoriful, 43, and Julhas Rahman, 27, were killed when they were buried by mounds of falling earth at a housing project construction site in Mentakab, Temerloh where they were carrying out sewage pipe installation works. (Bernama/New Straits Times, March 6, 2020)

There will be more similar cases, many which will go unreported. Sadly, media reports also fail to respectfully name the workers who died, and also fail to make mention of the names of the companies and/or employers who may be responsible for these fatal accidents.

In commemoration of this year’s IWMD, we call upon the government to: 

Enact and enforce laws and regulations that impose mandatory obligations to prevent further deaths in the future

Death by such trench collapses in Malaysia, and also all over the world, have been happening for years, and the question is why are there still no specific laws and regulations in place that will prevent such deaths in similar situations in the future?

What ought to be in such laws could be the requirement for needed supports and/or battering to prevent the soil from collapsing on workers working in such pits or trenches. The requirement for the need for safety inspection of the site by a competent person, before a worker is asked to enter any hole or trench of more than 1m in depth. Safety will also be affected by type of soil, weather on that day, vibration caused by machines operating nearby or other reasons. 

Specific regulations and standards are needed, rather than vague general laws that simply talk about “so far as practicable” general obligations of safety and health. In other countries, there are already laws that specifically deal with this, like The Construction (Design and Management) Regulations 2015 in the United Kingdom.

There are so many employers and companies involved in construction works in Malaysia, and it is absurd to expect them to know of all the dangers and risks involved in the various different aspects of their work. Employers and companies may not be aware of the risks discovered at other worksites following some accidents, and as such may still be carrying out work in the same life-threatening manner. 

Hence, it is only reasonable and incumbent on the government, who has the data and expertise with regard to occupational safety and health issues, to do the needful by enacting needed regulations and/or laws, which includes steps to be taken by employers to ensure safety.

Every worksite incident that results in an accident, injury and/or death of a worker, ought to teach us what needs to be done now to prevent future mishaps that may result in death of workers. The government is duty-bound to take steps to ensure similar accidents do not recur anywhere, and the best solution is the enactment of clear laws, rules and regulations that will not only highlight the dangers, but will also make sure that employers and companies do the needful to reduce risk of death and injury. Mere guidelines or advisories are insufficient.

Make public and create awareness of laws, regulations and standard operating procedures (SOPs) 

The government often mentions about SOPs and other legal requirements, but sadly many of these are not even known to workers and the public, hence making it impossible for people to even highlight actions and/or situations when employers and companies do not follow the law. 

All applicable laws, regulations and SOPs must be made available to the public, including all websites of agencies, departments and Ministries having the responsibility for occupational safety and health.

Ensure deterrent sentences to reduce non-compliance, and reduce death and injury to workers

The lives and wellbeing of workers are of primary importance, and as such the penalty for employers and companies that breach laws protecting the safety and health of workers must be deterrent if Malaysia is truly concerned about human lives. 

Currently penalties for violation of occupational safety and health laws are fines, and a maximum two years’ jail. However, there appears to be no employers or company directors who have been sent to prison, even when their failings have resulted in death and injury to workers. It is the directors and owners of companies who sometimes choose to negate duties and obligations to ensure the safety and health of their workers.

Kevin Otto, owner of Atlantic Drain Services, a company in the US, was recently jailed two years after being found guilty of two counts of manslaughter for the deaths of two employees, Robert Higgins and Kelvin Mattocks, who drowned in October 2018 in an unprotected, 0.36m-deep trench following a water main break. He was further penalised with three years’ probation following his sentence, and he can never again employ anyone in a job that involves excavation (ISHN, December 17, 2019).

In other jurisdictions, stringent laws with higher penalties, including new offences, are being enacted with the objective of reducing risk of life and injury to workers. In Australia, Industrial Manslaughter laws have been introduced.

Let not the death of workers be in vain. Prevent similar accidents to reduce future risks to lives of other workers. – April 29, 2020.

* Charles Hector and Apolinar Tolentino on behalf of 40 groups and trade unions worldwide. - Malaysian Insight, 29/4/4020

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