Note - now 56 groups with Union of Employees in Construction Industry(UECI)/Kesatuan Pekerja-pekerja
dalam Industri Binaan
Media
Statement – 14/6/2020
Prosecute Employers and Contractors for
breaching OSH laws resulting in workers becoming Covid-19 victims
CIDB’s SOP and Guidelines – Mere Sham or
imposes legal obligations?
We, the 55 undersigned
organizations, groups and trade unions are concerned about the lack of obvious enforcement
and prosecution of employers, contractors, developers including Directors and
CEOs when they violate laws meant to ensure worker safety and health, even
during this Movement Control Order (MCO) where workers ought to be kept safe from
Covid-19.
No Directors, CEOs, Managers and officers responsible have to date
been seen to be tried, convicted and even send to prison despite there being so
many fatal accidents, injuries and even Covid-19 infections of workers. However
from January to March 2020, DOSH reports occupational accidents resulted 1770
in non-permanent disabilities, 65 permanent disabilities and 61 deaths of
workers.
The legal obligation of the employer is to ALWAYS provide a safe and
healthy environment for workers.
This obligation is not simply about satisfying that workers are
disease-free as a condition for the business to begin operation, or for the temporary
shutdown of worksites when a Covid-19 infection is detected, or an industrial
accident happens. The persons responsible for the non-compliance must be held personally
responsible, and there must be prosecution and conviction under the laws that
impose legal obligations on employers.
The lack of prosecution, trials and convictions, gives the impression
that the government is less concerned about the safety and health of workers.
CIDB’s SOP and Guidelines exist since 22nd
April
Eighty eight positive Covid-19 cases have been reported detected at
three construction site clusters, one in Selangor and two in Kuala Lumpur (New
Straits Times, 26/5/2020). It is disturbing that these cases were detected more
than a month after the Construction Industry Development Board (CIDB) announced
strict occupational safety and health requirements on 22/4/2020, which covers
not just work sites but also worker accommodations.
Even if the construction site is not operational, the
employer/contractors still have the legal obligation and duty of care to ensure
worker safety and health at worker accommodations.
It is important to note that on 22/4/2020, the Construction Industry
Development Board (CIDB), which comes under the Ministry of Works, issued the
(1) Prosedur Standard Operasi[Standard Operating Procedures(SOP)][i],
(2) Garis Panduan Amalan Langkah Pencegahan Di Tapak Bina[Guidelines on
Preventive Measures Steps at the Construction Site][ii]
and (3) Garis Panduan Operasi Centralised Labour Quarters Dan Penginapan
Pekerja [Guidelines for the Operation of Centralized Labour Quarters and Worker
Accommodations][iii].
The Minister of Works was reported saying, that ‘… Any violation of
the SOP may be subject to action under the Prevention and Control of Infectious
Diseases Act 1988 (Act 342) and the Construction Industry Development Board
Malaysia Act 1994 (Act 520)…’. (Edge
Markets, 22/4/2020)[iv]
It may be reasonable to suggest that a worker who shows Covid-19
symptoms and/or tests positive within 14 days of the entry into force of these
requirements may have been infected beforehand, but not when its detected more
than a month later, meaning they would have been infected in the last 14 days
or less.
When infections are detected more than 14 days after 22/4/2020, the
presumption would be there was an obvious breach of the law on the part of the
employers, contractors, developers and/or their agents. As such, the lack of reported
investigation and/or prosecution of these employer, contractor and/or developer
perpetrators is most disturbing. Strict enforcement and prosecution is always an
important deterrent to ensure workers’ future safety.
A lack of prosecution highlights a possible breach of the 22/4/2020
promise by the Minister of Works, that said that action will be taken in the
event of violations.
Non Gazetted Regulations, Guidelines, SOPs -
legally unenforceable?
Without being gazetted, there arises the question as to whether a
breach or non-compliance of any of these Regulations, Standard Operating
Procedures, Guidelines, etc are even legally enforceable, let alone whether the
violators of these standards, guidelines or regulations will result in the
prosecution and effective conviction of violators.
For the Construction Sector, in addition to the recent SOP and
Guidelines, since 2018 CIDB also has Guidelines for Temporary Construction
Workers Amenities and Accommodation.
Sadly, it seems that this SOP and Guidelines have not been gazetted
under the CIDB Act and this raises the question as to whether employers are
legally bound to obey, and whether non-compliance would even lead to
prosecution, trial and/or convictions.
It was reported that on 31/5/2020 itself, Construction Industry
Development Board (CIDB) inspected 110 construction sites nationwide, and found
that only 21 sites were in compliance with the Standard Operating Procedures
(SOP). 3 sites were given warnings only, and it was reported that enforcement
action were taken against 76 (Berita
Harian, 1/6/2020)[v].
However, there was no information whether any of these law-breaking
companies, Directors and persons in charge were even charged in court, fined or
jailed. This information is crucial for workers, and public perception. A
failure of prosecution may be indicative of the hypocrisy of the government.
Right to a safe working environment is a
Human Right
“Everyone has the right to life,
to work... to just and favourable conditions of work... Everyone has the right
to a standard of living adequate for the health and well-being of himself and
of his family...” (From the Universal Declaration on Human Rights, UN, 1948).
Article 7 of the International
Covenant on Economic, Social and Cultural Rights which came into effect in 1976
states:“The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of just and favourable conditions of work which
ensure, in particular:.. (b) Safe and healthy working conditions;…”
The ILO Constitution sets forth
the principle that workers must be protected from sickness, disease and injury
arising from their employment.
To date, it seems like almost no employer, contractor or Developer,
and their Directors and/or officers have been prosecuted for breaches of the
various occupational safety and health laws, including the Occupational Safety
and Health Act 1994(OSHA 1994), Lembaga Pembangunan Industri Pembinaan Malaysia
Act 1994(CIDB Act) and the Prevention and Control of Infectious Diseases Act
1988(PACID) during the MCO period in response to Covid-19 pandemic despite there
being media reports of many workers being infected by Covid-19 at their
workplaces and/or accommodations.
While the Regulations under the Prevention and Control of Infectious
Diseases Act 1988(PACID) have all been gazetted, which makes it most clear to
everyone, as to what they can or cannot do, it also allows the prosecution,
trial and conviction possible, these SOP and Guidelines have not yet been gazetted.
Likewise, there are many SOPs, Guidelines and Standards under other laws that
deal with the occupational safety and health that have yet to be gazetted.
It is no use if these SOPs, Guidelines, Standards and/or other similar
documents are mere recommendations to employers, which may mean that a
non-compliance will not attract investigation, prosecution and/or convictions
of employers, contractors, developers, their Directors and Managers.
There must be no choice given to employers about what they must do
when it comes to issues of occupational safety and health. These obligations
must be mandatory as it concerns reducing the risk of sickness, injury and
death of workers.
Therefore, we
-
Call
on Malaysia to disclose the list of employers, contractors, Developers,
Directors, CEOs and other officers in charge who have been investigated,
charged and convicted for violation of legal obligations of occupational safety
and health of workers during this MCO period to combat the spread of Covid-19;
- Call
for specific Regulations For Workplaces, And Worker Accommodations to keep
workers safe from Covid-19 and/or other infectious diseases;
- Call
for the gazetting of all regulations, standards, SOPs, Guidelines and other
similar instruments concerning occupational safety and health of workers making
them a legal obligation, whereby a non-compliance will result in prosecution.
When, it is not gazetted, it may simply be a mere recommendation or advice, where
employers may or may not comply with.
- Call
for Malaysia to recognize Covid-19 as an occupational disease under the
Occupational Safety and Health Act 1994, and all other laws relating to
occupational safety and health of workers which will impose obligations on
employers to keep workers safe.
- Call
for Malaysia to review all laws concerning occupational safety and health which
should also result in a more deterrent sentence, especially when injury and
death is caused by reason of non-compliance.
- Call
for Malaysia to ratify the International Covenant on Economic, Social and Cultural
Rights, ILO Convention 167 -Safety and
Health in Construction Convention, 1988, ILO Convention 155 - Occupational
Safety and Health Convention, 1981, and all other Conventions concerning
occupational safety and health of workers.
Charles
Hector
Apolinar
Tolentino
Irene Xavier
N Gopal
Kishnam
For
and on behalf of the following 55 groups
ALIRAN
Building and Wood Workers International (BWI) Asia Pacific Region
Labour Law Reform Coalition (LLRC)
WH4C (Workers Hub For Change)
AMMPO-Sentro
Association Of Home And Maquila Workers (ATRAHDOM), Guatemala
Association of Human Rights Defenders and Promoters-HRDP in Myanmar
Bangladesh Group The Netherlands
Center for Orang Asli Concerns (COAC)
China Labour Bulletin
Clean Clothes Campaign(CCC) South East Asian Coalition
Electronic Industry Employees Union Western Region Peninsula Malaysia
EMPOWER Malaysia (Persatuan Kesedaran Komuniti Selangor)
Foreign Spouses Support Group (FSSG)
Garment and Allied Workers Union, India
Global Women’s Strike
IMA Research Foundation, Bangladesh
International Black Women For Wages For Housework, United Kingdom
Jawatankuasa Solidariti Pekerja
Kesatuan Pekerja Atlas Edible Ice Sdn Bhd
Electronic Industry Employees Union Southern Region Peninsular
Malaysia(EIEUSRPM)/Kesatuan Sekerja Industri Elektronik Wilayah Selatan, Semenanjung
Malaysia (KSIEWSSM)
KRYSS Network
Labour Behind the Label, UK
Legal Action for Women, United Kingdom
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Malayan Technical Services Union (MTSU)
Marvi Rural Development Organization (MRDO), Pakistan
Migrant CARE
Monitoring the Sustainability of Globalisation (MSN)
National Union of Transport Equipment and Allied Industries Workers
(NUTEAIW)
National Union of Flight Attendants Malaysia(NUFAM)
Network of Action for Migrants in Malaysia(NAMM)
North South Initiative (NSI)
Odhikar, Bangladesh
Onward Consulting
Parti Sosialis Malaysia(PSM)
Persatuan Promosi Hak Asasi Manusia/Society For the Promotion of Human
Rights(PROHAM)
Persatuan Sahabat Wanita Selangor (PSWS)
PKNS KPP
Sabah Timber Industry Employees’ Union (STIEU)
Sarawak Bank Employees Union (SBEU)
Sabah Women's Action Resource Group (SAWO)
Sisters in Islam (SIS)
Tenaganita
Timber Employees Union of Peninsula Malaysia (TEUPM)
Timber Industry Employees Union Sarawak (TIEUS)
Union for Civil Liberty(UVL), Thailand
Union of Domestic, Maquila, Nexas and Related Workers (SITRADOM),
Guatemala
Union of Forestry Employees Sarawak (UFES)
WH4C (Workers Hub For Change)
Women Of Color Global Women’s Strike
Workers Assistance Center, Inc., Philippines
Workers Empowerment
Yokohama Action Research
[i]
CIDB -
http://www.cidb.gov.my/images/1._PROSEDUR_STANDARD_OPERASI_Pembinaan_Dokumen_1.pdf
[ii]
CIDB - http://www.cidb.gov.my/images/2._GARIS_PANDUAN_AMALAN_LANGKAH_PENCEGAHAN_DI_TAPAK_BINA_DOKUMEN_2.pdf
[iii]
CIDB http://www.cidb.gov.my/images/3._GARIS_PANDUAN_OPERASI_CENTRALISED_LABOUR_QUARTERS_DAN_PENGINAPAN_PEKERJA_DOKUMEN_3.pdf
[iv]
Edge Markets, 22/4/2020 ‘MCO: Daily screenings on workers among SOP set for
construction sector
https://www.theedgemarkets.com/article/mco-daily-screenings-workers-among-sop-set-construction-sector
[v]
Berita Harian, 1/6/2020 - Patuh SOP atau tak dibenarkan kembali beroperasi https://www.bharian.com.my/berita/nasional/2020/06/695157/patuh-sop-atau-tak-dibenarkan-kembali-beroperasi
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