Without, clear gazetted rules under the law, no employer can be made to do what is required to keep workers safe from injury or death. The legal obligations must be CLEAR - with definite legal penalty for breaches.
LETTER | Protection of workers - legal obligation, not mere recommendation
LETTER
| We, the 56 undersigned organisations, 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 in 1,770 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 April 22
Eighty-eight
positive Covid-19 cases have been reported detected at three
construction site clusters, one in Selangor and two in Kuala Lumpur. 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 April 22, 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
April 22, the CIDB, which comes under the Works Ministry, issued the (1)
Standard operating procedures (SOP), (2) Guidelines on preventive measures steps at the construction site, and (3) Guidelines for the operation of centralised labour quarters and worker accommodations.
The works minister 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)…’
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 it's 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 April 22, 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 employers,
contractors 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 April 22 promise by the works minister, 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, SOPs, 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 SOPs and guidelines, since 2018 CIDB also has
guidelines for temporary construction workers amenities and
accommodation.
Sadly, it seems that this SOPs 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 May 31itself, CIDB inspected 110 construction sites
nationwide, and found that only 21 sites were in compliance with the
SOPs. Three sites were given warnings only, and it was reported that enforcement action was taken against 76.
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.
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 recognise 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, Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 and the
Prevention and Control of Infectious Diseases Act 1988 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 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 SOPs
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 recognise 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.
Statement endorsed by the following 56 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
Union of Employees in Construction Industry(UECI)/Kesatuan Pekerja-pekerja dalam Industri Binaan - Malaysiakini, 14/6/2020
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