Tuesday, April 14, 2020

26 Groups - 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

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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