Prioritise workers’ rights and safety at workplaces when dealing with illegal factories

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File photo: sulekha.com

We, the 31 undersigned groups, trade unions, persons and organisations, are appalled by the disclosure that there are still about 2,900 illegal factories in Selangor, and the concern is about worker rights, including occupational safety and health.

In September 2019, the state government disclosed that from 2013, there were about 2,885 unlicensed factories, and as of 2018, only 630 have been legalised (Star, 24 September 2019).

It is odd that the government and its many enforcement authorities and its officers were not aware before of these illegal factories – and this fact raises the possibility of corruption, a matter that the anti-corruption authorities must look into.

A worker is entitled to rights, which include employment security and all other rights, including those provided by Malaysian law. Registration and minimum contributions must be made to Social Security Organisation (Socso) to ensure workers’ social security protection, especially when they are infected by occupational disease or suffer injury, disability and even death.

For their old age survival, the law sets the minimum monthly contributions to be made by employer and worker. When a workplace is illegal, the concern is whether workers’ rights are also being denied.

Would an illegal factory even have the needed permits and licences to do certain work activities, including dangerous and life-threatening work? Would the authorities involved in ensuring occupational safety and health of the workplace even know of these illegal establishments or do the necessary workplace inspections to ensure that the workplace is safe – hence having a low risk of workplace injuries or death.

If workers working in an ‘illegal’ factory have their workers’ rights violated, would they even have recourse to justice? Would employers even pay the workers what is owing to them, including back wages, unpaid overtime and other unpaid money? Would workers in such factories even be able to claim reinstatement (or compensation in lieu of reinstatement), when they are wrongfully dismissed?

Any illegal factory or workplace can and ought to have been speedily discovered and action taken in accordance to law.

Most workers who are employed in these ‘illegal’ workplaces probably believe that they are working in a legal workplace that is in compliance with all laws governing employment and workplaces.

After all, how could it be illegal when they get water and electricity from government agencies or agencies linked to government? How can they even operate illegally without the knowledge of the local council (local government), state government or federal government in Malaysia, where the public perception is that the relevant law enforcement authorities are efficient – a perception often reinforced by media reports about numerous crackdowns on law breakers including drunk drivers, drug dependents, undocumented migrants and other suspected criminals.

Hence, how is it even possible for any illegal factory or workplace to exist in Malaysia, especially one that employs many workers. It was shocking to read a report that stated that one of these suspected companies, suspected of polluting our water supply, which resulted in about five million people (or 1.2 million consumer accounts) being denied water supply, was known by the local government concerned and had been operating without a licence since 2014.

Selayang Municipal Council (MPS) corporate department director Mohamad Zin Masoad said data also showed the factory had never applied for a licence since it started operating six years ago. “We have issued the latest notice to them in March but they ignored it. Besides operating without a licence, we also found that the factory was built without MPS permission,” he said after putting up an illegal structure notice at the factory (Edge Markets, 7 September /2020).

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Any business operation within any local council area needs to renew its permit/licence to operate every year, so it is strange that illegal workplaces are not discovered.

Mohamad Zin also said all of the factories were placed in the legalisation process list and were given time until 31 December 2020, to submit documentation so that operation permits could be issued to them. “According to the [Selangor] state government’s directive, we cannot demolish the plants under the legalisation process (introduced in 2012 and extended until 31 December 2020)” (Edge Markets, 7/9/2020).

Giving an illegal factory or workplace one to three months, to become legal is understandable, but allowing them many years until the end of 2020 is just unacceptable.

For the benefit of workers, including their employment and income, it may be best that discovered illegal factories best be given the chance to legalise themselves, but at the same time their law-breaking acts must not go unpunished.

Prioritise workers’ rights, safety and health in legalisation process

In the legalisation process, laws regarding workers’ rights, safety and health should be prioritised, compared to other issues like land classifications and construction approvals.

If this was the current state of affairs, then the government could be held responsible for the deprivation of water supply the people suffered, as it allowed this “illegal” factory to continue operating, without complying with laws including possibly laws concerning workers’ occupational safety and health.

Law-breaking companies must be charged in court and not offered ‘compounds’

For example, according to just the Water Services Industries Act 2006, this company, if it is convicted, will be liable to a sentence of imprisonment up to ten years, a fine not exceeding RM500,000 or to whipping or to all three.

In this case, the Attorney General Idrus Harun in a statement said to date, no investigation paper on the raw water pollution incident in Selangor had been referred to the Attorney General’s Chambers. Generally, only after investigation papers are submitted to the Attorney General’s Chambers, will the prosecution take action and charge the law violators in court (Edge Markets, 8 September 2020).

However, in this case, the Selangor government agencies, on their own, decided to take administrative action by offering ‘compounds’ for allegedly 30 different violations. “…Selangor Water Management Board (LUAS), Air Selangor, Selangor Department of Environment (DoE), Selayang Municipal Council and the State Environment Committee conducted an investigation. Thirty compounds totalling RM60,000 were issued to Yip Chee Seng & Sons Sdn Bhd…” Attorney General Idrus said that the compounds were issued without any reference to investigation papers by the Attorney General’s Chambers (Edge Markets, 8 September 2020).

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Compounds undermine justice and protect companies

Issuing compounds is an administrative action, and payment of compounds avoids the possibility of the alleged offenders being charged and tried in court for the same offence.

Companies that commit crimes, that endanger public health, that injure or kill workers should never be offered compounds but should be charged and tried in open court.

When charged in court, the accused companies or their officers can always plead guilty, and the courts will take into account the guilty plea, in determining the just sentence that would be imposed.

If the companies are charged in court for a crime, the courts also have the power to even order that the affected victims be compensated in a criminal trial.

Convictions matter, unlike compounds. The number of past similar convictions will be an aggravating factor, which will lead the court to impose higher sentences on repeat offenders.

Doubts linger as to whether this alleged particular company is even the real culprit, or just one of the many other culprits who caused the water supply to be contaminated, but who have yet to be prosecuted. Note that so many water treatment plants had to be shut down.

The offering of compounds could be influenced by other factors including corruption. As such, for crimes that put at risk the lives and health of many and/or cause death and injury to workers, such issuing of compounds must end. Such law-breakers must all be charged and tried in open court by an independent judge.

We call on the human resources minister, including the Department of Occupational Safety and Health, to immediately inspect all the 2,900 illegal factories in Selangor and others in Malaysia to ensure all laws concerning worker rights, including occupational safety and health, are complied with. It is a folly to wait until a worker dies or is injured.

Charles Hector
Apolinar Z Tolentino Jr.

Endorsed by:

  1. Center for Orang Asli Concerns (COAC)
  2. Electronic Industry Employees Union Southern Region Peninsular Malaysia (EIEUSRPM)/Kesatuan Sekerja Industri Elektronik Wilayah Selatan, Semenanjung Malaysia (KSIEWSSM)
  3. Persatuan Sahabat Wanita Selangor(PSWS)
  4. Jaringan Solidariti Pekerja (JSP)
  5. Kesatuan Pekerja Atlas Edible Ice Sdn Bhd.
  6. Malaysians Against Death Penalty and Torture (Madpet)
  7. Malaysians in Action For Justice and Unity (Maju)
  8. National Union of Transport Equipment and Allied Industries Workers (NUTEAIW), West Malaysia
  9. Network of Action for Migrants in Malaysia (NAMM)
  10. North South Initiative (NSI)
  11. Sabah Timber Industry Employees Union (STIEU)
  12. Sosialis Alternatif (SA)
  13. Saya Anak Bangsa Malaysia (SABM)
  14. Timber Employees Union Peninsular Malaysia (TEUPM)
  15. Union of Forestry Employees Sarawak (UFES)
  16. Workers Hub For Change (WH4C)
  17. Building and Wood Workers International (BWI), Asia Pacific region
  18. Bangladesh Group, Netherlands
  19. IMA Research Foundation, Bangladesh
  20. International Black Women For Wages For Housework
  21. Global Women’s Strike
  22. Labour Behind the Label, UK
  23. Legal Action for Women, UK
  24. Maruah, Singapore
  25. Myanmar Human Rights Alliances Network (MHRAN)
  26. National Garments Workers Federation (NGWF), Bangladesh
  27. Pakistani Christian Refugee Fellowship (PCRF)
  28. Payday Men’s Network (UK/US)
  29. Safety and Rights Society, Bangladesh
  30. Women Of Color Global Women’s Strike
  31. Worker Empowerment, Hong Kong
  32. Dr Ronald McCoy
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