Rise in workplace Covid infections demands stricter laws (not recommendations) and corrupt-free enforcement

File photo: sulekha.com

We, the 27 undersigned groups, organisations and trade unions, are appalled when it was reported that a workplace making gloves was merely slapped with a RM1,000 fine for failing to comply with Covid-19 preventive measures and providing seemingly poor living conditions for workers (The Star, 25 December 2020).

RM1,000 is the fine or compound levied on individuals who breach the law for not wearing face masks and such offences. To fine an employer the same RM1,000, when their failings put so many workers at risk or actually getting infected by Covid is a joke.

It was reported in that case that “there were no records of sanitisation and disinfection that were supposed to be carried out at least three times a day. ‘We also did not see any measures on physical distancing in one of the dorms. There are markings for physical distancing but in reality this did not happen’ (The Star, 25 December 2020).

Workers have no choice but to do as employer demands

A person can comply with the measures needed to avoid infections, but this does not apply to workplaces and worker accommodation, where a worker is compelled to follow the orders or instructions of their employers.

Workplace specific laws/regulations that carry penalties for non-compliance

It is sad that despite calls from many quarters, Malaysia has to date failed to enact laws or specific subsidiary legislations for workplaces in relation to Covid, where non-compliance would be a breach of law, attracting prosecution and if found guilty a sentence.

What Malaysia has now is mostly mere standard operating procedures and guidelines which unfortunately are merely recommendations or advice, where non-compliance by the employer is not an offence punishable by law. A breach of standard operating procedures or guidelines is not an offence with a stipulated penalty. This may explain why companies wrongdoings in not protecting workers from Covid seem to simply attract reprimands or at most fines of RM1,000. Even when fines are imposed, it is not clear what precise law has been violated.

In relation to Covid, Malaysia still relies on general law or regulation that applies to everyone, but there are no workplace-specific enforceable laws. There is a serious need for legally enforceable workplace laws and regulations to prevent workers from falling victim to Covid and other communicable diseases, despite the government having had the opportunity to do so since March 2020.

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OSHA still no clear employer obligations to keep workers safe from Covid-19

Malaysia’s Occupational Safety and Health Act 1994 (Osha), being the primary law imposing obligations on employers to keep workers safe at the workplace, does include protection from occupational diseases, which now should include Covid and other person-to-person serious communicable diseases. Sadly, Osha still has no definition or any list of occupational diseases that employers are obligated to protect workers from.

The Social Security Act (Socso) law has a list of occupational diseases, but the Socso law generally deals with rights and compensations once infected, it does not impose employer obligations to keep workers safe at the workplace.

The lack of definition of occupational disease in Osha could have easily been dealt with by an amendment to include a definition of occupational diseases. It could have been simply defined as being the same as provided for in the Socso act or some other definition or list. Then, the employers’ obligation to keep workers safe from such diseases like Covid is made clear, and failure would be a crime punishable by law.

The human resources minister under Osha has the power, without having to get parliamentary approval, to make specific regulations and/or subsidiary legislations, which could stipulate what employers need to do to keep workers safe from even specific diseases like Covid. Sadly, the minister has still not done so.

In comparison, Singapore, since the end March 2020, has the Infectious Diseases (Workplace Measures to Prevent Spread of Covid-19) Regulations 2020. Malaysia should have similar laws. If the human resources minister fails, then the health minister could also do so.

The failure to have such laws and regulations that will make it a crime may be the reason why workplace employers or owners who endanger workers’ lives are getting away with ‘reprimands’ and small fines like RM1,000. Workers and their families are victims because of government failure.

Workplace clusters about 30% of all clusters in Malaysia

Workplace clusters are about a third of all clusters in Malaysia now (Malay Mail, 29 November 2020). The report also stated that “334 Covid-19 clusters detected in Malaysia, more than a third, or 119 clusters are related to infections at workplaces…. the five workplace-linked clusters that have the highest number of cases are the Teratai cluster (4,036 cases), Damanlela Construction Site cluster (1,539), Cergas cluster (1,337), Hentian cluster (1,101) and Kaya cluster (900).

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“On Wednesday(16/12/2020), eight new clusters were announced, out of which four were related to worksites: Puncak Galaksi cluster involving Kuala Selangor and Klang (56 cases); Permai cluster involving three construction sites in Lembah Pantai (48 cases); Matahari construction site cluster in Titiwangsa (15 cases); and Laut construction site cluster involving Lembah Pantai, Cheras and Kepong (eight cases).”

The number of workplace clusters continues to rise every day, and yet there is still a lack of deterrent laws that would compel employers to better protect workers.

There were opportunities to enact these new laws or make needed amendments when Parliament sat, but the present government failed to do so.

Any employers being charged for causing workers to get infected?

The lack of news of employers who failed to keep their workers safe being charged in court, and the recent news of very low fines gives a perception that the Malaysian government is pro-employer and has little concern for worker safety and health. Mere expression of anger by ministers and politicians without stricter laws and better enforcement is meaningless.

Recent discoveries of so many workplaces not in compliance with standard operating procedures, guidelines and even laws demonstrate that these weak laws, advice and recommendations alone are insufficient – we need laws with deterrent penalties and efficient enforcement.

Without enforcement, laws alone are not enough

Having laws alone is inadequate without strict enforcement by the relevant ministries and departments. Corruption and influence are perceived to influence enforcement, investigation and prosecution of employers.

Inadequacy of protection of worker whistleblowers, as many workers are afraid to highlight wrongdoings of employers for fear of retaliation and even termination of employment

The recent termination of a worker at Top Glove who highlighted the working and living conditions of workers at the workplace and the lack of government response only propagates a culture of fear amongst workers – who will continue to work in law-breaking, unsafe and dangerous working or living conditions for fear of discrimination or termination if they highlight these wrongs.

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Therefore, we

  • call on Malaysia to enact laws and regulations, where non-compliance of the employer’s legal obligation will be a crime, with a deterrent sentence. Ineffective recommendations or advice through standard operating procedures and guidelines should be replaced by enforceable subsidiary legislations or laws
  • call for the imposition of deterrent punishments like prison terms for employers, directors and officers responsible for violating laws, including those that affect worker safety and health
  • call for increased workplace inspection and indiscriminate enforcement, especially before workers fall victim to Covid
  • call for prosecution of corrupt law enforcement officers, who by their failings undermine the protection of workers’ rights, safety and health
  • call for laws that protect workers that highlight rights violations at workplaces and workers’ accommodation and
  • call for the protection and promotion of workers’ rights and human rights

Charles Hector
Apolinar Z Tolentino, Jr

Endorsed by:

Aliran
Building and Wood Workers International, Asia Pacific region (BWI AP)
Workers Hub For Change (WH4C)
Association Of Home And Maquila Workers (Atrahdom), Guatemala
Building and Wood Workers Federation of Myanmar (BWFM)
China Labour Bulletin (CLB)
Gender Alliance for Development Center, Albania
Federasi Serikat Buruh Kerakyatan (Serbuk) Indonesia
Friends of Croatia
International Black Women for Wages for Housework
Labour Behind the Label, UK
Malaysians Against Death Penalty and Torture (Madpet)
Network of Action for Migrants in Malaysia (NAMM)
National Union of Flight Attendants Malaysia (Nufam)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
Odhikar, Bangladesh
Payday men’s network UK/US
People Like Us Support Ourselves (PLUsos)
Persatuan Sahabat Wanita Selangor
Sabah Timber Industry Employees Union (STIEU)
Sarawak Dayak Iban Association (Sadia)
Saya Anak Bangsa Malaysia (SABM)
Timber Industry Employees Union of Sarawak (TEIUS)
Timber Employees Union Peninsular Malaysia (TEUPM)
Union of Forestry Employees Sarawak (UFES)
Women of Color Global Women’s Strike
Lin Chew, Independent

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