The Workers' Minimum Standards of Housing and Amenities (Amendment) Act 2019 ("Amended Act") was due to come into effect on 1 June 2020 in Peninsular Malaysia and the Federal Territory of Labuan1. The coming into force date has however been extended to 1 September 2020 which allows for a 3 months grace period for employers to make the necessary preparations and ensure compliance.
Given the challenges we are facing in containing the continued spread of the Covid-19 virus, one wonders whether the delay in enforcing the Amended Act could further hamper efforts to curb the spread of the virus especially now that a DG14G mutation of the Covid-19 virus has been detected by the Malaysian Institute for Medical Research within the Sivagangga Cluster and the Ulu Tiram Cluster2. The 3-months grace period should not make any difference if the employers had indeed intended to adhere to the law. The Amended Act was passed in July 2019 and gazetted in September 2019. One could argue that the employers had ample time to implement the changes in readiness for 1 June 2020 and hopefully many have taken the necessary steps.
That said, given that 1 September 2020 is fast approaching, it is prudent for the employers to ensure that they fulfil their obligations under the Amended Act.
The Amended Act applies to all employment sectors providing housing and accommodation for workers. Thus, all employers who provide accommodation to their employees must comply with the requirements of the Amended Act. In this respect, "accommodation" means "any permanent or temporary building or structure including any house, hut, shed or roofed enclosure used for the purpose of human habitation"3. The Amended Act also applies to "centralized accommodation providers" which refers to "any person who provides and manages a centralized accommodation and supervises the services provided therein for one or more employers, but does not include an employer who provides accommodations for his own employees"4.
Briefly, we set out some of the obligations under the Amended Act and the repercussions that may follow for non-compliance.
- Employers or centralized accommodation providers shall obtain what is known as a Certificate for Accommodation5 from the Director General of Labour Department Peninsular Malaysia ("DG") to accommodate the employees in the premises. An employer who contravenes this section commits an offence and shall on conviction, be liable to a fine not exceeding RM50,000. A centralized accommodation provider who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding 1 year or to both6.
- An employer is required to inform the DG of such accommodation occupied by his employee within 30 days from the date an employee occupies the accommodation. Failing to do so is an offence and the employer shall, on conviction, be liable to a fine not exceeding RM10,0007.
- In respect of safety and health, the employer or a centralized accommodation provider who provides accommodation has the following duties and responsibilities8:
- to provide separate accommodation to employees of the opposite gender;
- to take necessary preventive measures to ensure employees' safety and well-being;
- to take fire safety measures in accordance with the relevant written laws;
- to ensure that the electrical wiring systems comply with safety requirements in accordance with the relevant written laws;
- to ensure that the employees receive the necessary medical assistance where necessary; and
- to take preventive measures to contain the spread of infectious diseases as ordered by the Medical Officer of Health in accordance with the relevant written laws and the employer shall, at his own expense, make arrangements as ordered by the Medical Officer of Health so that all or any of the employees be given immunization against any infectious disease.
- An employer or a centralized accommodation provider has the duty to ensure that every accommodation provided for employees complies with minimum standards9 and that decent and adequate amenities are provided10. The latest requirements provided under the Employees' Minimum Standards of Housing, Accommodations and Amenities (Accommodation and Centralised Accommodation) Regulations 2020 are as follows:
- Providing non-shareable basic amenities: a single bed with a measurement of not less than 1.7 square metres, and if a double-decker bed is provided, the space between the two beds shall not be less than 0.7 metres; a mattress with a minimum thickness of not less than 4 inches, a pillow and a blanket; and a locked cupboard of not less than 0.35 metres length, 0.35 metres width and 0.9 metres height, for the safe custody of the employees' valuables including his passport which may be accessible by the employees at any time;
- Providing a bedroom with floor area of not less than 3.6 square metres per employee for accommodation or a centralized accommodation not in a form of dormitory;
- Providing a sleeping area with floor area of not less than 3 square metres per employee for accommodation or a centralized accommodation in a form of dormitory;
- Ensuring there is water supply and electricity supply;
- Providing a rest area; dining area with chairs and table; kitchen area; bathroom and toilet (whether separated or together); a fan for each rest area, dining area and bedroom; a lamp for each rest area, dining area, bedroom/sleeping area, kitchen area, bathroom and toilet; an area to hang out clothes; one first aid kit; and dustbin; and
- Where bathroom and toilet (whether separated or together) are concerned, the ratio is 1 bathroom and toilet for every 6 employees not in a dormitory and 1 bathroom and toilet for every 15 employees in a dormitory;
- An employer or a centralized accommodation provider shall not use any building as accommodation if the building is unfit for human habitation11. Contravention of this provision is an offence which carries a fine not exceeding RM50,00012.
- Employers are allowed to collect from an employee rental charges for the accommodation provided by the employer or any centralized accommodation provider13. The maximum rental that may be collected by an employer from an employee shall be RM10014.
- An employer or a centralized accommodation provider shall appoint at least one person in charge of accommodation who will be responsible for the safety and well-being of the employees and the management of the accommodation and amenities15. The duties of the person in charge of accommodation include the following16:
- Ensure employees comply with the disciplinary rules;
- Visit and inspect the accommodation at least twice a month and keep a record of inspection;
- Ensure employees are taken to a clinic or hospital if the employee complains of his health, or appears to be unwell or suffering from any disease or medical conditions, and keep a record of complaints.
- It is also the duty of an employer or a centralized accommodation provider to ensure that every accommodation is maintained properly as directed by the DG17. This suggests that the DG may from time to time issue further guidelines that require compliance.
- In the event that an employee resigns, or his employment is terminated by not less than 4 weeks' notice, the employee shall vacate the accommodation upon the effective date of his resignation or the date the contract of service is terminated18. If an employee is terminated by less than 4 weeks' notice or is terminated with immediate effect, the employee shall vacate the accommodation within 4 weeks from the date of the notice or the date the contract of service is terminated19.
- The employer is not obligated to provide accommodation for the employees' dependants20.
Bearing in mind that several Covid-19 clusters in Malaysia involved foreign workers living in cramped accommodation21 e.g. the Pedas factory cluster (326 people affected, mostly foreign workers)22, Cheras security guard cluster, involving 39 people23; and two construction site clusters in Kuala Lumpur involving 73 and 31 people respectively24; we can expect that enforcement from 1 September 2020 onwards will be stringent.
Globally, employers like Amazon25, Walmart26, Target27, have either faced lawsuits, criticisms and/or reputational damage for not putting enough procedures in place to prevent the spread of the Covid-19 virus. The responsibilities placed upon employers to ensure the workplace and accommodation provided for employees, especially in the current climate should not be taken lightly. It is strongly recommended that employers for a start, if they have not already done so, create a checklist, conduct a thorough and preferably independent audit, create or update applicable policies, create an SOP for all employees and the employee who is designated as person in charge of accommodation, maintain a system of checks and balances and of course the right (additional) job description for the role to be performed by the person appointed to be in charge of accommodation. Essentially, all steps must be taken to ensure not just compliance with the letter of the law but also the spirit of the law. In a time and space where treatment of workers, especially where it concerns health and safety can have a direct impact on the value of the business, every effort should be made to ensure full compliance.
3 Section 24B of the Amended Act
4 Section 24B of the Amended Act
5 Section 24D of the Amended Act
6 Section 24D of the Amended Act
7 Section 24E of the Amended Act
8 Section 24J of the Amended Act
9 Section 24F of the Amended Act
10 Section 24I of the Amended Act
11 Section 24H(1) of the Amended Act
12 Section 24H(2) of the Amended Act
13 Section 24G of the Amended Act
14 Section 2 of the Employees' Minimum Standards of Housing, Accommodations and Amenities (Maximum Rental or Charges for Accommodation) Regulations 2020
15 Section 24L(1) of the Amended Act
16 Section 24L(2) of the Amended Act
17 Section 24K of the Amended Act
18 Section 24M(1) of the Amended Act
19 Section 24M(2) of the Amended Act
20 Section 24N of the Amended Act
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.