The Ministry of Human Resources Malaysia (MOHR) has updated the “Soalan Lazim (FAQs) Berkaitan Perintah Kawalan Pergerakan Kementerian Sumber Manusia Bilangan 2” on 23 March 2020. The MOHR’s FAQs on the Movement Control Order Volume 2 is in relation to Jabatan Keselamatan dan Kesihatan (JKKP) and Jabatan Perhubungan Perusahaan. Please click here to download the FAQs.
The followings are the English translation of the said FAQs:
DEPARTMENT OF OCCUPATIONAL SAFETY AND HEALTH (DOSH)
1. Is the construction sector (construction activities or building renovation) subject to the Movement Control Order (Order) announced by the Prime Minister?
Yes. Pursuant to National Security Council’s (NSC) press statement on 18 March 2020, construction woks are classified as non-essential services. It means that all construction and maintenance activities is to be ceased.
2. Is there any construction and maintenance sector exempted from the Order?
Yes. For critical works.
3. What does “critical works” mean?
Critical works mean works that if temporarily halted, could pose danger or harm to workers, the public or the environment.
4. What are the examples of critical works within the scope of DOSH?
The examples of critical works are as follows:
- Slope Repair works;
- Traffic Management Control (TMC);
- Upgrade works on critical service facility;
- Works to ensure the safety of scaffolding;
- Works to ensure the safety of tower and chain;
- The construction of the Bailey Bridge at the site of collapsed bridge;
- Emergency works included in the contractual agreement; and
- Other unfinished work that could pose dangers.
5. How to apply for DOSH’s approval to perform critical works in construction sector?
The following documents are required to submit along with the application:
- The application letter that include the following information:
i. name of the project;
ii. location of the project;
iii. registration number of the project with DOSH;
iv. name and telephone number of the project manager;
v. name and registration number of the Safety and Health project (if any);
vi. name and Registration No. of the Site Safety Supervisor (SSS);
vii. name and designation of the designated person overseeing the critical work;
viii. name and brief explanation of the critical work;
ix. Number of workers that are expected to be working for the critical work; and
x. concrete reason(s) why such critical work is necessary.
The complete application must be submitted via email to the State DOSH office where the project is located and copied to [email protected]. Please do note that incomplete application will be rejected by DOSH.
- Picture(s) of the surrounding location for such critical work;
- Hazard Identification, Risk Assessment and Risk Control (HIRAC) documents for such critical work;
- Safe work procedures for performing such critical work;
- A copy of the approval letter for such critical work issued by Public Works Department (JKR); and
- Measures taken by employers to prevent COVID-19 infection while the critical work is being carried out.
6. How to submit Form JKKP 6 for cases of occupational accident during the period of the Order?
Form JKKP 6 should only be submitted through online system (mykkp.dosh.gov.my).
7. How about the scheduled interview for Competent Person (CP) which falls during the period of the Order?
All interviews / CP’s verification is postponed until further notice.
8. My Notice of Improvement (NOI) expires during the period of the Order. How do I terminate the said notice?
Proof of improvement must be submitted through email. The officers will assess the level of improvement that has been done and if they are satisfied, they will provide a written feedback. Physical termination of the notice will only be done after the period of the Order.
9. Are the MyKKP helpdesk services in operation?
The MyKKP helpdesk services will operate as usual through phone calls and emails as follows:-
- Tel: 01111929207 and 0182584685
- Email: [email protected]
- Website: http://mykkp.dosh.gov.my
10. Re-inspection of certified machinery which Certificate of Fitness had expired during the period of the Order (March 18, 2020 - March 31, 2020)?
- The machinery may be considered to be given a postponement of re-inspection under existing law provided that it has received a formal request for suspension from the owner of the machinery; OR
- The Division / State Director may authorise this inspection to be carried out for critical security reasons, but still subject to the latest instructions of the National Security Council.
11. What is the action that can be taken against employers who do not comply with the Movement Control Order (March 18, 2020 - March 31, 2020)?
Report to the Police and RELA. Royal Malaysian Police Officers and RELA have been appointed as officers authorised under Section 3 of the Prevention and Control of Infectious Diseases Act (Act 342).
12. The employer does not pay the wage, if the worker does not come to work. Answer:
Report to Department of Labour (JTK).
13. If the employer has been authorised by the Government to operate within the period of the Order, what is the employer's responsibility for ensuring that COVID-19 precautions are taken in the workplace?
The employer must take the following steps: -
DEPARTMENT OF INDUSTRIAL RELATIONS
- Employers need to conduct risk assessments and improve work procedures to ensure that the exposure of the virus to workers is minimised including reducing the number of workers to a minimum and establishing a home-based working system for workers not involved in critical work activities.
- The employer must conduct a health screening by conducting a daily temperature check on all workers at the entrance of the workplace and ensuring that the worker is free of fever, cough or difficulty in breathing. Employees with abnormal body temperature should be referred to the hospital / clinic immediately for medical attention and treatment.
- Employers need to identify workers who have visited countries affected by the COVID-19 virus especially if they have symptoms such as fever, cough and difficulty in breathing for IMMEDIATE treatment. The employer must comply with the quarantine instructions issued to his employee by a registered medical practitioner or the relevant authority.
- All employers and employees are not allowed to travel overseas during the Movement Control Order.
- All employers are required to provide appropriate personal protective equipment to their employees based on the risk assessment they have undertaken.
- Employers and employees should practice high levels of personal hygiene such as washing their hands frequently with water and soap or hand sanitiser.
- Employers and employees should avoid visiting crowded public places and interacting with any of the affected individuals and should practice social distancing among the workers.
- Employers and workers should seek medical attention immediately if they fall ill (i.e., have symptoms of respiratory tract infections such as fever, cough or difficulty in breathing)
- All employees are urged to cooperate and comply with the employer's instructions in dealing with the outbreak of this epidemic under Section 24 (1) of the Occupational Safety and Health Act 1994.
- Employers and employees must adhere to any COVID-19 precautionary measures and procedures set by the Ministry of Health Malaysia and the National Security Council from time to time.
14. Should the employer pay wages during 14 days’ period of Movement Control Order beginning 18th March 2020 - 31st March 2020 [Prevention and Control of Infectious Disease (Measures within the Infected Local Areas) Regulations 2020]?
Yes, workers’ salaries and related allowances should be paid, unless such allowance is related to attendance / travel (which is not being performed during that period).
15. If an employer performs a pay cut or lay-off or compels the employees to take annual leave for the reason that business is affected due to COVID-19 or fails to pay their full salary amount during the 14 days’ period of Movement Control Order, can the employee assume that there is a breach of contract of employment and subsequently believe that his/her service has been terminated and deemed constructively dismissed.
In order for an employee to be deemed constructively dismissed, the following four conditions must be met:
- The is a breach of service contract
- The breach must involve a breach of root of the contract
- Employers need to be notified and given sufficient time to remedy the breach
- Employees must immediately leave their job due to the breach of contract and not for any other reason.
16. Can an employer direct an employee to take annual leave or deduct your annual leave for the period of 18th March 2020 until 31st March 2020 or for any days during the period?
Employers cannot compel the employees to take annual leave, as annual leave is supposed to be taken at the discretion and at the request of the employee.
17. Can the trade union bring issues relating to the employer’s failure to pay salaries or the employer’s act of forcing employees to take annual leave as industrial disputes under Section 18 of the Industrial Relations Act 1967?
Trade union involved can bring issues relating to the failure of the employer to pay salaries or the employer’s act of forcing employees to take annual leave as industrial disputes under Section 18 of the Industrial Relations Act 1967 if the said disputes concern members of the union.
18. Can employers affected by the COVID-19, such as the airlines companies, to implement salary deduction to their employees’ salaries as a measure to avoid resignation?
Any forms of salary deductions need to be negotiated with and agreed by the employees first. In the event of a collective agreement, negotiation with the trade union representing the said employees is necessary and agreement must be obtained therefrom.
CLOSURE OF BUSINESS PREMISES
19. Can companies which are required to close their premises following the Movement Control Order direct their employees to work from home? If the employees refuse to comply with such instructions, can the employer take disciplinary action against them?
The Movement Control Order does not prevent any employer from directing their employees to work from home. The employer can thus take disciplinary action against employees who refuse to follow the instructions.
20. Can a Company that is required to close down its premise due to the Restriction of Movement Order instruct its employee to come to work as usual or work for half a day?
Cannot, based on the Restriction of Movement Order. If the employer instruct the employee to come to work during the Restriction of Movement Order’s period, complaint can be made to the National Security Council.
RETRENCHMENT OF WORKMAN / FRUSTRATION OF CONTRACT
21. Can an employer that is affected by COVID-19 retrench the workman?
Retrenchment is a reduction of employee due to surplus of workforce. Generally, retrenchment is the prerogative right of the employer. However, to ensure the retrenchment process is done fairly, there are 3 main requirements that needed to be complied by the employer. First, the excuse that the employer’s business is affected due to COVID-19 must be genuine and not intentionally made up. Second, employer must first take measures to avoid termination of work such as reducing the working hours, limiting and freezing the hiring of new employee, limiting over time, limiting work on weekend or public holiday, reducing the salary of the employee, performing temporary lay-off. Third, if termination of work cannot be avoided, foreign employees must be terminated first. If the termination involves local employee, LIFO Principle (Last In First Out) must be complied with. Nonetheless, this principle can be set aside if the employer has a concrete justification.
22. What can be done by the employees that are not satisfied with the action of the employer performing retrenchment due to COVID-19?
Employees that considers the retrenchment by the employer is made without any just cause or excuse may make a representation in writing to the Director General of Industrial Relations to be reinstated in his former employment. The representations may be filed at the office of the Director General nearby within 60 days of the dismissal [section 20 Industrial Relations Act 1967].
23. Can the Movement Control Order (MCO) 14 days period considered as frustration of contract?
Cannot, because the failure of the employer and employee to fulfil the contractual obligations does not involve long period of time.
TIME PERIOD CALCULATION
24. Will the 14 days period of Movement Control Order (MCO) which begins from 18 March 2020 until 31 March 2020 [Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020] be considered in the calculation of 60 days period provided under Section 20 of the Industrial Relation Act 1967?
The 14 days period of Movement Control Order (MCO) which begins from 18 March 2020 until 31 March 2020 will still be considered in the calculation of 60 days period provided under Section 20 of the Industrial Relation Act 1967. However, if the 60th day falls on any day within this Movement Control Order (18 March 2020 to 31 March 2020), 1 April 2020 shall be considered as the 60th day.
25. Will the 14 days period of Movement Control Order (MCO) which begins from 18 March 2020 until 31 March 2020 [Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020] be considered in the time period calculation provided under Section 9 of the Industrial Relation Act 1967?
The 14 days period of Movement Control Order (MCO) which begins from 18 March 2020 until 31 March 2020 will still be considered in the time period calculation provided under Section 9 of the Industrial Relation Act 1967. However, if the last day falls on any day within this Movement Control Order (18 March 2020 to 31 March 2020), 1 April 2020 shall be considered as the last day.
26. Can employees who consider that the termination of their services was without reasonable cause or excuse file a representation of unfair dismissal through email/fax to any Director General of Industrial Relations offices nearby within the period of the Movement Control Order?
Yes. The Department of Industrial Relations will receive a representation of unfair dismissal that is filed through email/fax.
27. What is the definition of “essential services” as announced in the Special Announcement by YAB Prime Minister?
“Essential services” refers to the list under the Prevention and Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020 covering the closing of all government and private premises, except those involved in essential service to the country or essential services such as:
- Bank and finance
- Electricity and energy
- Port, dock and airport services and undertakings, including stevedoring, lighterage, cargo handling, pilotage and storing or bulking of commodities
- Production, refining, storage, supply and distribution of fuel and lubricants
- Healthcare and medical
- Solid waste management and public cleansing
- Radio communication including broadcasting and television
- Transport by land, water or air
- Defense and security
- Food supply
- Hotels and accommodation
- Any other services or works determined by the Minister as essential or critical to public health or safety
Any business premise not providing essential services may be opened provided that the owner and occupier of the premise obtains written permission as stated under Regulation 5(2) Prevention and Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020.
28. If a company intends to request for exemption from closure of business premises, to whom should the company submit their representation?
29. For companies under essential services, can the employer deduct the employee’s annual leave for employee’s who are not required to go to work due to the company exercising minimal operations?
The employer is prohibited to force their employees to take annual leave; annual leave must be taken by the employee’s on desire or application.
EMPLOYEES SUSPECTED / CONTRACTED COVID-19
30. In a scenario where the employer persistently force an employee to be at work even in situation where the employee is in quarantine, can the employee deny such order? Can the employer take disciplinary action against the employee upon their refusal to follow such order?
The employer is prohibited to order the employee during the quarantine period to be present at work or to take disciplinary action due to the employee’s absence.
EMPLOYMENT RETENTION PROGRAME (ERP) AND OTHER BENEFITS
31. Do employees affected by COVID – 19 are eligible to receive any form of benefits from the Government?
The Government have announced special incentives in relation to this issue.
For further questions and answers regarding the ERP, kindly refer to frequently asked questions in relation to PERKESO or by contacting PERKESO 1-300-22-8000 or enquiries through email at [email protected]o.gov.my or by channelling your complaint through facebook.com/perkeso.official.
MINISTRY OF HUMAN RESOURCES
23 MARCH 2020
For more insight into this area of law, please contact our Partners in the Employment & Industrial Relations Practice Group:
Wong Keat Ching