DOSH - To be Privatized or Not - Opinions

Enforcement role must remain with DOSH

Letters


Wednesday, 24 Apr 2019 12:00 AM MYT

WE refer to the letter “Privatisation a good option” (The Star, April 5) in which the writer proposed the privatisation of the enforcement functions of agencies under the Human Resources Ministry, including the Department of Safety and Health (DOSH).

While we at DOSHtech (association of former staff of DOSH) laud the idea, an in-depth study and careful deliberation on its practicability must be carried out by the stakeholders concerned.

Privatisation should continue to provide a balanced ecosystem where the expected level of safety and health at workplaces are sustainable and, more importantly, at a cost that does not burden industries.

DOSH enforces the Occupational Safety and Health Act 1994 (OSHA) and Factories and Machinery Act (FMA) 1967 and regulations made thereunder.

Factories and installations, designated machinery, lifts, hoisting machinery and etc. are subjected to regular inspections and certified as appropriate. DOSH ensures compliance to safe engineering practices of designated machinery through a detailed design review, fabrication inspection and tests before they are used for the first time. Certificates of competency are issued to qualified and accredited personnel, including but not limited to electric lift competent persons, steam engineers and engine drivers, crane operators, safety and health officers, site safety supervisors, chemical hazards risk assessors and noise assessors, prescribing the roles and responsibilities in their line of duty.

Malaysia has undergone rapid industrialisation, which inadvertently increased the volume of work that places a heavy burden on the available DOSH inspectors to perform comprehensive and thorough inspections effectively.

Suggestions and feedback from industries indicate that it is appropriate for the government to consider outsourcing designated inspection activities to a private or corporate entity to ease the burden. However, the entity must guarantee a sufficient number of qualified inspectors (including retired DOSH inspectors) who possess the knowledge and experience to perform the duties.

The results should be reflected in improved inspection schedules and enhanced service quality that benefit industries and the public.

Occupational safety health (OSH) inspection entails the risk assessment of workplaces, and competent industrial hygienists are qualified to perform the duty.

The writer’s idea of privatising the enforcement role of agencies under the Human Resources Ministry should be clarified. While the inspection activity could be outsourced to a private service provider, the enforcement of the law is an entirely different matter.

The pollution of Sungai Kim Kim is outside the purview of DOSH. There are designated government and statutory bodies that are responsible for enforcing the law on offenders who cause such serious health effects, suffering and misery to the public and damage to the environment.

But OSH enforcement is within the jurisdiction of DOSH, and this regulatory function must not be privatised or outsourced. Trained DOSH inspectors are guided by the Enforcement Uniformity Model (EUM), a tool that is applied to assess enforcement decisions in accordance with the severity of the offences. The power to enforce and proceed with the legal process against the offender is the responsibility of DOSH.

Perhaps other agencies in the Human Resources Ministry (with the exception of DOSH) could be merged, particularly those that deal with non-technical matters like the enforcement of minimum age and wages, unions and industrial relations, worker’s welfare and social security.

The inherent tasks and job description of DOSH inspectors are to enforce laws and regulations that are very prescriptive and technical in content, of which possession of an engineering degree is a prerequisite during recruitment.

Hence, DOSH should not be merged with any other agencies. It must remain a separate entity so that it can continue to provide objective and professional enforcement to protect the safety and health of workers.

MOHAMAD OTHMAN

President

DOSHtech - Star, 24/4/2019

 



Privatisation a good option

Letters


Friday, 05 Apr 2019 12:00 AM MYT

AS a retired Human Resources Ministry official, it is horrifying for me to read news about industrial accidents, especially those that involve fatalities.

The recent Sungai Kim Kim pollution incident is not just a blatant disregard for environmental laws but also points to poor enforcement of workplace safety.

When I was in service, one of the proposals to beef up enforcement involving the Human Resources Ministry was to merge and privatise it. But this proposal was shot down many times by those who have vested interests, including key officials in the ministry.

Right now, different agencies under the ministry have their own enforcement unit. For example, the Labour Department acts against employers who do not pay salaries on time. The Department of Occupational Safety and Health (DOSH) goes after companies who fail to meet minimum health and safety standards at the workplace. The list goes on.

This present arrangement has resulted in an environment where agencies work in silos. For example, a DOSH official on his rounds in factories will not act against employers hiring illegal workers even if he stumbles upon them.

His jurisdiction is confined only to workplace health and safety, not workers without permits. And by the time he informs the relevant authorities about this, the illegal worker would have gone into hiding.

This creates inefficiency and is more costly. Under the proposed unified enforcement unit, one person can take over the jobs of multiple staff from different agencies.

The current arrangement also creates room for enforcement officials to build “relationships” with parties which they are supposed to oversee. As we know, “familiarity breeds contempt”, if not outright corruption.

This is why a unified and privatised enforcement team can help plug the existing loopholes in the system. For a fee to government coffers, companies can bid for licences to carry out such enforcement. Since private corporations are profit-driven, they would have more incentives to ensure not just tight enforcement but also optimum use of manpower. Companies found to have slacked or engaged in dubious activities could have their licences revoked.

Privatisation of enforcement is not new. In Malaysia, vehicle inspection, previously undertaken by the Road Transport Department, is now done by Puspakom, a private company.

But unlike Puspakom, enforcement of laws pertaining to labour and human resources should not be monopolised by one company but should be opened up to enable competition, which will bring about efficiency.

Singapore, a country known for top-notch efficiency, has also privatised some of its enforcement. For example, there are five commercial auxiliary police forces authorised to provide armed security to government organisations. Singapore’s Land Transport Authority (LTA) has also authorised multiple companies to conduct vehicle inspections.

Additionally, privatising enforcement responsibilities is also in line with the government’s aspirations to trim the civil service. As we can see, there’s plenty of potential the government and public can derive from having a merged and privatised enforcement. In the spirit of new Malaysia, I appeal to Human Resources Minister M. Kula Segaran to seriously consider this long-overdue proposal.

HOPEFUL
Grik, Perak - Star, 5/4/2019

Section of DOSH enforcement division up for privatisation (Borneo Post, 11/1/2020)

Section of DOSH enforcement division up for privatisation

By Jacqueline Raphael on January 11, 2020, Saturday at 12:09 AM Sarawak

Kulasegaran (seated centre), flanked by Dr Ting (second right) and Nor Halim, joins DOSH Miri staff in a photo-call.

MIRI: A certain section of the Department of Safety and Health (DOSH) Sarawak’s enforcement division would be privatised to counter the problem of insufficient manpower.

In stating this, Human Resources Minister M Kulasegaran observes that the enforcement section only has 111 technical officers, which is insufficient to ensure smooth running of the department.

“The enforcement section has shortage of enforcement officers. DOSH Sarawak had applied for 50 new officers, but the government, since several years ago, had not allowed (for) additional staffing.

“We have looked at other efforts, and have proposed for a certain section of the enforcement (division) to be taken over by the private sector. This will enable the department to relieve its enforcement officers, so that they can concentrate on some other areas,” he told reporters after attending a briefing at DOSH Miri office yesterday, where Pujut assemblyman Dr Ting Tiong Choon and DOSH Sarawak director Dr Nor Halim Hasan were also present.

Kulasegaran said the plan to privatise a section of DOSH was not something new; rather, this had started in 1998. However, the proposal had yet to take effect, he said.

“Last year when I visited Singapore, I saw that their privatised enforcement section had saved a lot of government’s money and time. The enforcement operation was also (running) much better, where complaints and corruption or allegation of this nature, had been very much reduced.

“So I’m proposing that we accelerate the proposal for privatisation. This will also allow, maybe 50 per cent of the enforcement staff to go and do other works – so they will have enough manpower to conduct investigations, audits and other things,” said the minister.

Kulasegaran disclosed that one of the most worrying things was the number of backlog of inspections throughout the country. In 2018, about 30 per cent of inspections could not be done due to insufficient manpower.

“But the situation is better in Sarawak, with only about 10 per cent of backlog. I must thank DOSH Sarawak director and his team for doing a good job,” he said, adding that the target should be to have zero backlog and zero occupational accidents.

Meanwhile, Kulasegaran was happy to note the improvement and progress shown by DOSH Sarawak over the past year.

“Last year, only 32 fatalities recorded from workplace accidents, versus 47 in 2018. This is an improvement and the reason for this could be caused by increased inspections by the DOSH,” he said.

He added that last year, DOSH also recorded a total of 28 permanent disability cases, 414, non-permanent disability cases as well as 450 cases of occupational poisoning and diseases.

“I was given to understand that some were hearing loss, because the workers were not wearing hearing(-protection) gears,” he said.

DOSH Sarawak also recorded about RM2 million in revenue and RM928,500 derived from compounds and prosecution cases last year – in comparison, DOSH revenue for the whole country was RM35 million.

That same year, a total of 1,744 punitive actions were taken against companies in Sarawak.

Touching on the incident of collapsed girder beams during the construction works on a bridge at the Pujut Link component of the Pan Borneo Highway development here last month, Kulasegaran said the department was still waiting for the forensic report to be completed.

“DOSH is conducting a forensic study about the matter. It’s being done now, but not yet completed. For the interim, we allow them to remove the debris.

“So we are now waiting for two things – the forensic study report as well as plans from the contractor involved about the incident and what has been done,” he added. - Borneo Post, 11/1/2020

Taman Desa condo collapse - 4 trapped (EdgeMarkets 14/2/2020)

Taman Desa condo collapse: DOSH officers dispatched to investigate incident

Adam Aziz

/

theedgemarkets.com

February 14, 2020 22:57 pm +08

^-A ⁺A

KUALA LUMPUR (Feb 14): The Ministry of Human Resources said a team of investigation officers from the Department of Occupational Safety and Health Kuala Lumpur and Putrajaya has been dispatched to check the collapse of a condominium structure in Taman Desa this afternoon.

The team has been sent there to identify the cause of the accident that took place at the residential area located along Jalan Klang Lama here, and to determine whether there have been any breaches under the Occupational Safety and Health Act 1994 and the Factories and Machinery Act 1967.

“As at 7pm, the investigation officers are still waiting for permission from the Fire and Rescue Department to enter the accident site, before proceeding with the investigation,” the Ministry said in a statement this evening.

The Ministry, however, did not state if there had been any injuries or fatalities from the incident.

Earlier, Bernama reported that four people were trapped when part of the structure of the condominium, which is still under construction, collapsed at around 3pm. At the time, it said one had been rescued and had been sent to hospital.

It also quoted a spokesman from the Kuala Lumpur Fire and Rescue Department as confirming the incident. - Edge Markets, 14/2/2020

Perak company fined RM35,000 for negligence in contractor's death(NST, 1/8/2019)

Perak company fined RM35,000 for negligence in contractor's death

By Shaarani Ismail - August 1, 2019 @ 2:41pm

 

IPOH: A company was fined RM35,000 by the Sessions Court here today for negligence which resulted in the death of its contractor while fixing the company’s roof five months ago.

Lysaght Galvanized Steel Bhd which represented by its director and chief executive officer, Chua Tia Bon pleaded guilty when the charge was read to him before Judge Norashima Khalid.

According to the charge sheet, the 69-year-old man was accused of failing to ensure the safety, health and welfare of his employee while on duty.

Chua was also accused of failing to conduct safety workplace system in term of checking, fixing and changing the roof works which resulted in the death of its 55-year-old contractor Cheong Kim Loong.

Chua allegedly committed the offence at the company in Tasek Industrial Area here on April 22.

He was charged under Section 17(1) of the Occupational Safety and Health Act 1994, punishable under Section 19 of the same act.

The offence carries a maximum fine of RM50,000 and jail term of up to two years.

Lysaght Galvanized Steel Bhd which represented by its director and chief executive officer, Chua Tia Bon pleaded guilty when the charge was read to him before Judge Norashima Khalid. - NSTP/EMAIL

Deputy Public Prosecutor Fazira Azita Abdul Rashid represented DOSH, while the accused was not represented.

Earlier, the accused during mitigation said he was upset over the incident and has since improved the company’s safety system.

Chua said it was the first recorded case at the company and it has been following safety measures which set by the Department of Occupational Safety and Health (DOSH) following the incident, while pleading for a lower penalty.

However, Fazira Azira requested the court to impose a just punishment against the company as it had been operating for more than 40 years and that the incident should serve as a lesson.- NST, 1/8/2019

Company fined RM20k for not complying with DOSH prohibition notices - 2 offences(NST,Nov,2019)

Company fined RM20k for not complying with DOSH prohibition notices

A construction company was fined RM20,000 for failing to comply with two notices of prohibition issued by the Perak Department of Occupational Safety and Health (DOSH). -NSTP/File pic

By Zahratulhayat Mat Arif

 

November 28, 2019 @ 10:59am

 

IPOH: A contractor company, Loyal Engineering Sdn Bhd, was fined RM20,000 by the Sessions Court here today for failing to comply with two notices of prohibition issued by the Perak Department of Occupational Safety and Health (DOSH).

Its managing director Datuk Ong Kian Min pleaded guilty when the charges were read to him before judge Norashima Khalid.

According to the first charge, the company was accused of failing to comply with notice of prohibition issued on July 16 to immediately discontinue unsafe working activities that are using scaffolding.

For the second charge, the company was accused of failing to comply with notice of prohibition issued on the same date, to immediately discontinue unsafe working for the installation of falsework, formwork and rebar as no provision of personal protective equipment such as safety harness to employees which may cause fall injury.

Both offences were committed at the regional sewage treatment plant and sewer pipe network site project in Papan here on July 24 at about 1pm.

The charges are framed under Section 49(1) of the Occupational Safety and Health Act 1994 and Section 49(2) of the same act, which carries a fine of up to RM50,000 or imprisonment of up to two years or both, upon conviction.

DOSH prosecuting officer Ir Amirul Adli Hashim earlier requested for the maximum punishment under the law.

Ong, who was not represented by counsel, sought a light penalty as it was the company’s first offence since it was established in 1995 and promised not to make the same mistake again. - NST, 28/11/2019

DOSH must take rap for worksite deaths and injuries(FMT)

DOSH must take rap for worksite deaths and injuries

Mohideen Abdul Kader

-

May 24, 2019 9:14 PM

The Consumers’ Association of Penang (CAP) is shocked by the Department of Occupational Safety and Health’s (DOSH) disclosure that 711 workers were killed on the job in 2017, with 183 of the fatalities occurring at construction sites.

In the latest worksite incident, an Indonesian couple was killed and three others were injured when a multi-storey car park under construction at the Gombak LRT station at Taman Melati collapsed on May 23.

This is an indication of the pathetic state of enforcement by DOSH and raises the question of whether the department is relevant any longer.

A number of construction projects are going on in the country and are a major contributor to the economy, yet the safety of the workers – mainly the manual workers – is not given the importance it deserves. It is as if their lives are cheap.

CAP has carried out surveys at construction sites and found that ,many workers do not wear safety apparel such as helmets, harnesses or fall protection equipment (when working above 2m), jackets, protective gloves and hearing plugs.

Who should be blamed for this non-compliance of safety requirements at the worksite: the employees, the employer or the enforcement body?

DOSH appears to believe that putting up “Safety First” notices at worksites absolves it and the developers from liability for accidents resulting in injuries and death.

The Occupational and Safety Act makes employers responsible for making worksites safe and it makes DOSH responsible for enforcing the Act. The death of 711 workers in 2017 is shocking and disgraceful to say the least. It means that those in the construction industry do not respect the law because they do not fear the law, and that is because of non-professional enforcement of the law.

DOSH says that projects costing over RM20 million are “self-regulated”. This means the project developers are required to hire their own safety experts on their sites and DOSH does not inspect these sites. It only inspects worksites of projects costing less than RM20 million.

DOSH is wrong to think that “self-regulated” projects do not need to be audited by it. Is safety beingcompromised as it might cost more to put in all the safety measures required under the law than to pay compensation for the life and limb of manual workers? Why does DOSH think that there is no need to check on the safety consultants’ work at these big projects? 

 

In two major landslide cases in Tanjung Bungah and Bukit Kukus, Penang, DOSH highlighted that the contractors did not comply with safety standards as required by the law and that negligence subsequently killed more than 20 workers in both cases.

Taking action only after major accidents have happened and people have been killed is not a consolation to the families of the victims. The recalcitrant consultants should be deregistered to send a strong message that any incompetency and negligence will not be tolerated.

DOSH’s claim that it practises professionalism in carrying out its duties appears hollow. It states that it carries out surprise checks at worksites and at the same time laments that its officers cannot be at the worksites all the time. This speaks volumes of its “professionalism”. If it is professional, it should put enough fear into the building construction industry such that no one would dare breach any safety regulation. Until and unless DOSH starts enforcing the law strictly, it cannot claim to be exercising professionalism in its regulatory work.

Recommendations for worksite safety

CAP recommends the following for improvement of worksite safety:

1. For each worksite, there must be one dedicated consultant who is in overall charge of safety. This person is responsible for the prevention of accidents on the site.
2. DOSH must carry out spot checks at all worksites, including the so-called “self-regulated” ones.
3. DOSH should impose the maximum penalty for the first offence to drive home the point that workers’ safety is a serious matter.
4. Section XI of the Occupational Safety and Health Act gives wide powers of investigation and action against those who breach the law. The law needs to be enforced strictly. It does not give discretionary powers to let anyone off lightly.
5. Current penalties of a RM50,000 fine and imprisonment of not more than two years are grossly inadequate and not deterrent at all. Light penalties only encourage the breach of laws as it is cheaper to do so than to comply. The penalty should be raised to not less than 10% of the project cost or not less than two years’ imprisonment, or the irresponsible employer should be penalised under the Penal Code for manslaughter in the event of fatalities.
6. DOSH must conduct a follow-up check at the worksite after the contractor or developer is issued with a stop-work order. In the case of the landslide at Bukit Kukus, it was revealed that a stop-work order was issued but the developer did not comply with it. DOSH should examine any violation of the stop-work order and take immediate action against the developer.
7. The guilty party should be charged in court and a suitable sentence meted out so as to set an example for the rest in the industry.

We urge DOSH to take a tough stand against errant contractors and developers. It has to take urgent measures to rectify this festering problem that affects those who help to build the nation.

Mohideen Abdul Kader is vice-president of the Consumers’ Association of Penang. - FMT, 24/5/2019

Salary Deduction and Unpaid Leave Should not be Made an Option during Lockdown(LRRC)

Press Statement by Labour Law Reform Coalition on 8 April 2020 in Shah Alam

Salary Deduction and Unpaid Leave Should not be Made an Option during Lockdown

Labour Law Reform Coalition welcomes the announcement of the government on 6 April 2020 that an additional RM10 billion stimulus package would be allocated to support micro, small and medium enterprises, the total amount of wage subsidy has been substantially increased from RM5.9 billion to RM13.8 billion.

However, we have grave concern that the Prime Minister, during the announcement, said that the government encouraged “negotiations between employers and employees on their terms of employment, including an option for salary deductions and unpaid leave during the MCO.”

This statement will unwittingly open a floodgate for employers to exploit Malaysian workers by denying paid leave during the lockdown period. With tremendous financial support by the government at the expense of tax payers’ hard-earned money, it is unreasonable if companies cut workers’ wages or ask them to go for unpaid leave.

In addition, given the fact that only 4 per cent of private sector workers were unionized in the country, most of the workplaces do not have legally sanctioned bargaining units, that is, trade unions. Hence, the proposal is unpractical and ineffective as the precondition of collective bargaining does not exist. The announcement will be easily manipulated by employers to their advantage.

We urge the government to grab the opportunity to require companies to establish trade unions as a precondition of receiving government fund. This measure not only will realize collective bargaining in accordance to the financial situation of the company, but also encourage industrial harmony in the post-lockdown period which is full of uncertainty for businesses and working classes.

Nadesan Gopalkishnam & Irene Xavier

Co-Chairpersons

Labour Law Reform Coalition

http://decentwork.org.my/

https://www.fb.com/decentwork.malaysia/

Note : Labour Law Reform Coalition is endorsed by 58 Trade Unions from various sectors and worker organisations. The group started in June 2018 to initiate discussion on labour law reform bases on ILO’s decent work framework. The coalition had submitted proposals of reforming Employment Act 1955, Trade Union Act 1959 and Industrial Relations Act 1967 in January and May 2019 respectively.

Nadesan Gopalkishnam is the General Secretary of National Union of Transport, Equipment and Allied Industry Workers (NUTEAIW), he is the immediate past Secretary-General of Malaysian Trade Union Congress. Irene Xavier is a veteran social activist who founded Persatuan Sahabat Wanita Selangor, she has been fighting for the rights of women worker for decades.

Press Statement by Labour Law Reform Coalition on 18 March 2020 in Shah Alam

Groups call for comprehensive investigation into death of 5 workers killed in the Pengerang tragedy

The Labour Law Reform Coalition (LRRC), comprised of 58 trade unions, migrant worker groups and non-governmental organisations, calls for the Government to begin a comprehensive investigation into the tragedy at the Johor Bahru petroleum refining complex on 15/3/2020 that  left five workers dead and one seriously injured.

Investigations must be conducted by, amongst others, the police, the Fire Department, the Department of Occupational Safety and Health (DOSH) and all relevant agencies.

The explosion occurred at Pengerang Refining and Petrochemical (PRefChem)’s Hydro Diesel Treater Unit at the Pengerang Integrated Complex on Sunday night. 42 Fire and Rescue personnel and nine vehicles battled the blaze for a full twelve hours, and operations have been suspended to enable investigations by the Department of Occupational Safety and Health.

PRefChem is a strategic alliance of two of the world’s largest national oil companies — Petroliam Nasional Bhd (Petronas), the national oil company of Malaysia, and Saudi Aramco, the national oil company of Saudi Arabia.

It was disappointing when the Johor Police Chief, Datuk Ayob Khan Mydin Pitchay, was reported saying that the police will only investigate if there was sabotage, betrayal or terrorist involvement. [“Polis hanya akan membuat siasatan jika ada unsur sabotaj, khianat mahu pun serangan pengganas dikesan pada fasiliti berkenaan.’- Berita Harian, 17/3/2020]

This is unacceptable, as the police must investigate comprehensively to determine whether there was any crime, including murder or manslaughter, and determine whether there is anyone criminally liable for the deaths and injury caused.

There must be an inquest conducted for all these deaths.

There must be no special treatment accorded simply because Petronas is involved.

“We extend our deep sympathies to their families and workmates of Fadhi Akmal Fadzil, Azarul Ashraf Nor Akmal, Norfazly Md Nor, Che Huzaidy Che Harun and Hadi Syafiq Jamil who died in this tragic and possibly avoidable accident”, said LLRC co-chair Irene Xavier.

“Occupational safety and health is the responsibility of employers, however the increasing regularity of instances like these clearly demonstrate that workers cannot trust them to execute this responsibility, particularly in high risk sectors like petrochemical and construction”, she continued.

“This is not a problem that popped up yesterday and won’t be solved without a meaningful change in employers’ behaviour to ensure workers’ safety is truly valued. Unless there is a serious threat of prison time for bosses’ whose negligence or laxity results in workers’ deaths, workers will keep dying.”

The LLRC also calls on the government to begin drafting more deterrent laws, including also industrial manslaughter legislation, that provides for mandatory prison sentences for employers or company directors who by their actions and/or omissions result in workers death at the workplace.

Irene Xavier (+60) 11 1539 9960

Labour Law Reform Coalition (LRRC)

*The Labour Law Reform Coalition is a group of 58 trade unions, migrant worker organisations and non-govermental organisations lobbying for reforms to Malaysia’s labour law to create decent work.

Media References:-

Pengerang Refining and Petrochemicals confirm fire and explosion at Pengerang (16 March) Malay Mail.

Operations at Pengerang Integrated Complex suspended to allow Dosh investigations (16 March) Malay Mail.

Can COVID-19 be considered an occupational disease?(ISSA) - YES, it can.

Responses to the COVID-19 crisis

Can COVID-19 be considered an occupational disease?

2 April 2020

 

Worldwide almost 2.4 million people die due to an occupational disease, compared to 0.38 million that die because of a work accident. Insurance covering occupational diseases is an important pillar of social security and a safety net to all workers who may be exposed to chemical, physical or biological agents arising from work activities, or may suffer from respiratory and skin diseases, musculoskeletal disorders, post-traumatic stress disorders or occupational cancer.

In view of the rapid spread of the Coronavirus, countries are now facing the urgent question of assessing COVID-19 as an occupational disease. In order to ensure insurance coverage, in particular for workers in the most exposed sectors, rapid measures to facilitate the recognition of COVID-19 have been implemented in a number of countries.

Recognition Process for an Occupational Disease

In order to assess whether or not COVID-19 is an occupational disease, it is essential to have distinct and transparent criteria for the definition of occupational diseases, which will help to distinguish these from diseases of different origins. Around the world, various recognition procedures exist that would determine the occupational nature of the disease. This procedure can be based on individual (medical and technical) assessments. Data relating to exposures in the workplace, as well as scientific surveys on occupational risks, are also useful tools to be used in the recognition procedure, which can be organized in different ways, namely:  

• A national list of occupational diseases containing the precise recognition criteria, supplemented by a complementary system of recognition for diseases which are not on the list, is in most cases an efficient way to have clear and validated recognition criteria.
• The recognition procedure can also be based on the individual assessment of cases by experts.
• A combination of these two systems is possible. This would mean that (a) a national indicative list or the list of occupational diseases published by the International Labour Organization (ILO) or the European Commission is used as a reference and (b) investigations on a case-by-case basis are conducted to further determine the causal link between work and the disease.

Systematic Approach to Occupational Diseases for Social Security

A systematic approach to occupational diseases, starts from individual suspicion of an occupational disease and ends with the final decision on whether or not the disease will be recognized by the social security institution. The decision on such recognition depends on the causality between the disease and the workplace.

Source: ISSA Guidelines: Prevention of Occupational Risks (2019)

The ILO List of Occupational Diseases

COVID-19 is of course not explicitly mentioned in the ILO list of occupational diseases (2010). It only lists HIV, Hepatitis B and Hepatitis C as virus infections, which are recognized as occupational diseases. However, COVID-19 falls under Article 1.3.9. :

“1.3.9. Diseases caused by other biological agents at work not mentioned in the preceding items where a direct link is established scientifically, or determined by methods appropriate to national conditions and practice, between the exposure to these biological agents arising from work activities and the disease(s) contracted by the worker.“

Practically speaking, there needs to be a direct link between the exposure to the coronavirus itself (SARS-CoV-2) at work and the disease (COVID-19) to be able to classify it as an occupational one. 

The first condition – the scientific evidence that SARS-CoV-2 causes COVID-19 - is a proven scientific fact, but in many cases, it will be difficult to create the causal link; to prove that the disease was contracted at work. If proved that the virus was contracted through occupational exposure, any worker is covered under the ILO list.

However, not all countries follow the ILO list and many have their own national lists or assessment criteria to determine the occupational nature of a disease.

National examples of COVID-19 recognition

• The National Employment Accident Insurance Institute of Italy (Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro - INAIL) confirmed that coronavirus infections of doctors, nurses and other employees of the National Health Service (Servizio Sanitario Nazionale – SSN) as well as of any other public or private health facility are considered occupational diseases. The causal link between the work and the infection will be automatically assumed for this group of employees in order to also provide coverage to cases in which the identification of the specific causes and working methods of the infection is problematic. Furthermore, COVID-19 cases where SARS-CoV-2 was contracted while commuting to work or back home are also covered by INAIL.
• The German list of occupational diseases  mentions virus infections (No 3101), which considers viruses as an occupational disease if the employee works in the healthcare sector. But it does not consider a virus an occupational disease for any other economic sector (like public transport, supermarkets, construction, office workers, etc.)  
• In South Africa, COVID-19 is recognized as an occupationally acquired virus disease if it is the result of occupational exposure, which happens in a presumed high-risk work environment or during an approved official work assignment to high risk areas or countries. Furthermore, a chronological sequence must exist between the work exposure and the development of COVID -19 symptoms.
• Canadian Workers’ Compensation boards compensate their workers for COVID-19 if there is medical proof that the worker has been diagnosed with COVID-19 has been exposed to SARS-CoV-2 at work and if the exposure is confirmed to be work-related.

Social Security Prevention Responses to COVID-19

The sooner an occupational disease can be detected and addressed, the higher the chance of a cure and reintegration into work. Hence, the timely diagnosis of relevant symptoms allows not only for effective medical treatment but also for workplace interventions such as changes to work processes (like teleworking), improved hygiene measures and the use of protective devices. The ISSA’s Special Commission on Prevention has published a list of measures that can be shared by occupational accident insurances to ensure that the COVID-19 will not spread at the workplace. - The International Social Security Association (ISSA)

47 Groups - Make COVID-19 an Occupational Disease under Law to ensure social protection for all workers and their families

Media Statement – 2/4/2020

Make COVID-19 an Occupational Disease under Law to ensure social protection for all workers and their families

We, the 47 undersigned groups, organizations and trade unions, in response to the advent of Covid-19, an infectious disease that can easily be transmitted to other human persons, including workers, urge that the Malaysian government immediately recognize and make Covid-19 an occupational disease. 

By so doing, workers who are infected by Covid-19 at their workplace, even during this period, will become entitled to social protection accorded by social security schemes and laws.

For those who die, by reason of getting infected by Covid-19 at the workplace, will also be easily entitled to compensations, and their spouses/children/elderly parents will also become entitled to survivor benefits including pensions.

Employers have a duty in law to ensure a safe working environment, and will also now be required to ensure that the workplace is safe from Covid-19 and/or any other dangerous communicable diseases, especially those can result in death or other permanent disabilities.

With the movement control order in place, which still requires workplaces that provide for essential services to operate, workers traveling to and from work, and at these workplace are everyday at risk of being infected by the Covid-19 virus, which to date has also resulted in many deaths worldwide, and as such workers need protection, and this can be done by specifically classifying Covid-19 as an occupational disease.

Now, recently even workers in charge of Human Resources, are required to travel and return to their workplaces for the purposes of arranging the monthly payment of salaries to workers.

Workers who are also needed (or forced) to stay in particular accommodation by employers, should also be covered. This also ought to be considered an ‘occupational disease’, and be accorded all the needed social protection.

While the Covid-19 pandemic highlights the inadequacies in occupational safety and health laws, and also social security laws for workers, it is time to remedy these failings.

One must note, that in the past, there has also been allegations of some workers forced to house together or work together has ended up contracting life threatening ailments like tuberculosis from other workers they are made to stay and/or work with.

All such ailments, not just Covid-19, which can cause death or other disabilities that may impact these workers future employment and income, ought to be specifically classified as occupational diseases, and workers should be accorded all benefits under social protection laws.

These laws should apply to all workers, including migrant workers and domestic workers.

In Malaysia, local workers are generally covered by the Employees' Social Security Act 1969, which provides better protection to workers and/or their families compared to the Workmen’s Compensation Act 1952 that generally covered migrant workers. There must be equal protection for all workers, even domestic workers.

For now, The Human Resource Minister, can use the powers conferred by subsection 32(2) of the Occupational Safety and Health Act 1994 [Act 514], and declares that Covid-19 be recognized as an occupational diseases. Other changes and/or amendments to law to ensure equal protection to all workers may require Parliament.

Therefore, we 

-          Call on Malaysia to  immediately make Covid-19 an occupational disease, especially if it is contracted at the workplace, on journey to and from work, and in worker accommodations provided by the employer;

-          Call on Malaysia to amend all relevant worker social security law, to ensure appropriate just remedy to workers, their families and/or dependents especially in the event of death, or disability impacting future capacity to work and/or earn an income;

-          Call on Malaysia to ensure that employers are legally bound to provide a safe working environment, including safety from infection from human to human contact at the workplace for diseases like Covid-19,

-          Call on Malaysia and all employers to ensure that occupational safety and health of all workers are always prioritized and protected.    

Charles Hector

Apolinar Tolentino 

For and on behalf of the following 47 groups

WH4C(Workers Hub For Change)

Malaysian Trade Union Congress (MTUC)

Clean Clothes Campaign Network (CCC)

Building and Wood Workers International (BWI) Asia Pacific Region

Labour Behind the Label, United Kingdom

Odhikar, Bangladesh

National Union of Transport Equipment & Allied Industries Workers (NUTEAW), Malaysia

Persatuan Kesedaran Komuniti Selangor (EMPOWER)

Timber Industry Employee Union Sarawak (TIEUS)

MADPET (Malaysians Against Death Penalty and Torture)

North South Initiative(NSI)

Kesatuan Sekerja Industri Elektronik Wilayah Selatan, Semenanjung Malaysia (KSIEWSSM)

Sarawak Banking Employees Union

MTUC Sarawak (Malaysian Trade Union Congress – Sarawak)

Malayan Technical Services Union           

Timber Employees Union of Peninsula Malaysia

Malay Forest Officers Union      

PKNS Union       

Sabah Timber Industry Employees Union

National Union of Flight Attendants Malaysia (NUFAM)

Legal Action for Women, United Kingdom

Global Womens Strike, United Kingdom

Malaysian Automotive Industry Workers Union Federation

Saya Anak Bangsa Malaysia (SABM)

National Union of Banking Employees(NUBE)

Persatuan Sahabat Wanita Selangor                       

Single Mothers’ Self-Defence, United Kingdom

Association of Human Rights and Defenders and Promoters- HRDP(Myanmar)

Banglar Manabadhikar Suraksha Mancha (MASUM), India

MARUAH, Singapore

IMA Research Foundation, Bangladesh

Legal Awareness Watch (LAW), Pakistan

Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–Atrahdom, Guatemala

Programme Against Custodial Torture & Impunity (PACTI), India

Marvi Rural Development Organization (MRDO), Pakistan

Onward Consulting, Malaysia    

Women of Colour Global Women Strike, United Kingdom

Payday, United Kingdom

Women Against Rape (UK)

Bangladesh Group Netherlands

International  Black Women for Wages for Housework

International Jewish Anti-Zionist Network, UK

Asosasyon ng mga Makabayang Manggagawang Pilipino Overseas in Malaysia (AMMPO-SENTRO)

European Rohingya Council

WinVisible (women with visible & invisible disabilities)

Campaign Abiti Puliti (Italian CCC)

Collectif Etique sur l’etiquette, France