Workers’ Accommodation Standards

27 August 2020

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 minimum standards of accommodation currently provided under the guidelines issued by the Department of Labour of Peninsular Malaysia include among others, the following¹¹:

Sleeping space size or personal space of not less than 3 square metres per employee;

Minimum of 1 toilet and 1 bathroom for 15 employees in a dormitory;

Providing non-shareable items e.g. bed, mattress, pillow, locker; and

Providing common use areas i.e. kitchen area, living room, toilet and bathroom.

An employer or a centralized accommodation provider shall not use any building as accommodation if the building is unfit for human habitation¹². Contravenes of this section is an offence and that carriesliability of a fine not exceeding RM50,000¹³.

Employers are allowed to collect from an employee rental charges for the accommodation provided by the employer or any centralized accommodation provider¹⁴.

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 amenities^₁₅. 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 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 assume that enforcement from 1 September 2020 onwards will be stringent.

Globally, employers like Amazon²⁵, Walmart²⁶, Targets²⁷, have either faced law suits, 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, 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.

¹ https://www.skrine.com/insights/alerts/june-2020/minimum-standards-of-housing-and-amenities-amendme

² https://www.bernama.com/en/news.php?id=1870747

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 Garis Panduan Penetapan Standard Minimum Penginapan Pekerja Asing 2018, see: http://jtksm.mohr.gov.my/en/sumber-sumber/penerbitan/garis-panduan/651-garis-panduan-penetapan-standard-minimum-penginapan-pekerja-asing

¹² Section 24H(1) of the Amended Act