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The Emergency (Employees’ Minimum Standards of Housing, Accommodations and Amenities) (Amendment) Ordinance 2021

11 March 2021

The Employees’ Minimum Standards of Housing, Accommodations and Amenities Act 1990 (“the Act”) came into force on 1 December 1990.1 In its original form, the Act inter alia prescribes the minimum standards of housing for estate workers and their families.
 
Amendments made to the Act in 2019 introduced, among others, a new Part IIIA (“Part IIIA”) to provide for accommodations for employees other than estate workers and a new provision that allows the Minister of Human Resources (“Minister”) to extend the application of Part IIIA to other categories of employees.2 
 
The Act was further amended by the Emergency (Employees’ Minimum Standards of Housing, Accommodations and Amenities (Amendment) Ordinance 2021 (“Amendment Ordinance”) which came into operation on 26 February 2021. On the same day, the Minister issued the Employees’ Minimum Standards of Housing, Accommodations and Amenities (Employees Required to be Provided with Accommodations) Regulations 20213 to extend the application of Part IIIA to foreign employees.4
 
Some of the key changes made to the Act under the Amendment Ordinance are highlighted below:
 
  1. The Act which previously applied only to Peninsular Malaysia and the Federal Territory of Labuan now applies throughout Malaysia.5
  1. The definition of ‘employee’ now includes the definition under the Labour Ordinance [Sabah Cap. 67] in respect of the State of Sabah and the Labour Ordinance [Sarawak Cap. 76] in respect of the State of Sarawak, in addition to the Employment Act 1955 (in respect of Peninsular Malaysia).6
  1. The definition of ‘accommodation’ which refers to any permanent or temporary building or structure including any house, hut, shed or roofed enclosure used for the purpose of human habitation has been expanded to include centralised accommodation.7
  1. A new section 24BA is introduced to empower the Minister to prescribe any class, category or description of employees that shall be provided with accommodation by the employers under Part IIIA.8
  1. The Director General of Labour (“DG”) is given the power to direct an employer or centralised accommodation provider to bear the expenses incurred in complying with the directions given by the DG for purposes of administering and regulating all matters relating to an accommodation, e.g. submitting information/documents relating to an employee’s accommodation and directing an employer or centralised accommodation provider to provide other amenities for the accommodation.9
  1. A new section 24FA is introduced to give power to the DG to issue a notice directing the employer or centralised accommodation provider to replace, alter or repair the accommodation or amenities if the DG finds that such accommodation or amenities do not comply with the minimum requirements under the Act or any regulations under the Act. All expenses incurred by the employer or centralised accommodation provider for such replacement, alteration or repair shall be borne by the employer or centralised accommodation provider and shall not be recoverable from the employee. Any person who contravenes this section commits an offence and shall, on conviction, be liable to a fine not exceeding RM200,000 or to imprisonment for a term not exceeding three years or to both.10
  1. A new section 24FB is introduced to give power to the DG to direct the employer or centralised accommodation provider to provide temporary accommodation in the course of the replacement, alteration or repair of the accommodation and amenities pursuant to directions given under section 24FA. A certificate of accommodation is not required for the temporary accommodation provided to the employee for the aforesaid purposes. All expenses incurred in providing the temporary accommodation to the employee, including the cost of transportation from the accommodation to the temporary accommodation, rent of temporary accommodation and travelling of employees between his place of employment and the temporary accommodation, shall be borne by the employer or centralised accommodation provider and shall not be recoverable from the employee. Any person who contravenes this section commits an offence and shall, on conviction, be liable to a fine not exceeding RM200,000 or to imprisonment for a term not exceeding three years or to both.11
  1. The general penalty of a fine not exceeding RM50,000 and a further fine not exceeding RM1,000 a day for each day of a continuing offence for contravention of any provisions under the Act or any regulation made under the Act or failure to carry out any order made by the DG is now extended to centralised accommodation providers.
Comments
 
Given the current pandemic and some of the less than acceptable living conditions in accommodation provided to employees in various industries as highlighted in the media, the extension of the application of the Act throughout Malaysia is well-intended and timely. Employers may be reluctant to ensure compliance with the minimum standards of accommodation and amenities under the Act due to cost constraints and possibly the long-standing practice towards this issue amongst Malaysian employers. With stricter implementations and greater consequences for non-compliance, there is an impetus for employers to take immediate steps to address issues surrounding workers’ accommodation standards to achieve compliance. This is especially so when the authorities have already begun to commence prosecution against employers for non-compliance.12
 
This article was written by Selvamalar Alagaratnam (Partner) and Chen Mei Quin (Senior Associate) of the Employment Practice Group of Skrine.
 
1 See P.U.(B) 114/1991. The Act was then known as the Workers Minimum Standards of Housing and Amenities Act 1990.
2 These amendments came into operation on 1 June 2020 but employers were given a 3-month grace period to comply with the amended provisions. Our Alert on these amendments can be read here.
3 The regulations were made pursuant to section 25(2)(ab) of the Act.
4 For this purpose, a ‘foreign employee’ refers to a holder of a Visit Pass (Temporary Employment) issued under regulation 11 of the Immigration Regulations 1963, but does not include a domestic servant.
5 Section 2 of the Amendment Ordinance.
6 Section 4(b) of the Amendment Ordinance.
7 Section 6 of the Amendment Ordinance.
8 Section 7 of the Amendment Ordinance.
9 Section 8 of the Amendment Ordinance.
10 Section 9 of the Amendment Ordinance.
11 Section 9 of the Amendment Ordinance.

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