COVID-19: The Legal Position of Migrant Workers in the Malaysian Construction Sector

On 8 May 2020, the Ministry of International Trade and Industry (‘MITI’) issued a series of frequently asked questions (‘FAQs’) providing guidelines on, inter alia the re-opening of various economic sectors including the construction sector. Further details and guidelines in relation to the construction sector were provided by the Ministry of Works’ (‘KKR’) in a series of FAQs released on even date.
 
This article sets out the impact of Covid-19/ Movement Control Order (‘MCO’)/ Conditional Movement Control Order (CMCO) on the legal position of migrant workers in the construction sector in Malaysia. Pressing questions including the risk of deportation of undocumented workers and the current local stigma are addressed and highlighted. This article covers possible restrictions, procedures and challenges faced by the following categories of migrant workers in Malaysia namely:
 
  1. Documented Migrant Workers;
  2. Documented (Expired Permit/Pass During MCO) Migrant Workers; and
  3. Undocumented Migrant Workers.
MITI’s FAQs and KKR’s FAQs both dated 8 May 2020 are available here and here.
 
  1. Documented Migrant Workers
  1. Mandatory Health Screening Before Commencement of Construction Works
Companies are permitted to commence operations on 4 May 2020 without MITI’s approval letter. Whilst screening of local (Malaysian) workers is not mandatory, KKR has clarified that both foreign workers and employers (non-citizens) in the construction industry are required to undergo COVID-19 screening.[1] This may be done via the PERKESO Screening Programme, as stated in the construction industry’s Standard of Procedure (‘SOP’). In relation to foreign workers (non-citizens) in other industries, employers are required to comply with the Government’s directives and announcements released from time to time.[2]
 
Only foreign workers and employers (non-citizens) tested negative for Covid-19 are allowed to commence work. Any workers suspected of having Covid-19 symptoms must be isolated immediately and brought for a Covid-19 screening.[3]
 
Free screening of workers is accessible to employers registered with PERKESO at PERKESO appointed service provider premises.[4]
 
Workers who have just returned from overseas are not allowed to work and enter the construction site for a period of 14 days from the date of entry to Malaysia.[5]
 
  1. Who Bears Medical Costs and Alternative Quarantine Accommodation Costs?
Where a foreign worker registered with PERKESO is infected with Covid-19, treatment must be carried out at a Government hospital and medical costs will be borne by the Government. Individuals who had prior contact with a patient are required to undergo quarantine subject to the Ministry of Health’s arrangements.
 
Where a worker who was in close contact due to work has to be quarantined outside the Government hospital and his private residence, the quarantine centre preparatory costs is to be borne by the employer. Any other costs i.e. logistics from the Government Hospital or Government Clinic is also to be borne by the employer.[6]  
 
Where a worker residing in a Centralised Labour Quarters (‘CLQ’) contracts Covid-19, the costs of carrying out close contact quarantine of workers in the CLQ by providing alternative accommodation is to be borne by the employer.[7]
 
Commentary:
 
In its unwavering and persistent goal in curbing this unprecedented Covid-19 pandemic, the Government had listened to the views of relevant stakeholders i.e. the Malaysian Employers Federation which previously raised concerns over the mandatory obligation imposed on employers to carry out Covid-19 screening on all foreign workers. It was observed by the federation that a swab test costs at least RM500 and with the 2.3 million registered foreign workers in the country, ‘employers would go out of business’ if they were obliged to the costs, said MEF executive director, Datuk Shamsuddin Bardan.[8] Whilst initially adamant on its stance in shifting the Covid-19 screening costs on employers,[9] as highlighted above, employers registered with PERKESO’s Prihatin Screening Programme now stand to benefit from the free screening services provided.  
 
  1. Documented (Expired Permit/Pass During MCO) Migrant Workers
  1. Renewal of Work Permit (Pas Lawatan Kerja Sementara (‘PLKS’)) during MCO
Where a foreign worker is present in Malaysia during the MCO and his PLKS expires during the Movement Control Period, and where:[10]
 
  1. his employer intends to extend the existing PLKS period, the renewal application may be submitted online at www.clab.com.my or by contacting the Construction Labour Exchange Centre Berhad (‘CLAB’) Helpline at 019-2119599, 07-2359599 or 04-3979599 for further information. Only renewal of 2nd to 10th year of PLKS can be carried out online. The approval for the online application would require a two day period (subject to complete documents submitted).[11]
  1. the worker intends to return to his country of origin through the Check Out Memo (Memo Periksa Keluar), he is permitted to apply at all entry and exit door without renewing his working pass. Prior arrangements for the worker’s return to his country of origin should be managed by the employer. Notification to CLAB is mandatory for the update of the worker’s record in the CLAB system.
  1. Foreign Nationals’ Status Post-MCO
Following the Malaysia’s Prime Minister’s announcement on 1 May 2020, the Immigration Department is set to resume its operations in stages. The Security and Passport Division has resumed its operations on 4 May 2020 at the Immigration Headquarters and Immigration main office in selected states; the Expatriate Services Division, Visa, Pass and Permit Division and the Foreign Workers Division resumed its operations on 6 May 2020 at the Immigration Headquarters and all other remaining services will resume operations on 13 May 2020 at all immigration offices in Malaysia.
 
The Immigration Department’s general statement dated 2 May 2020 provides, inter alia:
 
  1. All foreign nationals who have overstayed from 1 January 2020 until 14 days after the end of the MCO period can leave Malaysia without being blacklisted or issued compound; 
  1. All pass facilitation for foreign nationals whose pass has expired on or after 1 February 2020 can be done at any immigration office within 30 working days from the end of the MCO period;
  1. All appointments for immigration counter services (except Visa, Pass and Permit Division and Expatriate Division) have to be done through the online system at www.sto.imi.gov.my which can be accessed starting 8 May 2020. No appointments are needed for transactions at the Security and Passport Division; and
  1. All immigration counter services at UTCs nationwide will resume operations after the MCO period ends.
  1. Undocumented Migrant Workers
To date, the Government has adopted a hard stance on undocumented migrant workers. It is prepared to deport undocumented migrant workers arrested at the Enhanced Movement Control Areas (‘EMCO’) to their country of origin.[12] The sequence of events is observed as follows. Arrested undocumented migrant workers would first be placed in immigration detention centres, subject to space limitations. In the event the immigration detention centres are full, they will then be placed in special prisons under the purview of the Ministry of Home Affairs (‘MOHA’). The corollary to this is believed to be deportation of this undocumented workers.[13]
 
Note: MOHA has thus far only stated that it is prepared to deport undocumented migrant workers arrested at EMCO locations. The same cannot be said about undocumented migrant workers arrested outside EMCO locations, where they would most likely end up in the special prisons under the purview of the MOHA. (Compare http://www.moha.gov.my/index.php/en/berita-kdn/4456- and http://www.moha.gov.my/index.php/en/berita-kdn/4455-
 
The above practice differs from the position stated by the Senior Minister for Security and Minister of Defence when he urged everyone including migrant workers who attended the tabligh gathering at the Sri Petaling Mosque in February 2020 to be screened for Covid-19 without fear. The focus back then was not on their documents but rather on whether they are Covid-19 positive.[14] 
 
On 9 May 2020, the Malaysian Bar called on the Government to consider ‘consider halting the current enforcement action and to focus instead on ensuring that all persons alike co-operate to reduce and stop the transmission of Covid-19’. Whilst the Inspector-General of Police stated that large-scale joint operations were necessary to weed out undocumented migrant workers to prevent, inter alia the spread of the disease elsewhere, the Malaysian Bar cautioned that such operations will result in evasion of the authorities or avoidance and refusal to seek medical treatment, for fear of their status.[15]  
 
Commentary
 
The issue of undocumented migrant workers in Malaysia is akin to the ‘chicken and egg’ metaphor. On one hand, the Government faces immense pressure in ensuring all migrant workers undergo Covid-19 screening in light of the increasing number of cluster cases identified at various construction sites, workers’ private accommodation or CLQs. On the other hand, a number of these migrant workers remains undocumented for various reasons and would, in the usual course of events be entangled with the Immigration Department’s enforcement initiatives. This invokes fear which results in the refusal and avoidance of migrant workers to come forward to be screened.
 
The call by the Malaysian Bar on the Government to halt ongoing enforcement actions and to focus instead on obtaining cooperation should be explored. As pointed out by the Malaysian Bar, the plethora of reasons for the presence of these undocumented migrants ranges from expired permits which could not be renewed during the MCO period, asylum seekers who are pending certification from the United Nations High Commissioner for Refugees, or victims of long-term systemic failures.
 
Echoing the Malaysian Bar’s call are manufacturers and non-governmental organisations such as the Federation of Malaysian Manufacturers, Mercy Malaysia and Tenaganita. The common message being sent across by these organisations is the call for an amnesty programme to enable undocumented migrant workers to undergo Covid-19 screening without the fear of being detained.[16]           
 
It is hoped that the Government will pay heed to these calls by the various bodies in order to avert the outbreak of Covid-19 in large clusters among the migrant worker communities in Malaysia.
 
This Alert is written by Mr. Jeremiah Ch’ng (Associate) (jeremiah@skrine.com) of Skrine.  
 
 

[1] See KKR’s FAQs No. 9.
[2] See MITI’s FAQs No. 17.
[3] See KKR’s FAQs No. 9 & No. 27.
[4] See KKR’s FAQs No. 10.
[5] See KKR’s FAQs No. 24.
[6] See MITI’s FAQs No. 18 and No. 19.
[7] See KKR’s FAQs No. 28.
[10] See CLAB’s FAQs No. 1.
[11] See CLAB’s FAQs No. 8.