Media Statement:- 16/9/2020
Prioritize worker rights, safety and health at workplaces when dealing with illegal factories
Charge in court - No compounds for those who commit crimes that cause injury, death or impacts public health
We, the 31 undersigned groups, trade unions, persons and organisations are appalled by the disclosure that there are still today about 2,900 illegal factories in Selangor, and the concern is about worker rights, including occupational safety and health. In September 2019, the State government disclosed that from 2013, there are about 2,885 unlicensed factories, and as of 2018, only 630 have been legalized (Star, 24/9/2019)
It is odd that the government and its many enforcement authorities and its officers were not aware before of these illegal factories, and this fact raises the possibility of corruption, a matter that the anti-corruption authorities must look into.
A worker is entitled to rights, which include employment security and all other rights, including those provided by Malaysian law. Registration and minimum contributions must be made to SOCSO to ensure worker’s social security protection, especially when a worker is infected by an occupational disease, suffers injury, disability and even death. For their old age survival, the law sets the minimum monthly contributions to be made by employer and worker. When a workplace is illegal, the concern is whether workers’ rights are also being denied.
Would an illegal factory even have the needed permits and licenses to do certain work activities, including dangerous and life threatening work? Would the authorities involved in ensuring occupational safety and health of the workplace even know of these illegal establishments, or do the necessary workplace inspections, to ensure that the workplace is safe – hence a low risk of workplace injuries or death.
If a worker working in an ‘illegal’ factory have his worker rights violated, would he/she even have recourse to justice? Would the employer even pay the worker what is owing to them, including back wages, unpaid overtime and other unpaid monies? Would a worker in such a factory even be able to claim reinstatement (or compensation in lieu of reinstatement), when he/she is wrongfully dismissed?
Any illegal factory or workplace, can and ought to have been speedily discovered and action taken in accordance to law.
Most workers who are employed in these ‘illegal’ workplaces, most probably verily believe that they are working in a legal workplace, that is in compliance with all laws governing employment and workplaces.
After all, how could it be illegal, when they get water and electricity from government agencies or agencies linked to government? How can they even operate illegally, without the knowledge of the Local Council (local government), State government or Federal government in Malaysia where the public perception is that the relevant law enforcement authorities are efficient, a perception often reinforced by media reports about numerous crackdowns on law breakers including drunk drivers, drug dependents, undocumented migrants and other suspected criminals.
Hence, how is it even possible for any illegal factory or workplace to exist in Malaysia, especially one that employs many workers. It was shocking to read a report that stated that one of these suspected companies, suspected in polluting our water supply, which resulted in about 5 million people (or 1.2 million consumer accounts) being denied water supply, was known by the local government concerned and had been operating without a license since 2014.
Selayang Municipal Council (MPS) corporate department director Mohamad Zin Masoad said data also showed that the factory had never applied for a license since it started operating six years ago. “We have issued the latest notice to them in March but they ignored it. Besides operating without a license, we also found that the factory was built without MPS permission,” he said after putting up an illegal structure notice at the factory here today.(Edge Markets, 7/9/2020). Any business operation within any local council area needs to renew their permit/licenses to operate every year, so it is strange that illegal workplaces are not discovered.
Mohamad Zin also said all of the factories were placed in the legalisation process list and were given time until Dec 31, 2020, to submit documentation so that operation permits could be issued to them. “According to the [Selangor] state government’s directive, we cannot demolish the plants under the legalization process (introduced in 2012 and extended until Dec 31, 2020’. (Edge Markets, 7/9/2020).
Giving an illegal factory/workplace one to 3 months, to become legal is understandable, but allowing them many years until end of 2020 is just unacceptable.
For the benefit of workers, including their employment and income, it may be best that discovered illegal factories best be given the chance to legalize, but at the same time their law breaking acts must not go unpunished.
Prioritize worker rights, safety and health in legalization process
In the legalization process, laws regarding worker rights, safety and health should be prioritized, compared to other issues like land classifications and/or construction approvals.
If this be the current state of affairs, then the government can be held responsible for the deprivation of water supply the people suffered, since they allowed this ‘Illegal’ factory to continue operating, without complying laws including possibly laws concerning workers occupational safety and health.
Law Breaking Companies Must Be Charged in Court, and not offered compounds
For example, according to just the Water Services Industries Act 2006, this company, if they are convicted they will be liable to a sentence of imprisonment up to ten years, a fine not exceeding RM500,000 or to whipping or to all three.
In this case, the Attorney General Tan Sri Idrus Harun in a statement said to date, no investigation paper on the raw water pollution incident in Selangor had been referred to the Attorney-General's Chambers (AGC). Generally, only after investigation papers are submitted to the AGC, will the prosecution take action and charge the law violators in court.(Edge Markets, 8/9/2020)
However, in this case, the Selangor government agencies, on their own, decided to take administrative action by offering compounds for allegedly 30 different violations. ‘…Selangor Water Management Board (LUAS), Air Selangor, Selangor Department of Environment (DoE), Selayang Municipal Council and the State Environment Committee conducted an investigation. Thirty compounds totalling RM60,000 were issued to Yip Chee Seng & Sons Sdn Bhd..’ the Attorney General Idrus said that the compounds were issued without any reference to investigation papers by the AGC.(Edge Markets, 8/9/2020)
Compounds undermines justice, and protects companies
Issuing compounds is an administrative action, and payment of compounds avoids the possibility of the alleged offenders being charged and tried in court for the same offence.
Companies that commit crimes, that endanger public health, injures or kills workers should never be offered compounds, but should be charged and tried in open court. When charged in court, the accused company and/or its officers can always plead guilty, and the courts will take into account the guilty plea, in determining the just sentence that would be imposed.
If charged in court for a crime, the courts also have the power to even order that the affected victims be compensated in a criminal trial.
Convictions matters unlike compounds. The number of past similar convictions will be an aggravating factor, which will lead the court to impose higher sentences on repeat offenders.
Doubts linger as to whether this alleged particular company is even the real culprit, or just one of the many other culprits who caused the water supply to be contaminated, who have yet to be prosecuted. Note that so many water treatment plants had to be shut down.
The offering of compounds, which could be influenced by other factors including corruption, and, as such, for crimes that puts at risk the lives and health of many and/or causes death and injury to workers must end. Such law breakers must all be charged and tried in open court by an independent judge.
We call on the Minister of Human Resources, including the Department of Occupational Safety and Health, to immediately inspect all these 2,900 illegal factories in Selangor, and others in Malaysia to ensure that all laws concerning worker rights, including occupational safety and health are being complied with. It is a folly to wait until a worker dies or is injured.
Apolinar Z. Tolentino, Jr.
For and on behalf the 31 listed below
Center for Orang Asli Concerns(COAC)
Electronic Industry Employees Union Southern Region Peninsular Malaysia(EIEUSRPM)/Kesatuan Sekerja Industri Elektronik Wilayah Selatan, Semenanjung Malaysia (KSIEWSSM)Persatuan Sahabat Wanita Selangor(PSWS)
Jaringan Solidariti Pekerja (JSP)
Kesatuan Pekerja Atlas Edible Ice Sdn. Bhd.
MADPET (Malaysians Against Death Penalty and Torture)
Malaysians in Action For Justice and Unity (MAJU)
National Union of Transport Equipment and Allied Industries Workers (NUTEAIW) West Malaysia
Network of Action for Migrants in Malaysia (NAMM)
North South Initiative(NSI)
Sabah Timber Industry Employees Union (STIEU)
Sosialis Alternatif (SA)
Saya Anak Bangsa Malaysia (SABM)
Timber Employees Union Peninsular Malaysia (TEUPM)
Union of Forestry Employees Sarawak (UFES)
WH4C (Workers Hub For Change)
Building and Wood Workers International (BWI) Asia Pacific Region
Bangladesh Group Netherlands
IMA Research Foundation, Bangladesh
International Black Women For Wages For Housework
Global Women’s Strike
Labour Behind the Label, United Kingdom
Legal Action for Women, United Kingdom
Myanmar Human Rights Alliances Network (MHRAN)
National Garments Workers Federation (NGWF), Bangladesh
Pakistani Christian Refugee Fellowship (PCRF)
Payday Men’s Network (UK/US)
Safety and Rights Society, Bangladesh
Women Of Color Global Women’s Strike
Worker Empowerment, Hong Kong
Dr Ronald McCoy, the founder of Nobel Peace Prize-winning anti-nuclear group International Campaign to Abolish Nuclear Weapons (ICAN)