Directors of Companies are the decision makers for a Company - if they decided not to put in the needed safeguards or other aspects needed to ensure worker's safety, then the Directors and officers responsible must be held accountable - including being charged, tried and sentence when offences are committed.
Even if the fault was committed by a contractor or a sub-contractor, at the end of the day, it is still the main company that is responsible.
If a worker dies, or is injured by reason of breach of Occupational Safety and Health obligations, reasonably the sentence ought to be higher..
A mere fine without any imprisonment is really a JOKE - it will not act as a Deterrent.
Joint Media Statement(19 Groups) - 8/11/2021
3 workers dead, charge the Directors and officers responsible, not just the Company, and if convicted, sentence them to jail
Stop protecting human decision makers/actors when workers lives are involved
We, the undersigned 19 groups and organization are appalled that NO director or officer of Zhongshi International Sdn Bhd, a construction company, were charged for causing the death of 3 migrant workers, and seriously injuring another.
It is absurd to simply charge a company, which is but a mere empty vessel that operates and act in accordance to decisions and directions of directors, officers and human owners of the company. Companies simply pay fines (a tiny sum compared to profits or maybe millions or billions of ringgit), and cannot be imprisoned, and the real human wrongdoers get off scot free.
On 22/3/2021, 3 Chinese-national workers by the name of Wu Tongzheng, Ding Kunfu and Jiang Jinbao died, and another was seriously injured when one of the components of a launching gantry fell at the SUKE Elevated Highway construction site near Puncak Banyan, Persiaran Alam Damai, Cheras here on 22/3/2021.
The said company was charged under section 15(1) Occupational Safety and Health Act 1994, which states ‘(1) It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare to work of all his employees.’, whereby the penalty is provided in section 19, which reads, ‘A person who contravenes the provisions of section 15, 16, 17 or 18 shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both.’
Failure to charge human decision makers and actors wrong
Human Directors, officers and owners can no longer hide behind the ‘corporate veil’, as even the Occupational Safety and Health Act 1994(OSHA 1994) provides that where the offence is committed by a body corporate and/or company, then ‘…every person who at the time of the commission of the offence is a director, manager, secretary or other like officer of the body corporate shall be deemed to have contravened the provision and may be charged jointly in the same proceedings with the body corporate or severally, and every such director, manager, secretary or other like officer of the body corporate shall be deemed to be guilty of the offence…’(Section 52).
On 3/11/2021, the company pleaded guilty to the charge, and was fined RM45,000 by the Sessions Court paid the fine of RM45,000 only. The decision maker of any company is all the Directors, if not the human owners, and now justice is not served if these human persons responsible for the death of workers are also not made liable, and punished for their crimes.
Since the company has already pleaded guilty, we now demand that the directors, manager and other officers be charged, tried and sentenced in court. If found guilty, they will be liable ‘….to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both…’ (Section 19). Justice demands an imprisonment sentence for those who failed in their duty to ensure the safety, health and welfare of their workers, noting that 3 died, and one was seriously injured.
Charge Directors for Culpable Homicide Not Amounting To Murder
Assuming that there were no intention to murder, then the perpetrator should at the least be charged for culpable homicide not amounting to murder under the Penal Code, where ‘…if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death …’, section 304(b).
With regard the Construction Industry, law and the relevant department like the Construction Industry Development Board provide various regulations, directions and guidelines that need to be complied with to prevent death and injury to workers.
As such, if a construction company chose not to do the needful, maybe by a selfish reason of saving monies or effort, then when a worker is killed as a consequence of this failure, then this may no more be simply an accidental death or even death by negligence, but should be culpable homicide not amounting to murder. Not doing what is needed to ensure workers safety despite knowing that failures can possibly cause deaths and injury is a serious offence that ought to be punished.
The Penal Code provides, where there is no intention to kill or injure, then the punishment for culpable homicide not amounting to murder shall be imprisonment for a term which may extend to ten years or with fine or with both.
OSHA amendments must increase prison terms, and have a higher fine
Zhongshi International Sdn Bhd was fined RM45,000, as the penalty provided by law at this time for this offence is ‘…a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both…’ Not just the fine, but also the prison term need to be increased.
The amendment of the OSHA have not happened since 1994. Finally, Occupational Safety and Health (Amendment) Bill 2020 tabled in November 2020, was just passed on 27/10/2021 by the House of Representative (Dewan Rakyat). It has yet to be tabled and passed at the Senate. The amendment will increase the maximum fine from RM50,000 to RM500,000. We urge the government to expedite this amendment to the OSHA Act, and speedily put it in force.
Noting that caught not wearing a face mask during the Covid-19 pandemic provides for a maximum fine of RM50,000. The maximum fine for occupational safety and health offences need to be much higher, at least RM1 million, with even much higher fines and prison sentences if injury or death is caused by the workplace incident.
We call for the provision for higher penalties in the event that a worker is injured, and worse killed by reason of non-compliance of an occupational safety and health law. In some jurisdiction, the offence of ‘corporate manslaughter’ has been introduced.
We also call for the abolition of the availability of compounds if the offence caused injury or death to worker or others.
We call for the directors and officers responsible in Zhongshi International Sdn Bhd to be immediately charged and tried under occupational safety and health laws, and even for culpable homicide not amounting to murder under the Penal Code.
We also urge that the Court, after conviction, orders the convicted to pay adequate compensation to the families/dependents of the deceased workers, and also injured workers. This should be over and above what they may receive from existing social security or insurance schemes.
Apolinar Z. Tolentino, Jr.
For and on behalf of the following 19 groups
WH4C (Workers Hub For Change)
Building and Wood Workers International (BWI) Asia Pacific Region
Banglar Manabadhikar Suraksha Mancha (MASUM)
China Labour Bulletin(CLB), Hong Kong
Haiti Action Committee
International Black Women For Wages For Housework
MADPET(Malaysians Against Death Penalty and Torture)
Malay Forest Officers Union (MFOU)
National Union of Transport Equipment and Allied Industries Workers (NUTEAIW)
Network of Action for Migrants in Malaysia(NAMM)
North South Initiative
Parti Rakyat Malaysia(PRM)
Persatuan Sahabat Wanita Selangor
Sabah Timber Industry Employees Union (STIEU)
Safety and Rights Society, Bangladesh
Union of Forest Employees Sarawak (UFES)
Women Of Color/Global Women’s Strike