PETALING JAYA: Below are some frequently asked questions (FAQ) relating to the Human Resources Ministry during the movement control order (MCO) period.
Question: Is the construction sector (construction or renovation work) subjected to the MCO?
Answer: Yes. According to the National Security Council (NSC) statement on March 18, construction activities are classified as non-essential services. This means that all construction and maintenance work must stop.
Q: Is there an exception for the construction and maintenance industry?
A: Yes but only for critical work.
Q: What does critical work mean?
A: Critical work means any work that if it is not continued will result in danger or cause harm to workers, the public, or the environment.
Q: What are the kind of work constitutes critical works?
a) slope repair
b) traffic management control
c) upgrading facility works at critical services premises
d) works to ensure the safety of scaffolding
e) works to ensure the safety of tower cranes and chain cranes.
f) the building of Bailey bridge at locations where bridges have collapsed
g) emergency work that is under the agreement contracts
h) other works that if it was not completed, can pose a danger to others
Q: Must the maintenance of elevators in apartments and business complexes be stopped during the MCO?
A: Rescue work and the repair of elevators can continue. Other maintenance work can be done at a bare minimum but is subject to regulations by the NSC.
Q: What action can be taken if an employer does not comply with the MCO?
A: Lodged a police report or lodged a report with Rela. The Royal Malaysian Police and Rela have been appointed officers that are given powers under Section 3 of the Prevention and Control of Infectious Diseases Act 1988 (Act 342).
Q: An employer does not pay an employee's salary if the worker does not come to work.
A: Refer to the Labour Department.
Q: Does an employer have to pay salaries during the 14-day duration of the MCO?
A: Yes, an employee's salary together with the relevant allowances must be paid except for allowances related to attendance or travel.
Q: If an employer deducts salaries, lay off workers, or forces employees to take annual leave based on reasons that business has been affected due to Covid-19 or have failed to pay an employee's full salary throughout the MCO, can an employee assume that there has been a breach of contract and if their services terminated as a constructive dismissal?
A: Four conditions need to be met before an employee can assume that his or her services has been terminated as a constructive dismissal.
a) There is a breach of service contract
b) The breach must involve the root of the contract
c) An employee must inform and give time to the employer to make right on the breach of the contract
d) An employee must have left the job based on the breach of contract and not because of any other reason
Q: Can an employer force employees to take annual leave or by deducting their annual leave during the MCO period?
A: Employers cannot force employees to take annual leave because annual leave has to be made at the request of the employee.
Q: Can a union bring issues related to the failure of employers to pay wages or against employers who
compelled workers to take annual leave as a business dispute under Section 18 of the Industrial Relations Act 1967?
A: The union can bring issues related to the failure of employers to pay wages or against employers who compelled workers to take annual leave as a matter of business dispute under Section 18 of the Industrial Relations Act 1967 if the dispute involves members of the union.
Q: Can an employer affected by Covid-19 such as airlines cut wages to avoid employees from being laid off?
A: Any form of pay cut has to be negotiated and obtained the consent of the employee first. If there is a collective agreement, then negotiation and agreement have to be obtained from the trade union that represents the employees.
Q: Can a company which is required to close due to the MCO instructs its employees to work from home? And if the employee refuses to comply, can the employer take disciplinary action?
A: The MCO does not prevent an employer from instructing its employees to work from home. An employer can take disciplinary action against employees who defy the ruling.
Q: Can employees consider that their services have been terminated without any reason or a valid excuse, submit a representation termination of work via email or fax, to any office of the Industrial Relations during the MCO?
A: Yes. The Industrial Relations Department will accept the representation of the work termination that is filed via fax or email.
Q: Can an employer affected by Covid-19 take action by retrenching workers?
A: Retrenchment is a form to reduce the workforce due to extra manpower. In general, retrenchment is under the prerogative of an employer. However, to ensure that the process is done fairly, there are three factors that need to be met by the employer.
The first, the excuse of the employer that business has been affected due to Covid-19 has to be genuine. Secondly, the employer must have taken steps to ensure that the termination being avoided such as reducing an employee's working hours, limiting or freezing new hires, limiting overtime, limiting work during weekends or public holidays, reducing an employee's wage, perform a temporary lay-off.
Thirdly, if a lay-off is inevitable, foreign employees should be terminated first. If the lay-off involves locals, then the "Last In First Out" principles should be adhered to. However, this principle can be ignored if the employer has a valid reason.
Q: Can the 14-day MCO be considered as a frustration of contract?
A: No, because the failure of the employer and the employee to fulfil their contractual obligations does not involve a long period of time.