If you are an employee who is homebound during the Movement Control Order (MCO) and are wondering what is permissible, check out the list of frequently asked questions (FAQ) that have been compiled by the Human Resources Ministry, according to The Star.
Q: Is the construction sector (involving construction & renovation work) subjected to MCO?
A: Yes, but only for critical work. Critical work involves work that could result in danger or harm to workers, the public, or the environment if it is not continued, such a:
- slope repair
- traffic management control
- upgrading facility works at critical services premises
- works to ensure the safety of scaffolding
- works to ensure the safety of tower cranes and chain cranes
- the building of Bailey bridge at locations where bridges have collapsed
- emergency work that is under the agreement contracts
- other works that if it was not completed, can pose a danger to others
Q: Can maintenance of elevators in residential and commercial premises be continued or must they be stopped during mCO?
A: Repair and rescue work of elevators are permitted. Other maintenance work cn be done at bare minimum, subject to regulations by the NSC.
Q: What action can be taken if an employer does not comply with MCO?
A: Lodge a report with the police or with RELA. The Royal Malaysian Police and RELA are appointed officers that are given authority under Section 3 of the Prevention and Control of Infectious Diseases Act 1988 (Act 342).
Q: Does an employer still have to pay salary to employees during the MCO?
A: Yes, employee salaries must be paid with the relevant allowances except for attendance or travel allowances.
Q: What if the employer does not pay employee salaries during MCO?
A: Please refer to the Labour Department.
Q: If employer terminates services of an employee during MCO, can this be considered as constructive dismissal?
A: There are four conditions that need to be met to be considered as constructive dismissal:
- There is a breach of service contract
- The breach must involve the root of the contract
- An employee must inform and give time to the employer to make right on the breach of contract
- 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 deduct their annual leave during MCO?
A: No. Annual leave cannot be forced or deducted, 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 compelled workers to take annual leave as a business dispute under Section 18 of the Industrial Relations Act 1967?
A: Yes, if the dispute involves members of the union.
Q: Can an employer affected by Covid-19 cut wages to avoid employees from being laid off?
A: Any form of pay cut has to be negotiated and consent must be obtained from 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 instruct its employees to work from home? 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 reason the employer gives that business has been affected due to Covid-19 must be genuine.
- The employer must have taken steps to ensure that termination has been 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, or perform a temporary lay-off .
- 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.