Based on witness testimonies by Tharani Kutty, Roziah binti Mohammed Hashim and Sarasvathy

 

1. Background

 

1.1 The exploitation and discrimination against hospital cleaners has been going on since the mid-1990s when they lost their status as government employees under the privatisation of hospital support services, and were instead recategorised as contract workers. Overnight, their salaries shrank, and they lost numerous employment benefits including job security, wage increments, allowances, and access to loans.

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1.2 An estimated 50,000 cleaners today, 85 per cent of whom are women, have been affected by this change. Many are single mothers from the most vulnerable group of B40 workers, with little formal education or skills, and are the sole breadwinners of their families. 

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1.3 In 2015, the Ministry of Health signed an agreement for Hospital Support Services (HSS) with five concessionaires, some of them owned by government-linked companies (GLCs). Each concession can last for 15 years. These concessionaire companies in turn outsource the cleaning services in hospitals and clinics to subcontractors for two to three years. The subcontractors then hire cleaners with contracts that vary from six months to three years. Some of these subcontractors are actually subsidiary companies of the main concessionaire.

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1.4 The findings and recommendations here are based on witness testimonies shared by Tharani Kutty, Roziah binti Mohammed Hashim, and Sarasvathy, members of the National Union of Workers in Hospital Support and Allied Services (NUWHSAS). Their complaints over several labour rights issues, including decent pay, salary increment, union busting, which escalated in the past few years, remain unresolved until today.
 

2. Findings

 

2.1 Issues of concern

 

(a) Denial of employment benefits

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2.1.1 As employees of HSS concessionaire companies, these cleaners are given ‘fixed-term’ contracts, which come with minimal worker benefits — they have no job security, wage increments, allowances for shift work, night work, hazardous work, transport and housing, access to housing, car, and education loans — unlike those with permanent employment contracts. The gravest injustice done to them under the ‘fixed-term’ contract work system is to treat each worker as a new recruit upon reemployment at the end of their contracts. This is a fiction used to enable the companies to evade benefits and protections due to their workers, and to continually exploit them. 

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2.1.2 Consequently, hospital cleaners who have worked non-stop in the same hospital for over 20 years still get paid the minimum wage of RM1,200 a month, the same as a new worker who has just been employed for the first time. It is patently unjust that cleaners who have worked for over 20 years had their salaries reduced to the minimum wage of RM1,200, some even less, depending on the terms of the contract offered by the cleaning services concessionaires. 

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2.1.3 One cleaner who had served for 26 years was still earning RM1,000 a month, with only eight days annual leave, when under the Employment Act 1955, she should have been entitled to 16 days or more.[1] Another, Tharani, has worked for three years and should be entitled to 12 days annual leave, but she gets only eight days. There is no recognition of seniority or experience nor any performance evaluation that could entitle the workers to a promotion and further salary increase. In effect, these cleaners are permanent employees doing an essential service, but are treated as seasonal workers.

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2.1.4 The continued exploitation of hospital cleaners became a national issue when they were excluded from the group of health frontliners who received a special government monthly allowance of RM600 during the COVID-19 pandemic. The Director-General of Health said that their plight was an internal matter between the workers and their employers. One concessionaire, Edgenta UEMS, which has the cleaning contract for government hospitals and clinics in Perak, Penang, Kedah and Perlis, awarded a one-off compensation of RM300, even though the cleaners were exposed to similar risks and hazards as others working in COVID-19 and ICU wards.  

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(b) Health hazards and denial of health benefits

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2.1.5 It is common for hospital cleaners to suffer from joint pains, bodily aches, fever, and high blood pressure because of the nature of their work. Even though they might have valid medical leave certificates, their wages are deducted for each day absent from work because of ill-health.

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2.1.6 Many perform their work without knowing about their risks of exposure to biological and chemical agents and dangerous hospital wastes. They spend all their working hours standing, often in awkward positions that eventually lead to muscular and joint pains. They regularly work with wet floors with a higher risk of accidents. They walk kilometres to perform their myriad tasks of collection and disposal. The high monotony of their work also poses a mental health hazard. 

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2.1.7 Despite this, they often find themselves denied adequate sick leave and health insurance, and have to appeal to get their medical leave recognised.

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2.1.8 During the early months of the COVID-19 pandemic, these hospital cleaners were not provided with adequate Personal Protection Equipment (PPE) by their employers, and their appeals were ignored. In one hospital, it took the intervention of the Hospital Director for the cleaners to be provided with adequate PPE, masks and gloves by their employers. Exposure to infected persons forced them into 10-day quarantine periods, which meant their wages were cut during that period. They appealed against this exploitation and in one case, the employer eventually paid.

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(c) Harassment as Union Leaders/Members

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2.1.9 Our witnesses, Sarasvathy, Roziah, and Tharani, labour leaders with NUWHSAS, shared how workers received threats that include loss of job, overtime, and shift work should they join the union. They were also pressured to withdraw the many complaints lodged with the Labour Department, while union leaders were punished with arbitrary transfers to hospitals far from their homes, made to work in two or three different locations in one day, and denied overtime work. Other workers were also pressured not to associate with them.

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2.1.10 Formed in 1997 to protect the rights of workers following the Government’s privatisation of HSS, NUWHSAS was largely dormant for 22 years, until the most discriminated and lowest paid group among the workers, the hospital cleaners, took over in 2016 when their monthly wage was reduced from RM950 to RM900.[2] They embarked on a membership drive to revive the union and mobilise against their exploitation and to demand for better salary and benefits. A Collective Agreement was reached in 2019 but the then-concessionaire lost its HSS contract two months later to another company. 

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2.1.11 The new concessionaire, Edgenta UEMS, set aside this Collective Agreement and union leaders alleged the company immediately adopted union busting tactics. Threats of retrenchment forced many workers to sign an unfavourable new contract. This saw their annual leave reduced from 15 to 11 days, their uniform laundry allowance and shift allowance removed, and being made to work in several locations, sometimes in one day, instead of just one location.
 
2.1.12 The union has submitted 23 letters of complaints to the Industrial Relations Department in Putrajaya and sent 10 letters to Edgenta UEMS for engagement to resolve their ongoing grievances. The employer appears to have ignored instructions from the Industrial Relations Department to stop union busting activities and paid little heed to all requests for meetings, forcing union leaders to hold a picket. Meanwhile, the union continues to receive letters of complaints monthly from hospital cleaners.

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2.1.13 NUWHSAS has taken four court cases against Edgenta UEMS, a subsidiary of a GLC, which holds the concession for the Northern Zone covering 32 hospitals and clinics. Three cases are still going through the court process: on union busting, enforcing a collective agreement, and an appeal to reinstate six workers whose services were terminated. The union lost another case for overtime claims, originally filed by 108 workers from 10 hospitals. Allegedly because of pressure from the company, 74 of these workers later withdrew. All but one of those who continued with the claim lost their case. 

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2.1.14 In June 2020, five members of NUWHSAS, including Sarasvathy, were arrested after protesting outside Hospital Raja Permaisuri Bainun in Ipoh against the intimidation and union busting activities by Edgenta UEMS. They also highlighted the lack of increase in sick leave and annual leave according to seniority, and the reduced number of paid public holidays. They were charged under the Prevention and Control of Infectious Diseases Act 1988 and the Criminal Procedure Code for breaching Conditional Movement Control Order rules. They claimed this to be a form of victimisation as they were observing the prerequisite Standard Operating Procedures. They also alleged mistreatment by the police including the use of abusive words, denial of water to take medication, and being forced to bathe using a small, dirty towel.

 

2.2 Rights violated/standards not adhered to/failure of duty bearers (state)

 

2.2.1 The accounts above shows how ‘fixed-term’ contract hospital cleaners have been subjected to numerous rights violations ranging from the right to organise, form and run a union; the freedom of association and right to collective bargaining; to the right to health; equal wages for equal work; and decent work, job security, worker benefits and protection.

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2.2.2 In the treatment of their workers, the HSS concessionaires have contravened several national laws such as the:

 

• Federal Constitution (article 5 on right to livelihood; article 8 on right to equality and non-discrimination; article 10 on freedom of speech, assembly and association);

• Employment Act 1955 (section 24 on lawful deductions from wages; section 59 on rest days; section 60A on hours of work; section 60D on holidays; section 60E on annual leave; section 60F on sick leave); and

• Industrial Relations Act 1967 (sections 4, 5 and 7 on the rights of “workmen [sic]” in relation to trade union involvement; section 17 on collective agreements).

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2.2.3 They have also violated certain international laws that Malaysia has ratified namely several International Labour Organization (ILO) conventions (C098 on the right to organise and collective bargaining; C100 on the right to equal remuneration; and C187 on occupational safety and health) as well as the CEDAW Convention (article 1 on discrimination; article 5 on the elimination of gender stereotypes; article 11 covering the right to promotion, job security, equal remuneration and benefits, social security, as well as protection of health and safety in working conditions).

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2.2.4 In spite of years of agitation by NUWHSAS, the Malaysian Government has not addressed in any serious manner the abuse suffered by these workers or the union busting activities of the concessionaires. This continued gross neglect of the hospital cleaners’ labour rights is telling, not least because they are mostly women who are vulnerable to abuse due to their poverty, low literacy, lack of formal education and lack of skills.  

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2.2.5 The Government, in outsourcing HSS to private sector companies owned by GLCs, can be accused of complicity in the blatant violation of labour rights and exploitation of the hospital cleaners. The lack of transparency in the procurement process, the absence of demands for decent labour standards in tender documents, and the contracts awarded to GLC-linked companies and politically connected individuals are problematic. It is within the Government’s powers in awarding concessions to require that concessionaires and the subcontracted companies include and abide by the human rights and international labour standards that Malaysia has adopted in their employment of these workers. Instead, its inaction allows the hospital cleaners to continue to be treated in conditions similar to modern day slavery.

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2.2.6 Likewise, Khazanah Nasional as sole owner of UEM, the parent company of Edgenta UEMS, one of the concessionaires involved, is in a position to require, or at the very least scrutinise whether the employment policies and practices of the corporations under its control, abide by these standards. 
 

2.3 Victim impact

 

2.3.1 Unsurprisingly, the exploitative conduct of the cleaning concessionaires has left many government hospital and clinic cleaners on ‘fixed-term’ contracts, in perpetual poverty and in debt. Many complain that by the 10th of each month, they have to obtain a loan from their employer or relatives to survive and maintain their family. Compounded by having no opportunity for annual wage increments, they become trapped in a cycle of debt.

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2.3.2 When exposed to infected COVID-19 persons — made worse by the fact they were not regarded as health frontliners and provided with the necessary PPE — the cleaners were forced into 10-day quarantine periods, during which time their wages were cut. This added an extra burden to their already financially precarious lives.

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2.3.3 To make ends meet, single mothers like Roziah take on second jobs. This not only impacts the time spent with their children, but the long and heavy workload and pressure to earn enough money to provide for the family leads to health problems and jeopardises their mental wellbeing.

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2.3.4 As noted, employed in a job with little health and safety protections also has consequences on these women. In the short run, they struggle to manage as best they can with whatever illnesses or medical ailments caused by the nature of their work. In the longer term, however, the combination of having very little or no savings, plus suffering from poor health, can result in a terribly dismal quality of life.

 

2.3.5 For those who are union leaders, the continual pressure and harassment has been unbearable. Tharani, a transgender woman union leader, had to seek treatment for depression and suicidal thoughts after being targeted and victimised by her supervisor. A colleague of hers experienced the same with her supervisor changing her duty station to the men’s ward. Her stress level was so high that she was admitted for treatment after a fainting spell. In the end, she quit her job. 

 

2.3.6 Such victimisation has also led to family pressure for the women leaders to quit their union activities. With a dwindling membership, NUWHSAS, which used to be financially independent with the collection of union dues, now has to depend on crowdfunding to support its activities including court cases against Edgenta UEMS and its subsidiaries.

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3. Recommendations

 

Short term (within one year)

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3.1 The Ministry of Health must take immediate steps to award concession agreements under its HSS programme only to contractors that set fair working terms and conditions for the cleaners. This includes offering decent pay, considering long service in setting remunerations and benefits, and recognising the right to organise, free from intimidation; to belong to a union; and to collective bargaining. In this regard, it should introduce a clause in the tender document demanding these terms, and that a company’s failure to comply with social and statutory obligations opens it for inspection and penalties for breach of contract.

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3.2 The Ministry of Human Resources and the Ministry of Health must take immediate steps to establish regulations that hospital cleaners under ‘fixed-term’ contracts receive salaries and benefits in accordance with their length of service. The exploitative tactic of treating each worker as a new worker with each re-employment contract must be stopped. 

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3.3 Khazanah Nasional and the GLCs under its control must demand and compel the enforcement of exemplary employment standards from its subsidiary companies. They cannot be allowed to engage in union busting activities, victimise transgender women labour organisers on the basis of their gender identity, and set exploitative work conditions in the pursuit of profits. 

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3.4 The Ministry of Human Resources needs to take punitive steps to ensure that employers engaged in contract labour accord fair rights and protections. It must put an immediate stop to union busting activities and blacklist companies that engage in such blatant illegal activities to exploit workers. 

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3.5 The Ministry of Human Resources must immediately establish a tripartite social dialogue mechanism involving the Ministries of Health and of Human Resources, the HSS concessionaires and NUWHSAS, to take a proactive approach to transforming labour relations in the hospital cleaning sector. The Decent Work Country Programme developed in 2019 for Malaysia with ILO support has already identified several weaknesses in Malaysia’s labour laws and practices that must be rectified. This has prioritised the urgent need to protect and promote rights at work, including the need to strengthen impartial and transparent enforcement of labour laws and regulations in line with international labour standards and Fundamental Principles and Rights at Work (FPRW).[3] 

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3.6 The decent work concept recognises that full and productive employment, social protection, rights at work, and social dialogue are essential in the achievement of inclusive and sustainable growth. Social dialogue engagement with the hospital cleaners is critically needed and labour officials, employers and unions must be trained with the requisite knowledge and skills to engage in effective negotiation and social dialogue.

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3.7 Establish terms and conditions for contract workers to provide job security, guaranteed annual wage increment, fair work practices and protection of labour rights. These should explicitly establish: 

 

• A decent minimum wage;

• Continuity of employment even when the contractors change.

• Guarantee of annual salary increments, holidays, hours of work, sick leave, occupational safety and health training and benefits, and other conditions of service commensurate with seniority and scope of responsibilities.

• Offer job security through permanent work to long-serving workers, upon the expiration of two contract renewals.

• Recognise the right to freedom of association and to collective bargaining, and continuity of collective agreements even if there is a change of contractors.

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Medium term (within two to three years)
 
3.8 Amend the Employment Act 1955 to establish and protect the legal rights and working conditions of this large group of low-wage and vulnerable ‘fixed-term’ contract workers that includes cleaners not just in hospitals, but also in government buildings and schools, and security guards.

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3.9 Establish thresholds for when contract labour should be prohibited. Several court decisions have already provided guidelines to determine whether a contract is a genuine ‘fixed-term’ contract or actually a permanent contract. A contract of employment, which is renewed successively without application by the employee and without any intermittent breaks in between, is in reality permanent employment. This clearly applies to the hospital cleaners who demand that the ‘fixed-term’ contract system, for what is in effect necessary and perennial work within the healthcare system, be abolished.

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3.10 Based on guidance provided by the courts and in accordance with international standards, ‘fixed-term’ hospital cleaners are in effect permanent employees. Therefore, they should be absorbed into permanent service of the Ministry of Health and accorded the same benefits and protections that all other Ministry of Health employees enjoy, without discrimination.
 

Endnotes

[1] Section 60(e) of the Employment Act 1955 states that employees are entitled to eight days annual leave if employed for less than two years, 12 days between two to five years, and 16 days if employed for five years or more. 
[2] In January 2020, the cleaners’ basic salary was raised to RM1,200 a month to follow the new minimum wage set. 
[3] See International Labour Organization (2020). Promoting Decent Work for Sustainable Development: Malaysia Decent Work Country Programme (DWCP). Available at https://www.ilo.org/wcmsp5/groups/public/---ed_mas/---program/documents/genericdocument/wcms_762076.pdf.

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