What are “Essential Services” under the Movement Control Order?

NB: This article is updated as of the date of publication stated above. As this situation is novel and the government’s response is continuously developing, this article may not necessarily include updates or developments after this date. In situations of doubt, you are advised to check for updates directly with the government authorities.

The Movement Control Order (the “Order”) took effect from 18 March 2020 as a preventive measure to control the spread of the COVID-19 virus outbreak. Through the Order, most businesses were forced to close their premises for the time being, except those categorized as “Essential Services”.

Naturally, businesses are facing many issues as this move is unprecedented. Employers and employees alike have been searching for answers as to which services fall into the category of “essential services”. With vague and limited explanations from the government, many have resorted to looking up the categories of essential services online.

I have been receiving WhatsApp messages telling me that the definition of “essential services” is under the First Schedule of the Industrial Relations Act 1967 (“IRA”). Is this correct?

The list of essential services under the IRA are not applicable to the Order, but are in fact related to restrictions for lockouts and strikes under the IRA. While a portion of the essential services listed in the IRA does overlap with the categories of essential services in the Order, parties should not rely on the IRA to assess what is an essential service that can remain open during the Order.

For example, under the IRA, there are only 16 services which have been identified as essential, while under the Order there are a total of 22 essential services at the time of writing.

Where can I find the list of essential services that are allowed to operate during  the movement control order?

The “correct” list of essential services which are allowed to stay open are set out in the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 (“Regulations”), which has been gazetted. The full list of essential services under the Regulations are:

1. Banking and finance
2. Electricity and energy
3. Fire
4. Port, dock and airport services and undertakings, including stevedoring, lighterage, cargo handling, pilotage and storing or bulking of commodities
5. Postal
6. Prison
7. Production, refining, storage, supply and distribution of fuel and lubricants
8. Healthcare and medical
9. Solid waste management and public cleansing
10. Sewerage
11. Radio communication including broadcasting and television
12. Telecommunication
13. Transport by land, water or air
14. Water
15. E-commerce
16. Defence and security
17. Food supply
18. Wildlife
19. Immigration
20. Customs
21. Hotels and accommodations
22. Any services or works determined by the Minister as essential or critical to public health or safety.

As can be seen from the above, the Regulations contain a wider list of essential services than those set out in the IRA, with additional services included to aid with the current situation. For example, the Regulations deem “e-commerce”, “food supply” and “hotels and accommodation” as essential services, whereas these are not essential under the IRA.

Are non-essential services (ie: those not listed in the Regulations) allowed to operate?

No, unless they obtain prior written approval from the Director General. However, the National Security Council has also issued a press statement to clarify that certain non-essential services may be allowed to operate at a minimum level – for example, car repair services, towing services, and in progress construction that affects the safety and security of the public.

The list of essential services under the Regulations is still quite general. How do I know for certain whether my business falls under the category of essential services?

The government has taken steps of adding clarification through press statements and “FAQ”s. For example, the Domestic Trade and Consumer Affairs Ministry has clarified that restaurants may stay open but only for take-away and deliveries (not dine-in).

The Ministry of International Trade and Industry (“MITI”) have also supplemented the list of essential services under the Regulations,  by particularising the types of products that can be manufactured during the movement control order period. This includes, for example:

1. Food and beverages such as rice, sugar, vegetable oil, flour and grains, bread, water, milk formula, spices, dried food, coffee and tea, canned food, meat, chicken, animal/pet food and processed fruits and vegetables
2. Agriculture and aquaculture
3. Household goods such as detergent, disinfectants, sanitisers, personal care products, toilet paper and tissue;
4. Personal protective equipment
5. Pharmaceuticals, including chemicals and medicine
6. Packaging and printing including ink
7. Medical and surgical equipment
8. Parts for medical equipment such as ventilators

MITI has also accommodated products which form part of the supply chain for essential items, such as:

1. Oil and Gas
2. Petrochemicals – such as resin, polystyrene, impact modifiers and processing aids, etc
3. Chemical products like fertilizer and poisons
4. Electrical and electronic products including semiconductors

Are there any special limitations for manufacturers who are classified as providing essential services? Can we operate like normal?

MITI has provided certain conditions for approved manufacturers to operate during the essential services:

1. Manufacturers must reduce the number of workers to the minimum level or at least by 50%.
2. Only critical manufacturing and operations are allowed; non-critical activities must cease during the movement control order period.
3. The list of workers who will be working during the movement control order must be furnished to MITI and the employers must ensure that worker movement is limited only to/from their house and the factory/premise.
4. Employers are responsible for taking temperature readings of their workers at the entrance of the factory/premises
5. Sanitation and cleaning must be done 3 times a day especially at common spaces such as lobbies, lifts, cafeteria, meeting rooms, surau etc.

Failure to comply with MITI’s conditions may result in their approval being revoked. The above are just some of the conditions placed by MITI and manufacturers are advised to visit the MITI website at www.miti.gov.my to apply for approval and get updates on operating approvals and conditions for manufacturers.

***

This article was written by Donovan Cheah and Zi-Han Lim. Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.