COVID-19: Ministry of Works FAQs for construction industry

Ministry of Works FAQs
Penalties for non-compliance
New update to FAQs

The Movement Control Order (MCO) relating to COVID-19 that was initially implemented in Malaysia from 18 March 2020 to 31 March 2020 has now been extended to 12 May 2020 (the relevant period).

Ministry of Works FAQs

In relation thereto, on 18 March 2020 the Ministry of Works, among others, issued a series of frequently asked questions (FAQs) to clarify some of the issues affecting the construction industry.(1) It has since been confirmed by the Ministry of Works that all works at construction sites are not permitted under the MCO and must therefore be stopped during the relevant period, except for 'critical works', which may be carried out during the relevant period with the recommendation of the enforcement officer or project director (for government projects) or the resident engineer or principal submitting person (for private projects).

'Critical works' are works which, if left unattended, can cause danger and harm to employees, the public or the environment. These works include:

• the repair of slopes, potholes and traffic lights;
• traffic management control;
• periodic inspection or reparation of lifts, travellators, escalators and other critical mechanical and electrical equipment;
• maintenance works or facility upgrading works at premises that perform 'essential services';(2)
• construction of Bailey bridges at locations with collapsed bridges;
• tunnelling works;
• emergency works stipulated in a contract;
• maintenance and cleaning works for the disposal of stagnant water or pest control fogging at construction sites; and
• works which, if left unfinished, will cause harm.

In FAQ Number 6, the Ministry of Works clarified that the government will not be liable for any losses and expenses due to the implementation of the MCO as the COVID-19 pandemic is beyond the government's control. It was further clarified in FAQ Number 7 that any extension of time to complete a project affected by the implementation of the MCO is subject to the provisions of the relevant contract.

Penalties for non-compliance

Any person who carries out construction works which are not considered critical works during the relevant period will be acting in contravention of the MCO. Under Section 70(13)(d) of the Street, Drainage and Building Act 1974, people who carry out such works will be liable to:

• a fine not exceeding RM50,000;
• imprisonment for a term not exceeding three years; or
• both.

Such individuals will also be liable to a further fine of RM1,000 for each day that the offence is continued after conviction.

Professional bodies in the construction industry have advised their members to comply with the MCO.

New update to FAQs

Following the announcement of the extension of the MCO to 14 April 2020, the Ministry of Works issued an update in relation to the FAQs on 1 April 2020. This update provides that, with effect from 29 March 2020, exemptions will be granted to only two out of the nine critical works listed above – namely:

• maintenance and cleaning works for the disposal of stagnant water or pest control fogging at construction sites; and
• works which, if left unfinished, will cause harm.

Further, an application to the relevant authorities for an exemption can be made for only the abovementioned critical works.

Pursuant to this update to the FAQs, the types of critical works which can be carried out during the period when the MCO remains in effect has been significantly limited. This is one of the measures being taken by the government as part of its objective to enhance movement restrictions during the second phase of the MCO between 1 April 2020 to 14 April 2020. Since then, the government has allowed additional construction projects and services related to construction works to resume operations during the third and fourth phases of the MCO.(3)

For further information on this topic please contact Jocelyn Yean Tse Lim or Rachel Chiah at SKRINE by telephone (+60 3 2081 3999) or email (jocelyn.limyeantse@skrine.com or rachel.chiah@skrine.com). The SKRINE website can be accessed at www.skrine.com.

An earlier version of this article was published in Skrine's "COVID-19 Legal Updates & Guidance" in two parts: Part 1 and Part 2.

Endnotes

(1) The full text of the FAQs issued by the Ministry of Works in the national language can be accessed here and the updated FAQs can be accessed here.

(2) The Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020, which were issued on 18 March 2020, set out the list of essential services. Further information is available here.

(3) The third set of FAQs issued by the Ministry of International Trade and Industry and the Standard Operating Procedure and Guidelines for Construction issued by the Construction Industry Development Board of Malaysia. Further information is available here and here.