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Occupational Safety and Health Act (OSHA)

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  • 1. INTRODUCTION Occupational Safety and Health Act 1994 (OSHA 1994) is an Act that provides thelegislative framework to secure the safety, health and welfare among all Malaysianworkforces and to protect others against risks to safety or health in relation with the activitiesof persons at work stated under OSHA 1994 Part 1 (section 1). This Act was gazetted on24th February 1994 and cited as the Occupational Safety and Health Act 1994. This Act is apractical tool cover on existing safety and health legislation. Besides that, to establish theNational Council for Occupational Safety and Health and for matters connected therewith. The OSHA 1994 provides the legislative framework to promote, stimulate andencourage high standards of safety and health at work. The aim is to promote safety andhealth awareness and establish effective safety organization and performance through selfregulation schemes designed to suit the particular industry or organization, and by theaccumulation of influences and pressures, operating at many levels in a variety of ways andthe Act promotes the concepts of self-regulation, consultation and cooperation. The long termgoal of the Act is to create a healthy and safe working culture among all Malaysianemployees and employers as stated under OSHA 1994 Part 1 (section 3). There are several objectives of OSHA 1994 that stated under Part 1 (section 4) whichis firstly, for securing the safety, health and welfare of person at work. Secondly, protect at aplace of work other than employees. Thirdly, promote a suitable environment for person atwork. Lastly, enable previous legislation to be replaced by regulations and approved industrycodes of practice operating in combination with the OSHA 1994. 1
  • 2. The Act, consisting of 15 parts, is an enabling measure which is superimposed overexisting safety and health legislations such as the Factories and Machinery Act 1967.Provisions of the Occupational Safety and Health Act complement provisions of the existinglegislations and in the event any conflict, provisions of the Act shall prevail. The Act, definesgeneral duties of employers, manufacturers, employees, and self employed, designers,importers and suppliers. Although these duties are of a general character, they are verydemanding, carrying a wide ranging set of responsibilities.APPOINTMENT OF OFFICERS The Act provides for the appointment of enforcement officers, establishment of aNational council for Occupational Safety and Health, and formulation of organization’spolicy and arrangement is to secure the safety, health and welfare of people at work andprotect other people against risks to safety and health arising from the activity of people atwork. Powers of enforcement and investigation, and liability for offences are also clearlystated under Part 2 (Section 5, 6 and 7) of OSHA1994. The provisions in this act result in one comprehensive and integrated system of lawto deal with the safety and health of virtually all people at work , and the protection of thepublic where they may be affected by the activities of people at work. 2
  • 3. GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS All the general duties of employers and self employed persons are stipulated underPart IV in Occupational Safety and Health Act 1994. The general duties of employers andself-employed persons are clearly explained in Section 15, 16, 17, 18 and 19 under part IV ofOSHA 1004. Section 15 of OSHA 1994 stated that employers and self-employed persons have theduty to ensure, as far as is practicable, the safety, health and welfare at work of all hisemployees. Section 15(a) said that the provision and maintenance of plant and systems ofwork that are, so far as is practicable, safe and without risks to health. This duty includes theresponsibility of employers and self-employed persons to ensure the working place are safeand do not exposing the employees to any kind of danger that can become a risk to theirhealth. Section 15(b) continues to explain the duty of employers and self-employed persons tomake arrangements in order to ensure the safety of their employees and reduce the risk toemployees’ health in connection with the use or operation, handling, storage and transport ofplant and substances. The employers and self-employed persons also have the responsibility to providenecessary information, instruction, training and supervision as is necessary to ensure thesafety and health at work of his employees as stated in Section 15(C). Section 15(d) and (e)also explain duty of the employers and self-employed persons in maintaining the safety of theworkplace as well as providing facilities to their employees. In a nut shell, Section 15explains on the duty of the employers and self-employed persons in ensuring safety towardtheir employees. 3
  • 4. Section 16, on the other hand, stated the duty for the employers and self-employedpersons to formulate safety and health policy. According to this section, the employers aswell as the self-employed persons have the responsibility to prepare the safety and healthpolicy at their workplace. Besides, they also required to regularly revise the policy maderegarding safety and health at their workplace so that the written statement will always be upto date. It should be reminded that all the process of formulating the policy regarding safetyand health make be make known toward all employees. In simpler words, an employer mustalso prepare a written statement of his general policy, organization and arrangements forsafety and health at work, keep it up to date, and bring it to the notice of his employees. Section 17 of OSHA 1994 stated the general duties of employers and self-employedpersons to people who are not their employees. This is because other people also will come tothe workplace, not only the employees. Hence, the employers and the self-employed personshave the responsibility in any way to ensure the safety of other people who are not theiremployees and protect them from any possible danger and risk. Employers and self-employedpersons also need to inform the people who are not their employees about the danger andrisks that they may expose to at the workplace. This covers, for example, danger frommachinery of plant where the public have access or from the conveyance of substances inpublic areas. Under certain prescribed circumstance, he must also give to people, other thanhis employees, information on aspects of his activities that might affect their safety andhealth. Under Section 18(1), (2)(a) and (b), duties of an occupier of a place of work to otherpersons other than his employees being explained. However, Section 3 of OSHA 1994 defineoccupier as the person who has the management or control of the work. This person isresponsible to maintain the safety of the workplace to the employees as well as the otherpeople who are not employed at that place. 4
  • 5. Section 19, on the other hand, states the penalty that can be imposed to the employersand self-employed persons if they fail to perform their responsibilities. They can be liable tofine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding twoyears or to both if found guilty.GENERAL DUTIES OF DESIGNERS, MANUFACTURERS AND SUPPLIERS General duties of designers, manufacturers and also suppliers are clearly stated inOSHA 1994 under Part V. Section 20, 21, 22 and 23 stated clearly the duties that designers,manufacturers and suppliers have toward employees. Designers, manufacturers, importers orsuppliers of plants or substances for use at work must ensure that, so far as is practicable,they will be safe and without risk to health when properly used. They must carry out orarrange for the carrying out of testing and examination to ensure that the plants and substanceare safe and without risks to health. Designers, manufacturers, importers or suppliers must also supply information aboutthe use for which a plant or substance was designed or formulated, and include anyconditions of use regarding its safety and risks to health. In addition, designers,manufacturers and suppliers of plants and substances must carry out or arrange for thecarrying out, as far as is practicable, of any necessary research to eliminate or minimize anyrisk to safety and health. Anyone who installs or erects any plant for use at work must ensurethat it does not constitute a risk to health and safety when properly used. Section 23 of OSHA 1994 provides that a person who contravenes the provisions ofsection 20 or 21 shall be guilty of an offence and shall, on conviction, be liable to a fine notexceeding twenty thousand ringgit or to imprisonment for a term not exceeding two years orto both. 5
  • 6. GENERAL DUTIES AND PROTECTION OF EMPLOYEES OSHA 1994 also stated the general duties of employees at work under Part V insection 24 (a, b, c and d). “the duty of every employee while at work where the employeehave to take reasonable care for the safety and health of himself and of other persons whomay be affected by his acts or omissions at work, to co-operate with his employer or anyother person in the discharge of any duty or requirement imposed on the employer or thatother person by this Act or any regulation made there under, to wear or use at all times anyprotective equipment or clothing provided by the employer for the purpose of preventingrisks to his safety and health and to comply with any instruction or measure on occupationalsafety and health instituted by his employer or any other person by or under this Act or anyregulation made there under”. Employees have a duty under the Act to take reasonable care to avoid injury tothemselves or to others by their work activities, and to cooperate with employers and othersin meeting statutory requirements. Section 24 (2) also states the effect of non-compliancewith the Act by the employees such as the employees will be liable to a fine not exceedingone thousand ringgit or to imprisonment for a term not exceeding three months or to both. Section 25 employee’s duty not to interfere with or misuse things provided pursuantto certain provisions of OSHA 1994 states “A person who intentionally, recklessly ornegligently interferes with or misuses anything provided or done in the interests of safety,health and welfare in pursuance of this Act shall be guilty of an offence and shall, onconviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for aterm not exceeding two years or to both”. The act also requires employees not to interferewith or misuse anything provided to protect their safety, health or welfare in compliance withthe Act. Section 26 of this Act states that, the employees protection under this section is duty 6
  • 7. not to charge the employee for things done and provided. Whereby, the employees areprotected from being levied (permit or levy) by the employer if the employees comply withthis regulation. An employee is protected from being discriminated or injured or has his positionaltered to his disadvantage, is he makes a complaint on a matter which he considers is notsafe or becomes a member of a safety and health committee or exercises his function as acommittee member as has been clearly stated in the OSHA 1994 under section 27[1(a, b, c)and Section 2 (a,b,c) “No employer shall dismiss an employee, injure him in his employment,or alter his position to his detriment by reason only that the employee and no trade unionshall take any action on any of its members who, being an employee at a place of work thatmakes a complaint about a matter which he considers is not safe or is a risk to health, is amember of a safety and health committee established pursuant to this Act; or exercises any ofhis functions as a member of the safety and health committee”. Section 27 (3) states about “An employer who, or a trade union which, contravenesthe provisions of this section shall be guilty of an offence and shall, on conviction, be liableto a fine not exceeding ten thousand ringgit or to a term of imprisonment not exceeding oneyear or to both”. Lastly, Section 27 [4(a, b, c)] states that “Notwithstanding any written lawto the contrary, where a person is convicted of an offence under this section the Court may, inaddition to imposing a penalty on the offender, make one or both of the following orders suchas an order that the offender pays within a specific period to the person against whom theoffender has discriminated such damages as it thinks fit to compensate that person and anorder that the employee be reinstated or re-employed in his former position or, where thatposition is not available, in a similar position”. 7
  • 8. NOTIFICATION OF ACCIDENTS, DANGEROUS OCCURANCE,OCCUPATIONAL POISONING AND OCCUPATIONAL DISEASES, AND INQUIRY Notification of Accidents, Dangerous Occurrence, Occupational Poisoning andOccupational Diseases, and Inquiry is stated in OSHA 1994 under Section 32, 33 and 34.Under these sections, it explained that an employer must notify the nearest occupationalsafety and health offices of any accident, dangerous occurrence, occupational poisoning ordisease which has occurred or is likely to occur at the workplace. Every registered medicalpractitioner or medical officer attending to, or called in to visit, a patient who, he believes tobe suffering from occupational poisoning of occupational diseases listed in Third Schedule ofThe Factory and Machinery Act 1967 or named in any regulation or order made by theMinister under the Act, must also report to the Director General.THE PROCEDURES OF ENFORCEMENT AND INVESTIGATION Under Section 39 of Occupational Safety and Health Act 1994 an occupational safetyand health officer, he has a power to inspect and examine any place of work and he also mayenter the residential place with the consent of the owner or if he has reasonable cause tobelieve that a contravention of this Act. In the investigation, the officer may makeexamination of any plant, substance, article or other thing in the place that he makes theinvestigation and take such measurements, photographs and make recordings that may benecessary to ascertain whether or not this Act has been complied with. Besides that, he alsocan require any person employed in a place of work in which any of the diseases named inthe Third Schedule of the Factories and Machinery Act 1967, to be medically examined by amedical officer or a registered medical practitioner. 8
  • 9. If the officer found something that could be danger to the safety and health, he maytest the goods at any convenient place and at such reasonable time but not so as to damage ordestroy it and he also take possession of it and detain it for so long as is necessary to hisinvestigation. If there any serious obstruction in the execution of his duty, the officer may theassistance of the police at any time. Before the officer enter into the premises, under Section 40 of the act, the officer hasto given on oath to a Magistrate that there is reasonable cause for suspecting that there is in aplace of work or residential place any article, thing, book, document, plant, or art thereofwhich has been used to commit an offence under this Act. Moreover, he shall issue a warrantunder his hand by virtue of which an officer named or referred to in the warrant may enter theplace of work or residential place at any reasonable time by day or night, and search for andseize or seal the article, thing, book, document, plant, substance, installation or part thereof. The officer that seizing any article, thing, book, document, plant, substance,installation or part thereof under section 40 or 41 shall prepare a list of the things seized andforthwith, deliver a copy of the list signed by him to the occupier, or his agent present in thepremises, and if the premises are unoccupied the officer shall, post a list of the things seizedon the premises. Under Section 45 of the act, an officer making an investigation may examine orallyany person who appears to him and the person is legally bound to answer all questions withto the state of truth relating to the case put to him by the officer to be acquainted with thefacts and circumstances of the case but that the person may refuse to answer any question theanswer to which would have a tendency to expose him to a criminal charge or penalty orforfeiture. In addition, a statement made by a person under this section shall be reduced into 9
  • 10. writing and signed by him or affixed with his thumb print and he also shall been given anopportunity to make any correction he may wish. In addition, under Section 47 of the act, person who refuses access to a place of workto an officer or a person assisting him, obstructs the officer in the exercise of his, fails toproduce any document required by the officer shall be guilty of an offence to a fine notexceeding ten thousand ringgit or to imprisonment for a term not exceeding one year or both.Improvement notice and prohibition notice Under Section 48 of Occupational Safety And Health Act 1994, the officer shall servean improvement notice on the person under whose control the place of work and requiring theperson to take measures to remove the danger or rectify any defect within such period orprocess shall not be operated even after the period of expiry of the notice until the danger hasbeen removed or the defect made good to the satisfaction of the officer. Furthermore, if thegoods is likely to cause immediate danger to life or property, the officer shall serve aprohibition notice prohibiting the use or operation of the place of work, plant, substance orprocess until such time that any danger posed is removed and the defect made good to thesatisfaction of the officer. Besides that, under Section 49 (2) a person who without reasonable excuse fails tocomply with any improvement or prohibition notice issued shall be guilty of an offence andshall be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term notexceeding five years or both. 10
  • 11. Aggrieved person may appeal Under Section 50 of Occupational Safety And Health Act 1994, a person who isaggrieved by a notice issued by an officer under section 48 may, within thirty days from thedate of such notice, appeal to the Director General who may, after considering the appeal, byorder in writing confirm, revoke or vary the notice. Furthermore, is a person still aggrievedwith a decision of the Director General made under subsection (1) may, within thirty daysfrom the date of the decision, appeal to an appeal committee appointed by the Minister underSection 63.LIABILITY FOR OFFENCESGeneral penalty Under Section 51 of the OSHA, a person who by any act or omission contravenes anyprovision of this Act or any regulation made there under shall be guilty of an offence, he willbe liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term notexceeding one year or both and, in the case of a continuing offence, to a fine not exceedingone thousand ringgit for every day or part of a day during which the offence continues afterconviction. Moreover, under Section 61 of the act, prosecutions in respect of offences committedunder this Act or any regulation made there under may, with the prior written consent of thePublic Prosecutor, be instituted and conducted by an occupational safety and health officer orby an officer specially authorized in writing by the Director General subject to the provisionsof the Criminal Procedure Code. 11
  • 12. MISCELLANEOUSDuty to keep secret Under Section 67 of the act, no person shall disclose any matter including anymanufacturing or commercial secret which has come to his knowledge or which he hasacquired while performing his duties under this Act. A person who contravenes the provisionof this section shall be guilty of an offence and shall, on conviction, be liable to a fine notexceeding twenty thousand ringgit or to imprisonment for a term not exceeding two years orto both. 12
  • 13. CONCLUSION In conclusion, Occupational Safety And Health Act 1994 is one the good actimplemented in Malaysia because this act can be as a guideline to the employers and alsoemployees for securing the safety, health and welfare of themselves at work. Besides that,this act also protecting employers and also employees against risks to safety or health inconnection with the activities of persons at work. So, everything that connected with thesafety or health at the workplace, the employers and employees can refer to this act to theresponsibilities that they should take at their workplace, the procedures of enforcement andinvestigation and so forth. 13

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