OSH - Legal Requirements

1. OSH CONSTRUCTION

2. OSH CONSTRUCTION XBCS3103
TOPIC 2 : LEGAL REQUIREMENTS

3. TOPIC 2 : LEGAL REQUIREMENTS
By the end of this topic, you should be able to:
• 1. Explain how legislations are enacted;
• 2. Connect the law with safety objectives;
• 3. Describe the fundamental concepts of OSH legislation; and
• 4. Differentiate between the role of authority and the role of industry.

4. STATUTE LAW AND COMMON LAW
• The law concerning safety and health is a combination of statute law and
common law.
STATUTE LAW
the written law of a country consisting of Acts of Parliament,
regulations and orders made within the parameters of a relevant subject in focus.
These Acts usually set out a framework of principles in the areas or issues
involved.
In order to achieve the objectives, Acts are supported by regulations and orders.
Regulations and orders are not necessarily written at the time the Acts were introduced.
They are sometimes added in after the Acts are established to accommodate new
requirements.
There is a penalty provided for a breach of a statute law regardless whether
damage or loss has occurred or not; and

5. STATUTE LAW AND COMMON LAW
COMMON LAW
as a result of decisions by courts and
judges.
related to OSH issues is known as tort of
negligence.
A tort is defined as a type of civil offence. This is where the common principles fill the gap if and
when a statute law does not supply any specific requirements.
For instance, the relationship between an employer and the employees is a special application of
common law principles. Employers are responsible for the well-being of their workers in their
working environment. Employers are also liable for the actions of their employees that cause injury,
death or damage to others. This form of liability of the employer is known as vicarious liability.
By common law, actions are decided only if there is damage or loss.

6. RELEVANT DOCUMENTS IN PRACTICE
• Industry Codes of Practice (ICOP)
An ICOP supports Acts and regulations which are in place and also serves as a
guideline on the general requirements set out in the legislation. Through its
application, ICOP enables legislation to be kept up to date by revising the ICOP
rather than the law. ICOP can be used in proceedings.
• Guidelines
Guidelines are documents that present opinions on good practice. One may apply what is
suggested in the guide in his/her workplace. Guidelines have no legal force. However,
because they are developed based on industrial experience, they are persuasive in practice
to the lower courts and in civil cases to establish reasonable safety standards.
Locally, the Department of Occupational Safety and Health (DOSH) is a good source for
published ICOPs and Guidelines.

7. STATUTORY DUTY
• Acts and Regulations: Basic Knowledge
Ø The Act – Upon Parliament’s Approval and King’s consent.
Ø The Regulation – Upon Relevant Ministries’ Approval
• Main Legislative References
Ø Main references : Occupational Safety and Health Act 1994, Act 514. (OSHA 1994)
And Factories and Machinery Act 1967, Act 139. (FMA 1967)
Ø Others :
(i) Explosive Act 1957. (viii) Fire Service Act 1988.
(ii) Social Security Act 1969. (ix) Electrical Supply Act 1990.
(iii) Environmental Quality Act 1974. (x) Construction Industrial Development Board
(CIDB) Act 1994.
(iv) Street Drainage and Building Act 1974. (xi) Waters Act 1920.
(v) Destruction Disease Bearing Insect Act 1975. (xii) Forestry Act 1984.
(vi) Town and Country Planning Act 1976. (xiii) Other Acts – which may depend on actual
activities or location.
(vii) Uniform Building By-Laws 1984.

8. STATUTORY DUTY
• Clauses with the word ‘shall’ are indication that the particular items are absolute duty, also known as
strict liability = statutory obligation.
• Examples :
It shall be the duty of every employee while at work to wear or use at all times personal protective equipment
(PPE). (Part VI, Section 24(c), OSHA 1994)
Every stairway opening except at the entrance thereto shall be fenced on every exposed side by guard rails and
toe-boards. (Reg8 (2), FM (Safety Health & Welfare) Regulations 1970.)
• The constant focus or primary objective in any working environment should always be
“SAFETY FIRST”
• Part IV, Section 15(1) of OSHA 1994 clarifies:
“It shall be the duty of every employer and every self-employed
person to ensure, so far as is practicable, the safety, health and
welfare at work of all his employees.”
• OSHA 1994 further elaborates “so far as is practicable” with these considerations:
ØThe severity of the hazard or risk in question;
ØThe state of knowledge about the hazard/risk and any way of removing or mitigating the hazard/risk;
ØThe availability and suitability of ways to remove or mitigate the hazard or risk; and
ØThe cost of removing or mitigating the hazard or risk.

9. REASONABLY PRACTICABLE VERSUS PRACTICABLE
• Interpretations by the courts :
So Far as is Reasonably Practicable So Far as is Practicable
that the degree of risk can be balanced against
the time, trouble, costs and physical difficulty of
taking the measures to counter the risks
Refers to a stricter standard compared with
“reasonably practicable”.
Generally embraces whatever is technically
possible. Also considered is the current
knowledge the person concerned has, or ought to
have had at that particular time.
The trouble, time and costs are not to be taken
into account as considerations
• In OSHA 1994, we may assume that OSHA 1994 is a bit more flexible. It operates between
the range of “reasonably practicable” to “practicable”. This is because in OSHA 1994, “so far
as is practicable” also regards the costs involved. It allows employers to conduct a cost-
benefit analysis. (Rozanah, 2005).

10. Development of Local OSH Legislation
• The Factories and Machinery Act 1967 (FMA 1967) was enacted in 1967.
• FMA 1967 is not the earliest Act concerning Occupational Safety and Health (OSH) in Malaysia; its
origins can be traced back to as early as 1876.
• FMA 1967 is closely associated with the construction industry in Malaysia.
• Building Operations and Works of Engineering Construction Safety Regulations 1986 (BOWEC) is
an important reference for construction within FMA 1967.
• BOWEC is a set of regulations specifically addressing safety in building operations and
engineering construction, emphasizing Occupational Safety and Health (OSH) standards.
OVERVIEW OF OSHA 1994 AND FMA 1967

11. Development of Local OSH Legislation
The following is a chronology of the earlier legislations that evolved into FMA 1967:
• Steam Boilers Ordinance 1876 (Straits Settlements)
• Steam Boilers Ordinance 1887 (Straits Settlements)
• Machinery Ordinance 1921 (Straits Settlements)
• Selangor Steam Boilers (Ashore) Inspection Regulations 1893 (Federated Malay States)
• Selangor Boilers Enactment 1898 (Federated Malay States)
• Steam Boilers Enactments of the states of Selangor, Perak, Negeri Sembilan and Pahang 1908 (Federated
Malay States)
• Machinery Enactment 1913 (Federated Malay States)
• Machinery Enactment 1927 (Federated Malay States)
• Machinery Enactment 1932 (Federated Malay States)
• Machinery Ordinance 1953 (Federation of Malaya)
• Factories and Machinery Act 1967 (Malaysia)
• Occupational Safety and Health Act. 1994 (Malaysia )
• Factories and Machinery Act (Amendment) 2006 (Malaysia)
OVERVIEW OF OSHA 1994 AND FMA 1967

12. Occupational Safety and Health Act 1994 (OSHA 1994)
• OSHA 1994 adopts the "Self Regulations Concept," allowing employers the freedom to plan and
decide on hazard management.
• "Self-regulation" does not imply a self-styled approach but provides employers the flexibility to
manage hazards within or exceeding the Acts' requirements.
• Consultation and workers' involvement are integral to OSHA 1994's philosophy for achieving the
end objective of occupational safety and health.
• OSHA 1994's principle legislations are supported by rules, regulations, and orders.
• Supporting regulations may not necessarily be created in the same year as the enactment of
OSHA 1994.
• Regulations, rules, or orders associated with OSHA 1994 indicate the year of their establishment.
• "OSHA mother act" is another term for OSHA 1994 in its basic form.
• OSHA 1994 serves as the foundation for the development of related items such as rules,
regulations, orders, or schedules.
• Ministries' approval is required for the creation of follow-up or new regulations under OSHA
1994.
OVERVIEW OF OSHA 1994 AND FMA 1967

13. Occupational Safety and Health Act 1994 (OSHA 1994)
• To secure the safety, health and welfare of persons at work;
• To protect others against risks to safety and health in connection with the activities of persons at
work;
• To promote an occupational environment adaptable to the person's physiological and
psychological needs; and
• To provide the means towards a legislative system based on regulations and industry codes of
practice in combination with the provisions of the Act.
Objectives of OSHA 1994
Arrangement of OSHA 1994

14. As mentioned earlier, OSHA 1994 is also known as the “OSHA mother act”. This “mother act” has
“given birth” to the following regulations and orders:
• 1996 – Control of Industrial Major Accident Hazards Regulations 1996;
• 1996 – Safety and Health Committee Regulations 1996;
• 1997 – Classification, Packaging and Labelling of Hazardous Chemicals Regulations 1997;
• 1997 – Safety and Health Officer Regulations 1997;
• 1999 – Prohibition of Use of Substance Order 1999;
• 2000 – Use and Standards of Exposure of Chemicals Hazardous to Health Regulations 2000; and
• 2004 – Notification of Accident, Dangerous Occurrence, Occupational Poisoning and
Occupational Disease Regulations 2004.
Regulations and Orders Under OSHA 1994

15. Objectives of FMA 19671996 - To provide for the control of factories concerning:
• matters relating to the safety, health and welfare of persons therein;
• the registration and inspection of machinery; and
• matters connected therewith.
Arrangements of FMA 1967
• Part I – Preliminary
• Part II – Safety, Health and Welfare
• Part III – Persons in Charge and Certificate of Competency
• Part IV – Notification of Accident, Dangerous Occurrence and Dangerous Disease
• Part V – Notice of Occupation of a Factory, and Registration and Use of Machinery
• Part VI – General
In 2006, FMA 1967 was amended. The new changes included those related to the definition of
‘factory’, regarding licensed person, certificate of fitness, revised fees, notification of accident and a
few others. Penalties and imprisonment terms were also increased.
Factories and Machinery Act 1967 (FMA 1967)

16. PRACTICAL COMPLIANCE
Duties of Employer and Self-Employed Persons
The duties include to:
• Provide and maintain safe plant and system of work;
• Make arrangements for safe use, operation, handling, storage and transportation of plant and substances;
• Provide instruction, information, training and supervision;
• Provide and maintain safe place of work and means of access to and egress from any place of work;
• Provide and maintain safe and healthy working environment and adequate welfare facilities; and
• Provide safety and health protection and also relevant information as necessary to other persons, not being
their employees.
A maximum penalty of RM50,000 or 2 years imprisonment or both can be
imposed for non-compliance.
According to Section 18 OSHA 1994, the duties of an occupier of a place or work are to:
• Provide safe access and egress
• Ensure safe use of plant and substance
• Include public safety – Regulations 39(1), FMA (Safety, Health and Welfare) Regulations 1970.
A maximum penalty of RM50,000 or 2 years imprisonment or both can be imposed for non-compliance.
Duties of an Occupier of a Place of Work

17. PRACTICAL COMPLIANCE
Duties of Employees
The duties include to:
• Cooperate with employers.
• Practice reasonable care for the safety and health on himself and others.
• Wear and use personal protective equipment (PPE).
• Comply with instructions on OSH.
A maximum penalty of RM1,000 or 3 months imprisonment or both can be imposed for non-compliance.
According to Section 21 OSHA 1994, the duties of designers, manufacturers and suppliers are to:
(a) Ensure the substance is safe and without risks to health when properly used;
(b) Carry out or arrange for the carrying out of such testing and examination as may be necessary for the
performance of the duty imposed on him by (a); and
(c) Provide adequate information.
A maximum penalty of RM20,000 or 2 years imprisonment or both can be imposed for non-compliance..
Duties of Designers, Manufacturers and Suppliers

18. Formulation of Safety and Health Policy (Section 16 OSHA 1994)
• (subject to condition: if 5 or more employees)
• A maximum penalty of RM50,000 or 2 years imprisonment or both can be imposed for non-compliance.
Establishment of Safety and Health Committee (Section 30 OSHA 1994)
• (subject to condition: if 40 or more persons employed)
• A maximum penalty of RM5,000 or 6 months imprisonment or both can be imposed for non-compliance.
Appointment of Safety and Health Officer (Section 29 OSHA 1994)
• (subject to condition: if project cost is more than RM20 million)
• A maximum penalty of RM5,000 or 6 months imprisonment or both can be imposed for non-compliance.
Notification of Accident, Dangerous Occurrence, Occupation Poisoning and Occupational
Disease (NADOPOD) (Section 32 OSHA 1994)
(For cases as specified in the NADOPOD Regulations, please refer to First Schedule-Serious Bodily Injury; Second Schedule-
Dangerous Occurrence and Third Schedule-Occupational Poisoning and Disease. Also refer to FMA Pt IV, Sect. 31. And,
FMAÊs First Schedule-Dangerous Occurrence, Second Schedule-Serious Bodily Injury and Third Schedule-
Industrial Disease)
A maximum penalty of RM10,000 or 1 year imprisonment or both can be
imposed for non-compliance.

19. Cooperation to Investigation/Inspection Officers (Section 47 OSHA 1994: Offences
in Relation to Inspection)
Owner or occupier or employer of any place of work need to provide assistance for any:
• Entry
• Inspection
• Examination
• Inquiry
A maximum penalty of RM10,000 or 1 year imprisonment or both can be imposed for non-compliance.
Regarding Improvement Notice and Prohibition Notice (Section 48 OSHA 1994)
In practice, enforcement authority usually issues NOI (Notice of Improvement) or NOP (Notice of Prohibition)
for any non-compliance found at the site. Once an NOI or NOP is issued, the employer is expected to take
necessary corrective actions within a stipulated period. – Sometimes, an NOP is also referred to as a Stop Work
Order:
Penalty for failure to comply with notice: Maximum RM50,000 or maximum 5 years imprisonment or both and
RM500 per day for continuous offence.
General Penalty
If one is found guilty of an offence, but there is no specific penalty provision for it
Fine not exceeding RM10,000 or imprisonment not exceeding 1 year or both and fine of RM1,000
per day for continuing offence.

20. POWER OF ENFORCEMENT OFFICERS
Section in OSHA. Enforcement Authority
Section 34. Regarding power of officer at inquiry. The officer can be vested
with powers of First Class Magistrate
Section 35 Regarding power to prohibit the use of plant or substance
Section 39 Regarding power of entry, inspection, examination, seizure, etc.
Section 40 Regarding entry into premises with search warrant and power
of seizure.
Section 41 Regarding entry into premise without search warrant and
power of seizure.
Section 42 Regarding power of forceful entry.
Section 44 Regarding power of investigation.
Section 45 Regarding power to examine witness.
Section 48 to Section 61 Regarding prosecutions.
Power of Enforcement Officers According to OSHA 1994

21. In summarization, the officers can:
• Gain access without warrant to a workplace at any time.
• Employ the police to assist in the execution of the duty.
• Bring in equipment or materials into the premise to assist investigations.
• Carry out necessary examinations and investigations.
• Direct that location remain undisturbed for as long as is seen fit.
• Take measurements, photographs and samples.
• Order the removal and testing of equipment.
• Take articles or equipment out for further testing.
• Take statements, records and documents.
• Require other facilities or assistance which may be needed.

22. OCCUPATIONAL SAFETY AND HEALTH OFFICER VERSUS
SAFETY AND HEALTH OFFICER (SHO)
Occupational Safety and Health Officer Safety and Health Officer
DOSH personnel who are appointed under
Section 5(2)
OSHA 1994.
Those who are appointed in relation with
Section 29 and Section 66(2) (t) OSHA 1994
This “officer” interpretation includes the
Director General, Deputy Directors General,
Directors, Deputy Directors and
Assistant Directors of DOSH.
They are hired by industries.
”Occupational “ officer related Not an ”occupational” officer

23. SAFETY AND HEALTH OFFICER
In Section 29(3) it states that:
“The safety and health officer shall be employed exclusively for the purpose of ensuring the due
observance at the place of work of the provisions of this Act and any regulation made thereunder and the
promotion of a safe conduct of work at the place of work.”
In accordance with Section 18, SHO Regulations 1997, the job specifications of an SHO as outlined in the
Act are:
• Advise the employer or any person in charge, regarding safety and health.
• Safety and health inspections of the place of work including equipment, processes, substances and
others which may affect the safety and health of workers.
• Investigate any incident.
• Assist the employer or Safety and Health Committee regarding OSH.
• As Secretary of the Safety and Health Committee (SHC).
• Assist SHC in any safety inspection, effectiveness and efficacy of safety measures taken in compliance
with the Act.
• To collect, analyse and maintain safety statistics on accidents, dangerous occurrences, occupational
poisoning and occupational disease occurring at the workplace.
• Assist any officer in carrying out his/her duty under the Act or in the regulations under the Act.
• To carry out other instructions made by the employer on any matters on safety and health.

24. ADMINISTRATION AND PROCEDURES COMPLIANCE
Application Procedures: DOSH Forms
JKJ 101 – Notice of first occupation or use of any premise as factory under Section 34(2) (a) FMA.
JKJ 102 – Notice in respect of taking over of a factory under Section 34(2) (b)FMA.
JKJ 103 – Notification of Building Operations and Works of Engineering Construction under Section 35(1) FMA.
JKJ 105 – Application for permission to install machinery under Section 36(1) FMA and issue Certificate of Fitness in
respect of steam boiler, unfired pressure vessel or hoisting machine, not hoisting machine driven by manual power.
JKJ 106 – Notice of first use of machinery other than the machinery for which a Certificate of Fitness is prescribed as
required under Section 36(3) FMA.
NADOPOD Procedures: DOSH Forms
The following are the related DOSH forms related to NADOPOD procedures and its function:
JKKP 6 – Notification of Accident/Dangerous Occurrence
JKKP 7 – Notification of Occupational Poisoning/ Occupational Disease
JKKP 8 – Register of Accident, Dangerous Occurrence, Occupational Poisoning and Occupational Disease
JKKP 9 – Notification of Accident/Dangerous Occurrence: Data and Description
JKKP 10 – Notification of Occupational Poisoning/Occupational Disease: Data and Description

25. ADMINISTRATION AND PROCEDURES COMPLIANCE
CIDB Greencard Compliance
In this Greencard system, CIDB categorized “Construction Personnel” as:
• General Worker
• Semi-Skilled Worker
• Skilled Worker
• Supervisor, Clerk of Work, Site Agent or equivalent
• Site Manager, Site Engineer or equivalent
• Quality Assurance, and
• Any other categories classified by CIDB from time to time.

26. BUILDING OPERATIONS AND WORKS OF ENGINEERING
CONSTRUCTION (BOWEC)
The official title for this regulation is the Factories and Machinery (Building Operations and Works of Engineering
Construction) (Safety) Regulations, 1986.
It is commonly referred to as BOWEC.
Arrangement of Regulations :

27. BUILDING OPERATIONS AND WORKS OF ENGINEERING
CONSTRUCTION (BOWEC)
The official title for this regulation is the Factories and Machinery (Building Operations and Works of Engineering
Construction) (Safety) Regulations, 1986.
It is commonly referred to as BOWEC.
Arrangement of Regulations :

28. ASSIGNMENT QUESTION
Part I
In the realm of construction, workers frequently face the risk of fatalities, injuries, and severe
illnesses. While the construction industry has shown a gradual improvement in overall
performance, the rates of death, serious injuries, and illnesses persist at levels that rank among
the highest across all sectors. In light of this, it is imperative for stakeholders in the construction
industry to proactively engage in measures that prevent such accidents on construction sites,
with an unwavering emphasis on prioritizing safety measures and controls.
As the Occupational, Safety and Health (OSH) manager overseeing a high-rise construction
project, your responsibility is to draw the attention of stakeholders to the critical importance of
conducting hazard identification and risk assessment at various stages of the construction
process — namely, during pre-construction, throughout the construction phase, and post-
construction. This strategic approach ensures a comprehensive understanding of potential
hazards and risks, thereby laying the foundation for a proactive and preventive safety culture on
the construction site.

29. ASSIGNMENT QUESTION
Thus, you are to prepare a report which consists of:
Ø The introduction should contain ( but not be limited to) the:
Overview of the common accidents and hazards at the site for high-rise projects;
Definition; Roles of the relevant stakeholders etc.
Ø Contents:
• Explain the potentially dangerous work activities that relate to hazards in
different stages of the construction project –
Pre-construction, During construction and Post-construction
• Discuss the method of hazard identification and risk assessment according to the
respective construction stage.
• Propose the control measures and appropriate ways to communicate the control
measures and implementation plan to the relevant stakeholders.
Ø Conclusion
[Total: 50 marks]

30. ASSIGNMENT QUESTION
Part II
ONLINE CLASS PARTICIPATION (10%)
Discuss the following topic in the forum and submit proof of your participation in the online
discussions:
Raising awareness among construction site workers about the crucial significance of Personal
Protective Equipment (PPE) is imperative, as this aspect is frequently overlooked. How can
we enhance efforts to bring attention to this issue and ensure heightened awareness among
construction site workers?
[Total: 10 marks]