Occupational Safety and Health Act (OSHA)

INTRODUCTION

Occupational Safety and Health Act 1994 (OSHA 1994) is an Act that provides the

legislative framework to secure the safety, health and welfare among all Malaysian

workforces and to protect others against risks to safety or health in relation with the activities

of persons at work stated under OSHA 1994 Part 1 (section 1). This Act was gazetted on

24th February 1994 and cited as the Occupational Safety and Health Act 1994. This Act is a

practical tool cover on existing safety and health legislation. Besides that, to establish the

National Council for Occupational Safety and Health and for matters connected therewith.

The OSHA 1994 provides the legislative framework to promote, stimulate and

encourage high standards of safety and health at work. The aim is to promote safety and

health awareness and establish effective safety organization and performance through self

regulation schemes designed to suit the particular industry or organization, and by the

accumulation of influences and pressures, operating at many levels in a variety of ways and

the Act promotes the concepts of self-regulation, consultation and cooperation. The long term

goal of the Act is to create a healthy and safe working culture among all Malaysian

employees 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) which

is firstly, for securing the safety, health and welfare of person at work. Secondly, protect at a

place of work other than employees. Thirdly, promote a suitable environment for person at

work. Lastly, enable previous legislation to be replaced by regulations and approved industry

codes of practice operating in combination with the OSHA 1994.

1

The Act, consisting of 15 parts, is an enabling measure which is superimposed over

existing safety and health legislations such as the Factories and Machinery Act 1967.

Provisions of the Occupational Safety and Health Act complement provisions of the existing

legislations and in the event any conflict, provisions of the Act shall prevail. The Act, defines

general duties of employers, manufacturers, employees, and self employed, designers,

importers and suppliers. Although these duties are of a general character, they are very

demanding, carrying a wide ranging set of responsibilities.

APPOINTMENT OF OFFICERS

The Act provides for the appointment of enforcement officers, establishment of a

National council for Occupational Safety and Health, and formulation of organization’s

policy and arrangement is to secure the safety, health and welfare of people at work and

protect other people against risks to safety and health arising from the activity of people at

work. Powers of enforcement and investigation, and liability for offences are also clearly

stated under Part 2 (Section 5, 6 and 7) of OSHA1994.

The provisions in this act result in one comprehensive and integrated system of law

to deal with the safety and health of virtually all people at work , and the protection of the

public where they may be affected by the activities of people at work.

2

GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS

All the general duties of employers and self employed persons are stipulated under

Part IV in Occupational Safety and Health Act 1994. The general duties of employers and

self-employed persons are clearly explained in Section 15, 16, 17, 18 and 19 under part IV of

OSHA 1004.

Section 15 of OSHA 1994 stated that employers and self-employed persons have the

duty to ensure, as far as is practicable, the safety, health and welfare at work of all his

employees. Section 15(a) said that the provision and maintenance of plant and systems of

work that are, so far as is practicable, safe and without risks to health. This duty includes the

responsibility of employers and self-employed persons to ensure the working place are safe

and do not exposing the employees to any kind of danger that can become a risk to their

health. Section 15(b) continues to explain the duty of employers and self-employed persons to

make arrangements in order to ensure the safety of their employees and reduce the risk to

employees’ health in connection with the use or operation, handling, storage and transport of

plant and substances.

The employers and self-employed persons also have the responsibility to provide

necessary information, instruction, training and supervision as is necessary to ensure the

safety 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 the

workplace as well as providing facilities to their employees. In a nut shell, Section 15

explains on the duty of the employers and self-employed persons in ensuring safety toward

their employees.

3

Section 16, on the other hand, stated the duty for the employers and self-employed

persons to formulate safety and health policy. According to this section, the employers as

well as the self-employed persons have the responsibility to prepare the safety and health

policy at their workplace. Besides, they also required to regularly revise the policy made

regarding safety and health at their workplace so that the written statement will always be up

to date. It should be reminded that all the process of formulating the policy regarding safety

and health make be make known toward all employees. In simpler words, an employer must

also prepare a written statement of his general policy, organization and arrangements for

safety 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-employed

persons to people who are not their employees. This is because other people also will come to

the workplace, not only the employees. Hence, the employers and the self-employed persons

have the responsibility in any way to ensure the safety of other people who are not their

employees and protect them from any possible danger and risk. Employers and self-employed

persons also need to inform the people who are not their employees about the danger and

risks that they may expose to at the workplace. This covers, for example, danger from

machinery of plant where the public have access or from the conveyance of substances in

public areas. Under certain prescribed circumstance, he must also give to people, other than

his employees, information on aspects of his activities that might affect their safety and

health.

Under Section 18(1), (2)(a) and (b), duties of an occupier of a place of work to other

persons other than his employees being explained. However, Section 3 of OSHA 1994 define

occupier as the person who has the management or control of the work. This person is

responsible to maintain the safety of the workplace to the employees as well as the other

people who are not employed at that place.

4

Section 19, on the other hand, states the penalty that can be imposed to the employers

and self-employed persons if they fail to perform their responsibilities. They can be liable to

fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two

years or to both if found guilty.

GENERAL DUTIES OF DESIGNERS, MANUFACTURERS AND SUPPLIERS

General duties of designers, manufacturers and also suppliers are clearly stated in

OSHA 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 or

suppliers 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 or

arrange for the carrying out of testing and examination to ensure that the plants and substance

are safe and without risks to health.

Designers, manufacturers, importers or suppliers must also supply information about

the use for which a plant or substance was designed or formulated, and include any

conditions 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 the

carrying out, as far as is practicable, of any necessary research to eliminate or minimize any

risk to safety and health. Anyone who installs or erects any plant for use at work must ensure

that 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 of

section 20 or 21 shall be guilty of an offence and shall, on conviction, be liable to a fine not

exceeding twenty thousand ringgit or to imprisonment for a term not exceeding two years or

to both.

5

GENERAL DUTIES AND PROTECTION OF EMPLOYEES

OSHA 1994 also stated the general duties of employees at work under Part V in

section 24 (a, b, c and d). “the duty of every employee while at work where the employee

have to take reasonable care for the safety and health of himself and of other persons who

may be affected by his acts or omissions at work, to co-operate with his employer or any

other person in the discharge of any duty or requirement imposed on the employer or that

other person by this Act or any regulation made there under, to wear or use at all times any

protective equipment or clothing provided by the employer for the purpose of preventing

risks to his safety and health and to comply with any instruction or measure on occupational

safety and health instituted by his employer or any other person by or under this Act or any

regulation made there under”.

Employees have a duty under the Act to take reasonable care to avoid injury to

themselves or to others by their work activities, and to cooperate with employers and others

in meeting statutory requirements. Section 24 (2) also states the effect of non-compliance

with the Act by the employees such as the employees will be liable to a fine not exceeding

one 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 pursuant

to certain provisions of OSHA 1994 states “A person who intentionally, recklessly or

negligently 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, on

conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a

term not exceeding two years or to both”. The act also requires employees not to interfere

with or misuse anything provided to protect their safety, health or welfare in compliance with

the Act. Section 26 of this Act states that, the employees protection under this section is duty

6

not to charge the employee for things done and provided. Whereby, the employees are

protected from being levied (permit or levy) by the employer if the employees comply with

this regulation.

An employee is protected from being discriminated or injured or has his position

altered to his disadvantage, is he makes a complaint on a matter which he considers is not

safe or becomes a member of a safety and health committee or exercises his function as a

committee 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 union

shall take any action on any of its members who, being an employee at a place of work that

makes a complaint about a matter which he considers is not safe or is a risk to health, is a

member of a safety and health committee established pursuant to this Act; or exercises any of

his functions as a member of the safety and health committee”.

Section 27 (3) states about “An employer who, or a trade union which, contravenes

the provisions of this section shall be guilty of an offence and shall, on conviction, be liable

to a fine not exceeding ten thousand ringgit or to a term of imprisonment not exceeding one

year or to both”. Lastly, Section 27 [4(a, b, c)] states that “Notwithstanding any written law

to the contrary, where a person is convicted of an offence under this section the Court may, in

addition to imposing a penalty on the offender, make one or both of the following orders such

as an order that the offender pays within a specific period to the person against whom the

offender has discriminated such damages as it thinks fit to compensate that person and an

order that the employee be reinstated or re-employed in his former position or, where that

position is not available, in a similar position”.

7

NOTIFICATION OF ACCIDENTS, DANGEROUS OCCURANCE,

OCCUPATIONAL POISONING AND OCCUPATIONAL DISEASES, AND INQUIRY

Notification of Accidents, Dangerous Occurrence, Occupational Poisoning and

Occupational 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 occupational

safety and health offices of any accident, dangerous occurrence, occupational poisoning or

disease which has occurred or is likely to occur at the workplace. Every registered medical

practitioner or medical officer attending to, or called in to visit, a patient who, he believes to

be suffering from occupational poisoning of occupational diseases listed in Third Schedule of

The Factory and Machinery Act 1967 or named in any regulation or order made by the

Minister 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 safety

and health officer, he has a power to inspect and examine any place of work and he also may

enter the residential place with the consent of the owner or if he has reasonable cause to

believe that a contravention of this Act. In the investigation, the officer may make

examination of any plant, substance, article or other thing in the place that he makes the

investigation and take such measurements, photographs and make recordings that may be

necessary to ascertain whether or not this Act has been complied with. Besides that, he also

can require any person employed in a place of work in which any of the diseases named in

the Third Schedule of the Factories and Machinery Act 1967, to be medically examined by a

medical officer or a registered medical practitioner.

8

If the officer found something that could be danger to the safety and health, he may

test the goods at any convenient place and at such reasonable time but not so as to damage or

destroy it and he also take possession of it and detain it for so long as is necessary to his

investigation. If there any serious obstruction in the execution of his duty, the officer may the

assistance of the police at any time.

Before the officer enter into the premises, under Section 40 of the act, the officer has

to given on oath to a Magistrate that there is reasonable cause for suspecting that there is in a

place of work or residential place any article, thing, book, document, plant, or art thereof

which has been used to commit an offence under this Act. Moreover, he shall issue a warrant

under his hand by virtue of which an officer named or referred to in the warrant may enter the

place of work or residential place at any reasonable time by day or night, and search for and

seize 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 and

forthwith, deliver a copy of the list signed by him to the occupier, or his agent present in the

premises, and if the premises are unoccupied the officer shall, post a list of the things seized

on the premises.

Under Section 45 of the act, an officer making an investigation may examine orally

any person who appears to him and the person is legally bound to answer all questions with

to the state of truth relating to the case put to him by the officer to be acquainted with the

facts and circumstances of the case but that the person may refuse to answer any question the

answer to which would have a tendency to expose him to a criminal charge or penalty or

forfeiture. In addition, a statement made by a person under this section shall be reduced into

9

writing and signed by him or affixed with his thumb print and he also shall been given an

opportunity to make any correction he may wish.

In addition, under Section 47 of the act, person who refuses access to a place of work

to an officer or a person assisting him, obstructs the officer in the exercise of his, fails to

produce any document required by the officer shall be guilty of an offence to a fine not

exceeding 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 serve

an improvement notice on the person under whose control the place of work and requiring the

person to take measures to remove the danger or rectify any defect within such period or

process shall not be operated even after the period of expiry of the notice until the danger has

been removed or the defect made good to the satisfaction of the officer. Furthermore, if the

goods is likely to cause immediate danger to life or property, the officer shall serve a

prohibition notice prohibiting the use or operation of the place of work, plant, substance or

process until such time that any danger posed is removed and the defect made good to the

satisfaction of the officer.

Besides that, under Section 49 (2) a person who without reasonable excuse fails to

comply with any improvement or prohibition notice issued shall be guilty of an offence and

shall be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not

exceeding five years or both.

10

Aggrieved person may appeal

Under Section 50 of Occupational Safety And Health Act 1994, a person who is

aggrieved by a notice issued by an officer under section 48 may, within thirty days from the

date of such notice, appeal to the Director General who may, after considering the appeal, by

order in writing confirm, revoke or vary the notice. Furthermore, is a person still aggrieved

with a decision of the Director General made under subsection (1) may, within thirty days

from the date of the decision, appeal to an appeal committee appointed by the Minister under

Section 63.

LIABILITY FOR OFFENCES

General penalty

Under Section 51 of the OSHA, a person who by any act or omission contravenes any

provision of this Act or any regulation made there under shall be guilty of an offence, he will

be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not

exceeding one year or both and, in the case of a continuing offence, to a fine not exceeding

one thousand ringgit for every day or part of a day during which the offence continues after

conviction.

Moreover, under Section 61 of the act, prosecutions in respect of offences committed

under this Act or any regulation made there under may, with the prior written consent of the

Public Prosecutor, be instituted and conducted by an occupational safety and health officer or

by an officer specially authorized in writing by the Director General subject to the provisions

of the Criminal Procedure Code.

11

MISCELLANEOUS

Duty to keep secret

Under Section 67 of the act, no person shall disclose any matter including any

manufacturing or commercial secret which has come to his knowledge or which he has

acquired while performing his duties under this Act. A person who contravenes the provision

of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not

exceeding twenty thousand ringgit or to imprisonment for a term not exceeding two years or

to both.

12

CONCLUSION

In conclusion, Occupational Safety And Health Act 1994 is one the good act

implemented in Malaysia because this act can be as a guideline to the employers and also

employees 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 in

connection with the activities of persons at work. So, everything that connected with the

safety or health at the workplace, the employers and employees can refer to this act to the

responsibilities that they should take at their workplace, the procedures of enforcement and

investigation and so forth.

13

Occupational Safety and Health Act (OSHA)

More Related Content

What's hot (20)

Viewers also liked (6)

Similar to Occupational Safety and Health Act (OSHA) (20)

Occupational Safety and Health Act (OSHA)