Osha Notes Part IV

PART VI: GENERAL DUTIES OF EMPLOYEES GENERAL DUTIES OF EMPLOYEES It shall be the duty of every employee while at work (a) 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; (b) 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 thereunder; (c) 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 (d) 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 thereunder. A person who contravenes the provisions of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding three months or to both. Duty not to interfere with or misuse things provided pursuant to certain provisions. 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. Duty not to charge employees for things done or provided No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of this Act or any regulation made thereunder. Discrimination against employee, etc No employer shall dismiss an employee, injure him in his employment, or alter his position to his detriment by reason only that the employee (a) makes a complaint about a matter which he considers is not safe or is a risk to health; (b) is a member of a safety and health committee established pursuant to this Act; or (c) exercises any of his functions as a member of the safety and health committee. No trade union shall take any action on any of its members who, being an employee at a place of work (a) makes a complaint about a matter which he considers is not safe or is a risk to health; (b) is a member of a safety and health committee established pursuant to this Act; or (c) exercises any of his functions as a member of the safety and health committee. 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. 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: (a) 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; (b) an order that the employee be reinstated or reemployed in his former position or, where that position is not available, in a similar position. PART VII: SAFETY & HEALTH ORGANIZATIONS SAFETY AND HEALTH ORGANIZATIONS Medical surveillance. Where it appears to the Minister that in any of the industries or class or description of industries (a) cases of illness have occurred which he has reason to believe may be due to the nature of the process or other conditions of work; (b) by reason of changes in any process or in the substances used in any process or, by reason of the introduction of any new process or new substance for use in a process, there may be risk of injury to the health of persons employed in the process; (c) persons below the age of sixteen years are or are about to be employed in work which may cause risk of injury to their health; or (d) there may be risk of injury to the health of persons employed in any of the occupations specified in the Third Schedule, or from any substance or material brought to the industries to be used or handled therein or from any change in the conditions in the industries, He may make regulations requiring such reasonable arrangements as may be specified in the regulations to be made for the medical surveillance and medical examination, not including medical treatment of a preventive character, of the persons or any class of persons employed in the industries or class or description of industries. Regulations made under this section may require the medical surveillance to be carried out by persons registered with the Director General, and may prescribe the qualifications and other conditions which are to be satisfied in order to be registered for the purpose of this section. A person who contravenes the provisions of this section or any regulation made thereunder shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding six months or to both. Safety and health officer This section shall apply to such class or description of industries as the Minister may, by order published in the Gazette, specify. An occupier of a place of work to which this section applies shall employ a competent person to act as a safety and health officer at the place of work. 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. The safety and health officer shall possess such qualifications or have received such training as the Minister may, by notification in the Gazette, from time to time prescribe.An occupier who contravenes the provisions of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to a term of imprisonment not exceeding six months or to both. Establishment of safety and health committee at place of work Every employer shall establish a safety and health committee at the place of work accordance with this section if (a) there are forty or more persons employed at the place of work; or (b) the Director General directs the establishment of such a committee at the place of work. The composition of a safety and health committee established under subsection (1), the election or appointment of persons to the committee, the powers of the members of the committee, and any other matter relating to the establishment or procedure of the committee shall be as prescribed . Every employer shall consult the safety and health committee with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the safety and health at the place of work of the employees, and in checking the effectiveness of such measures. A person who contravenes the provisions of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding six months or to both. Functions of safety and health committee The safety and health committee established at a place of work pursuant to section 30 (a) shall keep under review the measures taken to ensure the safety and health of persons at the place of work; (b) shall investigate any matter at the place of work (i) which a member of the committee or a person employed thereat considers is not safe or is a risk to health; and (ii) which has been brought to the attention of the employer; (c) shall attempt to resolve any matter referred to in paragraph (b) and, if it is unable to do so, shall request the Director General to undertake an inspection of the place of work for that purpose; and (d) shall have such other functions as may be prescribed. PART VIII: NOTIFICATION OF ACCIDENTS, DANGEROUS OCCURRENCE, OCCUPATIONAL POISONING AND OCCUPATIONAL DISEASES, AND INQUIRY NOTIFICATION OF ACCIDENTS, DANGEROUS OCCURRENCE, OCCUPATIONAL POISONING AND OCCUPATIONAL DISEASES, AND INQUIRY An employer shall notify the nearest occupational safety and health office of any accident, dangerous occurrence, occupational poisoning or occupational disease which has occurred or is likely to occur at the place of work. Every registered medical practitioner or medical officer attending to, or called in to visit, a patient whom he believes to be suffering from any of the diseases listed in the Third Schedule of the Factories and Machinery Act 1967, or any disease named in any regulation or order made by the Minister under this Act, or occupational poisoning shall report the matter to the Director General. Director General may direct inquiry to be held. • If in the opinion of the Director General, an inquiry ought to be held into the nature and cause of the accident, dangerous occurrence, occupational poisoning or occupational disease, he may cause such an inquiry to be held by an occupational safety and health officer. • The Director General may appoint one or more persons of engineering, medical or other appropriate skills or expertise to serve as assessors in any such inquiry. • Every person not being a public officer serving as an assessor in the inquiry may be paid an allowance at such rate or rates as the Minister may determine. Power of occupational safety and health officer at inquiry. For the purpose of holding an inquiry under this Act, an occupational safety and health officer shall have the power to administer oaths and affirmations, and shall be vested with the powers of a First Class Magistrate for compelling the attendance of witnesses and the production of documents, maintaining order and otherwise duly conducting the inquiry, and all persons summoned to attend the inquiry shall be legally bound to attend. PART IX: PROHIBITION AGAINST USE OF PLANT OR SUBSTANCE PROHIBITION AGAINST USE OF PLANT OR SUBSTANCE Notwithstanding any written law to the contrary, the Director General may by order published in the Gazette prohibit the use of any plant or substance which in his opinion is likely to affect the safety and health of persons and work.Where the Director General proposes to exercise his power under subsection (1) he shall, before making the order, consult any Government department or other body which appears to him to be appropriate. Aggrieved person may appeal. A person who is aggrieved by an order made under subsection 35(1) may, within thirty days of the order, lodge an appeal with the secretary to the Council who shall transmit the appeal to an appeal committee appointed by the Minister under section 63. PART X: INDUSTRY CODE OF PRACTICE INDUSTRY CODES OF PRACTICE The Minister may, upon the recommendation of the Council or the Director General, approve industry codes of practice comprising such directions as may appear to him to be necessary or proper for the guidance of persons in complying with the requirements of the provisions of this Act. The Minister may, upon the recommendation of the Council or the Director General, from time to time revise the industry codes of practice by amending, deleting, varying or adding to the provision of the industry codes of practice. An industry code of practice may (a) consist of any code, standard, rule, specification or provision relating to occupational safety or health approved by the Minister; or (b) apply, incorporate or refer to any document formulated or published by any body or authority as in force at the time the industry code of practice is approved or as amended, formulated or published from time to time. (4) The Minister shall cause to be published in the Gazette the approval of an industry code of practice and the amendment or revocation thereof. Use of industry codes of practice in proceedings In any proceedings under this Act or any regulation made thereunder in which it is alleged that a person has contravened or failed to comply with a provision of the Act or any regulation made thereunder in relation to which an approved industry code of practice was in effect at the time of the alleged contravention or failure (a) the approved industry code of practice shall be admissible in evidence in the proceedings; and (b) if the court is satisfied in relation to any matter which it is necessary for the prosecution to prove in order to establish the alleged contravention or failure that (i) a provision of the approved industry code of practice is relevant to the matter; and The person failed at any material time to observe the provision of the approved industry code of practice, the matter shall be taken as proved unless the court is satisfied that in respect of the matter the person complied with a provision of the Act otherwise than by way of observance of the provision of the approved industry code of practice. ENFORCEMENT AND INVESTIGATION Powers of entry, inspection, examination, seizure, etc An occupational safety and health officer, in this Part referred to as the "officer", may, for the purpose of carrying out the objects of this Act or any regulation made thereunder, at any reasonable time and upon the production of his certificate of authorization enter, inspect and examine any place of work other than a place used solely for residential purposes; Provided that he 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 or any regulation made thereunder has or is likely to be committed. In exercising his powers under subsection (1), an officer may (a) make examination and investigation of any plant, substance, article or other thing whatsoever as may be necessary to ascertain whether or not this Act or any regulation made thereunder has been complied with; (b) direct that the place of work or any part thereof, or anything therein, shall be left undisturbed, whether generally or in particular respects, for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (a); (c) take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (a); (d) take samples of any article or substance found in the place of work which he has power to enter, and of the atmosphere in or in the vicinity of the place of work; (e) 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 or any disease named in any regulation or order made by the Minister under this Act has occurred or is likely to occur, to be medically examined by a medical officer or a registered medical practitioner. Where an officer is of the opinion that a plant or substance has caused or is likely to cause a danger to safety and health, he may (a) cause it to be dismantled or subjected to any process or test at any convenient place and at such reasonable time as he may appoint, but not so as to damage or destroy it: (b) take possession of it and detain it for so long as is necessary for all or any of the following purposes; (i) to examine it and do to it anything which he has power to do; (ii) to ensure that it is not tampered with before his examination of it is completed; (iii) to ensure that it is available for use as evidence in any proceedings for an offence under any of the provisions of this Act or regulation made thereunder. Where an officer is a medical officer he may (a) carry out such medical examination as may be necessary for the purposes of his duties under this Act or regulation made thereunder; and (b) exercise such other powers as may be necessary or are conferred under subsections (2) and (3). An officer may for the purposes of this section seek whenever necessary the assistance of the police if he has reasonable cause to apprehend any serious obstruction in the execution of his duty. Without prejudice to subsection (5), on entering any place of work or residential place by virtue of subsection (1), an officer may bring with him (a) any other person duly authorized by the Director General; or (b) any equipment or material required for any purpose for which the power of entry is being exercised. Entry into premises with search warrant and power of seizure In every case where information is 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, substance, installation or part thereof which has been used to commit or is intended to be used to commit an offence under this Act or any regulation made thereunder, 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. Entry into premises without search warrant and power of seizure Where an officer is satisfied upon information received that he has reasonable grounds for believing that, by reason of delay in obtaining a search warrant, any article, thing, book, document, plants, substance, installation or part thereof in a place of work or residential place used to commit or intended to be used to commit an offence under this Act or any regulation made thereunder is likely to be removed or destroyed, he may enter the place of work or residential place without a warrant and seize or seal the article, thing, book, document, plant, substance, installation or part thereof found therein: Provided that it shall be an offence for a person without lawful authority to break, tamper with or damage the seal or remove the article, thing, book, document, plant, substance, installation or part thereof or to attempt so to do. Power of forceful entry and service on occupier of signed copy of list of things seized from premises. An officer may, in the exercise of his powers under section 40 or 41, if it is necessary so to do (a) break open any outer or inner door of a place of work or residential place and enter thereinto; (b) forcibly enter the place and every part thereof; (c) remove by force any obstruction to entry, search, seizure and removal as he is empowered to effect; and (d) detain every person found in the place until the place has been searched. The officer 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, or as soon as is practicable, deliver a copy of the list signed by him to the occupier, or his agent or servant present in the premises, and if the premises are unoccupied the officer shall, wherever possible, post a list of the things seized on the premises. Further provisions in relation to inspection Upon entering any place of work an officer shall take all reasonable steps to notify the employer and the safety and health committee of the entry. Upon concluding an inspection, an officer shall give to the employer and the safety and health committee information with respect to his observations and any action he proposes to take in relation to the place of work. Where an officer proposes to take and remove a sample from a place of work for the purposes of analysis, he shall notify the employer and the safety and health committee and after having taken the sample he shall where possible (a) divide the sample taken into as many parts as are necessary and mark and seal or mark and fasten up each part in such a manner as its nature will permit; (b) if required by the employer or the safety and health committee, deliver one part each to the employer or the safety and health committee (c) retain one part for future comparison; and (d) if an analysis of the sample is to be made, submit another part to an analyst for analysis. Power of investigation. An officer shall have the power to investigate the commission of any offence under this Act or any regulation made thereunder An officer may, in relation to any investigation in respect of an offence committed under this Act or any regulation made thereunder, exercise the special powers in relation to police investigation except that the power to arrest without warrant given by the Criminal Procedure Code in any seizable offence may not be exercised by him. Upon completion of his investigation, the officer shall immediately give all information relating to the commission of the offence to an officer in charge of a police station and a police officer may, by warrant, arrest any person who may have committed an offence under this Act or any regulation made thereunder. Power to examine witnesses An officer making an investigation under section 39 or 44 may examine orally any person who appears to him to be acquainted with the facts and circumstances of the case The person referred to in subsection (1) shall be legally bound to answer all questions relating to the case put to him by the officer: Provided that the person may refuse to answer any question if the officer fails or refuses on demand to produce to him the certificate of authorization issued by the Director General to the officer under subsection 7(1): Provided further that the person may refuse to answer any question to which would have a tendency to expose him to a criminal charge or penalty or forfeiture A person making a statement under this section shall be legally bound to state the truth whether or not the statement is made wholly or partly in answer to questions. An officer obtaining information from a person shall first inform the person of the provisions of subsections (2) and (3). A statement made by a person under this section shall, whenever possible, be reduced into writing and signed by him or affixed with his thumb print, as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any correction he may wish. Where an officer uses the assistance of an interpreter, any inquiry or requisition to a person made on behalf of the officer by the interpreter shall, for all purposes, he deemed to have been actually made by the officer, and any answer thereto made to the interpreter shall be deemed to have been actually made to the officer. Employer, etc., to assist officer The owner or occupier of, or employer, any place of work and the agent or employee of the owner, occupier or employer shall provide such assistance as the officer may require for any entry, inspection, examination or inquiry or for the exercise of his powers under this Act. Offenses in relation to inspection. A person who (a) refuses access to a place of work to an officer or a person assisting him; (b) obstructs the officer in the exercise of his powers under this Act or any regulation made thereunder, or induces or attempts to induce any other person to do so; (c) fails to produce any document required under this Act by the officer; (d) conceals the location or existence of any other person or any plant or substance from the officer; (e) prevents or attempts to prevent any other person from assisting the officer; or (f) in any other way, hinders, impedes or opposes the officer in the exercise of his powers under this Act or any regulation made thereunder, shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one year or to both. Improvement notice and prohibition notice If an officer is of the opinion that a place of work, plant, substance or process is likely to be a danger, or is likely to cause bodily injury or is a serious risk to the health of any person, or is likely to cause damage to any property, he shall serve an improvement notice on the person under whose control the place of work, plant, substance or process lies, requiring the person to take measures to remove the danger or rectify any defect within such period as he shall therein specify, and in every such case the place of work, plant, substance or process shall not be used or 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. If an officer is of the opinion that the defect in subsection (1) is likely to cause immediate danger to life or property, he 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. An improvement notice or a prohibition notice under subsection (1) or (2) shall (a) state that the officer is of the opinion that in respect of the plant, substance or process at the place of work, there is occurring or may occur an activity which is or is likely to be a danger or is likely to cause bodily injury or a serious risk to the health of any person or is likely to cause damage or is likely to cause immediate danger to life or property, and state the reasons for the opinion; and (b) where in the officer's opinion the activity concerned is a contravention or is likely to be a contravention of any provision of this Act or any regulation made thereunder, specify the provision and state the reasons for the opinion. An officer may include in an improvement notice or a prohibition notice directions as to the measures to be taken to remove any danger, likely danger, risk, matter or activity to which the notice relates and the directions may refer to any approved industry code of practice. Without prejudice to the provision of subsection (2) an officer may, if he considers it necessary, proceed to render inoperative the place of work, plant, substance or process by any means he may deem best suited for the purpose. Where such an action is taken by the officer under subsection (5) he may, if he deems fit, recover the cost of the action from the occupier or person having responsibility or control of the place of work, plant, substance or process. Penalty for failure to comply with notice A person to whom an improvement or a prohibition notice is issued under section 48 must comply with the same notwithstanding that an appeal against its issuance has been lodged. A person who without reasonable excuse fails to comply with any improvement or prohibition notice issued under section 48 shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both, and to a further fine of five hundred ringgit for each day during which the offence continues. Aggrieved person may appeal. 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. A person who is 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. Where an improvement or a prohibition notice is issued by the director General or the Deputy Director General in the exercise of the powers conferred under section 48, the appeal shall be made to an appeal committee appointed by the Minister under section 63.