Osha Notes Part V

PART XII: LIABILITY FOR OFFENCES LIABILITY FOR OFFENSES General penalty A person who by any act or omission contravenes any provision of this Act or any regulation made thereunder shall be guilty of an offence, and if no penalty is expressly provided 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 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. Offenses committed by body corporate. Where a body corporate contravenes any provision of this Act or any regulation made thereunder, every person who at the time of the commission of the offence is a director, manager, secretary or other like officer of the body corporate shall be deemed to have contravened the provision and may be charged jointly in the same proceedings with the body corporate or severally, and every such director, manager, secretary or other like officer of the body corporate shall be deemed to be guilty of the offence. A person may be proceeded against and convicted under the provision of subsection (1) whether or not the corporation has been proceeded against or has been convicted under that provision. Offenses committed by trade union. Where a trade union by any act or omission contravenes any provision of this Act or any regulation made thereunder, every officer, employee and person purporting to act on the instruction of any officer of the trade union shall be deemed to have contravened the provision and may be charged jointly in the same proceedings with the trade union or severally, and every such officer, employee or person shall be deemed to be guilty of the offence. A person may be proceeded against and convicted under the provision of subsection (1) whether or not the trade union has been proceeded against or has been convicted under that provision. Offenses committed by agent. A person who would be liable under this Act or any regulation made thereunder to any penalty for anything done or omitted if the thing had been done or omitted by him personally shall be liable to the same penalty if the thing had been done or omitted by his agent. Defence. It shall be a defence if any proceedings against a person for an offence under this Act or any regulation made thereunder to satisfy the court that the offence was committed without his consent or connivance and that he exercised all such due diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances. Body corporate or trade union liable to fine Where a person convicted in respect of an offence under this Act or any regulation made thereunder is a body corporate or a trade union, it shall only be liable to the imposition of a fine provided therefor. Aiding and abetting. A person who aids or abets the commission of an offence under this Act shall be punished with the punishment provided for the offence. Safeguards against further personal liability. Subject to the provisions of this Act and any regulation made thereunder, no person shall incur any personal liability for any loss or damage caused by any act or omission by him in carrying out the duties under this Act or any regulation made thereunder, unless the loss or damage was occasioned intentionally or through recklessness or gross negligence. Civil liability not affected by Parts IV, V and VI. Nothing in Parts IV, V and VI and the relevant industry code of practice shall be construed as (a) conferring a right of action in an civil proceeding in respect of any contravention, whether by act or omission, of any provision of those Parts; (b) conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings; or (c) affecting the extent, if any, to which a right of action arises or civil proceedings may be taken with respect to breaches of duties imposed by other legislation in regard to safety and health. Onus of proving limits of what is practicable In any proceedings for an offence under this Act or any regulation made thereunder consisting of a failure to comply with a duty or requirement to do something so far as is practicable, or to use the best practicable means to do something, it shall be for the accused to prove that it was not practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement. Prosecutions Prosecutions in respect of offenses committed under this Act or any regulation made thereunder 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 provision of the Criminal Procedure Code. Compounding of offenses The Minister may, be order in the Gazette, prescribe any offence under this Act or any regulation made thereunder as an offence which may be compounded. The Director General may at any time before conviction compound any of the offenses prescribed under subsection (1) as an offence which may be compounded by collecting from the person reasonably suspected of having committed the offence a sum of money not exceeding the amount of the maximum fine to which the person would have been liable to if he had been convicted of the offence: Provided that the Director General shall not exercise his powers under this section unless the person in writing admits that he has committed the offence and requests the Director General to deal with the offence under this section. PART XIII: APPEALS APPEALS Appeal committees. (1) The Minister shall appoint appeal committees for the purpose of considering any appeal made under section 36 or 50. (2) An appeal committee shall consist of a Chairman to be appointed by the Minister from among members of the Council and two other persons to be appointed by the Minister who, in his opinion, have wide experience and knowledge in matters relating to the subject matter of the appeal. (3) Every member of an appeal committee may be paid an allowance at such rate or rates as the Minister may determine. Powers of appeal committee An appeal committee may, after hearing an appeal, confirm, revoke or vary an order made by the Director General under section 35, a decision made by the Director General under subsection 50(1), or an improvement or a prohibition notice issued by the Director General under section 48. An appeal committee shall decide and communicate expeditiously its decision to the person making the appeal. Decision of appeal committee The decision of an appeal committee shall be final and conclusive and shall not be questioned in any court. PART XIV REGULATIONS Regulations The Minister may make regulations for or with respect to the safety, health and welfare of persons at work in order to achieve the objects of this Act. In particular and without prejudice to the generality of subsection (1), such regulations may (a) regulate or prohibit • the manufacture, supply or use of any plant; • the manufacture, supply, storage, transport or use of any substance; and • the carrying on of any process or the carrying out of any operation; (b) prescribe the requirements with respect to the design, construction, guarding, siting, installation, commissioning, examination, repair, maintenance, alteration, adjustment, dismantling, testing, marking or inspection of any plant; (c) prescribe the requirements with respect to the examination, testing, analysis, labeling or marking of any substance; (d) prescribe the time and the manner in which employers or other specified persons are required to examine, text, analyze, label or mark any substance; (e) prescribe the requirements to abstain from eating, drinking or smoking in any circumstances involving risk of absorption of any substance or risk of injury or poisoning arising out of the use of any substance; (f) prescribe the requirements with respect to the instruction, training and supervision of persons at work; (g) prescribe the procedure for employers to notify any accident, dangerous occurrence, occupational poisoning or occupational disease; (h) prescribe the arrangements to be made with respect to the taking of any action or precaution to avoid, or in event of, any accident or dangerous occurrence; (i) prohibit or require the taking of any action in the event of any accident or dangerous occurrence; (j) prescribe the requirements with respect to the provision and use in specified circumstances of protective clothing or equipment and rescue equipment; (k) prescribe the standards in relation to the use of, including standards of exposure to, any physical, biological, chemical or psychological (l) regulate and require the monitoring by employers or occupiers of conditions at a place of work including the health of their employees; (m) secure the provision of adequate welfare facilities by employers for persons at work; (n) require the employers to keep and preserve records and other documents; (o) prescribe the composition, powers, functions and procedures of safety and health committees and regulate the election or appointment of members of the committees and other related matters; (p) prescribe the manner of holding inquiries under section 33 and of hearing appeals under section 36 or 50; (q) prescribe the fees payable or chargeable for doing any act or providing any service for the purposes of this Act or any regulation made thereunder; (r) prescribe the offenses which may be compounded and the method and procedure to be complied with: (s) prescribe the requirements for engaging a medical officer and the procedures for the registration of the medical officer; (t) prescribe the requirements for employing a safety and health officer, the training required of a safety and health officer and the procedures for registration; (u) prescribe any other matter which may appear to the Minister to be expedient or necessary for the better carrying out of the Act. PART XV MISCELLANEOUS Duty to keep secret Save for an inquiry under this Act or in any court proceedings relating to the commission of an offence under this Act or any regulation made thereunder, 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. EXAMPLES OF GOOD OSH PRACTICES EXAMPLES OF BAD OSH PRACTICES Office of Horrors