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MODULE 2: OCCUPATIONAL SAFETY AND HEALTH ACT 1994 (OSHA, ACT 514)

1. Historical background of OSH Act. The Occupational Safety and Health Act 1994 (Act 514) is a piece of Malaysian legislation which was gazettedon 25 February 1994 by the Malaysian Parliament. The principle of the Act is "To make further provision for securing that safety, health and welfare of persons at work, for protecting others against risks tosafetyor health in connection with the activities of persons at work, to establish theNational Council for Occupational Safety and Health and for matters connected therewith." The Act applies throughout Malaysia to the industries specified in the First Schedule. Nothing in this act shall apply to work aboard ships governed by the Merchant Shipping Ordinance 1952, the Merchant Shipping Ordinance 1960 of Sabah or Sarawakor the armed forces. 1878 - Appointment of First Steam Boiler Inspector 1892 - Selangor Steam Boiler Enactment 1903 - Perak Steam Boiler Enactment 1913 - Machinery Enactment - Machinery Inspector 1952 - Separation from Dept. Of Mines - Machinery Dept. 1953 - Machinery Ordinance 1967 - Factories and Machinery Acts, 1967 (Acts 139) 1968 - Industrial Health Unit 1970 - Factories and Machinery Dept. 1971 - Dissolution of Industrial Health Unit 1975 - Establish Industrial Hygiene 1985 - Establish Petroleum Safety Division 1991 - Establish Major Hazards Division 1992 - Establish NIOSH 1994 - OSHA 1994 - DOSH

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2. STRUCTURE OF LEGISLATION Occupational health and safety is a cross-disciplinary area concerned with protecting the safety, health and welfare of people engaged in work or employment. The goal of all occupational health and safety programs is to foster a safe work environment. As a secondary effect, it may also protect coworkers, family members, employers, customers, suppliers, nearby communities, and other members of the public who are impacted by the workplace environment. It may involve interactions among many subject areas, including occupational medicine, occupational (or industrial) hygiene, public health, safety engineering, chemistry, health physics. Malaysian organisations must have clear a picture of OSH at their workplace. Malaysian government is the sponsor of change. Where else DOSH, National Institute of Occupational Safety & Health (NIOSH), Malaysian Society of Occupational Safety & Health (MSOSH), Malaysian Occupational Safety & Health Professionals Association (MOSHPA), Malaysian Occupational Health Nurse Association (MOHNA), Malaysian Integrated Occupational Safety & Health Network (MIOSH net) and other OSH training provider are change agent. The industries are the change target. The government has shown their firm commitment by OSHA 1994 and its regulations. The government also has changed the Factory and Machinery Department to be the Department of Occupational Safety & Health. The government must communicating change toward safe and healthy workplace using all means of communication to educate and create the OSH awareness to the industries. At the same time DOSH play their role to do the enforcement. If we look within organisation or in other words in employees point of view, most of the employees resist to change towards OSH because of same reasons as mentioned above. Most of the employees misunderstand about OSH, some of them feel that OSH is trouble because they have to wear safety equipment, following safety procedure and so on.

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Level of Malaysian workers OSH awareness is still very lack as well as their knowledge regarding OSH. They tend to aware after any workplace accident or industrial diseases occurred. Most of the industries still not realise their present status of unsafe and unhealthy workplace, and they are also uncertain about the future, which is safe and healthy workplace. The efficient and effective communication system is essential in order to make organisation change towards safety and health.

The main question to be thrown to the industries is Why we need Safety and Health? The answer is simple, Prevention is better then cure. The industries need proper OSH management system to prevent accident and occupational diseases occur at workplace. Accident can end by fatalities, major or minor injuries and property damages. Where else occupational disease also may result acute or chronic health effects which will be ended by death, permanent or temporary disability. If accident occurs at workplace which involving fatalities or death of employee, the workplace will be seal by DOSH for accident investigation. DOSH has the authority to issue Stop Work Order (SWO) if they find that the workplace is unsafe and can cause severe accident. If the SWO applied at crucial or critical production process, it can cause losses to the organisation. For example, let say the value of daily production is RM 100,000.00, if DOSH applied 10 days SWO for fatalities accident investigation, the losses will be accumulated to be RM 1 million. This is direct production loss due to SWO by DOSH. How about cost of employees salary who is not working for 10 days? How about losses of business opportunity due to fail to fulfil customer order? The management must understand about the direct and indirect or hidden cost of accident in workplace. This scenario just to illustrate on how important is OSH at workplace. If the management understand about the importance of OSH, they will start changing towards safe and healthy workplace. Top management commitment is very important in order to make change successful. 3. The Act

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OSHA 94 have unique principles and philosophy such as : i. Duties of care ii. Committees iii. SHO iv. DOSH Officers, Improvement and Prohibition Notices The unique principle and philosophy in OSHA 1994 has open a wide window for organisational communication. The Acts required effective and efficient communication system in order to overcome resistance to change and to comply with it. There is no one perfect way to communicate change. Change is uncomfortable and adapting to change is messy. The organisation will feel a painless change experience. Why? Because tasks are easy to list, but behaviour and long-held habits are not easy to change. 4. Regulation The Act also provides for the Malaysian Minister to issue regulations to implement the Act more precisely. Regulations that have been issued are namely: Employers Safety and Health General Policy Statements (exception) Reg.1995 OSH (Safety and Health Committee) Regulations 1996 Control of Major Accident Hazards Regulations 1997 OSH (Classification, Packaging and Labelling of Hazardous Chemicals) reg.1997 Prohibition of use of Substance Order 1999 OSH (Use and Standards of Exposure of Chemicals Hazardous to Healths)Regulations 2000

The purpose of regulation is to detail specific requirements 5. Code of Practice. A code of conduct is a set of rules outlining the responsibilities of or proper practices (particularly in OSHE) for an individual or organization. Related concepts include ethical codes and honor codes. A OSH guideline is a document that aims to streamline particular processes according to a set routine. By definition, following a guideline is never mandatory (protocol would be a

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better term for a mandatory procedure). Guidelines are an essential part of the larger process of governance. 1. Guidance in complying with the Act 2. Evidence that legal requirements contravened 6. The importance of safety and health in Malaysia. The Department of Occupational Safety and Health (DOSH) under the Ministry of Human Resource is responsible to ensure that the safety, health and welfare of workers in both the public and private sector is upheld. DOSH is responsible to enforce the Factory and Machinery Act 1969 and the Occupational Safety and Health Act 1994. 1. 2. 3. 4. Scope Prescriptive Too Dependent on Government Accident Statistics

7. TABURAN TENAGA KERJA DI SEMUA SEKTOR PEKERJAAN

8. SCOPE OSHA 1994; SECT. 1 (2) (3) OSH Act 1994 applies throughout Malaysia to the industries, i.e. public services, statutory authorities of any economic activities listed in the First Schedule (table 1). The Act does not apply to work on board ships government by the Merchant Shipping Ordinance, 1952, the Merchant Shipping Ordinance 1960 of Sabah or Sarawak or the armed forces. 1. Person at work -

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2. In all economic activities including public and statutory authorities 3. Except on board ships or the Armed Forces

First Schedule (Subsection 1(2)) 1. Manufacturing 2. Mining and Quarrying 3. Construction 4. Agriculture, Forestry and Fishing 5. Utilities :(i) Electricity (ii) Gas (iii) Water; and (iv) Sanitary Services 6. Transport, Storage and Communication 7. Wholesale and Retail Trades 8. Hotels and Restaurants 9. Finance, Insurance, Real Estate and Business Services 10. Public Services and Statutory Authorities

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9. OBJECTIVE OF THE ACT OSHA 1994; SECT. 4 The Occupational Safety and Health Act 1994 is an Act to make further provisions for securing that safety, health and welfare of persons at work, for protecting others against risks to safety or health in connection with the activities of persons at work, to establish the National Council for Occupational Safety and Health, and for matters connected with it. The overall objectives are that; 1. to secure the safety, health and welfare of persons at work 2. to protect person (other than person at work) at a place of work against hazard 3. to promote the occupational environment adaptable to the persons physiological and psychological needs 4. to provide the means towards a legislative system based on regulations and industry codes of practice in combination with the provisions of the Act. 10. PHILOSOPHY AND GUIDING PRINCIPLES Responsibilities to ensure safety and health at the workplace lies with those who create the risk and with those who work with the risk 1. 2. 3. 4. Self-regulation Consultation Workers cooperation and Participation

Self-regulation is an integrated learning process, consisting of the development of a set of constructive behaviors that affect one's learning. These processes are planned and adapted to support the pursuit of personal goals in changing learning environments. Consultation is an object-oriented programming occurs when an object's method implementation consists of a message send of the same message to another constituent object. Get or ask advice -"They had to consult before arriving at a decision" Seek information -"refer to your notes" Confer: have a conference in order to talk something over; "We conferred about a plan of action"

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Advise professionally; "The safety committee can consults for the industry"

11. SALIENCE PROVISIONS Salience is the state or condition of being prominent. The Oxford English Dictionary defines salience as "most noticeable or important." The salience sections of OSHA 1994 were; 1. National Council for OSH 2. General duties of 3. Employers, self-employed 4. Designers, manufacturers and suppliers 5. Employees 6. Safety and Health Organisation 7. Reporting of accident, dangerous occurrence, occupational poisoning and disease 8. Prohibition of the Use of Plant or Substance 9. Industry Code of Practice 10. Enforcement and Investigation 11. Liability for offences 12. Appeals 13. Penalties 12. GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS (OSHA 1994; SECT. 15 (1) (2)) i. So far as is practicable a. provide and maintain plant and system of work b. make arrangements for the safe use, operation, handling, storage and transportation of substances and plant c. provide information, instruction, training and supervision d. provide and maintain place of work and means of access to and egress from any place of work e. provide and maintain working environment that is safe and without health risk and adequate welfare facilities ii. As is practicable practicable means practicable having regard to a) the severity of the hazard or risk in question; b) the state of knowledge about the hazard or risk and any way of removing or mitigating the
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hazard or risk; c) the availability and suitability of ways to remove or mitigate the hazard or risk; and d) the cost of removing or mitigating the hazard or risk; 13. OTHER DUTIES OF EMPLOYERS, SELF-EMPLOYED AND OCCUPIERS Formulate written statement of his policy on OSH. OSHA 1994; SECT. 16

According to Section 16 of OSH Act, except in such cases as may be prescribed, it shall be the duty of every employer and every self-employed person to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the safety and health at work of his employees and the organizations and arrangements for the time being in force for carrying out that policy and to bring the statement and any revision of it to the notice of all of his employees. The OSH policy demonstrates the company's concern, commitment and attempts to ensure safety and health of the employees. It acts as a basis for developing and implementing programmes for securing safety and health at the workplace. Conduct undertaking in such manner not to affect other persons not his employees Provide information to other persons on ways his undertaking may affect them OSHA 1994; SECT 17 & 18

14. GENERAL DUTIES OF DESIGNERS, MANUFACTURERS AND SUPPLIERS (plant and substance) OSHA 1994; SECT 21 (1). So far as is practicable 1. to ensure plant/substance is designed and constructed to be safe and without risk to health when properly used 2. arrange for carrying out testing and examination 3. adequate information 4. for designers and manufacturers - arrange for research to eliminate or minimize hazards 5. safe erection and installation

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15. GENERAL DUTIES OF EMPLOYEES (OSHA 1994; SECT 24 (1) (2) employee means a person who is employed for wages under a contract of service on or in connection with the work of an industry to which this Act applies and a) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the industry, whether such work is done by the employee at the place of work or elsewhere; b) who is employed by or through an immediate employer at the place of work of the industry or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the industry or which is preliminary to the work carried on in or incidental to the purpose of the industry; or c) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; Therefore the meaning of an employees are workers who are directly employed by the principal employer or through an immediate employer at the place of work or whose services are let on hire under a contract of service. 1. Reasonable care for safety and health of himself and others 2. Co-operate with employer and others 3. Wear and use PPE 4. Comply with instruction on OSH 15. SAFETY AND HEALTH ORGANISATION. Medical surveillance. Safety and Health Officer. Safety and Health Committee.

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16. REPORTING OF ACCIDENTS, DANGEROUS OCCURRENCES, OCCUPATIONAL POISONING AND DISEASES OSHA 1994; SECT. 32 (1) (2) Section 31 (FMA 1967) require occupier to report by quickest means to the nearest inspector the occurrence of any accident which:1. Cause death 2. Causes serious damage to property or machinery 3. Cause bodily injury that prevent a person from doing his normal work for more than 4 days 4. Any dangerous occurrence with the least possible delay submit a written report in prescribed form.(JKKP 6) Section 32(1) OSHA 1994 requires employer to notify the nearest OSH office if any of the following has occurred or is likely to occur:1. Accident 2. dangerous occurrence 3. occupational poisoning 4. occupational disease Section 32(2) OSHA 1994 requires every registered medical practitioner attending or visiting a patient whom he believes to be suffering form any diseases listed under FMA 1967 or any regulation made under OSHA 94 to report the matter to Director General

Employer to report to the nearest OSH officers of accidents, dangerous occurrence, occupational poisoning and diseases Medical officers to report on scheduled diseases in FMA
16. ENFORCEMENT AND INVESTIGATION OSHA 1994; SECT. 39. Section 5 (2) The Minister may appoint, from among public officers, such numbers of Deputy Directors General, Directors, Deputy Directors, Assistant Directors and other occupational safety and health officers as may be necessary for the purposes of this Act. The enforcement of Occupational Safety and Health Act 1994 is implemented by the Department of Occupational Safety and Health (DOSH) under the Ministry of Human Resources.

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The purpose of appointing public officers is to ensure that all powers, functions and duties under the Act can be carried out. Under this Act the Director General has been given the authority to appoint and pay a person or independent inspecting body from any industry to advise him in carrying out the objects of the Act. For example, he may appoint an independent body to investigate major accidents and give expert opinion, or carry out medical surveillance. 1. Director General of OSH 2. OSH officers 3. Certificate of authorization Power of DOSH Officer : 1. Enter and inspect any place of work 2. Enter with equipment and authorised persons 3. Take photos, measurements and samples 4. Require medical examinations if risk of prescribed disease 5. Question any person if necessary. Section 46 OSHA 1994 stated that the owner or occupier of, or employer at, 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. Therefore, all persons must assist the officer with entry, inspection, examination and enquiry 17. IMPROVEMENT AND PROHIBITION NOTICES OSHA 1994; SECT. 48 Section 47 stated that This section provides a list of offences in relation to the exercise of inspection duties by an officer such as refusal to allow an officer to gain access to a place of work, obstructing them from carrying out their duty, concealing information regarding accident sites, things or persons, failing to produce documents etc. Contravention can lead to prosecution and / or issue of either an :

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18. IMPROVEMENT NOTICES or PROHIBITION NOTICES Notice of Improvements (NOI) An officer may issue a notice of improvement to remedy the situation/danger/risk within a specified time when he considers that safety and health requirements in this Act or other relevant statutory provisions have been contravened. The officer must specify the section or legal requirement that is being breached an the reasons thereof must be given. The period allowed to remedy the fault must also be stated. Actions that may be necessary to put matters right should also be stated in the notice. Notice of improvement can be served on the person who is contravening the legal provision or it can be served on any person on whom responsibilities are placed whether he is an employer, an employed person or a supplier of equipment or materials. Work cannot go on during the notice period or until the situation/danger/risk is rectified unless the officer gives permission to do so. NOI is issued when there is no imminent danger. Notice of Prohibition (NOP) A notice of prohibition may be issued by an officer when there is a risk of serious injury or damage to person or property at the place of work. The notice prohibits work activity which increases the risk to injury from being carried out. This includes prohibiting the use of or operation of place of work, substances, plant or process at work when the risk of injury is considered imminent. The notice must state the matters that give rise to risk of serious personal injury and may include precautions/remedies/steps that should be taken to put matters right.
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The use of any plant or the activities shall only be continued after the remedial action specified in the notice has been taken. Notice of prohibition can be served on the spot on the person undertaking the activity or on the person in control of it at the time the notice was served. However, notices can also be served by post to the appropriate address. If the officer is not able to establish the correct name and address, the notice may simply be addressed to the owner or occupier of the premise. i. ii. iii. iv. v. Notices to person in control Time to comply given (improvement notices) Reason given, contravention explained Must comply with even if appeal Appeal, within 30 days to DG

19. OSHA LIABILITIES

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