14110434 Topic 2 Legal Requirements

7/22/2019 14110434 Topic 2 Legal Requirements

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INTRODUCTIONLegislative framework plays a significant role in ensuring the progress of safetypractices in any country. Without the governments initiatives, occupationalsafety and health (OSH) will not become a national agenda. Laws andregulations are not made for the sake of copying other countries. They are made

by the government to protect the people. In this case, the protection in place is forthe well-being of the workforce.

STATUTE LAW AND COMMON LAW

The law concerning safety and health is a combination of statute law andcommon law. This section will explain statute law and common law as well asthe difference between the two.

2.1.1 Statute Law

Statute law is the written law of a country consisting of Acts of Parliament,regulations and orders made within the parameters of a relevant subject in focus.

2.1

TTooppiicc Legal

Requirements

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4. Differentiate between the role of authority and the role of industry.3. Describe the fundamental concepts of OSH legislation; and2. Connect the law with safety objectives;1. Explain how legislations are enacted;

LEARNING OUTCOMES

By the end of this topic, you should be able to:


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TOPIC 2 LEGAL REQUIREMENTS 19

These Acts usually set out a framework of principles in the areas or issuesinvolved.

In order to achieve the objectives, Acts are supported by regulationsand orders.Regulations and orders are not necessarily written at the time the Acts wereintroduced. They are sometimes added in after the Acts are established toaccommodate new requirements.

2.1.2 Common Law

Common law has evolved over the years as a result of decisions by courts andjudges. The sector of common law related to OSH issues is known as tort ofnegligence. Some literature refers to it as Law of Tort. A tort is defined as a type

of civil offence. This is where the common principles fill the gap if and when astatute law does not supply any specific requirements.

For instance, the relationship between an employer and the employees is aspecial application of common law principles. Employers are responsible for thewell-being of their workers in their working environment. Employers are alsoliable for the actions of their employees that cause injury, death or damage toothers. This form of liability of the employer is known as vicarious liability.

2.1.3 Differences between Statute Law and CommonLaw

There are two essential differences betweenstatute law and common law. Theyare:

There is a penalty provided for a breach of a statute law regardless whetherdamage or loss has occurred or not; and

By common law, actions are decided only if there is damage or loss.

RELEVANT DOCUMENTS IN PRACTICE

2.2

2.2.1 Industry Codes of Practice (ICOP)

An ICOP supports Acts and regulations which are in place and also serves as aguideline on the general requirements set out in the legislation. Through itsapplication, ICOP enables legislation to be kept up to date by revising the ICOPrather than the law. ICOP can be used in proceedings.


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TOPIC 2 LEGAL REQUIREMENTS20

2.2.2 Guidelines

Guidelines are documents that present opinions on good practice. One mayapply what is suggested in the guide in his/her workplace. Guidelines have nolegal force. However, because they are developed based on industrial experience,they are persuasive in practice to the lower courts and in civil cases to establishreasonable safety standards (Holt, 2006).Locally, the Department of Occupational Safety and Health (DOSH) is a goodsource for published ICOPs and Guidelines.

STATUTORY DUTY

2.3

2.3.1 Acts and Regulations: Basic Knowledge

The Act Upon Parliaments Approval and Kings consent. The Regulation Upon Relevant Ministries Approval2.3.2 Main Legislative References

There are two main references involving OSH in Malaysia:

(i) Occupational Safety and Health Act 1994, Act 514. (OSHA 1994)(ii) Factories and Machinery Act 1967, Act 139. (FMA 1967)Apart from these two Acts, there are also other applicable or related Acts onconstruction and plant safety, namely:

(i) Explosive Act 1957.(ii) Social Security Act 1969.(iii)

Environmental Quality Act 1974.

(iv) Street Drainage and Building Act 1974.(v) Destruction Disease Bearing Insect Act 1975.(vi) Town and Country Planning Act 1976.(vii) Uniform Building By-Laws 1984.(viii)Fire Service Act 1988.(ix) Electrical Supply Act 1990.


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(x) Construction Industrial Development Board (CIDB) Act 1994.(xi) Waters Act 1920.(xii)

Forestry Act 1984.

(xiii)Other Acts which may depend on actual activities or location.Once a safety regulation is enforced, it means statutory obligation for thoseinvolved. Clauses with the word shall are indication that the particular itemsare absolute duty, also known as strict liability.

Some of the clauses are straightforward, directly focusing on behaviourcompliance or physical compliance as in the following examples:

It shall be the duty of every employee while at work to wear or use at alltimes personal protective equipment (PPE). (Part VI, Section 24(c), OSHA1994)

Every stairway opening except at the entrance thereto shall be fenced onevery exposed side by guard rails and toe-boards. (Reg8 (2), FM (SafetyHealth & Welfare) Regulations 1970.)

However, not all situations can have clear cut instructions like the examplesgiven as designs and work processes are becoming more complex. However, theconstant focus or primary objective in any working environment should always

be safety first.

Consequently, a question may be posed, To what extentare safety practices orcontrol measures required? This question is raised due to the wide range ofactivities plus varied scenarios in the construction industry. Imagine and blendall these together: time constraints, space constraints, fancy designs, differentworks at the same time, different works at the same area, works over water andso on. These are all elements in a construction industry that affect the safety andwell-being of workers.

Responding to the above question, 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 f r s is pr ctic ble, the safety, health andwelfare at work of all his employees.


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OSHA 1994 further elaborates so far as is practicable with these considerations:

The severity of the hazard or risk in question; The state of knowledge about the hazard or risk and any way of removing ormitigating the hazard or risk; The availability and suitability of ways to remove or mitigate the hazard or

risk; and

The cost of removing or mitigating the hazard or risk.

Explore DOSHs website where you can find Codes of Practice andGuidelines and other useful information. You can also downloadstandard forms used in dealing with DOSH. Share your findings withyour classmates.

ACTIVITY 2.1

1. What is vicarious liability?2. What are the differences between statute lawand common

law?

SELF-CHECK 2.1

3. So far as is practicable is typified with certain conditions. Whatare these conditions we need to consider?

REASONABLY PRACTICABLE VERSUSPRACTICABLE

2.4

In order to understand the requirements by legislation, you must firstunderstand these expressions:

So far as is reasonably practicable So far as is practicableIn Great Britain, Health and Safety Executive (HSE), an independent regulatorwhich acts in the public interest to reduce work-related death and serious injuryacross Great Britains workplaces, proposes that both expressions are not defined


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in the United Kingdoms Health and Safety at Work Act 1974, but they haverequired meanings through many interpretations by the courts (HSE, 1997).

2.4.1 So Far as is Reasonably Practicable

To carry out a duty so far as is reasonably practicable means that the degree ofrisk can be balanced against the time, trouble, costs and physical difficulty oftaking the measures to counter the risks (Health and Safety Guidance 65(HSG65), n.d.).

2.4.2 So Far as is Practicable

To carry out a duty so far as is practicable without the word reasonably,refers to a stricter standard compared with reasonably practicable. So far as ispracticablegenerally embraces whatever is technically possible.Also taken intoconsideration is the current knowledge which the person concerned has, or oughtto have had at that particular time. In the so far as is practicable case thetrouble time and costs are not to be taken into accountas considerations (HSG65, n.d.).

If we study the above view, HSG65s interpretation of so far as is practicable isstrict where the cost and other factors are immaterial.

Thus, if we compare HSG65s views with OSHA 1994, we may assume thatOSHA 1994 is a bit more flexible. It operates between the range of reasonablypracticable to practicable. This is because in OSHA 1994, so far as ispracticable also regards the costs involved. It allows employers to conduct a cost

benefit analysis. (Rozanah, 2005).

From the legal perspective, the final decision is for the court to decide whetheractions taken by an employer achieved so far as is practicable or not.

OVERVIEW OF OSHA 1994 AND FMA 19672.5

The existing laws governing plant and construction safety as well as occupationalsafety and health (OSH) were not created overnight. Hopefully, by goingthrough the history of the development of OSHA 1994 and FMA 1967, you willgain a better appreciation of the legislation governing plant and constructionsafety.


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2.5.1 Development of Local OSH Legislation

The Factories and Machinery Act 1967 (FMA 1967) was enacted in 1967. Since the

Act was enacted in the late 1960s, FMA 1967 might seem to be the earliest Actconcerning OSH in Malaysia. As a result, some might mistakenly think that OSHlegislations in Malaysia were only practiced or introduced in the late 1960s.

This assumption is incorrect. In reference to past records, FMA 1967 has its originfrom as early as 1876. Today, FMA 1967 is closely connected with theconstruction industry. One of the important references for construction found inFMA 1967 is known as Building Operations and Works of EngineeringConstruction Safety Regulations 1986 or in short, BOWEC.

Beginning as a simple rule to regulate the use of steam boilers, FMA 1967evolved into a more comprehensive legislation to cater to the complex OSHproblems prevailing today (Rozanah, 2009). The following is a chronology of theearlier 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)There are also records of the first oil well discovered in 1910 in Miri, Sarawak. Laterin 1914, a refinery plant was built (M. Sha, 1996). There were also records regardingthe management of health and safety of workers involved in these operations.


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From the evolution in the legislation concerning OSH, we can safely say thatoccupational safety and health is not a new concern in Malaysia and thelegislations on OSH in Malaysia are developed, enacted and amended from time

to time to ensure that they keep up with the changes in the industry.

2.5.2 Occupational Safety and Health Act 1994(OSHA 1994)

Those who produced hazards are those responsible to manage hazards.

OSHA 1994 adopts the Self Regulations Concept. However, it is important notto confuse self regulations with self-styled approaches in managing hazard.

Self-regulation provides freedom for the employers to plan and decide on howto manage their hazards. Self-regulating practices may exceed or operate withinthe scope of Acts requirements. In order to achieve the end objective,consultation and workers involvement are also part of OSHA 1994s philosophy.

The OSHA 1994 principle legislations are supported by rules, regulations andorders. Generally, it is not necessary for the supporting regulations to be createdin the enactment year itself. Therefore in OSHA 1994, you will find rules,regulations or orders with the indication of the year it was established.

The term OSHA mother act is another name for OSHA 1994, specifically in itsbasic form. OSHA 1994 grew up and gave birth to other related items suchas rules, regulations, orders or even schedules. As mentioned earlier, onlyministries approval are needed for all follow-up or new regulations.

2.5.3 Objectives of OSHA 1994

The objectives of OSHA 1994 (Act 514) are:

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 occupational environment adaptable to the persons physiologicaland psychological needs; and

To provide the means towards a legislative system based on regulations andindustry codes of practice in combination with the provisions of the Act.


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2.5.4 Arrangement of OSHA 1994This section shows the structure of OSHA 1994. OSHA 1994 is arranged in the

following sequence:

Part I Preliminary Part II Appointment of Officers Part III National Council for Occupational Safety and Health Part IV Duties of Employers and Self Employed Persons Part V General Duties of Designers, Manufacturers and Suppliers Part VI General Duties of Employees Part VII Safety and Health Organisations Part VIII Notification of Accidents, Dangerous Occurrence, Occupational

Poisoning and Occupational Diseases, and Inquiry

Part IX Prohibition Against Use of Plant or Substance Part X Industry Code of Practice Part XI Enforcement and Investigation Part XII Liability for Offences Part XIII Appeals Part XIV Regulations Part XV Miscellaneous2.5.5 Regulations and Orders Under OSHA 1994

As mentioned earlier, OSHA 1994 is also known as the OSHA mother act. Thismother act has given birth to the following regulations and order:

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; 1997 Safety and Health Officer Order 1997;


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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, OccupationalPoisoning and Occupational Disease Regulations 2004.

2.5.6 Factories and Machinery Act 1967 (FMA 1967)

In Malaysia, prior to OSHA 1994 enactment, FMA 1967 was the sole OSHlegislative reference pertaining to industries activities. However, FMA 1967 wasnot comprehensive enough to cover all industries and was quite descriptive andrigid in some way. Not all technical details in FMA 1967 were applicable to allsituations. Eventually, OSHA 1994 was enacted as the specific legislation togovern safety and health of all employees at all workplaces (Rozanah, 2009).

2.5.7 Objectives of FMA 1967

The objectives of FMA 1967 (Act 139) are: To provide for the control of factorieswith respect to:

matters relating to the safety, health and welfare of persons therein; the registration and inspection of machinery; and matters connected therewith.2.5.8 Arrangements of FMA 1967

This section shows the structure of FMA 1967. FMA 1967 is arranged in thefollowing sequence:

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 ofMachinery

Part VI General


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2.5.9 Regulations Under FMA 1967

There are fifteen regulations under FMA 1967. They are:

(i) Steam Boiler and Unfired Pressure Vessel, Regulations 1970.(ii) Electric Passenger and Goods Lift, Regulations 1970.(iii) Fencing of Machinery and Safety, Regulations 1970.(iv) Persons-In-Charge, Regulations 1970.(v) Safety, Health and Welfare, Regulations 1970.(vi) Administration, Regulations 1970.(vii) Certificates of Competency-Examinations, Regulations 1970.(viii)Notification, Certificate of Fitness and Inspection, Regulation 1970.(ix) Compoundable Offences, Regulations 1978.(x) Compounding and Offence, Rules 1980.(xi) Lead, Regulations 1984.(xii) Asbestos Process, Regulations 1986.(xiii)Building Operations and Works of Engineering Construction (Safety),

Regulations 1986.

(xiv) Noise Exposure, Regulations 1989.(xv) Mineral Dust, Regulations 1989.In 2006, FMA 1967 was amended. The new changes included those related to thedefinition of factory, regarding licensed person, certificate of fitness, revisedfees, notification of accident and a few others. Penalties and imprisonment termswere also increased. In this amendment, the maximum penalty that can beimposed stands at RM250,000 and maximum imprisonment term of up to fiveyears. The amendment involves 30 provisions including the introduction of newprovisions into the FMA 2006 (Rozanah, 2009).

However, even with these changes, the core contents and structure of FMA 1967generally remain as their original form.


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FMA 1967 was first enacted in 1967. Then in 1994, OSHA 1994 wasenacted. The general rule is, for any same issue referred, OSHA 1994supercedes FMA 1967. The reason is the latest legislation supercedesthe previous.

Now with the presence of FMA 1967 Amendments 2006, is there anypossibility of FMA superceeding OSHA? Discuss.

ACTIVITY 2.2

SELF-CHECK 2.2

1. What is reasonably practicable?2. List OSHA 1994 objectives.3. List FMA 1967 objectives.

PRACTICAL COMPLIANCE2.6

Practical compliance may range from behaviours and documentations to physicalcompliances. The complete discussion on practical compliance covers manydifferent aspects. However, in this subtopic, we will only discuss aspects that areconsidered as most appropriate. Some explanations are also summarisedaccordingly for easier memory retention. Thus, for an in-depth elaboration on thesubject of practical compliance, you are strongly advised to refer directly toOSHA 1994, FMA 1967 or other sources discussing legislative issues in-depth.2.6.1 Duties of Employer and Self-Employed Persons

For a clearer view on the duties of employers towards their employees, you canrefer to Section 15 OSHA 1994 while Section 17 explains employers dutiestowards those other than their employees.

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;


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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 adequatewelfare facilities; and

Provide safety and health protection and also relevant information asnecessary to other persons, not being their employees.

A maximum penalty of RM50,000 or 2 years imprisonment or both can beimposed for non-compliance.

2.6.2 Duties of an Occupier of a Place of WorkAccording to Section 18 OSHA 1994, the duties of an occupier of a place or work areto:

Provide safe access and egress Ensure safe use of plant and substance Include public safety Regulations39(1), FMA (Safety, Health and Welfare)

Regulations 1970.

A maximum penalty of RM50,000 or 2 years imprisonment or both can beimposed for non-compliance.2.6.3 Duties of Employees

According to Section 24 OSHA 1994, the duties of employees are to:

Cooperate with employers. Practise reasonable care for safety and health on himself and others. Wear and use personal protective equipment (PPE). Comply with instruction on OSH.A maximum penalty of RM1,000 or 3 months imprisonment or both can beimposed for non-compliance.

Note: Employers are not allowed to employ persons less than 16 years old. Formore information on young persons you can refer to Section 28, Pt. III FMA1967 and Section 28(c), Pt. VII OSHA 1994.


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2.6.4 Duties of Designers, Manufacturers andSuppliers

According to Section 21 OSHA 1994, the duties of designers, manufacturers andsuppliers are to:

(a) Ensure 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 asmay be necessary for the performance of the duty imposed on him by (a);and

(c) Provide adequate information.


2.6.5 Formulation of Safety and Health Policy(Section 16 OSHA 1994)

(subject to condition: if 5 or more employees)


2.6.6 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 beimposed for non-compliance.

2.6.7 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 beimposed for non-compliance.


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2.6.8 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 FirstSchedule-Serious Bodily Injury; Second Schedule-Dangerous Occurrence andThird Schedule-Occupational Poisoning and Disease.

Also refer to FMA Pt IV, Sect. 31. And, FMAs First Schedule-DangerousOccurrence, Second Schedule-Serious Bodily Injury and Third Schedule-Industrial Disease)

A maximum penalty of RM10,000 or 1 year imprisonment or both can beimposed for non-compliance.

2.6.9 Cooperation to Investigation/Inspection Officers(Section 47 OSHA 1994: Offences in Relation toInspection)

Owner or occupier or employer of any place of work need to provide assistancefor any:

Entry Inspection Examination InquiryA maximum penalty of RM10,000 or 1 year imprisonment or both can beimposed for non-compliance.

2.6.10 Regarding Improvement Notice and ProhibitionNotice (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 anNOI or NOP is issued, the employer is expected to take necessary correctiveactions within a stipulated period. Sometimes, an NOP is also referred to as aStop Work Order:


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Penalty for failure to comply with notice: Maximum RM50,000 or maximum 5years imprisonment or both andRM500 per day for continuous offence.

2.6.11 General Penalty

In the examples above, there are specific requirements with specific penaltiesmentioned. However, not all offences can be pointed out in detail.

What if one is found guilty for an offence, but there is no specific penaltyprovision for it?

The answer is General Penalty(Part XII Section 51, OSHA 1994).Fine not exceeding RM10,000 or imprisonment not exceeding 1 year or both andfine of RM1,000 per day for continuing offence.

What does this mean? It means any unsafe practice is always an offence,with the possibility of conviction. In conclusion, all safe practices are practicalcompliances.

POWER OF ENFORCEMENT OFFICERS

2.7

As mentioned earlier, enforcement officers may issue improvement notice or stopwork order for any non-compliance discovered. That is only a small part of theenforcement authority.


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Below are Sections from OSHA 1994 relating to the power of enforcementofficers:

Table 2.1: Power of Enforcement Officers According to OSHA 1994Section in OSHA Enforcement AuthoritySection 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 ofseizure.

Section 41 Regarding entry into premise without search warrant and powerof seizure.

Section 42 Regarding power of forceful entry.

Section 44 Regarding power of investigation.

Section 45 Regarding power to examine witness.

Section 48 Regarding NOI and NOP.

Section 48 to Section61

Regarding prosecutions.

Summarising the above, 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 (Holt, 2006).


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2.7.1 Occupational Safety and Health Officer versus.Safety and Health Officer (SHO)

Enforcement Officers are DOSH personnel who are appointed under Section 5(2)OSHA 1994. They are Occupational Safety and Health Officer/s, and arereferred to as officer in the Act. This officer interpretation includes theDirector General, Deputy Directors General, Directors, Deputy Directors andAssistant Directors of DOSH.

Meanwhile Safety and Health Officer/s are those who are appointed inrelation with Section 29 and Section 66(2) (t) OSHA 1994 and they are hired byindustries.

To distinguish between these two officers, remember that one is anoccupationalofficer while the other is not.2.7.2 Safety and Health Officer

As mentioned above, SHOs are hired by industries. There is a special clauseabout the hiring or employing of a Safety and Health Officer.In Section 29(3) it states that:

The safety and health officer shall be employed exclusively for the purpose ofensuring the due observance at the place of work of the provisions of this Actand any regulation made thereunder and the promotion of a safe conduct ofwork at the place of work.

In accordance with Section 18, SHO Regulations 1997, the job specifications of anSHO 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,

process, substance and others which may affect the safety and health ofworkers.

Investigate any incident. Assist the employer or Safety and Health Committee regarding OSH. As Secretary of Safety and Health Committee (SHC). Assist SHC in any safety inspection, effectiveness and efficacy of safety

measures taken in compliance with the Act.


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To collect, analyse and maintain safety statistics on accident, dangerousoccurrence, occupational poisoning and occupational disease occurring at theworkplace.

Assist any officer in carrying out his/her duty under the Act or in theregulations under the Act.

To carry out other instructions made by employer on any matters pertainingto safety and health.

FMA 1967 OVERVIEW2.8

Studying the mother act is helpful in understanding the birth of subsequent

regulations. This applies to both OSHA 1994 and FMA 1967.

In the FMA mother act, there are three important components which were latersupported by their respective regulations.

They are:

Safety, Health and Welfare (SHW) in Part II. Persons in Charge and Certificate of Competency in Part III. Notice of Occupation of Factory, and Registration and Use of Machinery in

Part V.

2.8.1 Safety, Health and Welfare

Among the issues mentioned in SHW are:

Safety of workers regarding physical hazards due to unsafe condition Safety of workers regarding hazards due to machine or equipment (i.e.

machinery as a potential root cause or latent cause of an accident)

Fire hazard Health issues and even an ergonomic issue (please refer to Section 12) PPE , welfare and facilities issues Persons Certificate of Fitness/Competency of employee (please refer to

Section 19).


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2.8.2 Persons in Charge and Competency

This section concerns the credibility of persons allowed to carry out certain

responsibilities and tasks. It focuses on the competency and certification of aperson and also prohibits certain machines to be operated without certificatedstaff (as in Section 29).

2.8.3 Notification of Occupation of Factory, andRegistration and Use of Machinery

This section is about matters pertaining to procedures prior to any industrialoperation. Those who are involved are required to fulfil and adhere with all

stipulated requirements before they are allowed to begin operations.

ADMINISTRATION AND PROCEDURESCOMPLIANCE2.9

There are several administrative procedures that has to be followed whendealing with OSH authorities. The following subtopic highlights the proceduresas well as documentation required for the related activities.

2.9.1 Application Procedures: DOSH Forms

The following are the related DOSH forms and its function:

JKJ 101 Notice of first occupation or use of any premise as factory underSection 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 EngineeringConstruction 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 steamboiler, unfiredpressure vessel or hoisting machine, not hoisting machine driven by manualpower.

JKJ 106 Notice of first use of machinery other than the machinery for whicha Certificate of Fitness is prescribed as required under Section 36(3) FMA.


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Note: For JKJ 103 there is no need to submit notification ifoperation is less than6 weeks and no machinery is used (Section 35(2) FMA). And the termmachinery is as defined in FMA.

2.9.2 NADOPOD Procedures: DOSH Forms

The following are the related DOSH forms related to NADOPOD procedures andits 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

2.9.3 CIDB Greencard Compliance

In accordance with 2001 CIDB Circular 1/2001, all personnel working at the

construction site need to possess the Greencard. Without a Greencard, one is notallowed to work at a construction site. A Greencard is to indicate a person hasattended a specially designed Safety and Health course for the constructionsenvironment. In this Greencard system, CIDB categorised ConstructionPersonnel 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.


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BUILDING OPERATIONS AND WORKS OFENGINEERING CONSTRUCTION (BOWEC)2.10

The official title for this regulation is the Factories and Machinery (BuildingOperations and Works of Engineering Construction) (Safety) Regulations, 1986.It is commonly referred to as BOWEC.

BOWEC Regulations are quite comprehensive as they cover almost every activityor item you can find in a constructions environment. Therefore, not allrequirements are covered here. Below is only the overview, and selected andcondensed information. Some relevant and important issues will be discussed inthe next topic.

2.10.1 Arrangement of Regulations

Part I PreliminaryPart II General ProvisionsAmong the provisions are:

Physical hazards including drowning; Tool and electrical hazards; Health hazards; Safe walkways; PPEs; Waste Disposal; Safety Personnel; and Safety Committee.Part III Concrete WorkAmong the provisions are: Professional Engineer (P.E.) designed formwork and reshores; Inspections of formworks; and Formwork stripping.


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Part IV Structural Steel and Precast Concrete AssemblyAmong the provisions are:

Instructions on safe methodology; Taglines; and Temporary flooring.Part V Cleaning Repairing and Maintenance of Roof Gutters WindowsLouvres and VentilatorsAmong the provisions are:

Work on steep roof; Roofing brackets; and Crawling board dimensions.Part VI Catch PlatformsAmong the provisions are:

P.E. Designed; Dimensions and minimum load capacity; and Details to conform with Code of Practice for Building Operation CodePart VII Chutes Safety Belts and NetsAmong the provisions are:

Provision on construction of chute. (If more than 12 metres, need P.E.Design);

Life lines and safety belts; and Storage and inspections.Part VIII Runways and RampsThe provisions are mainly regarding dimensions according to users. (i.e. vehicles,employees or wheel-barrow)

Part IX Ladders and Step-LaddersAmong the provisions are regarding secured footing and handhold.


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Part X ScaffoldsAmong the provisions are:

P.E. Design for metal tube scaffold exceeding 40 metres P.E. Design for other scaffold exceeding 15 metres Inspections by a competent person Supported by building Working platform safety Construction of tubular scaffoldPart XI DemolitionA very important requirement is that during demolition, continuing inspectionsby a designated person as the work progresses to detect any hazard due toweakened floors or walls or loosed materials.

Part XII Excavation WorkA very important requirement is that excavation site and its vicinity shall bechecked by a designated person after every rainstorm or other hazard-increasingoccurrence.

Part XIII Material Handling and Storage Use and DisposalThe provisions are mainly regarding safe method, requirement and dimensions.

Part XIV PilingOne of the requirements is daily inspection by a designated person before start ofwork.

Part XV Blasting and Use of ExplosivesAmong the provisions are:

Designated person Safe handling of explosives Audible warning before blastingPart XVI Hand and Power ToolsRegarding various tools s such as Electric/Pneumatic/Fuel/Hydraulic-poweredtools, hand tools and power-actuated tools.


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As far as legislation is concerned, all regulations are important. Butwhy did we not discuss CIMAH Regulations 1996 (Control ofIndustrial Major Accident Hazards) in this module? Think about it.

ACTIVITY 2.3

Statutory duty is a must-do duty. So far as is practicable is whatever is technically possible. All safe practices are practical compliance. Mother act gives the concept and directions, regulations give details. BOWEC is an important reference for construction activities.

Absolute duty

Acts and Regulations

BOWEC

Compliance

FMA and OSHA

Mother act

Practicable

Statutory


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1. List the duties of an employer.2. List three powers of Enforcement Officers.3. List three duties of an SHO.4. Explain briefly the development of local OSH legislation.5. Describe the Self Regulation Concept in OSHA 1994.6. Explain the duties of employees in Section 24, OSHA 1994.7. Explain briefly the difference between Occupational Safety and Health

Officer AND Safety and Health Officer (SHO).

8. List five (5) categorised Construction Personnel as in the CIDB GreenCard Circular 1/2001.

FMA 1967Holt, A.S.J., (2006). Principles of Construction Safety. Oxford: Blackwell.

HSG65, (1997). Successful Health and Safety Management. UK: HSE.

M. Sha, J., (1996) in Occupational Safety and Health in Malaysia. NIOSHMalaysia: 1996. (Compilation of Articles. Edited by Krishna Gopal Rampal &Noor Hassim Ismail.)

OSHA 1994

Rozanah, A.R., (2005). Duty to Provide Safety and Health Precautions at Work

So Far As Is Practicable: To What Extent This Limitation Exonerates TheEmployer From Strict Liability Offences Under The OSH Legislation? MasterBuilders 3rd Quarter 2005.

Rozanah, A.R., (2009). Development of Occupational Safety and HealthLegislation in Malaysia: With Special Reference to the Factories andMachinery (Amendment) Act 2006.The Law Review 2009, 7082.

14110434 Topic 2 Legal Requirements

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Transcript of 14110434 Topic 2 Legal Requirements