Workplace Safety & Health Law (2019) · 2019-08-13 · Occupational Safety and Health Manager or...
Transcript of Workplace Safety & Health Law (2019) · 2019-08-13 · Occupational Safety and Health Manager or...
Conseil juridique. Conseil fiscal. Luther.
Workplace Safety &
Health Law (2019)
Mr Fabian LorenzLuther Law Firm Limited6 August 2019
Agenda.
I. About Luther
II. Relevant Laws, Rules & Regulations
III. Occupational Safety and Health Law (2019)
IV. Final Comments
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I. About Luther.
European law firm with Asian offices in Yangon, Singapore, Kuala Lumpur, Delhi-Gurgaonand Shanghai
Ca. 380 lawyers and tax advisors in Europe Ca. 300 lawyers, tax advisors and professionals in Asia In Yangon since 2013 with ca. 50 European and Myanmar lawyers, tax advisors,
accountants and professionals Provision of:
Legal advice Tax advice Incorporation services Corporate secretarial services
Accounting HR administration and payroll Cash, fund and payment
administration
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II. Laws, Rules & Regulations.
Legal System
Mix of common law principles, post-independence and political opening acts/laws Problem: Corporate governance and compliance issues
Regulatory Framework Employment
Employment in Myanmar governed by both old and new laws and regulations, as well as internal policies and practices of the Department of Labour
Many laws dating back to the colonial period and post-independence period still in force Since 2011, Myanmar has started reform process and is currently overhauling legal framework Existing laws were revised or replaced, and new laws enacted In practice, employment heavily influenced by the policies and practices of the Department of Labour
(offer interpretations, but also additional requirements)
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II. Laws, Rules & Regulations.
Notable Reforms (not exhaustive)
2012: New Foreign Investment Law
July 2015: Notification No. (84/2015) to the Settlement of Labour Dispute Law on Severance Payment
January 2016: Law Amending the Factories Act (1951) and new Shops and Establishment Law
October 2016: New Myanmar Investment Law November 2017: New Myanmar Companies Law July 2018: New Myanmar Companies Regulations October 2018: New Leave and Holidays Rules October 2018: New Shop and Establishments Rules March 2019: Occupational Safety and Health Law
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II. Laws, Rules & Regulations.
Relevant Employment & Labour Laws (not exhaustive)
Employment and Skills Development Law (2013) Employment Restriction Act (1959) Factories Act (1951) as amended 2016 Income Tax Law (1974) as amended by Union Tax Law 2017 Labour Organization Law (2011) Law on the Rights of Persons with Disabilities (2015) Law Relating to Overseas Employment (1999) Leave and Holidays Act (1951) as amended 2014 Minimum Wage Law (2013)
Occupational Safety and Health Law (2019)
Oilfields (Labour and Welfare) Act (1951) Payment of Wages Law (2016) Settlement of Labour Dispute Law (2012) as amended 2014 Shops and Establishment Law (2016) Social Security Law (2012) Workmen’s Compensation Act (1923) as amended 2005 Further, various sector-specific laws contain labour regulations
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II. Laws, Rules & Regulations.
Relevant Rules, Regulations & Policies (not exhaustive)
Instructions of the Factories and General Labour Law Inspection Department Labour Organization Rules (2012) Leave and Holidays Rules (2018) Minimum Wage Rules (2013) as amended in 2018 Ministry of Labour – Directive on Overtime Ministry of Labour – Notifications on Employment Contracts Ministry of Labour – Notifications on Minimum Wage Ministry of Labour – Notification on Severance Pay Ministry of Labour – Notifications on Official Employment Contract Templates Ministry of Labour – Official Work Rules Template Ministry of Labour – Official Pay Slip Template National Minimum Wage Committee Notification No. 2/2015 – Minimum Wage Settlement of Labour Dispute Rules (2010) Shops and Establishments Rules (2018)
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III. Occupational Safety and Health Law (2019)
12
2017Ministry of Labour published
comprehensive draft15 March 2019Union Parliament enacted Occupational Safety and Health Law
As various employment laws contain safety and health related provisions, government worked on unified framework for years
15 March 2019President of Myanmar signed the new law
To DateNot yet in force, subject to Notification to be issued by the President
History of the new Law
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III. Occupational Safety and Health Law (2019)
General Comments
Total of 17 Chapters
Various chapters focus on prevention (Chapter 16 - Managing the Preventive Works of OccupationalSafety and Health)
Compared to initial draft, scope of application much wider
New law will complement both the Factories Act (1951) and other prevailing laws, including the Shopsand Establishments Law (2016)
Any business must assess whether it is subject to the new law and carry out the necessary steps
Law shall help to establish, manage and maintain better working conditions, but is very vague
Note: No by-laws for the implementation have been published yet, it remains to be seen how it will beapplied in practice
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III. Occupational Safety and Health Law (2019)
Prevent and protect theoccupational hazards anddiseases in advance
Development of enterprises with good occupational
safety and health standards
Establish safe and healthy workplaces in accordance
with regional and international standards
ObjectsReduce and eliminate workplace accidents and occupational diseases
Implementation of workplace safety and health regulations for all industries
Protect workers and raise productivity
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What shall the new law help to achieve?
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III. Occupational Safety and Health Law (2019)
National Occupational Safety and Health Council
Members from ministries as well as employer organizations, labour organizations and experts
Functions: Laying down, assessing, reviewing and amending national policies and work plans;
Coordinating with Government departments/organizations and local/foreign organizations;
Determining occupational diseases/poisoning, dangerous occurrences, hazardous substances, dangerousmachinery, dangerous work and workplaces;
Collecting data on accidents, diseases and poisonings;
Directing education and training programs; and
Forming Appellate Committee and necessary Working Committees
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III. Occupational Safety and Health Law (2019)
Who will (not) be subject to the new law?
The law lists the following enterprises: Enterprises governed by the Shops and Establishments Law (2016); Manufacturing enterprises (governed by the Factories Act (1951)); Industrial enterprises; Construction enterprises; Engineering enterprises; Mineral extraction and processing, gems extraction and processing enterprises; Petroleum and natural gas enterprises; Port enterprises; Agricultural enterprise; Livestock breeding enterprise; Inshore or offshore fishery enterprise; Education service enterprise; Health care service enterprise; Communication enterprise; Transportation enterprise; Hotel and tourism service enterprise; and Enterprises and workplaces thereof as prescribed from time to time through notification
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III. Occupational Safety and Health Law (2019)
When you start a business, you must register!
Any enterprise relevant to the Occupational Safety and Health Law shall register with theFactory and General Labour Laws Inspection Department
According to the wording of the law, duty of either Proprietor; or
Director
Any person who wishes to carry out a construction, extension or demolition of buildings,placement, installation, addition or modification of machinery or equipment in enterprisesrelevant to the law, shall inform the Factory and General Labour Laws Inspection Department
Note: Registered enterprises shall inform the Factory and General Labour Laws InspectionDepartment upon finishing, closing, alteration of location, type of work or owner of theenterprises.
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III. Occupational Safety and Health Law (2019)
Company
Occupational
Safety and Health Committee
Occupational
Safety and Health Manager
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Occupational Safety and Health Manager or Committee - Forming
Depending on the size of its workforce, an enterprise shall appoint a manager or committee
While the law stipulates that managers shall be appointed and committees be formed in accordancewith the specifications of the Ministry of Labour, no further information (e.g. on qualificationrequirements, number of members) is provided
III. Occupational Safety and Health Law (2019)
Occupational Safety and Health Manager or Committee - Duties
For the Occupational Safety and Health Manager, law provides few details:
Shall ensure a safe and healthy workplace, observe this Law, rules, orders, directives andproducers issued under this Law
The Occupational Safety and Health Committee shall have the following duties:
Submitting the appraisal to the Committee’s meeting after regular examination of thesituation of impacting occupational safety and health;
Advising the employer to carry out prevention of occupational accidents and educating plans;
Upgrading the cooperation between employer and worker to give training for theimprovement of the occupational safety and health situation and to obtain contributions;
Supervising the assessment of relevant occupational safety and health hazards; and
Carrying out the occupational safety and health functions prescribed by the Ministry andDepartment
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III. Occupational Safety and Health Law (2019)
Duties of Employers
Similar to provisions of general Shops and Establishment Law (2016) and Factories Act (1951) Employers shall evaluate the level of hazard of machinery and equipment, process materials, organic
materials and chemical substances utilized in the workplace to avoid detrimental health effects, providetheir employees with the appropriate body protection and gear to avoid workplace accidents andoccupational diseases and implement protective, preventive and emergency response measures
Employers shall appoint medical practitioner and nurse and provide necessary medicine andcontributions in enterprises which have workers not less than the number prescribed by the Ministry ofLabour
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III. Occupational Safety and Health Law (2019)
Duties of Employers (continued)
Employers shall not dismiss or demote any employee for any of the following reasons: Workplace accident or occupational disease, before receiving a medical certificate from an accredited physician; Lodging a complaint concerning a safety or health hazard issue; Carrying out a function of the Workplace Safety and Health Committee; or Discontinuation of work due to an imminent workplace accident or occupational disease
Employers shall bear the costs of medical check-ups for employees who have suffered a workplaceaccident or occupational disease and are not covered under the Social Security Law (2012)
Manufacturers, Importers, Fitters, Builders or Demolishers of hazardous materials, machinery andequipment to be utilized in workplaces shall procure safety certificates issued by the relevantdepartments
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III. Occupational Safety and Health Law (2019)
Duties of Employees Similar to provisions of general Shops and Establishment Law (2016) and Factories Act (1951) Employees shall:
Use protective clothing, material and equipment systematically, as issued by the employer for occupational safetyand health in accordance with the specifications of the Department;
Follow the instruction and advice made for occupational safety and health by the employer or Occupational Safetyand Health Committee or Occupational Safety and Health Manager under this Law and rules issued under this Law;
Follow occupational safety and health instructions, conditions, signs, wall posters, notices and warnings; Use instruments, machines, machinery parts, vessels, electricity and other substances systematically in the
workplace; Carry out work affecting the safety and health of himself and other due to his act or failure; Cooperate with the employer and Occupational Safety and Health Manager in carrying out their duties under this
Law; In finding any situation, subject or occurrence that may affect occupational safety and health, inform the employer,
Occupational Safety and Health Manager or manager himself or through the immediate supervisor immediately; Although he may refuse to continue his work in a situation of imminent danger, he will not refuse to perform in a safe
workplace arranged by the employer; and For the safety and health of workers from respective workplace, elect the representatives to be able to commute and
cooperate in time each worker or with labour organizations
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III. Occupational Safety and Health Law (2019)
Who shall enforce the law?
The Ministry of Labour may appoint inspectors to carry out inspections and take actionagainst defaulting workplaces:
Must be independent!
Inspectors may not be employed by any enterprise relevant to the law
Inspectors may not engage in any business directly or indirectly connected thereto
Powers: Inspectors may at any time without need of warrant enter inspect and investigate any workplace
relevant to the law;
An inspector having reason to believe that a workplace constitutes a safety or health risk or poses athreat to any property shall notify the employer in writing; and
Business may be temporarily suspended or permanently shut down
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III. Occupational Safety and Health Law (2019)
Offenses and Penalties
In case of non-compliance with provisions of this law, Occupational Safety and HealthManagers, employers or employees may be punished with imprisonment or with a fine orwith both
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IV. Final Comments.
General lack of enforcement of laws in practice Enter into employment contract within 30 days of employment Registration with the Township Labour Office (5 or more employees) Foreign consultants must be employed or register a business in Myanmar Use employee handbooks providing details on practices, policies and
procedures Appoint/Form OSH Mangager/Committee as soon as possible Use mutual separation agreement to terminate an employee
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Mr Fabian Lorenz
Senior Associate / Attorney-at-law (Germany)
Luther Law Firm Limited
Luther Corporate Services Limited
Uniteam Marine Office Building, 8th Floor, Unit#1No. 84 Pan Hlaing StreetSanchaung Township, Yangon
Phone: +95 1 500 021Email: [email protected]
www.luther-services.com
Thank you for your attention.
Contact in Yangon:
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