OCCUPATIONAL SAFETY AND HEALTH ACT 1994

1 PART I PRELIMINARY-1. Short title and application.

(1) This Act may be cited as the Occupational Safety and Health Act 1994 .

(2) Subject to subsection (3), this Act shall apply throughout Malaysia to the industries specified in the First Schedule.

(3) Nothing in this Act shall apply to work on board ships governed by the Merchant Shipping Ordinance 1952 [Ord. No. 70 of 1952] , the Merchant Shipping Ordinance 1960 of Sabah [Sabah Ord. No. 11 of 1960] or Sarawak [Sarawak Ord. No. 2 of 1960] or the armed forces.

2 PART I PRELIMINARY-2. Prevailing laws.

(1) The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other written law relating to occupational safety and health.

(2) In the event of any conflict or inconsistency between the provisions of this Act and that of any other written law pertaining to occupational safety and health, the provisions of this Act shall prevail and the conflicting or inconsistent provisions of such other written law shall, to the extent of the conflict or inconsistency, be construed as superseded.

3 PART I PRELIMINARY-3. Interpretation.

(1) In this Act, unless the context otherwise requires:

"contract of service" means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;

"Council" means the National Council for Occupational Safety and Health established under section 8;

"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
4 PART I PRELIMINARY-4. Objects of the Act.

The objects of this Act are:

(a) to secure the safety, health and welfare of persons at work against risks to safety or health arising out of the activities of persons at work;

(b) to protect persons at a place of work other than persons at work against risks to safety or health arising out of the activities of persons at work;

(c) to promote an occupational environment for persons at work which is adapted to their physiological and psychological needs;

(d) to provide the means whereby the associated occupational safety and health legislations may be progressively replaced by a system of regulations and approved industry codes of practice operating in combination with the provisions of this Act designed to maintain or improve the standards of safety and health.

5 PART II APPOINTMENT OF OFFICERS-5. Appointment of officers.

(1) The Minister shall appoint a public officer to be the Director General of Occupational Safety and Health, in this Act referred to as the "Director General", for the purpose of exercising the powers, performing the functions and discharging the duties assigned to him under this Act.

(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.

(3) If for any reason the Director General is unable to exercise the powers or discharge the duties of his office, the power shall be had and may be exercised and the duties shall be discharged by the Deputy Director General.

(4) Subject to such limitations as may be prescribed by regulations made under Part XIV of this Act, an officer appointed under subsection (2) shall perform all the duties imposed,
6 PART II APPOINTMENT OF OFFICERS-6. Appointment of independent inspecting body.

(1) The Director General may, as he deems fit, appoint a person or an independent inspecting body from any of the industries to advise or assist him in carrying out the objects and purposes of this Act.

(2) A person or an independent inspecting body appointed under subsection (1) shall be paid such allowance, fee or reimbursement as the Minister may determine.

(3) An officer appointed under subsection 5(2) and a person or an independent inspecting body appointed under subsection (1) shall be subject to the control, direction and supervision of the Director General.

(4) The Director General and all officers appointed under subsection 5(2), and a person or an independent inspecting body appointed under subsection (1), shall be deemed to be public servants within the meaning of the Penal Code.

7 PART II APPOINTMENT OF OFFICERS-7. Certificate of authorisation.

(1) The Director General shall issue to every officer appointed under this Act a certificate of authorization which shall be produced on demand to the occupier or any person in charge of a place of work which the officer intends to enter pursuant to this Act.

(2) In the case of the Director General, his certificate of authorization shall be issued by the Minister.

8 PART III NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH-8. Establishment of the Council.

There shall be established a council called the "National Council for Occupational Safety and Health".

9 PART III NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH-9. Membership of the Council.

(1) The Council shall consist of not less than twelve and not more than fifteen members who shall be appointed by the Minister, of whom:

(a) three persons shall be from organisations representing employers;

(b) three persons shall be from organisations representing employees;

(c) three or more persons shall be from Ministries or Departments whose responsibility is related to occupational safety and health; and

(d) three or more persons, of whom at least one shall be a woman, shall be from organisations or professional bodies the activities of whose members are related to occupational safety and health and who, in the opinion of the Minister, are able to contribute to the work of the Council.

(2) The Minister shall appoint from among the persons mentioned in subsection (1) a Chairman and a Deputy Chairman of the Council.

10 PART III NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH-10. Second Schedule to apply.

The provisions of the Second Schedule shall apply to the members of the Council.

11 PART III NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH-11. Powers and functions of the Council.

(1) The Council shall have power to do all things expedient or reasonably necessary for or incidental to the carrying out of the objects of this Act.

(2) The Council may, and when requested by the Minister to do so shall, carry out investigations and make reports and recommendations to him with regard to any matter relating to the objects of this Act and, in particular, but without prejudice to the generality of the foregoing provisions, with regard to:

(a) changes it considers desirable to occupational safety and health legislation;

(b) the improvement of the administration and enforcement of occupational safety and health legislation;

(c) the fostering of a co-operative consultative relationship between management and labour on the safety, health and welfare of persons at work;

(d) the special problems with respect to occupational safety, health and welfare of wo
12 PART III NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH-12. Appointment of secretary to the Council.

(1) The Minister shall appoint a public officer from the office of the Director General to be the secretary to the Council.

(2) The Council may, with the approval of the Minister, arrange for the use of the services of any staff or facility of the office of the Director General.

13 PART III NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH-13. Committees.

(1) The Council may:

(a) establish committees in respect of different industries for the purpose of assisting the Council to perform its functions in relation to industry codes of practice; and

(b) establish such other committees as it thinks fit for the purpose of assisting the Council to perform its other functions.

(2) A committee shall consist of such number of persons as may be appointed by the Council from among its members.

(3) Notwithstanding the provision of subsection (2), the Council may invite any person or a representative of any organisation to advise a committee established under subsection (1) in the carrying out of its functions.

(4) A person appointed under subsection (2) or invited to be a member of a committee under subsection (3) may be paid such allowance as may be determined by the Council with the approval of the Minister.

14 PART III NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH-14. Annual report.

The Council shall, as soon as practicable, after the 30th June but before the 31st December of each year, prepare and forward to the Minister a report of its activities for a period of twelve months ending on the 30th June of each year.

15 PART IV GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS-15. General duties of employers and self-employed persons to their employees.

(1) It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare to work of all his employees;

(2) Without prejudice to the generality of subsection (1), the matters to which the duty extends include in particular:

(a) the provision and maintenance of plant and systems of work that are, so far as is practicable, safe and without risks to health;

(b) the making of arrangements for ensuring, so far as is practicable, safety and absence of risks to health in connection with the use or operation, handling, storage and transport of plant and substances;

(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is practicable, the safety and health at work of his employees;

(d) so far as is practicable, as regards any place of work under th
16 PART IV GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS-16. Duty to formulate safety and health policy.

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 organisation 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.

17 PART IV GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS-17. General duties of employers and self-employed persons to persons other than their employees.

(1) It shall be the duty of every employer and every self-employed person to conduct his undertaking in such a manner as to ensure, so far as is practicable, that he and other persons, not being his employees, who may be affected thereby are not thereby exposed to risks to their safety or health.

(2) It shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons, not being his employees, who may be affected by the manner in which he conducts his undertaking, the prescribed information on such aspects of the manner in which he conducts his undertaking as might affect their safety or health.

18 PART IV GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS-18. Duties of an occupier of a place of work to persons other than his employees.

(1) An occupier of non-domestic premises which has been made available to persons, not being his employees, as a place of work, or as a place where they may use a plant or substance provided for their use there, shall take such measures as are practicable to ensure that the premises, all means of access thereto and egress therefrom available for use by persons using the premises, and any plant or substance in the premises or provided for use there, is or are safe and without risks to health.

(2) A person who has, by virtue of a contract or lease or otherwise, an obligation of any extent in relation to:

(a) the maintenance or repair of a place of work or any means of access thereto or egress therefrom; or

(b) the prevention of risks to safety and health that may arise from the use of any plant or substance in the place of work,

shall for the purpose of subsection (1) be deemed
19 PART IV GENERAL DUTIES OF EMPLOYERS AND SELF-EMPLOYED PERSONS-19. Penalty for an offence under section 15, 16, 17 or 18.

A person who contravenes the provisions of section 15,16,17 or 18 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 two years or to both.

20 PART V GENERAL DUTIES OF DESIGNERS, MANUFACTURERS AND SUPPLIERS-20. General duties of manufacturers, etc. as regards plant for use at work.

(1) It shall be the duty of a person who designs, manufactures, imports or supplies any plant for use at work:

(a) to ensure, so far as is practicable, that the plant is so designed and constructed as to be safe and without risks to health when properly used;

(b) to carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by paragraph (a) ; and

(c) to take such steps as are necessary to secure that there will be available in connection with the use of the plant at work adequate information about he use for which it is designed and has been tested, and about any condition necessary to ensure that, when put to that use, it will be safe and without risks to health.

(2) It shall be the duty of a person who undertakes the design or manufacture of any plant for use at work to carry o
21 PART V GENERAL DUTIES OF DESIGNERS, MANUFACTURERS AND SUPPLIERS-21. General duties of manufacturers, etc. as regards substances for use at work.

(1) It shall be the duty of a person who formulates, manufactures, imports or supplies any substance for use at work:

(a) to ensure, so far as is practicable, that the substance is safe and without risks to health when properly used;

(b) to carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by paragraph (a) ; and

(c) to take such steps as are necessary to ensure that there will be available in connection with the use of the substance at work adequate information about the results of any relevant test which has been carried out on or in connection with the substance and about any condition necessary to ensure that it will be safe and without risks to health when properly used.

(2) It shall be the duty of a person who undertakes the manufacture or supply of any substance fo
22 PART V GENERAL DUTIES OF DESIGNERS, MANUFACTURERS AND SUPPLIERS-22. Explanations to sections 20 and 21.

(1) Nothing in section 20 or 21 shall be taken to require a person to repeat any testing, examination or research which has been carried out otherwise than by him or at his instance, in so far as it is reasonable for him to rely on the results thereof for the purposes of the section.

(2) Any duty imposed on a person by any of the preceding provisions of this Part shall extend only to things done in the course of a trade, business or other undertaking carried on by him, whether for profit or not, and to matters within his control.

(3) Where a person designs, formulates, manufactures, imports or supplies any plant or substance for or to another on the basis of a written undertaking by that other to take specified steps sufficient to ensure, so far as is practicable, that the plant or substance will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first-mentioned person from the
23 PART V GENERAL DUTIES OF DESIGNERS, MANUFACTURERS AND SUPPLIERS-23. Penalty for an offence under section 20 or 21.

A person who contravenes the provisions of section 20 or 21 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.

24 PART VI GENERAL DUTIES OF EMPLOYEES-24. General duties of employees at work.

(1) 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.

(2) A person who contravenes the provisions of this section shall be guilty of an offence and shall, on conviction, be liable to a
25 PART VI GENERAL DUTIES OF EMPLOYEES-25. 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.

26 PART VI GENERAL DUTIES OF EMPLOYEES-26. 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.

27 PART VI GENERAL DUTIES OF EMPLOYEES-27. Discrimination against employee, etc.

(1) 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.

(2) 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.

(3) An employer who, or a trade union which, co
28 PART VII SAFETY AND HEALTH ORGANISATIONS-28. Medical surveillance.

(1) 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
29 PART VII SAFETY AND HEALTH ORGANISATIONS-29. Safety and health officer.

(1) This section shall apply to such class or description of industries as the Minister may, by order published in the Gazette , specify.

(2) 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.

(3) 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.

(4) 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.

(5) 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
30 PART VII SAFETY AND HEALTH ORGANISATIONS-30. Establishment of safety and health committee at place of work.

(1) Every employer shall establish a safety and health committee at the place of work in 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.

(2) 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.

(3) 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
31 PART VII SAFETY AND HEALTH ORGANISATIONS-31. 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.

32 PART VIII NOTIFICATION OF ACCIDENTS, DANGEROUS OCCURRENCE, OCCUPATIONAL POISONING AND OCCUPATIONAL DISEASES, AND INQUIRY-32. Notification of accidents, dangerous occurrence, occupational poisoning and occupational diseases, and inquiry.

(1) 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.

(2) 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 [Act 139] , 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.

Legal Commentary on Section 32 of the OCCUPATIONAL SAFETY AND HEALTH ACT 1994
Introduction
Section 32 of the Occupational Safety and Health Act 1994 (OSHA 1994) primarily deals with penalties and enforcement measures for violations of safety and health regulations in workplaces. It aims to ensure compliance through deterrent penalties, thereby safeguarding workers' rights to a safe working environment.
What does Section 32 Say
Section 32 prescribes penalties for contraventions of the Act or regulations made thereunder. It specifies that any person who commits an act or omission violating the provisions of the Act shall be guilty of an offence and liable to penalties, which may include fines and imprisonment, depending on the severity and nature of the violation.
Essential Ingredients
Offence of contravention: Any act or omission that breaches the provisions of the Act or regulations.
Liability: The person responsible for the contravention (employer, manufacturer, importer, etc.).
Penalty: Fine, imprisonment, or both, as prescribed.
Enforcement authority: The authority empowered to prosecute and impose penalties.
Scope of Section 32
Section 32 applies to all violations of the OSHA 1994, including failure to comply with safety standards, neglecting safety measures, or obstructing enforcement officers. It covers offences committed by employers, manufacturers, importers, or any person involved in workplace safety violations.
Punishment for Section 32
Penalties under Section 32 include:- Imprisonment for a term which may extend to six months.- Fine which may extend to RM50,000 or more.- Additional penalties or sanctions as specified in regulations.- Penalties can be compounded or prosecuted through criminal proceedings.
Legal Comments
"Deterrence and Compliance" - Section 32 provides a robust legal framework to deter violations by imposing significant penalties, aligning with the Act's purpose of ensuring workplace safety [Guidelines on OSHA 1994.pdf].
"Broad Applicability" - The section applies to all persons responsible for non-compliance, including corporate entities, managers, and individual workers who violate safety norms [LAWS OF MALAYSIA; OSHA 1994].
"Enforcement Mechanism" - It empowers authorities to initiate prosecution without requiring prior notice or formal complaint, facilitating proactive enforcement [LAWS OF MALAYSIA; OSHA 1994].
"Nature of Penalties" - The penalties are criminal in nature, emphasizing the seriousness of violations and the state's commitment to enforce safety standards [LAWS OF MALAYSIA; OSHA 1994].
"Legal Responsibility" - The section underscores the importance of accountability at all levels of management and responsibility for workplace safety violations [OCCUPATIONAL SAFETY AND HEALTH ACT 1994].
"Procedural Aspects" - The section does not specify procedural safeguards, but enforcement is guided by regulations and guidelines issued under the Act [Guidelines on OSHA 1994.pdf].
"Protection of Workers' Rights" - By penalizing violations, Section 32 indirectly upholds workers' fundamental right to a safe and healthy working environment [Consumer Education & Research Centre v. Union of India, 1995].
"Liability of Corporate Bodies" - The Act and Section 32 make corporate entities and their officers liable for offences, reinforcing corporate responsibility [LAWS OF MALAYSIA].
"Scope for Penalty Enhancement" - The Act allows for enhancement of penalties based on the gravity of the offence, including repeated violations or serious accidents [OSHA Offences and Penalties Overview].
"Complementary Provisions" - Section 32 works in conjunction with other provisions such as inspection, investigation, and safety audits to ensure compliance [Chapter 2 - OSHA 1994].
"Legal Remedies" - Offenders can be prosecuted criminally, and penalties can be challenged or appealed in courts, ensuring legal recourse [LAWS OF MALAYSIA].
"Preventive Role" - The threat of penalties under Section 32 acts as a preventive measure, encouraging employers to adopt safety protocols proactively [OCCUPATIONAL SAFETY AND HEALTH ACT 1994].
"Alignment with International Standards" - Penalties reflect international best practices for occupational safety, reinforcing legal standards [WHO guidelines; ILO conventions].
"Discretion of Authorities" - The section grants discretion to authorities regarding the imposition of penalties, but within the framework of prescribed laws and regulations [Guidelines on OSHA 1994].
"Legal Certainty" - Clear delineation of offences and penalties provides legal certainty, aiding enforcement and compliance [LAWS OF MALAYSIA].
"Protection Against Arbitrary Action" - The procedural safeguards and adherence to due process prevent arbitrary or capricious enforcement [Section 32; OSHA guidelines].
"Deterrent Effect" - The severity of penalties under Section 32 serves as a deterrent against negligence and violations, promoting a culture of safety [Occupational Safety and Health Act 1994].
"Legal Evolution" - The penalties under Section 32 have been subject to amendments and updates to reflect evolving safety standards and societal expectations [Amended OSHA 1994].
In summary, Section 32 of the OSHA 1994 codifies the penalties for violations of workplace safety regulations, emphasizing deterrence, accountability, and enforcement. It forms a critical component of the legal framework aimed at safeguarding workers' fundamental right to a safe and healthy environment, aligning with constitutional principles and international standards.
**- [Guidelines on OSHA 1994.pdf]- [LAWS OF MALAYSIA]- [Occupational Safety and Health Act 1994]- [OSHA Offences and Penalties Overview]- [Consumer Education & Research Centre v. Union of India, 1995]
33 PART VIII NOTIFICATION OF ACCIDENTS, DANGEROUS OCCURRENCE, OCCUPATIONAL POISONING AND OCCUPATIONAL DISEASES, AND INQUIRY-33. Director General may direct inquiry to be held.

(1) 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.

(2) 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.

(3) 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.

Legal Commentary on Section 33 of the OCCUPATIONAL SAFETY AND HEALTH ACT 1994
Introduction
Section 33 of the Occupational Safety and Health Act 1994 (Malaysia) delineates the penalties and offences related to contravention of safety and health regulations at workplaces. It emphasizes the importance of compliance with safety standards to protect workers and others from occupational hazards. The provision serves as a crucial enforcement tool to ensure adherence to safety norms and to penalize violations effectively.
What does Section 33 Say?
Section 33 states that any person who aids or abets the commission of an offence under the Act shall be liable for punishment, which may include fines or imprisonment. It also grants powers to occupational safety and health officers to conduct proceedings against offenders, even if they are not advocates or legal professionals. The section underscores the responsibility of all stakeholders in maintaining workplace safety and the legal consequences of non-compliance.
Essential Ingredients
Offence of aiding or abetting: Acts that assist or facilitate the commission of an offence.
Liability of persons involved: Not limited to the primary offender but extends to those who aid or abet.
Punishment: Includes fines, imprisonment, or both, as prescribed.
Authority to conduct proceedings: Officers authorized under the Act can initiate and conduct proceedings.
Scope of liability: Applies to employers, employees, contractors, or any person involved in contravention.
Scope of Section 33
Legal Responsibility: Extends to any individual or entity aiding in violations of safety standards.
Procedural Power: Empowers occupational safety and health officers to investigate, prosecute, and impose penalties.
Preventive Role: Acts as a deterrent against non-compliance by establishing clear legal consequences.
Coverage: Encompasses all offences under the Act, including unsafe working conditions, failure to maintain safety measures, and non-compliance with directives.
Complementary to Other Sections: Works in tandem with other provisions that specify duties and obligations of employers and employees.
Punishment for Section 33
Fines: Penalties can range up to a specified amount, depending on the offence.
Imprisonment: Offenders may be sentenced to imprisonment, typically up to six months or more.
Combined Penalties: Courts may impose both fines and imprisonment.
Deterrent Effect: Designed to enforce compliance and prevent workplace accidents and hazards.
Legal Comments
Deterrence - Section 33 provides a robust deterrent against violations by penalizing those who aid or abet offences, reinforcing the importance of compliance with safety standards. [Occupational Safety and Health Act 1994; Guidelines on OSHA 1994.pdf]
Liability Extension - The provision extends liability beyond primary offenders to persons aiding or abetting, ensuring comprehensive accountability in workplace safety violations. [Occupational Safety and Health Act 1994; Rules on safety and health]
Enforcement Power - Empowers occupational safety and health officers to initiate proceedings, ensuring proactive enforcement and compliance monitoring. [Occupational Safety and Health Act 1994; Rules on proceedings]
Proactive Deterrence - The threat of penalties under Section 33 acts as a proactive measure to promote adherence to safety protocols, thereby reducing occupational accidents. [Overview of Occupational Safety and Health Act 1994]
Legal Responsibility - Emphasizes that all persons involved in a workplace have a legal duty to uphold safety standards, aligning with the general duty clause of the Act. [Occupational Safety and Health Act 1994; Guidelines on OSHA 1994.pdf]
Scope of Penalties - The section ensures that penalties are commensurate with the severity of violations, with scope for fines and imprisonment, thus maintaining strict compliance. [Occupational Safety and Health Act 1994; Penalties and Infringements]
Complementary Role - Acts as a complementary enforcement mechanism alongside other provisions that specify duties of employers and workers, forming a comprehensive safety regime. [Occupational Safety and Health Act 1994; Standards and classification systems]
Accountability - Reinforces the principle that aiding or abetting violations makes individuals equally accountable, promoting shared responsibility. [Occupational Safety and Health Act 1994; Penalties for offences]
Legal Certainty - Provides clear legal certainty regarding penalties, procedures, and authority, facilitating effective enforcement and judicial proceedings. [Office Procedure, Supreme Court Rules; Section 33]
Workplace Safety Culture - Promotes a culture of safety by establishing legal consequences for non-compliance, encouraging employers and workers to prioritize safety. [Occupational Safety and Health Act 1994; Guidelines on OSHA 1994.pdf]
Preventive Function - The threat of prosecution under Section 33 acts preventively, discouraging violations before they occur. [Occupational Safety and Health Act 1994; Overview of OSHA 1994]
Responsibility of All Stakeholders - Clarifies that all stakeholders, including managers, supervisors, and workers, are responsible for maintaining safety, with legal repercussions for neglect. [Occupational Safety and Health Act 1994; Rules on safety and health]
Legal Penalties as Enforcement - The section underscores that penalties are essential enforcement tools to uphold safety standards in workplaces. [Occupational Safety and Health Act 1994; Penalties and Infringements]
Procedural Fairness - Officers conducting proceedings are empowered but must adhere to procedural fairness, ensuring justice and transparency. [Supreme Court Rules; Section 33]
Alignment with International Standards - The penalties and enforcement mechanisms align with international occupational safety standards, emphasizing global best practices. [WHO Guidelines on OSHA 1994]
Legal Foundation for Safety Compliance - Section 33 provides the legal foundation for employers and workers to ensure safety compliance, with deterrent penalties for violations. [Occupational Safety and Health Act 1994; Guidelines on OSHA 1994.pdf]
Promotion of Safe Work Environment - Ultimately, the section aims to foster a safe and healthy work environment by ensuring accountability and enforcement of safety norms. [Occupational Safety and Health Act 1994; Standards and classification systems]
In conclusion, Section 33 of the Occupational Safety and Health Act 1994 plays a pivotal role in establishing a legal framework to penalize violations, promote compliance, and uphold workplace safety standards. Its comprehensive scope and enforcement powers serve as vital tools for safeguarding workers and ensuring a culture of safety in workplaces.
34 PART VIII NOTIFICATION OF ACCIDENTS, DANGEROUS OCCURRENCE, OCCUPATIONAL POISONING AND OCCUPATIONAL DISEASES, AND INQUIRY-34. 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.

35 PART IX PROHIBITION AGAINST USE OF PLANT OR SUBSTANCE-35. Power to prohibit the use of plant or substance.

(1) 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 at work.

(2) 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.

36 PART IX PROHIBITION AGAINST USE OF PLANT OR SUBSTANCE-36. 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.

37 PART X INDUSTRY CODES OF PRACTICE-37. Approval of industry codes of practice.

(1) 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.

(2) 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 provisions of the industry codes of practice.

(3) 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
38 PART X INDUSTRY CODES OF PRACTICE-38. 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

(ii) 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
39 PART XI ENFORCEMENT AND INVESTIGATION-39. Powers of entry, inspection, examination, seizure, etc.

(1) 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 authorisation 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.

(2) 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 wo
40 PART XI ENFORCEMENT AND INVESTIGATION-40. 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.

41 PART XI ENFORCEMENT AND INVESTIGATION-41. 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, plant, 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, with or damage the seal or remove the article, thing, book, document, plant, substance, installation or part thereof or to attempt so to do.

42 PART XI ENFORCEMENT AND INVESTIGATION-42. Power of forceful entry and service on occupier of signed copy of list of things seized from premises.

(1) 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 there into;

(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.

(2) 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 thin
43 PART XI ENFORCEMENT AND INVESTIGATION-43. Further provisions in relation to inspection.

(1) 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.

(2) 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.

(3) 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 commit
44 PART XI ENFORCEMENT AND INVESTIGATION-44. Power of investigation.

(1) An officer shall have the power to investigate the commission of any offence under this Act or any regulation made thereunder.

(2) 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.

(3) 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.

45 PART XI ENFORCEMENT AND INVESTIGATION-45. Power to examine witnesses.

(1) 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.

(2) 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 authorisation issued by the Director General to the officer under subsection 7(1):

Provided further that the person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

(3) 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.

(4) An officer obtaining information from a person
46 PART XI ENFORCEMENT AND INVESTIGATION-46. Employer, etc , to assist officer.

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.

47 PART XI ENFORCEMENT AND INVESTIGATION-47. Offences 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
48 PART XI ENFORCEMENT AND INVESTIGATION-48. Improvement notice and prohibition notice.

(1) 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.

(2) 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, pla
49 PART XI ENFORCEMENT AND INVESTIGATION-49. Penalty for failure to comply with notice.

(1) 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.

(2) 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.

50 PART XI ENFORCEMENT AND INVESTIGATION-50. Aggrieved person may appeal.

(1) 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.

(2) 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.

(3) 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.

51 PART XII LIABILITY FOR OFFENCES-51. 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.

52 PART XII LIABILITY FOR OFFENCES-52. Offences committed by body corporate.

(1) 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.

(2) 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.

53 PART XII LIABILITY FOR OFFENCES-53. Offences committed by trade union.

(1) 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.

(2) 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.

54 PART XII LIABILITY FOR OFFENCES-54. Offences 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.

55 PART XII LIABILITY FOR OFFENCES-55. Defence.

It shall be a defence in 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.

56 PART XII LIABILITY FOR OFFENCES-56. 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 therefore.

57 PART XII LIABILITY FOR OFFENCES-57. 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.

58 PART XII LIABILITY FOR OFFENCES-58. 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.

59 PART XII LIABILITY FOR OFFENCES-59. 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 any civil proceedings 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 legislations in regard to safety and health.

60 PART XII LIABILITY FOR OFFENCES-60. 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.

61 PART XII LIABILITY FOR OFFENCES-61. Prosecutions.

Prosecutions in respect of offences 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 authorised in writing by the Director General subject to the provisions of the Criminal Procedure Code.

62 PART XII LIABILITY FOR OFFENCES-62. Compounding of offences.

(1) The Minister may, by order in the Gazette , prescribe any offence under this Act or any regulation made thereunder as an offence which may be compounded.

(2) The Director General may at any time before conviction compound any of the offences 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.

63 PART XIII APPEALS-63. Appeal committees.

(1) The Minister shall appoint appeal committees for the purpose of considering any 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.

64 PART XIII APPEALS-64. Powers of appeal committee.

(1) 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.

(2) An appeal committee shall decide and communicate expeditiously its decision to the person making the appeal.

65 PART XIII APPEALS-65. Decision of appeal committee.

The decision of an appeal committee shall be final and conclusive and shall not be questioned in any court.

66 PART XIV REGULATIONS-66. Regulations.

(1) 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.

(2) In particular and without prejudice to the generality of subsection (1), such regulations may:

(a) regulate or prohibit:

(i) the manufacture, supply or use of any plant;

(ii) the manufacture, supply, storage, transport or use of any substance; and

(iii) 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, labelling or marking of any substance;
67 PART XV MISCELLANEOUS-67. Duty to keep secret.

(1) 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.

(2) 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.