OSH Legal framework in Malaysia

Historical Perspective of OSH Development

In the early state of country development, the economic structure depended heavily on agricultural and mining based activity. The growth of these sectors introduced various hazards to workers. The Selangor Boiler Enactment in 1892 was the first legislation to address industrial safety issues. In 1913, the Machinery Ordinance was enacted to ensure safety of machinery including boiler and internal combustion engines. The Machinery Ordinance 1913 was updated in 1932 (Machinery Enactment 1932) with additional provisions on registration and inspection of machinery installation. The Machinery Ordinance of 1953 superceded all previous legislation related to industrial safety, and was enforced in all the 11 states of Malaya under the jurisdiction of Machinery Department, Ministry of Labour. Early OSH legislation, the Federated Malay States Mining Enactment of 1926 and the Rump Labor Code of 1933 included public health provisions. Both these legislation required the provision of accommodation, sanitation, medical care and services, decent working conditions and livable wages for the mine and estate workers.

Factories & Machinery Act 1967

In 1960s, the government implemented a policy to move towards industrialization. This resulted in an increasing number of workers in the manufacturing sector such as microelectronics, chemical and mineral based industries, and in later years textile and automobile industries. In order to manage the safety and health problems associated with manufacturing industries, the Factory and Machinery Act (FMA) was enacted in 1967 and enforced by the Factories and Machinery Department (previously known as Machinery Department). This Act and the regulations were the cornerstone for OSH improvement for the next three decades before the introduction of the Occupational Safety and Health Act 1994.

Although the FMA was an improvement over earlier pieces of legislation, it had some important limitations. Among them was the fact that it only encompassed “factories” and hence covered only 23% of the workforce. It was prescriptive in nature, and based on traditional “checklist” system whereby hazards were identified and measures to overcome the hazards were stipulated. It also depended on command and control approaches and improvement was heavily dependent on the effectiveness of enforcement agencies.

A number of regulations were introduced in 1970 to further strengthen the FMA 1967 (Table 4). These regulations except for the Safety, Health and Welfare Regulation 1970 were primarily targeted in addressing safety problems. Provisions of first aid and welfare facilities e.g. drinking water, toilets and washing facility were included in the Safety, Health and Welfare Regulation 1970. From 1984 to 1989, four pieces of regulations addressing specific health hazards in the workplace – lead, asbestos, noise and mineral dust – were introduced. Provisions for assessing exposure at the workplace; establishing permissible exposure level (PEL); control measures including medical and health surveillance provisions; competence and training program were common to all these regulations. However, the process of introducing regulations covering other health hazard was slow.

Occupational Safety & Health Act 1994

The introduction of a comprehensive Occupational Safety and Health Act (OSHA) 1994 was in response to the need to cover a wider employee base and newer hazards introduced in the workplace. Developed countries such as Japan had enacted such legislation in 1972, United Kingdom in 1974 (the Health and Safety At Work Act 1974), United State of America in 1970 (the Occupational Health & Safety Act 1970) and in Sweden and Norway, the Act was called Internal Control Regulation. The OSHA 1994 is enforced by the Department of Occupational Safety and Health (DOSH) (previously known as Factory and Machinery Department. The name was changed to reflect changes in coverage) under the Ministry of Human Resources.

The Act was derived from the philosophy of the Roben’s Commission and Health & Safety At Work Act 1974 in UK, emphasizing on self-regulation and duties of employer, employee and designer/manufacturer. The employer’s duties include the provision of a safe system of work, training, maintenance of work environment and arrangement for minimizing the risks at low as reasonably practicable. In short, the responsibility on OSH is made to rest on those who create the risks (employers) and those who work with the risk (employees).

The Act is referred as a reflexive-type of Act which was less prescriptive, cover all workers except those in armed forces and those who work aboard ship (which were covered by other legislations). The Act also emphasis on duties of care by individual thus empowering the participation of all person in OSH.

Under the OSH Act 1994, National Council for Occupational Safety and Health was established. This Council comprised of 15 council members with tripartite representation from Government, employers, employees and OSH professionals (with at least one woman member). The legislation also contains provision for formulating regulations and Code of Practices (COPs), which indicates “what should be done” and thus assist the employer to comply with the Act.

A series of regulations have been introduced under OSHA 1994. The emphasis of these regulations has been on establishing mechanism to implement OSH in workplaces. Workplaces with five or more workers are required to formulate a Safety and Health Policy. The Safety and Health Committee Regulations 1996 requires establishments with 40 workers and above to establish a safety and health committee. The committee is required to meet at least once in every three months, with the functions to identify hazards at the workplace, institute control measures, investigate incident and conducting audit.

In terms of representation in the committee, workplace with less than 100 workers will need to have at least two representatives each for workers and management respectively. However, workplaces with more than 100 workers will need to have a minimum of four representatives each for workers and management. The Safety and Health Officer Regulations provide for specific industries to have a Safety and Health Officer (SHO). A SHO is an individual who has attended training in National Institute of Occupational Safety and Health (NIOSH) or other accredited training bodies and has passed the examination conducted by NIOSH and registered with DOSH.

The Control of Industrial Major Accident Hazards (CIMAH) Regulations 1996 was enacted in response indirectly to the Bhopal incident in India in 1984 and the Sungai Buluh firecracker factory tragedy in Malaysia which has killed 23 workers in 1992.

The Classification, Packaging and Labeling (CPL) Regulations 1997 and Use and Standard of Exposure of Chemical Hazardous to Health (USECHH) Regulations 2000 were specific for controlling chemicals at the workplace. The CPL regulation required proper packaging and labeling of chemicals by the supplier including the label giving risk phrases. The USECHH regulation includes the provision of chemical health risk assessor (CHRA), occupational health doctor (OHD) and industrial hygiene technician to perform their respective roles in assessing the health risk from chemical exposure. In particular, the chemical health risk assessment includes having a list of all chemicals, assessing workers exposure to these risks, deciding on acceptability of risks and control measures that exist are reviewed. If risks are found to be unacceptable, action needs to be taken. This regulation leads to increased training needs, which was offered by NIOSH. Guideline on Chemical Health Risk Assessment has also been issued.

Implication of ILO Convention & Recommendation on Malaysia Legislation

Malaysia has been the member of the ILO since 1957. To date, Malaysia has ratified 15 ILO fundamental conventions and 14 are in force. Table 7 shows the fundamental ILO conventions which have been ratified by Malaysia as of 7 Dec 2002.

ILO convention and recommendation related to OSH can be classified into four categories, (1) Guiding policies for action; (2) Protection in given branches of economic activity: e.g. construction industry, commerce and offices and dock work; (3) Protection against specific risks: e.g. ionizing radiation, benzene, asbestos, guarding of machinery; (4) Measures of protection: e.g. medical examinations of young workers, maximum weight of loads to be transported by a single worker, prevention of occupational accidents on board ship, prevention of occupational cancer, prevention of air pollution, noise and vibration in the working environment.

An ILO convention is considered a multilateral international treaty, and contains binding obligations. Member countries on ratifying a convention are obliged to apply its provision by legislation or by other appropriate means as indicated in the text of the convention. Report on non-compliance may be made by the governments of other ratifying States or by employers’ or workers’ organizations. Procedures exist for investigating and acting upon such complaints. Usually, Trade Unions use ILO standards to support arguments in bargaining and promoting legislation. In the other hands, ILO recommendations are a form of guideline for action to be taken by member country which do not require reporting to ILO. The reason why Malaysia has not ratified other ILO OSH conventions is not clearly known and further study is required.

However, on the positive note, Malaysia is keeping pace in OSH development and supporting ILO initiative at the local level. Local regulations such as Asbestos Regulations are modeled against the ILO Asbestos Convention 1986. ILO OHS Services Convention 1985 has been referred in the development of the OSH Act 1994. In many instances, local legislation was developed with the adequate advice from ILO experts through various platform and initiatives. In the case of developing the Malaysia OSH-MS, which was undertaken by the National Council of Occupational Safety and Health (NCOSH) in 2001, ILO OSH 2001 was used as the framework to develop local standard and ILO expert was invited to brief the local OSH community (Wan Muthiah, 2002). The Malaysia OSH-MS is scheduled to be ready by mid of 2003.

Malaysia also participated in the PIACT Project (The International Program for the Improvement of Working Conditions and Environment, PIACT) organized by ILO in 1993 in line with the initiative under The Chemical Convention 1990 (No. 170) and Recommendation 1990 (No. 177). As part of this exercise, a training module on “Safety and Health in the Use of Chemicals at Work” was published locally (ILO, 1991;1993).
ILO-Japan Institute for Science and Labor (ISC) initiative such as the Workplace Improvement for Small Enterprise (WISE) project in 1997 was another case where collaboration between local authority and ILO regional office was carried out. This project was specifically targeted to improve OSH in the small and medium sized industries in Malaysia by using low cost improvement methods. This project was viewed successful at its own right. The follow-up study was carried out among the ex-WISE project participating companies in 2001, and the result showed that the ex-WISE companies had demonstrated some form of OSH management system such as OSH committee (Ng et al, 2002). World Bank has also funded the capacity building project for Department of Occupational Safety and Health (DOSH) with the ILO as the advisor.

Implementation of OSHA 1994
A Survey carried out by the local researchers showed that 61% of the workplaces have OSH policies, 83% of workplaces have safety and health committees, 86% of major installation have health and safety management system, 38% of non-major installations have health and safety management systems and 71% of Chemical Industry Council (CICM) members have “responsible care” programs. Since the introduction of Safety Induction for Construction Workers (SICW) was implemented in 1999, there are 240,000 green card holders up to 2001.
There have also an increasing number of OSH competent persons as required by OSHA 1994. As of 2001, there are about 1200 Safety and Health Officer (SHO), 30 noise competent persons, 81 chemical health risk assessors and 124 occupational health doctors. The number of OSH practitioner will be increasing in the coming years.

DOSH has also increased the frequency of inspection under the Inspection and Audit Program for the small and medium sized industries from 2002 until 2006. Each year, there will be about 2500 to 3400 small and medium sized industries scheduled to be inspected. This is due to the fact that around 90% of the private business establishments in Malaysia are from the small and medium sized industries.

Up to June 30, 2002, there are 3,340 notices of improvement/ prohibition being issued and 49 has been prosecuted in court (see Table 8).

Institution providing various OSH services could be the driving force to enhance the implementation of OSHA 1994. These institutions are DOSH; SOCSO; Workers and Environmental Health Unit, Ministry of Health; NIOSH; Universities; Society of Occupational and Environmental Medicine, Malaysia Medical Association (MMA); Malaysian Society for Occupational Safety and Health (MSOSH); Malaysian Occupational Health Nurses Association (MOHNA);OSH Department in Malaysian Trades Union Congress (MTUC); Various consumer and environmental groups such as Sahabat Alam Malaysia (SAM) and Consumer Association of Penang (CAP).