EMS1113: ANALYSIS OF OSH LEGISLATION

Chapter 1

1.0 Introduction

The Occupational Safety and Health Act 1994, OSHA (1994) is the Act that
provide legislative framework in overall with respect of secure and to sustain safety,
health and welfare of person at workplace. According to OSHA (1994), or known as
Act 514 is based on self-regulation concept (awareness) to the person who create a
risk at workplace (employers) and person who working with a risk (employees). The
guiding principle and objectives such as:

i. to secure the safety, health and welfare of person at work

ii. to protect person (other than person at work) against hazards
iii. to promote an occupational environment
iv. enabling act based on regulation and industrial codes of practice in
integration with provision of the act.

Meanwhile, Factories and Machineries Act 1967, FMA (1967) is the solitary Act
for OSH legislative reference before enactment of OSHA 1994. Despite that FMA 1967
as legislation pertaining to industries activities, not practical and comprehensive
enough to empower all industries activities, (Rozanah, 2009).

Factories and Machinery Act, FMA (1967) or Act 139, is to provide for the
control of factories on matters relating to the safety, health and welfare of persons,
and the registration and inspection of machinery. Some high risk machinery such as
boilers, unfired pressure vessels, passenger lifts and other lifting equipment such as
mobile cranes, tower cranes, passenger hoists, overhead traveling cranes and
gondolas, must be certified and inspected by DOSH. All factories and general
machinery must be registered with DOSH before they can be installed and operated
in Malaysia. The objectives are to provide for the control of factories with respect to:

i. matters relating to the safety, health and welfare of persons therein;

ii. the registration and inspection of machinery; and
iii. matters connected therewith.

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 EMS1113: ANALYSIS OF OSH LEGISLATION

1.1 Case Study

At a glance of case study, Andrew who was geologist for mining company has
been injured during a visit to carry out inspection some rocks that being constructed
by CJV. Andrew’s leg was crushed by machinery in the tunnel where being operated
by CJV servant without warning. Impact from that accident, Andrew’s career as
geologist has been affected due to amputation of his leg. The chronology of the case
study can be visualized by graphic as shown in Figure 1.1

Figure 1.1: A chronology of accident

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 EMS1113: ANALYSIS OF OSH LEGISLATION

1.2 Analysis

As stated clearly in OSHA (1994), general duties of employers and self-

employed person to their employees, CJV has been violated under section 15, under
clause (1), where the duty of employer and self-employed needs to ensure the safety,
health and welfare at work of all his employees, so far as is practicable.

Under same section, clause (2) (a), (b), (c). (d), and (e); duty of employers to
be extended to ensure and provide as far as practicable to safe without risk to health
by furnishing, provision and maintaining to:

i. plant and system of work

ii. operation, handling, storage, and transport
iii. by provide information, instruction, training and supervision
iv. means of access and egress
v. adequate related facilities

The definition of employees also comprise with those who are an independent
contractor that engaged by an employer or any employee of the independent
contractor as define in section 15, clause (3) (a) in OSHA (1994). Furthermore, OSHA
(1994) has affirmed duty of an occupier in section 18, to ensure as are practicable
measures in their premises, means of all access and egress, plant or substance or
provide for use there, are safe and without risks to health.

Thus, in this case, CJV have to prudent and sensible enough to take
responsibility as an occupiers. Unanimous with OSHA (1994), in addition, FMA
(1967), under section 21 has stated that the occupier shall maintain at all the times
maintain all safety appliances and machinery. Despite the accident in point of fact
causes by agent or servant of CJV but as an employer, CJV shall be obliged to fulfill his
duty of care as occupiers.

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1.2.1 Duty of care as Occupiers

“You must take reasonable care to avoid acts and omissions which you can
reasonably foresee would be likely to injure your neighbour. Who then, in law, is my
neighbour? The answer seems to be, persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected”,
(Donoghue v. Stevenson, 1932).

By this approach it is more likely that the facts an occupier of premises owes
the common duty take such care in all the circumstances to reasonable to see that any
person on the premises will not be impaired by injury consequences by any danger
arising of the premises or things done or omitted to be done on the premises
(Occupiers’ Liability Act, 1957).

1.2.2 Licensee

On the fact and circumstances that on this case that the CJV were negligent as
an occupiers liability (premises liability) to Andrew’s as a Licensee. But then why
Andrew is categorized as licensee? Not as invitee or trespasser?

When we looks into definition of visitor (a persons who are visiting premises
belonging to another person), can be divided into three categories which are invitees,
licensee, and trespasser. Invitees is someone who get invitation or induces others to
enter the premises for any lawful purpose by the occupiers. Contractors are typically
considered invitees.

A licensee is a person who has no contractual relation with the property

owner, but who is permitted and expressly or implicitly to be on the premises and
usually, the occupier does not have any interest in the presence of licensee on his
premises. Trespassers who is no have permission or lawful right to be on the
premises.

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Thereby, there is duty of imposed on occupiers to warn the licensee on the

concealed hazard and risk that actually only known by the occupier but obviously not
know by licensee. Evidence of negligence, a breach of duty shown by CJV as occupiers,
failed to adherence the duty of care for reasonable care where negligence happened
and failed to foreseeably harm to the others when putting machinery into operation
when licensee doing his job.