LETTERS: It was reported in an online news portal on May 3 that a group of non-governmental organisations had asked why directors and office-bearers were not charged when their companies breached the Occupational Safety and Health (OSHA) Act 1994, which resulted in deaths or permanent disabilities of workers.
However, they would be charged under the OSHA Amendment 2022 instead. To shed light on this, we have to go back to when OSHA 1994 was enacted.
As Malaysia was under British rule for more than a century, it was natural to have a safety and health legislation that mirrored the United Kingdom's (UK) Health and Safety at Work Act 1974 (HSWA).
Hence, the OSHA Act 1994 (Act 514) was enacted in 1994.
Under Section 37 of the UK HSWA, if a company commits a safety and health offence, its directors or senior managers can be prosecuted for breaching the act if the offence is due to their consent or connivance or attributable to their neglect.
This provision was spelled out in OSHA 1994 Section 52(1) on "Offences committed by body corporate" as below:
"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."
We do not know why in the past directors and office-bearers were not prosecuted under OSHA 1994.
We can only surmise that when the OSHA Act 1994 was enacted, safety and health awareness in Malaysia was at their infancy.
At that time, most industries did not have a system to manage safety and health at work.
The purpose of OSHA 1994 is to promote and encourage occupational safety and health awareness in companies and to set up an organisation and arrangements to handle safety and health.
The Factories and Machinery Act 1967 was a prescriptive technical document providing little guidance to manage safety and health.
The National Institute of Occupational Safety and Health (NIOSH), established in 1992, is a government-backed company that provides safety training and carries out research and development in occupational safety and health.
It was only after the enactments of many regulations made under OSHA 1994, in particular the Safety and Health Officer regulations 1997, and together with the training provided by NIOSH and NGOs that industries started to have a better grasp of managing safety and health.
With the enactment of the OSHA Amendment 2022, small- and medium-scale enterprises that do not need to employ a safety and health officer have to assign an employee as an occupational safety and health coordinator.
Only enterprises employing fewer than five employees are exempted from this requirement.
Prior to the OSHA Amendment 2022, it would appear unfair and unreasonable to prosecute company directors and office-bearers for offences under the OSHA Act 1994 when they had no inkling of the management of safety and health for their companies.
However, after more than 20 years of the OSHA Act 1994, there are few excuses for industries not to manage the safety and health matters in their companies.
Therefore, from now, there is a greater need for the directors and specified office-bearers to play a role in managing and monitoring the safety and health performances in their companies.
We expect the Department of Occupational Safety and Health would not be as lenient as before.
Ample time and opportunities were given to industries to manage their safety and health.
WONG SOO KAN
Petaling Jaya, Selangor
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times