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INTRODUCTION OF OCCUPATIONAL SAFETY AND

HEALTH LEGISLATION

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Objective To explain the different between statutory law and

Common Law To explain employer’s liability in “Duty of Care” To list down OSH legislation history in Malaysia

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Learning Scope

1. OSH Legislation

2. Duty of Care

3. OSH legislation history in Malaysia

4. Category of legislation

5. Summary

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Definition of Law

“The body of enacted or customary rules recognized by community as a binding”

Source: Oxford English Dictionary

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Classification of LawLaw

International LawPublic Law Private Law

Public International Law

Private International Law

TrustTortContractCriminal Law

Constitutional Law

(Right of individual in the

state)

(Offence against the State.

Obligations imposed on individual)

(Right and obligations that

arise by agreement)

(Offence against individual)

(Relationship between trustee and beneficiary)

(Individual)(Law that prevails between

state)

Individual and the state

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OSH LEGISATION

Statutory Law

Common Law

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STATUTORY LAW

Comprise of Act and Regulation: Legislated by governmentInfringement is criminal offencesPenalty punishment and imprisonment Prosecution by government officials ( such as Deputy Prosecutor) in court

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COMMON LAW

Resulted from decision made by judge and civil court Enable injured party to make claim to liable party Trial request made by appointed lawyer of injured partyProven guilty – compensation in money

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LAW OF TORT

Tort is a civil offences such as: Someone’s offence may giving right to injured party / oppressed to make claim in civil court.Tort classification:1. Nuisance2. Negligence3. Defamation4. Trespassing

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LAW OF TORT

Tort of Negligence

“the breach of a legal duty to take care which result in damage, undesired by defendant, to the plaintiff”

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DUTY OF CARE

“ Employer is liable of the duty of care even though he or she has appoint or assign competent person”

Wilsons and Clyde Coal Co vs English

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EMPLOYER’S LIABILITY ON DUTY OF CARE

Injury on:Each worker individuallyOther worker due to misconduct or worker’s negligence or agent who do the work for employer

(liability that representing -Vicarious liability)

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EMPLOYER’S LIABILITY ON DUTY OF CARE

“ Employer is not responsible on the worker’s action such as horseplay during duty ”

Smith Vs Crossley Bros Ltd

(Two apprentices inject compressed air to third party as a joke”)

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ELEMENTS TO DETERMINE NEGLIGENCE CASE

1. Have duty of care of one party to the other party2. Have violation on the duty3. Breach on the duty resulted to damage and injury

Burden to prove is on the Plaintiff (injured person)

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COMBINATION BETWEEN TWO LAWS

Common Law

Statutory Law

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OSH LEGISLATION HISTORY IN MALAYSIA

1. The Selangor Boiler Enactment 1892

2. The Perak Boiler Enactment 1903

3. The Pahang Boiler Enactment 1908

4. The Negeri Sembilan Boiler Enactment 1908

5. Federal Machinery Enactment 1913

6. Machinery Ordinance 1953

7. Factories and Machinery Act 1967

8. OSHA 1994

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OSH LEGISLATION SCOPE

1. Boiler safety before year 1914

2. Machine Safety 1914 - 1952

3. Industrial Safety 1953 - 1967

4. Safety and Industrial Hygiene 1970 - 1994

5. Occupational Safety and Health after year 1994

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BOILER SAFETY BEFORE 1914

1. The Selangor Boiler Enactment 1892

2. The Perak Boiler Enactment 1903

3. The Pahang Boiler Enactment 1908

4. The Negeri Sembilan Boiler Enactment 1908

Enactment scope:Boiler safety and Inspection to boiler’s worker

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MACHINE SAFETY 1914 - 1952

Federal Machinery Enactment 1913

Legislation scope:

1. Machine inspection such as:

Internal combustion engine

Water turbine and

above machine assembled together

2. Registration and inspection of assembly machine

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INDUSTRIAL SAFETY 1953 - 1967

Machinery Ordinance 1953

Legislation scope:

Boiler and machine safety

workers safety in which the been used

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SAFETY AND INDUSTRIAL HYGIEN 1968 - 1994

Factories and Machine Act 1967

Amend provision on machine safety

Improve deficiency in Machineries Ordinance 1953

Scope does not include workplace without

machine

Less provision in health

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FACTORIES AND MACHINE ACT 1967

APPROACH

1. Machine control

2. Internal environment control

3. Human control

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OCCUPATIONAL SAFETY AND HEALTH AFTER 1994

Occupational Safety and Health Act 1994

(OSHA 1994)

Legislation scope

1. Protect safety and health of workers in all

economic sector.

2. Have “Duty of Care” element

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CATEGORY OF LEGISLATION

Two (2) categories

Control of industrial activity or specific

chemical

Principle and general legislation

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CATEGORY OF LEGISLATION

Control of Industrial activity or specific chemical

1. Mineral Enactment

2. Atomic Energy Licensing Act 1984

3. Pesticides Act 1974

4. Petroleum Act (Safety measures) 1984

5. Electric Supply Act 1990

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CATEGORY OF LEGISLATION

Principle and General Legislation

1. Factories and Machine Act 1967

2. Occupational Safety and Health Act 1994

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ENFORCEMENT

Department of Occupational Safety and Health (DOSH)Among the functions:

1. Enforce FMA 1967 & OSHA 1994

2. Carry out encourage and promotional work

3. Examine existing legislation

4. Provide consultancy and expertise

5. To be secretariat of National Council for OSH

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SUMMARY

Common Law

TORT law

Resulted of decision made by judge and court

Injured party can make claim to liable party

Statutory Law

Have Act and Regulation

Legislated and enforced by government

Proven guilty can be penalized or imprisonment

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SUMMARY

OSH history background

1. Boiler Safety before year 1914

2. Machine Safety 1914 - 1952

3. Industrial Safety 1952 - 1967

4. Industrial and Industrial Hygiene 1970-1994

5. Occupational Safety and Health after 1994