4.

Law, Acts and Regulations

On the 24th of December 2018, a foreign worker was found dead due to falling at a
project site. It was said that the incident happened around 3.30pm at the construction site of a
35-storey apartment in Sitiawan, Manjung. Based on the description of the accident, the
situation is clearly related to the health and safety of the employee in the workplace. Thus,
the case falls under Labour Law.
The company, Tunas Gemilang TKK Enterprise was charged under Section 10 (e) of
the Factories and Machinery Act 1967 which refers to provisions regarding safety, etc.
‘without prejudice to any law with reference to local authorities, in respect of any factory, the
subsequent provisions regarding safety shall apply : (e) every opening, sump, pit or fixed
vessel in an exceedingly floor, or working level shall be securely covered or securely fenced
so as to prevent risk of persons falling’.and punishable under Section 51 (2) of the same law,
which provides a maximum fine of RM50,000 or imprisonment of up to one year or both
upon conviction.
In addition, it is suspected that proper guard was not installed. In Regulation 8 (1)(a)
and Regulation 8 (3) of the Factories and Machinery (Safety, Health and Welfare)
Regulations 1970, it is specify that the standard for opening that are generally to be fenced in
a workplace : (1) every hatchway, chute, pit and trap-door opening shall be (a) securely
fenced by removable railings with toe boards on not more than two sides and permanent
guard rails with toe-boards on all other exposed sides ; and (3) every manhole floor opening
shall be securely fenced by manhole covers of adequate strength, which does not need to be
hinged. Every other floor opening into which persons can accidentally walk shall be fenced
either by permanent guard rails with toe-boards on all exposed sides or by hinged floor
opening cover of adequate strength.

Moreover, it is assumed that proper safety equipment is not provided to the employee
while working at the 35-storey apartment. In Regulation 12 of the Factories and
Machinery (Safety, Health and Welfare) Regulations 1970 states the safety procedures of
an employee while working at a height : where any person is required to work at a place from
which he will be vulnerable to fall a distance of more than ten feet, means shall be provided
to ensure his safety and such means shall where practicable include the use of safety belts or
ropes. The employer should ensure that there is enough safety equipment in the workplace so
that all employees’ safety while working at a height are assured and the employee should use
the equipment properly.
 Failure to do all of the regulations stated above may result in a fine under Regulation
41 of the Factories and Machinery (Safety, Health and Welfare) Regulations 1970, ‘any
person who commits an offence against these Regulations for which no corresponding
penalty is provided by the Act, shall on conviction be liable to a fine not exceeding one
thousand ringgit’.
It is also stated in Regulation 50 of the Factories and Machinery (Building
Operations and Works of Engineering Construction) (Safety) Regulations 1986 that
‘safety belts, life lines and all devices for the attachment of life lines shall be adequate
strength and of a type approved by the Chief Inspector’. Failure to do so can lead to a fine not
exceeding two thousand ringgit under Regulation 154 of the same regulation.

Responsibilities of an employer an employee

Based on OSH law, employers have the duty of providing a safe workplace. This
implies that employers must provide a workplace free from seriously recognized hazards and
comply with OSH standards, rules and regulations. In addition, employers must examine the
workplace conditions to ensure that they comply with relevant OSHA requirements. In this
case, the employer has to examine and ensure that all the pit holes in the construction site
were tightly closed or fenced firmly to prevent an accident. Employers should also provide
their employees with details on the risks at the workplace, how they are protected as well as
advise and trains them on how to handle the risks. Employers also have to provide workplace
protection in the form of personal protective equipment (PPE). PPE is any clothing,
equipment or material intended to protect a person from injury or illness. In this case, the
employer needs to provide the employee with safety harness to avoid falling while working at
a height.
Based on Section 24 of the Occupational Safety and Health Act 1994 (Act 514), it
shall be the duty of every employee while at work 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.
This signifies that the employee should not indulge in any misconduct that could jeopardize
his own safety or health or that of anyone else. For instance, while working at a height, the
employee should wear the provided personal protective equipment (PPE) such as safety
harness and lanyard to firmly tie the lifeline or any rigid structural point when working at a
height of more than 2 metres. In addition, employees should also be constantly cautious for
anything that might lead to an accident. Report any hazards in the workplace, equipment, etc.
that could put safety and health at risk.