Stiffer penalty needed for workplace safety offences

KUALA LUMPUR: Many construction site deaths have been due to defiance of worksite safety regulations. Yet, the penalties imposed on errant employers are too low, according to safety advocacy groups.

At present, Section 15 (1) of the Occupational Safety and Health Act 1994 provides a maximum fine of up to RM50,000, or a jail term of up to two years, or both, for negligence.

They are of the view that the penalties for occupational safety and health offences are too lenient and do not reflect the seriousness of the offences.

Penalties of these offences, they said, should be raised in order to achieve a greater deterrent effect and to enhance protection for workers.

Director General of the Department of Occupational Safety and Health (DOSH) Ir Zailee Dollah and High Court of Malaya lawyer Ahmad Ishrakh Saad shared their thoughts in a recent interview with Bernama.

MAXIMUM 5-YEAR JAIL SENTENCE

Ahmad Ishrakh said the time has come for Section 15 (1) of the Occupational Safety and Health Act 1994 to be reviewed given that it has been in existence for over 27 years.

"The government should review the existing law by taking into consideration the current situation. This is because sentences imposed for criminal cases should achieve its objectives - judgement, lessons, preventive as well as remedial.

He said punishment for criminal cases must be appropriate and proportional to the gravity of the offence committed, otherwise the objectives will not be achieved.

"I believe the maximum prison sentence should be increased to five years. This means that the offender will serve a jail sentence instead of paying fines as penalties." he added.

He said fines are common punishment for a variety of crimes, especially less serious offences. These are cases which carry a penalty of two years and below.

"For penalties of two years and below, usually the suspect cannot be detained without a warrant. But if the penalty is more than two years, it is categorised as an arrest and usually the suspect can be detained and remanded," he explained.

PENALTY SHOULD BE RAISED TO RM500,000

According to Zailee, DOSH and the relevant agencies are now in the final stages of amending the Occupation Safety and Health Act 1994.

"We are waiting for the Occupational Safety and Health (Amendment) Bill 2020 to be tabled for second reading in the next Dewan Rakyat sitting in Parliament. The amendments provide for an increase in the maximum fine from RM50,000 to RM500,000," he said.

The bill was tabled for first reading in Parliament on Nov 2, 2020 to introduce significant amendments to the Occupational Safety and Health Act 1994. (OSHA).

He said employees are vital assets to the government as they generate income for their families and contribute towards the nation's growth.

"The nation will incur huge losses when workers are injured or killed as a result of accidents at their workplace.

"According to the International Labour Organisation (ILO) recent global estimates, work related-deaths as well as deaths related to occupational diseases account for around 4 percent of the world's annual Gross Domestic Product (GDP).

"The government does not wish to see employers focus only on making profits for their business at the expense of their workers' safety and health," he added.

Citing figures, he said the nationwide occupational accident rate recorded a 63 percent reduction, that is from 5.84 per 1,000 workers in 2004 to 2.18 per 1,000 workers in 2020.

While workplace death rate decreased by 71 percent, that is from 7.17 per 100,000 workers in 2004 to 2.09 per 100,000 workers in 2020, he said.

"Despite the reduction in the nationwide occupational accident and death rates, there are still many workplace related accidents. In 2020, a total of 32,674 occupational accident cases was recorded last year with 312 of them being fatal," he added.

He said members from the public, political parties, non-governmental organisations and workers' unions have also asked the government to raise the penalty imposed on workplace safety offenders.

"The higher penalty for offenders related to occupational safety and health is also in line with the practices of adopted in developed nations in ensuring employers observe safety and health procedures in workplaces," he added.

JOINT COLLABORATION

Joint collaboration with all relevant parties is key to tresolving the issue in an effective and holistic manner, he said.

Zailee said to ensure the safety and health aspects are practised in a holistic manner, all stakeholders including government agencies, employers and workers, occupational safety and health practititioners as well as industry players should exercise their roles in an effective and integrated manner.

The protective layers should be strengthened to prevent occupational accidents and work-related diseases from taking place, he added.

Toward this end, the government through DOSH will launch the Occupational Safety and Health Master Plan 2021-2025 (OSHMP 25) which aims to strengthen safe and healthy work practices, he said.

"The involvement of all stakeholders in the implementation of the OSHMP25 (2021-2025) is expected to propel the OSH towards excellence. Its objective is to provide protection for the human resource which is a vital asset in the nation's development programme," he added.

SIDEBAR

LANDSLIDE CASE AT BUKIT KUKUS, PENANG

On Oct 19, 2018, a landslide incident occured at the construction site of the Jalan Bukit Kukus paired road owned by the Penang Island City Council (MBPP) linking Paya Terubong to Relau.

The landslide killed nine foreign workers and left four others injured, while one was reported missing.

The tragic landslide which took place at 1.56 pm, involved at least 42,000 tonnes of earth falling on 12 container cabins housing 13 foreign workers.

Earlier, on Oct 11, 2018, 14 concrete beams fell down a slope in Jalan Tun Sardon nearby during the construction of the Jalan Bukit Kukus alternative road.

Following the Bukit Kukus landslide, the contractor for the Paya Terubong paired roads project in Jalan Bukit Kukus was fined RM22,000 by the George Town Sessions Court on Jan 8, 2020 after pleading guilty to two charges of failing to provide safe work procedures.

Judge Mazdi Hamid sentenced Syarikat Yuta Maju Sdn Bhd which was represented by its director, Osmera Mamat after he changed the plea to guilty during the proceedings in court.

The court fined the company RM20,000 for the first charge and ordered Osmera who was the accused in the case to serve two months in jail in lieu of the fine and a fine of RM2,000 or two weeks jail for the second charge of the company.

For the first charge, the company as the employer was accused of failing to ensure the practical safety, health and welfare of its workers and failing to provide safe work procedures for using a crane which resulted in falling beams at the construction site of the Paya Terubong paired roads project at 8.30pm on Oct 11, 2018.

The company was charged under Section 15 (1) of the Occupational Safety and Health Act 1994.For the second charge, Yuta Maju which was the main contractor appointed by Penang City Council (MBPP) for the project was accused of failing to appoint a competent safety and health officer at the project site.

Meanwhile, at the same the court Judge Mazdi set Feb 19 for the hearing of the case faced by Osmera and the company's project director, Lai Sin Kian who were facing an amended charge of failing to provide safe work procedure resulting in the landslide at the project site in Jalan Bukit Kukus at 1.50pm on Oct 19, 2018.

According to the amended charged Lai was accused of failing to provide engineering calculations by an accredited engineer for earth backfill works for a temporary slope, which resulted in the landslide on Oct 19 2018.

Yuta Maju was represented by Osmera as the employer under the same charge. They were charged under Section 15(1) of the Occupational Safety and Health Act 1994 which carries a maximum fine of RM50,000 or two years jail or both upon conviction.

-- BERNAMA