Media Statement – 3/5/2022
Is it the Minister or is it the Public Prosecutor that ‘protects’ Directors and/or humans in companies from being charged when OSH laws are breached and worker/s die?
174 workers killed and 249 disabled in 6,686 workplace accidents in 2021
We, the 15 undersigned groups, trade unions and organization are concerned as to why human persons responsible for worker safety and health are still not being charged in court even when workers are killed or injured despite the fact that the Occupational Safety and Health Act 1994 provides for this. Prosecution for offences under this Act requires the consent of the Public Prosecutor, and as such one wonders whether it is the Public Prosecutor or is it the Minister that is deciding to charge only the company, but not the director, manager, secretary or other like officer of the body corporate even when workers are killed.
It was recently reported that a state-linked company (SLDB Management Sdn Bhd) and a manufacturing firm was found guilty for the offence under Section 15(1) of the Occupational Safety and Health Act 1994, for neglecting safety aspects, which resulted in the deaths of their workers which provides for a fine of up to RM50,000 or a jail term of up to two years, or both, upon conviction. It appears from the media report that no ‘director, manager, secretary or other like officer of the body corporate…’ was charged(Star, 8/4/2022)
After state-linked SLDB Management Sdn Bhd pleaded guilty on Friday (April 8), the company was ordered by the Sessions Court to pay a fine of RM15,000 for the death of Indonesian worker Cahya Abdullah at Ladang Bombong 1, Kampung Bombong in Kota Marudu on May 25 2021. SLDB Management was also ordered to pay RM5,000 by April 14 to Cahya's next of kin.
In the other case, Englen Manufacturing Sdn Bhd after its representative admitted to the charge, was sentenced with a fine of RM20,000 or three months' jail. The company was accused of failing to ensure the safety of its worker Bonnie Roger, who was involved in a fatal accident at its premises on May 15 last year at the Kota KInabalu Industrial Park here.
What is of concern is that no human decision maker or owner of these companies were charged for these offences despite the fact that Section 52 of the Occupational Safety And Health Act 1994 states ‘(1) 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.’ Subsection (2) states, (2) A person may be proceeded against and convicted under the provision of subsection (1) whether or not the corporation has been proceeded against or has been convicted under that provision.
It must be pointed out that in a company, all decisions are made by human persons, including ensuring the safety of workers. It is absurd that only the company is charged in court, and not the human decision makers or those responsible. With regards to a company, they can only be fined – it obviously cannot be imprisoned.
Concern arises about this practice of not charging Directors and officers of the company, more so when it is a government linked company (GLC), where Directors may be politically appointed persons is a worry. Directors of companies have a great responsibility not just to the shareholders but also to all workers, and actions or omissions be it intentionally or negligently done, to avoid making workplaces safe to protect workers and their health should no longer be tolerated.
Even in the recent 2 cases in Sabah, we find that the companies immediately admitted guilt, and as such there will also not be any grounds of judgment that can be educational to other employers to ensure that they do not ignore safety and health of workers.
The cases was dealt at the Sessions Court, even when death was a result of the fault of the employer, and this may also lead to non-dissemination and/or reporting of the grounds of judgment in law journals.
We take the view that when a worker dies, or is injured by reason of an employer’s failure to ensure the safety and health of a worker, this matter should be dealt by the High Court, and a higher penalty ought to be imposed on the guilty employer company, and its a director, manager, secretary or other like officer of the body corporate. Black listing of such convicted companies and its directors may also be needed to ensure employer’s place the highest regard to complying with the law concerning occupational health and safety.
Statistics from the Department of Occupational Safety and Health (DOSH) showed that there were 6,686 workplace accidents reported as of December 2021, of which 174 were fatal. Another 249 victims became disabled. This shows that this issue is a very serious issue for the protection of workers.
Prior Written Consent Of The Public Prosecutor – Who decided not to charge Directors,etc?
Section 61 of the Occupational Safety And Health Act 1994 states that ‘Prosecutions in respect of offences committed under this Act or any regulation made thereunder may, with the prior written consent of the Public Prosecutor, be instituted and conducted by an occupational safety and health officer or by an officer specially authorized in writing by the Director General subject to the provisions of the Criminal Procedure Code.
By reason of the written consent requirement, the Public Prosecutor may be the person refusing to give the required consent if and when the Ministry wants to charge certain directors, managers, secretary or other like officer of the body corporate, and so they cannot be charged.
Alternatively, it may the officers of the Ministry, being the ‘…occupational safety and health officer or by an officer specially authorized in writing by the Director General…’ who chooses not to charge any directors, managers, secretary or other like officer of the body corporate.
This matter needs to be clarified, and the reasons for not charging the human persons in these companies need to be investigated. We hope that there is no corruption or abuse of power involved.
The maximum fine from RM50,000 will be increased to RM500,000 by virtue of the Occupational Safety And Health (Amendment) Act 2022, which was gazetted on 16/3/2022, but is not yet put into force by the Minister, being the Human Resource Minister. Why the delay?
As such, the Session Courts imposition of fines of only RM15,000 and RM20,000 in the cases mentioned above where workers died by reason of the companies’ breach of the law, when Parliament had already decided to raise fines is also questionable. True, that the current maximum applicable in this cases was only RM50,000, and justly where the companies admitted guilt, maximum fines should have been imposed since workers died by reason of the companies breach of the law.
The Public Prosecutor and the Minister must explain why directors, manager, secretary or other like officer of the body corporate are not being charged and jailed more so in cases when the breach of law resulted in injury or death of workers.
Every time that a company is charged for such offences, the persons who are responsible for the acts/omissions that resulted in the violation of the law reasonably must also be charged. It is odd if just the company is charged, and not the human persons responsible.
Charles Hector
Apolinar Z Tolentino Jr.
For and on behalf of the following 15 groups/organisations
WH4C (Workers Hub For Change)
Building and Wood Worker's International (BWI) Asia Pacific
Labour Law Reform Coalition(LLRC)
ALIRAN
Persatuan Sahabat Wanita Selangor
Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–Atrahdom, Guatemala
Black Women for Wages for Housework
Clean Clothes Campaign (CCC) SEA Coalition
Haiti Action Committee
MADPET (Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility (Dr R S McCoy)
NAMM (Network of Action for Migrants in Malaysia)
North South Initiative
The William Gomes Podcast, United Kingdom
Women of Color/Global Women’s Strike
Friday, 08 Apr 2022 7:56 PM MYT
A representative of state-linked SLDB Management Sdn Bhd pleaded guilty on Friday (April 8) and was ordered to pay RM15,000 for the death of Indonesian worker Cahya Abdullah at Ladang Bombong 1, Kampung Bombong in Kota Marudu on May 25 last year.
The offence under Section 15(1) of the Occupational Safety and Health Act 1994 provides for a fine of up to RM50,000 or a jail term of up to two years, or both, upon conviction.
Judge Elsie Primus also ordered SLDB Management to pay RM5,000 by April 14 to Cahya's next of kin.
Cahya died after falling off a trailer mounted on a tractor which was deemed unsuitable for carrying workers.
In another case, judge Noor Hafizah Mohd Salim imposed a fine of RM20,000 or three months' jail against Englen Manufacturing Sdn Bhd after its representative admitted to the charge.
The company was accused of failing to ensure the safety of its worker Bonnie Roger, who was involved in a fatal accident at its premises on May 15 last year at the Kota KInabalu Industrial Park here.
Work towards zero workplace accidents, urges NIOSH chairman
By RAGANANTHINI VETHASALAM Nation
Thursday, 28 Apr 2022 3:46 PM MYT
PETALING JAYA: There should be zero accidents at workplaces, if possible, says National Institute for Occupational Safety and Health (NIOSH) chairman Datuk Wilson Ugak Kumbong.
Wilson urged employers and employees to practise a safe and healthy working environment to prevent any mishaps.
Therefore, he urged stakeholders to work as a team and conduct activities related to safety and health to ensure a safe work environment.
“At least, we want zero accidents or casualties.
“Our goal is to reduce accidents at workplaces,” he said at the sidelines of the Occupational Safety and Health Day celebration.
Statistics from the Department of Occupational Safety and Health (DOSH) showed that there were 6,686 workplace accidents reported as of December 2021, of which 174 were fatal. Another 249 victims became disabled.
The sector which contributed to the highest number of deaths during the period was construction, where 65 casualties were reported.
As at the first quarter of this year, there were 1,703 such accidents reported which claimed the lives of 48 while 54 became disabled.
The manufacturing sector contributed to the highest number of fatalities coming from manufacturing and construction which reported 16 deaths each.
Meanwhile, Wilson also advised the public to continue to observe standard operating procedure (SOP) to curb Covid-19, despite the announcement on relaxations.
“Children as young as two to three years old have yet to be vaccinated and only those aged five and above have been vaccinated. So if possible please observe the SOP while you are with your family,” he said.
“If there is a big crowd, why not use the SOP to be safe,” he said.
Health Minister Khairy Jamaluddin announced a slew of relaxed measures on Wednesday (April 27). Among the measures were making MySejahtera check-ins and wearing face masks outdoors no longer compulsory. - Star, 28/4/2022
(1) 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.
(2) A person may be proceeded against and convicted under the provision of subsection (1) whether or not the corporation has been proceeded against or has been convicted under that provision.
61 Prosecutions
Prosecutions in respect of offences committed under this Act or any regulation made thereunder may, with the prior written consent of the Public Prosecutor, be instituted and conducted by an occupational safety and health officer or by an officer specially authorized in writing by the Director General subject to the provisions of the Criminal Procedure Code.
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