See full media statement at 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? - Joint Statement of 15 Groups
Why are directors not charged over workplace accidents, NGOs ask AG
PETALING JAYA: The attorney-general (AG) and the human resources minister must explain why directors and officers are not charged when their companies breach the Occupational Safety and Health Act 1994, say rights groups.
In a statement, a group of 15 NGOs asked why those responsible for worker safety and health were not charged when their companies’ breach of the act resulted in deaths or injury of workers.
“Prosecution for offences under this act requires the consent of the public prosecutor.“One wonders whether it is the public prosecutor or the minister who decides to charge only the company, but not the director, manager, secretary or other such officers, even when workers are killed,” the group said.
Under the Occupational Safety and Health Act 1994, directors, managers, secretaries and other similar officers can be charged in the same legal proceedings as their companies for violations of the act.
According to the group, there were 6,686 workplace accidents last year, resulting in 174 workers being killed and 249 becoming disabled.
They said a state-linked company was recently found guilty of neglecting safety aspects that resulted in a worker’s death, but was only ordered to pay RM15,000 in fines and RM5,000 as compensation to the worker’s next of kin.
“What is of concern is that no decision-maker or owner of these companies was charged for these offences.
“Every time a company is charged for such offences, the persons responsible for the omissions that resulted in the violation of the law must also be charged.”
The group said the current RM50,000 maximum fine for violating the act was to be increased to RM500,000 under the Occupational Safety and Health (Amendment) Act 2022, but this has yet to be enforced. - FMT, 3/5/2022
“Workplace deaths: Why charge companies alone, not its directors as well?”
WE, the 15 undersigned groups, trade unions and organisations are concerned as to why the people responsible for worker’s 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 officials of the company 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 (Act 514), for neglecting safety aspects, which resulted in the deaths of their workers.
If convicted, it provides for a fine of up to RM50,000 or a jail term of up to two years, or both, upon conviction. However, it appears from a media report that no director, manager, secretary or other like officers from the firm was charged.
After state-linked SLDB Management Sdn Bhd pleaded guilty 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, last year.
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 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, “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”.
In a company, all decisions are made by people, including ensuring the safety of workers. It is absurd that only the company is charged in court, and not 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.
Directors have a great responsibility not just to the shareholders but 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 two 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 were 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 are of 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 director, manager, secretary or other like officer of the body corporate.
Blacklisting 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.
Who decided not to charge errant directors?
Section 61 of Act 514 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 authorised 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 corporate officials.
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 corporate members.
This matter needs to be clarified and the reasons for not charging these people in the 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 March 16 this year but is yet put into force by the minister. Why the delay?
The public prosecutor and the minister must explain why corporate officials 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 too.
It is odd if just the company is charged, and not the people responsible. – May 3, 2022
The statement is endorsed by 16 NGOs, including North South Initiative Aliran and Labour Law Reform Coalition (LLRC). - Focus Malaysia, 3/5/2022
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