Academic journal article International Journal of Business and Society

Corporate Liability under Malaysian Occupational Safety and Health Legislation

Academic journal article International Journal of Business and Society

Corporate Liability under Malaysian Occupational Safety and Health Legislation

Article excerpt

ABSTRACT

Although the underlying philosophy of the Malaysian Occupational Safety and Health Act 1994 has always been self-regulatory, enforcement of the Act has relied on prosecution. The Act provides for several forms of sanctions- imprisonment and fines -to punish wrongdoers, who are mainly corporate bodies. Scores of corporate entities have been prosecuted since the promulgation of the Act in 1994; the overwhelming majority of these entities charged under the Act pleaded guilty and paid fines. This study found that corporate entities have generally been willing to pay fines rather than undergo criminal trials under the Act. Cases from the 2006-2013period prove the consistency of such pattern. The reasons for paying fines rather than undergoing criminal trial include the following, among others: the fines are comparatively low, the burden of proof is on the accused (in practice), the intensity and time factor of a full trial is onerous and the company's reputation is at risk. In the case of workplace-related death and its effect on corporations, the laws of the United Kingdom are analysed. This study adopted a qualitative method that mainly relied on descriptive and analytical examinations of statutory provisions and case law.

Keywords: Malaysia; OSHA 1994; Corporate Liability; Prosecution; Safety and Health.

1. INTRODUCTION

Corporations are potential offenders under the Occupational Safety and Health Act 1994 (Malaysia) (OSHA). In their capacity as employers (and perhaps as entrepreneurs), corporations undertake the performance of tasks that might cause injuries or death to their workers and harm to the public (Hassan, 2012; Rahman & Hassan, 2008). The corporate liability for such calamities can be severe, and corporations might be required to pay huge sums of money as penalties under the Act. In addition, industrial accidents caused by the negligence of corporations might tarnish the reputation of such corporations. Thus, it is the aim of this paper to discuss corporate liability as provided under OSHA by referring to the pattern of liability in Malaysia during a given period and the challenges of enforcing the Act. Corporate liability for fatality cases is also discussed; however, because there has been no legislation on corporate liability for homicide/manslaughter in Malaysia, reference is made to United Kingdom law (Ali, 2009).

It is axiomatic that the success of any legislation depends on its implementation and enforcement. However noble a legislation's objective, it will not be effective if enforcement is weak. For any legislation to be respected, it must have a positive impact on the industry and society. The same argument applies to the Occupational Safety and Health Act of 1994, which has become the primary legislation for ensuring and maintaining occupational and industrial safety. The number of industrial accidents and occupational diseases is increasing at an alarming rate, and OSHA has an important role in acting as a catalyst to create safety awareness among employers and employees (Hassan, 2002; Hassan et al 2010; Ismail et al 2009).

OSHA provides for several enforcement mechanisms. The Act provides for administrative measures such as campaign awareness, awards and standards certification, although its implementation continues to rely on legal enforcement (prosecution).To that end, Section 39 of the Act provides for various powers of enforcement to Occupational Health and Safety Officers, such as the power to enter premises, to inspect, to investigate, to confiscate and to take samples. Section 40 authorises officers to enter premises with a search warrant and to seize property, and section 41 authorises officers to enter premises without a search warrant. Section 42 provides for forceful entry into premises, section 43 provides for the steps that are required to be taken by officers during the inspection of premises, and section 44 authorises investigative powers. The investigation power under section 44 is akin to the power of the police in an investigation - without the power to arrest without a warrant that police officers have under the Criminal Procedure Code for any seizable offence. …

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