We, the 15 undersigned groups, trade unions and organisation, are concerned 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 and a manufacturing firm were found guilty of an 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.
After the state-linked company pleaded guilty on 8 April, 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 25 May 2021. The company was also ordered to pay RM5,000 by 14 April to Cahya’s next of kin.
In the other case, the manufacturing company, 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 15 May last year at the Kota Kinabalu Industrial Park here.
What is of concern is that no human decision-maker or owner of these companies was charged for these offences despite Section 52 of the Occupational Safety And Health Act 1994 stating:
(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 regard 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: where directors may be politically appointed persons, it 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 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 the safety and health of workers.
The cases were dealt with 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 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 that employers place the highest regard to complying with the law concerning occupational health and safety.
Statistics from the Department of Occupational Safety and Health 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:
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 March 2022 – but this has not yet been put into force by the minister, being the human resources minister. Why the delay?
As such, the Session Court’s 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, the current maximum applicable in these 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 the directors, manager, secretary or other like officers of the body corporate are not being charged and jailed more so in cases when the breach of law resulted in injuries or deaths of workers.
Every time a company is charged for such offences, the persons who are responsible for the acts or 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.
Apolinar Z Tolentino Jr.
On behalf of the following 15 groups:
- Workers Hub For Change (WH4C)
- Building and Wood Worker’s International (BWI) Asia Pacific
- Labour Law Reform Coalition(LLRC)
- 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
- Malaysians Against Death Penalty and Torture (Madpet)
- Malaysian Physicians for Social Responsibility (Dr R S McCoy)
- Network of Action for Migrants in Malaysia
- North South Initiative
- The William Gomes Podcast, UK
- Women of Color/Global Women’s Strike