3 pma salehuddin - analysis osh legislation

TABLE OF CONTENTS

CHAPTER TITLE PAGE

TABLE OF CONTENTS i

LIST OF TABLES iii

LIST OF FIGURES iv

LIST OF ABBREVIATIONS v

LIST OF APPENDICES vi

1 INTRODUCTION 1

1.1 OSHA 1

1.2 PMA Question 2

1.3 PMA Objective 2

2 DEFINITION REVIEW 2

2.1 Self Regulation 2

2.2 So Far as is Practicable 3

3 METHODOLOGY 4

3.1 Analysis Method 4

3.2 Recommendation Method 4

4 ANALYSIS OF REGULATION 4

4.1 Employers’ Safety and Health General Policy Statements 4

4.2 Control of Industrual Major Accident Hazards 5

4.3 Safety and Health Committee 8

4.4 Classification, Packaging and Labeling of Hazardous’ Chemicals 10

4.5 Safety and Health Officer 11

4.6 Use and Standards of Exposure of Chemical Hazardous to Health12

4.7 Notification of Accident, Dangerous Occurrence, Occupational

Poisoning and Occupational Disease 14

ii

4.8 Analysis – Reflection of Self Regulation 15

5 RECOMMENDATION 17

5.1 Redefine “Practicable” 17

5.2 Thought Process 18

5.3 Financial Implication 19

6 CONCLUSION 20

REFERENCES 21

Appendices A - C 23-25

iii

LIST OF TABLES

TABLE NO. TITLE PAGE

4.1 Self Regulation in CIMAH Regulation 5 ....

4.2 Self Regulation in SHC Regulation 8 ......

4.3 Self Regulation in CPL Regulation 10 ....

4.4 Self Regulation in SHO Regulation 11 ....

4.5 Self Regulation in USECHH Regulation 12

4.6 Self Regulation in NADOPOD Regulation 14

iv

LIST OF FIGURES

FIGURE NO. TITLE PAGE

4.1 Reflection of self regulation .......................................................... 16

4.2 Practicability of self regulatory regulations ................................... 16

6.1 OSH strategic drivers for the national OSH master plan ............... 20

v

LIST OF ABBREVIATIONS

CEP - Continuous Education Program

CIMAH - Control of Industrial Major Accident Hazards

CPL - Classification, Packaging and Labeling of Hazardous

Chemicals

CSDS - Chemical Safety Data Sheet

DG - Director General

ERP - Emergency Response Plan

MNC - Multi National Corporation

NADOPOD - Notification of Accident, Dangerous Occurrence,

Occupational Poisoning and Occupational Disease

OSH - Occuaptional Safety and Health

OSHA - Occuaptional Safety and Health Act

OSHMS - Occupational Safety and health Management System

PEL - Permissable Exposure Limit

PPE - Personal Protective Equipment

SHC - Safety and Health Committee

SHO - Safety and Health Officer

SME/I - Small and Medium Enterprise/Industry

TWA - Time Weighted Average

USECHH - Use and Standards of Exposure of Chemical Hazardous

vi

LIST OF APPENDICES

APPENDIX NO. TITLE PAGE

A Preview of Journal on SHC 23

B Preview of Journal on Industry Self Regulation 24

C Preview of Journal on Self Regulation 25

INTRODUCTION

2.1 OSHA

Labor protection is an ambiguous term where the definition used in common

language is different from that of legal terms/definition. In general usage, labor

protection is the protection of employees’ rights. But in legal terms, labor protection

is used to provide both safety and health protection to employees. According to

Krzyskow (2010), legal labor protection is law through an act enacted by the

parliament or congress.

The first known safety legislation was the Factory Act issued in England in

1802. Mohd Fadil, Norzita and Wijayanuddin (2013) states that during this time, the

safety philosophy was based on the idea that safety can be achieved through

regulations and supervision by the government. Krzyskow (2010) mentions that later

in 1919, ILO was founded and in its inception created the first set of conventions,

resolutions and constitution which contains the international law for OSH. The main

subject implied was not the protection of the health or life of the worker, but rather

protection of his or her working ability.

Mohd Fadil, Norzita and Wijayanuddin (2013) confirms the improvement of

OSH evolved when the Lord Robben Committee Report in 1972 introduced a new

safety philosophy for the responsibilities to ensure the safety and health at the

workplace lies with those who create the risk and with those who work with the risk.

Similarly, OSH legislation in Malaysia has also evolved positively from the Steam

Boiler Enactment in 1892 until the current OSHA in 1994 with the presently ongoing

additional regulations, codes of practice and guidelines to support and further

strengthen the act. One of the main principles for OSHA in Malaysia also embodies

similar philosophy to Lord Robbens Committee; which is self regulation. The

problem statement is; how well does the current regulations translate to self

regulation?

2

2.2 PMA Question

The PMA provided by Ir. Ludin Embong (2013) queries the following:

The aim of OSHA is to promote safety and health awareness and to establish

effective safety organization and performance through “self regulation concept”.

Analyze all regulations under OSHA and discuss whether the spirit of “self

regulation” is reflected through these regulations. Propose any improvement to

the regulations to reduce any gaps that may be present.

2.3 PMA Objective

The objective of this PMA is to analyze by performing the following:

(1) Specify definition of “self regulation” to be used in this PMA.

(2) Identify regulations that are reflecting “self regulation”.

(3) Recommend improvement to gaps and weaknesses discovered.

DEFINITION REVIEW

2.1 Self Regulation

Gupta and Lad (1983) identifies self regulation as a regulatory process at

industry-level as opposed to the government who sets and enforces rules and

standards relating to the conduct of the industry, MNC or SME/I. Ilise (1998) further

elaborates that self regulation can be achieved by employers by using best practices

as the minimum requirement or standard. The essence of self regulation is realized

in law through OSHA.

3

2.2 So Far as is Practicable

Self regulation in OSHA as one of the main principles is to handle issues

relating to occupational safety and health; employers must develop a good and

orderly management system. Starting with formation of a safety and health policy

and consequently employers have to make the proper arrangements to be carried out

(Siti Norfaizah & Mohd Zaidi, 2013). Based on the previous statement, employers

are the center of gravity to a successful self regulation of OSH. Therefore, the root

and most important section in OSHA regarding self regulation is Section 15

altogether with its subsections. Other noteworthy sections are Sections 16, 17, 18,

20, 21, 29, 30, 31 and 32 that relates to formulation of OSH policy, duty to other

person other than employees, duty of designers/manufacturers/suppliers, SHO, SHC,

NADOPOD, etc.

Throughout the abovementioned sections, there is a recurring correlation

where the duty of care is implemented so far as is practicable. OSHA states that

self regulation must be done so far as is practicable. But practicable is subjective

for everyone. What might be practicable to one party might not be practicable to

other parties. As far as legal terms explained in Part I–Preliminary–Interpretation in

OSHA, practicable means (Occupational Safety and Health Act, 1994):

(1) The state of knowledge about the hazard or risk and any way of removing

or mitigating the hazard or risk.

(2) The severity of the hazard or risk in question.

(3) The availability and suitability of ways to remove or mitigate the hazard

or risk.

(4) The cost of removing or mitigating the hazard or risk.

4

METHODOLOGY

2.1 Analysis Method

The method used is examining each OSH regulation by identifying

regulations that reflect the “self regulation” spirit. At the end of each regulation

analysis, aspects of self regulation will be categorized accordingly to fully self

regulation, partial self regulation or other suitable categorization. The self

regulations are then analyzed for practicability from the legal definition of

knowledge, severity, availability/suitability and costs towards hazards/risks.

3.2 Recommendation Method

In order to recommend improvements, there has to be gaps or weaknesses.

Referring to the last sentence in the introduction; how well does the regulations

translate to self regulation? The findings and room for improvement will be grasped

in the recommendation.

ANALYSIS OF REGULATION

4.1 Employers’ Safety and Health General Policy Statements Regulation,

1995

This regulation is not directly concerned with self regulation. It merely states

that employers having employees of 5 or less are exempted to formulate a safety and

health policy as in Section 16 of OSHA.

5

4.2 Control of Industrial Major Accident Hazards Regulations, 1996

The analysis of CIMAH regulation is shown in Table 4.1.

Table 4.1 : Self Regulation in CIMAH Regulation

RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST

1 Citation and commencement. n/a 2 Application of CIMAH to industrial activities

and exempted industries and installations. n/a

3 Interpretation of terms used in the regulation from the aspect of legal definition.

n/a

4 Limitation of power of officer for sub-regulation 7(2) and 13.

n/a

5 Sub-regulation (1) (b) – manufacturer of industrial activity must immediately rectify imminent danger as soon as he becomes aware of it.

Yes Yes Yes Yes No

Sub-regulation (1) (c) – manufacturer of industrial activity must maintain a good management system for controlling major accident.

Yes Yes Yes Yes No

6 Application of Part II CIMAH to industrial activities involved or likely involved with hazardous substance.

n/a

7 Sub-regulation (1) (a) – manufacturer to identify industrial activity.

Yes No No No No

Sub-regulation (1) (b) – manufacturer to submit Schedule 5 to notify DG of industrial activity.

Yes No No No No

8 Manufacturer to notify DG changes to Schedule 5

Yes No No No No

9 Application for demonstration of safe operation for non-major hazard installation.

n/a

10 Demonstration of safe operation. Yes Yes No Yes No 11 Review for demonstration of safe operation. No n/a n/a n/a n/a 12 Application for report on industrial activity

and preparation of emergency plan for major hazard installation.

n/a

13 Registration of competent person by DG n/a

6

Table 4.1 : Continued

RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST

14 Manufacturer to report Schedule 6 on industrial activity.

Yes Yes Yes Yes No

15 Manufacturer shall report any modification of Regulation 14.

Yes Yes Yes Yes No

16 Manufacturer to update report of Schedule 6 for every 3 years.

Yes Yes Yes Yes No

17 Review of Schedule 6 report by DG. No Yes Yes Yes No 18 Manufacturer to submit on-site emergency

plan to DG Yes No No No No

19 Manufacturer to submit updated Regulation 18.

Yes No No No No

20 DG to review on-site emergency plan of manufacturer.

No No No No No

21 Manufacturer to inform off-site emergency plan to local authority.

Yes Yes No No No

22 Manufacturer to supply information to public as per Schedule 3.

Yes Yes No No No

23 Notification of major accident Yes Yes Yes Yes No 24 Penalty for regulation offence n/a S1 Hazard substance indicative criteria n/a S2 List of substance and quantities n/a S3 Items of information to be communicated to

public. Yes Yes Yes Yes n/a

S4 Industrial installation. n/a S5 Notification of industrial activity form. Yes Yes Yes Yes No S6 Information to be included in the report on

industrial activity. Yes Yes Yes Yes No

7

The CIMAH regulation that reflects self regulation with variable degrees of self

regulation includes:

(1) Fully self regulation: Regulation 5 and 7(1)(a).

(2) Partial self-regulation because reports that still have to be submitted to DG of

DOSH: Regulation 7(1)(b), 8, 10, 14, 15, 16, 18, 19 and 23.

(3) Partial self regulation with external responsibility towards local authority and

public: Regulation 21 and 22.

From the abovementioned, determining the practicability of the reflected self

regulation is mixed:

(1) Directly or indirectly guides to practicability in terms of state of

knowledge, severity of hazard and availability/suitability of control:

Regulation 5, 14, 15, 16 and 23; Schedule 3, 5 and 6.


knowledge and availability/suitability of control: Regulation 10.

(3) No guide for determining practicability in terms of cost: All.

(4) No guide for determining practicability: Regulation 7, 8, 18, 19, 21

and 22.

8

4.3 Safety and Health Committee Regulations, 1996

The analysis of SHC regulation is shown in Table 4.2.

Table 4.2 : Self Regulation in SHC Regulation

RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST

1 Citation and commencement. n/a 2 Interpretation of terms used in the regulation

from the aspect of legal definition. n/a

3 Application of SHC under section 30 OSHA. n/a 4 Duties of employer. n/a 5 Membership of committee. Yes n/a n/a n/a n/a 6 Appointment of chairman and secretary of

committee. Yes n/a n/a n/a n/a

7 Appointment of other members of committee. Yes n/a n/a n/a n/a 8 Adequate employee representation. Yes n/a n/a n/a n/a 9 Vacancy. Yes n/a n/a n/a n/a 10 Sub-regulation (f) - Removal of member of

committee. Yes n/a n/a n/a n/a

11 Functions of committee. Yes n/a n/a n/a n/a 12 Inspection of place of work minimum of once

every three months. Yes n/a n/a n/a n/a

13 Investigation into any accident. Yes n/a n/a n/a n/a 14 Action to be taken on report and

recommendation of committee; sub-regulation (3) – employer to keep the record for a minimum of 7 years.

Yes n/a n/a n/a n/a

15 Matters to be considered by committee. Yes n/a n/a n/a n/a 16 Investigation of complaint. Yes n/a n/a n/a n/a 17 Resolution of complaint. Yes n/a n/a n/a n/a 18 Assistance of committee. Yes n/a n/a n/a n/a 19 Rules on safety and health. Yes n/a n/a n/a n/a 20 Sub-committee. Yes n/a n/a n/a n/a 21 Frequency of meeting of committee. Yes n/a n/a n/a n/a 22 Duty to provide facilities. Yes n/a n/a n/a n/a 23 Inaugural meeting. Yes n/a n/a n/a n/a 24 Quorum n/a 25 Non-member may attend meeting n/a

9


RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST

26 Matters to be dicussed at meeting. Yes n/a n/a n/a n/a 27 Minutes of meeting. Yes n/a n/a n/a n/a 28 Duty to ensure basic knowledge and functions

of committee. Yes n/a n/a n/a n/a

29 Duty to provide adequate training. Yes n/a n/a n/a n/a 30 Duty to make available relevant document and

information. Yes n/a n/a n/a n/a

31 Information not to be supplied n/a 32 Penalty n/a

The SHC regulation that reflects self regulation with variable degrees of self

regulation includes:

(4) Fully self regulation: Regulation 7, 8, 9, 10, 11, 13, 15, 16, 17,18, 19, 20, 22,

23, 26, 27, 28, 29, 30.

(5) Partial self-regulation due to appointment of chairman and number of

representatives based on number of employees: Regulation 5 and 6.

(6) Partial self regulation due to duration frequency to conduct regulation and

record keeping: Regulation 12, 14, 21 and 27.


regulation is not applicable for this regulation because the legal interpretation of

practicable in OSHA only refers toward hazards/risks and there is no aspects

regarding hazards and risk in this particular regulation. Ironically, the term

practicable; was used many times throughout this regulation.

10

4.4 Classification, Packaging and Labelling of Hazardous Chemicals

Regulations, 1997

The analysis of CPL regulation is shown in Table 4.3.

Table 4.3 : Self Regulation in CPL Regulation

RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST



3 Application of SHC under section 30 OSHA. n/a 4 Duties of supplier to classify. No n/a n/a n/a n/a 5 Packaging requirements. No n/a n/a n/a n/a 6 Seal of package No n/a n/a n/a n/a 7 Labeling No n/a n/a n/a n/a 8 Dimension of label No n/a n/a n/a n/a 9 Duty of supplier to furnish Chemical Safety

Data Sheet Yes n/a n/a n/a n/a

10 Confidential information on chemical n/a

The CPL regulation that reflects self regulation is only Regulation 9.

Determining the practicability of the reflected self regulation is not applicable for

this regulation because the legal interpretation of practicable in OSHA only refers

toward hazards/risks.

11

4.5 Safety and Health Officer Regulations, 1997

The analysis of SHO regulation is shown in Table 4.4.

Table 4.4 : Self Regulation in SHO Regulation

RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST



3 Application of SHO under OSHA. n/a 4 Registration of SHO. n/a 5 Application for registration. n/a 6 Qualification for registration. n/a 7 Certificate of registration. n/a 8 Compulsory attendance in any CEP for

renewal registration purpose. n/a

9 Refusal to register SHO by DG. n/a 10 Duration of registration. n/a 11 Renewal of registration. n/a 12 DG may refuse to renew SHO registration. n/a 13 Cancellation of registration by DG. n/a 14 Employer to notify person employed as SHO. No n/a n/a n/a n/a 15 Employer to provide facilities, training

equipment and information for SHO to conduct duty.

Yes n/a n/a n/a n/a

16 Employer to permit SHO to attend CEP. Yes n/a n/a n/a n/a 17 Employer to provide someone to assist SHO

when conducting investigation. No n/a n/a n/a n/a

18 Duties of SHO. Yes n/a n/a n/a n/a 19 SHO to submit report. Yes n/a n/a n/a n/a 20 Action taken towards report in Regulation 19. Yes n/a n/a n/a n/a 21 Death, sickness and absence from work of

SHO. n/a

S1 SHO application form. n/a S2 SHO renewal of registration form. n/a

12

The SHO regulation that reflects self regulation is Regulation 15, 16, 18, 19

and 20. Regulation 15, 18 and 19 is fully self regulation by employer and Regulation

16 is partial self regulation; employer has the freedom to determine what CEP the

SHO will attend. Determining the practicability of the reflected self regulation is not

applicable for this regulation because the legal interpretation of practicable in OSHA

only refers toward hazards/risks.

4.6 Use and Standards of Exposure of Chemicals Hazardous to Health

Regulations, 2000

The analysis of USECHH regulation is shown in Table 4.5.

Table 4.5 : Self Regulation in USECHH Regulation

RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST



3 Application of USECHH. n/a 4 Duties of employer and self employed person. n/a 5 Register of chemical hazardous to health. Yes Yes Yes No No 6 PEL. n/a 7 8 hour TWA. n/a 8 Compliance with PEL using respirator. No n/a n/a n/a n/a 9 Assessment of risk to health. Yes Yes Yes Yes No 10 Review assessment. Yes Yes Yes Yes No 11 Assessment to be carried out by an assessor. No n/a n/a n/a n/a 12 Sub-regulation (2) Assessor to immediately

inform the employer if there is immediate danger.

Yes Yes Yes Yes No

13 Assessment report. Yes Yes Yes Yes No 14 Action to control exposure. Yes Yes Yes Yes No 15 Control measures. Yes Yes No Yes No 16 Use of approved PPE. Yes Yes No Yes No 17 Engineering control equipment. Yes Yes No Yes No

13


RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST

18 Design, construction and commissioning of local exhaust ventilation equipment.

Yes No No No No

19 Records of engineering control equipment. Yes n/a n/a n/a n/a 20 Labeling and relabeling. No n/a n/a n/a n/a 21 Relabeling when hazardous chemical

transferred to another container. Yes n/a n/a n/a n/a

22 Information, instruction and training. Yes n/a n/a n/a n/a 23 Information, instruction and supervision to

anyone conducting work under this regulation. Yes n/a n/a n/a n/a

24 Employer will only use chemicals provided with CSDS.

No n/a n/a n/a n/a

25 Provision of easily accessible CSDS. Yes n/a n/a n/a n/a 26 Monitoring of exposure. Yes Yes n/a Yes No 27 Health surveillance program. Yes No No No No 28 Medical removal protection. Yes n/a n/a n/a n/a 29 Warning sign. Yes n/a n/a n/a n/a 30 Retention of records by employer. No n/a n/a n/a n/a S1 List of PEL n/a S2 Chemicals for which medical surveillance is

appropriate. n/a

S3 Information on pesticides. n/a

The USECHH regulation that reflects self regulation with variable degrees of

self regulation includes:

(1) Fully self regulation: Regulation 5, 9, 12, 15, 18, 19, 21, 23, 25 and 28.

(2) Partial self-regulation due to duration, frequency of duration or time for

submission: Regulation 10, 13, 14, 17, 22(3), 26(2) and 27(3)

(3) Partial self regulation with requirements to conduct/comply: Regulation

16(3) and 29.


regulation is mixed:

14


knowledge, severity of hazard and availability/suitability of control:

Regulation 9, 10, 12 and 14 .


knowledge and availability/suitability of control: Regulation 15, 16, 17

and 26.


knowledge and severity of hazard/risk: Regulation 5.

(4) No guide for determining practicability in terms of cost: All.

(5) No guide for determining practicability: Regulation 18 and 27.

4.7 Notification of Accident, Dangerous Occurrence, Occupational Poisoning

and Occupational Disease Regulations, 2004

The analysis of NADOPOD regulation is shown in Table 4.6.

Table 4.6 : Self Regulation in NADOPOD Regulation

RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY K

NO

WLE

DG

E

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST



3 Application of SHC under section 30 OSHA. n/a 4 Exemption of incident from patient undergoing

treatment from NADOPOD. n/a

5 Employer to notify and report accident and dangerous occurrence.

No No No No No

6 Exemption from Regulation 5 n/a 7 Employer to report cases of occupational

poisoning and occupational disease. No No No No No

8 Exemption from Regulation 7 n/a 9 No interference at accident or dangerous

occurrence scene except for certain conditions mentioned in the regulation.

No No No No No

15


RE

GU

LAT

ION

REGULATION SUMMARY

RE

FLE

CT

SE

LF

RE

GU

LAT

OR

Y

PRACTICABILITY

KN

OW

LED

GE

SE

VE

RIT

Y

CO

NT

RO

L A

VA

ILA

BIL

ITY

/ S

UIT

AB

ILIT

Y

CO

ST

10 Employer to record and maintain register of NADOPOD.

Yes No No No No

11 Requirement of further information for Regulation 10 by DG.

No Yes Yes Yes No

12 Amendment of regulation schedules n/a 13 Penalty n/a S1 Serious bodily injury n/a S2 Dangerous occurrence n/a S3 Occupational Poisoning and Disease n/a S4 Matters which DG may required to be notified Yes Yes Yes Yes No

The NADOPOD regulation that reflects partial self regulation is Schedule 4 of

Sub-Regulation 11 for the requirement of further information if noticed/required by DG.

The aspect of practicability does not considered cost in the particular schedule.

4.8 Analysis – Reflection of Self Regulation

Currently, the reflection for the spirit of self regulation for the regulations

under OSHA is shown in Figure 4.1 and the practicability of self regulation in terms

of legal interpretation/definition is visualized in Figure 4.2. In summary, out of the

197 regulations from the 7 arrangements of regulation; only 36 regulations reflect

full self regulation by the employer which results in only 18.27% of self regulatory

regulation of the overall regulations. In terms of practicability of the regulations, a

total of only 29.95% have outlined directly or indirectly the aspect of practicability

for the state of knowledge, severity of the hazard/risk and control

availability/suitability; none mentioning the consideration of cost.

Figure 4.2

Non Self Regulation,

Non Practicable,

Figure 4.1 – Reflection of self regulation

Figure 4.2 – Practicability of self regulatory regulations

Full Self

Regulation,

11.68

Partial Self

Regulation, 13.71

Non Self Regulation,

74.61

State of

Knowledge, 11.68

Severity of

Hazard/Risk,

8.12

Control

Avaialability/

Suitability, 10.15

Non Practicable,

70.05

16

of self regulatory regulations

Regulation, 13.71

Hazard/Risk,

Avaialability/

Suitability, 10.15

17

RECOMMENDATION

5.1 Redefine “Practicable”

Practicability is the vital element in implementing self regulation. From the

regulations that reflect practicability, only 29.95% is practicable. The main culprit

for this predicament lies in the definition of practicable in legislation. The

interpretation of practicable in OSHA only regards hazard/risk. Whereas, there are

many circumstances in the regulations that mention practicability which has no

relation to hazard/risk. For example, SHC Regulation mentions numerous times the

establishment and implementation of SHC so far as is practicable; which has no

relation with hazard/risk whatsoever. This contradicts with the initial interpretation

of practicable of OSHA in the first place. The employer will ambiguously interpret

practicability to its own advantage.

To avoid broad connotation, “practicable” should be redefined in depth and in

greater detail which covers virtually anything in the regulations. Aspects of

practicabilty other than hazard/risk must be stated in the OSHA interpretation such

as:

(1) Arrangement of SHC.

(2) Provision of information, instruction and supervision.

(3) Arrangement of consultancy, assessor, competent person, etc.

(4) Arrangement of ERP.

(5) Arrangement of OSHMS.

(6) Arrangement of OSH related training, programme and activities.

(7) Arrangement of CPL.

(8) Arrangement of NADOPOD.

(9) Other aspects of self regulation that is not related to hazard/risk.

18

5.2 Thought Process

Self regulation by nature involves a certain level of initiative, additional

effort and proativeness. In a nutshell, self regulation requires a thought process to

lay the foundation of self regulatory enforcement by the industries. In reality, only

11.68% of the regulations under OSHA supports the self regulation setting that

Section 15 of OSHA soughts after. The 74.61% of the regulations are non self

regulatory and 13.71% are partially self regulatory. This setting conditioned by the

OSH legislation will definitely detriment and hinder the successful implementation

of self regulatory by employers.

The contradictory setting of the regulation towards Section 15 of OSHA not

only discourages self regulation but promotes complacency towards mental

compliance of the legislation for achieving the bare minimum requirements

stipulated. This defeats the purpose of continuous improvement fundamental in

OSHMS where the improvement stops when the legislation is complied to. The

thought process is neglected, diminished and not given consideration so long as the

minimum requirement of law is complied.

A solution is needed to overcome this quandary dilemma of regulations by

truly giving a level of freedom of action to implement self regulation. Some of the

potential solutions to overcome is by embedding thought process in the regulaitons

by:

(1) Outlining a guideline in the schedules to implement and arrange the

practicable aspects of applicable regulations and its’ sub-regulations.

(2) Establishing a generic thought process tool in the form of code of

practice for implementing the thought process.

(3) Installing more freedom towards self regulation by increasing self

regulatory regulations to at least 70% of the regulations.

(4) Improve and mend regulations that contradict with OSHA in terms of

self regulation.

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5.3 Financial Implication

The most mind boggling finding in the analysis is the absence of cost

consideration throughout the regulations. Referring back to the interpretation of

practicable; cost is one of the aspects to be considered. Astonishingly, there is not

even one regulation that vaguely mentions on considering the factors of cost. Many

potential implications could rise such as employers defending that the cost allocated

in any OSH related matter is practicable when in fact is inadequate and insufficient.

As any typical employer, profit is the main drive for any business and increasing cost

in OSH matters will decrease the profit acquired.

Management guru; Drucker (1954) stated that economical factors as the main

drive for management. When financial implication is not given proper and grounded

rationality, it is not surprising when top management or employers does not consider

OSH as priority. Therefore, grounded economic rationality in the OSHA regulations

can be realized by:

(1) Setting a certain benchmark for the allocation of cost in the

regulations based on percentage. Of course, the golden value of percentage

must go through an in depth research with a holistic tripartite participation

from all industries and sectors that is agreed upon and endorsed by the

government. To give a rough idea, the following are just possible examples

of the outcome:

(a) OSH allocation with a minimum of 10% from total cost of

one-off projects for industries that are legally bound under CIMAH.

(b) 5% for industries not bound under CIMAH.

(c) 30% of employers training budget are for OSH training

purposes.

(2) Holistic consideration of OSH related cost not only regarding

hazard/risk embedded in the thought process mentioned in the previous

recommendation.

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CONCLUSION

OSHA and it’s regulations in Malaysia have come a long way since the

Steam Boiler Enactment in 1892. The essence of self regulation is embodied in the

concept of so far as is practicable. Surprisingly, self regulation is only reflected

towards 11.68% of the regulations and only 29.95% of those regulations are

distinguishingly practicable. Recommendation for improvement to gaps and

weaknesses discovered for the regulations are; (1) Redefining the interpretation for

“practicable”; (2) Instilling a thought process and; (3) Establishing a grounded

economic rationality towards cost/financial implication. Alarmingly, we are near the

National OSH Master Plan as shown in Figure 6.1 to achieve self regulation by 2015

and continue on to the next outcome of preventive culture by 2020. Holistic tripartite

involvement is a must to ensure the realization of the master plan. If all goes well,

the OSHA and its regulations will reach a level of maturity for a strong foundation

for OSH in Malaysia. Of course, any man-made legislation is not perfect but there

must be an effort to continuously improve and enhance generally for the benefit of

OSH body of knowledge and specifically for Malaysians.

. Figure 6.1: OSH strategic drivers for the national OSH master plan

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REFERENCES

Department of Occupational Safety and Health (2004). Guidelines on safety and health (notification of accident, dangerous occurrence, occupational poisoning and occupational disease) regulations 2004. Malaysia: Ministry of Human Resources.

Department of Occupational Safety and Health (2006). Guidelines on occupational safety and health act 1994 (act 514). Malaysia: Ministry of Human Resources.

Drucker, P.F. (1954). The practice of management. New York: Harper & Row.

Embong, L. (2013). Lecture notes. UTM KL: KLIA College.

Farouk, U.K., Richardson S., and Santhapparaj, A.J.S. (2011). Joint occupational safety and health committees: Extent of functioning in Malaysian manufacturing companies? Proceedings for International Conference on Sociality and Economics Development. Singapore, 521-525.

Gupta, A.K., and Lad, L.J. (1986). Industry self-regulation: An economic, organizational, and poitical analysis. The Academy of Management Review, 8 (3), 416-425.

Ilise, F.L. (1998). Self regulation: An American route to safety and health on the cheap? The Safety and Health Practitioner. 16 (6), 34-36.

Kryzkow, B. (2010). Handbook of occupational safety and health – Edited by Danuta Koradecka. Florida: CRC Press.

Malaysia (1994). Occupational safety and health act and regulations. 514.

Ministry of Human Resource (2001). National Occupational Safety and Health Master Plan. Malaysia: Ministry of Human Resource.

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Ministry of Human Resource (2001). National occupational safety and health master plan. Malaysia: Ministry of Human Resource.

Mohd Fadil, A.W., Norzita, N., and Mohd Wijayanuddin, M. A. (2013). Safety legislations in Malaysia. UTM-OCW lecture notes: Safety in Process Plant Design. KL: UTM.

Siti Norfaizah, R., and Mohd Zaidi, J. (2013). Safety legislations in Malaysia, OSHA 1994 and other relevant acts. UTM-OCW lecture notes: Safety in Petroleum Engineering. KL: UTM.

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APPENDIX A: Preview of Journal on SHC

24

APPENDIX B: Preview of Journal on Industry Self Regulation

25

APPENDIX C: Preview of Journal on Self Regulation

3 pma salehuddin - analysis osh legislation

Education

shc regulation

analysis of regulation

industry self regulation

cimah regulation

nadopod regulation

usechh regulation

sho regulation

cpl regulation