TABLE OF CONTENTS

1.0 Introduction.....................................................................................................................3

1.1 Occupational Safety and Health Act 1994..................................................................3

1.2 Similarities and Differences........................................................................................3

2.0 Case Studies....................................................................................................................3

2.1 Facts of the Case.........................................................................................................3

2.2 Legal Issue...................................................................................................................3

2.3 Court Judgement..........................................................................................................3

3.0 Relations with Malaysian Law........................................................................................3

4.0 Recommendation.............................................................................................................3

5.0 Conclusion.......................................................................................................................3

Bibliography...............................................................................................................................4

Page 1 of 10
1.0 INTRODUCTION
1.1 OCCUPATIONAL SAFETY AND HEALTH ACT 1994 AND
HEALTH AND SAFETY AT WORK ETC. ACT 1974

In Malaysia, the Parliament of Malaysia enacted the Occupational and Safety Act

1994 to regulate, promote and enforce occupational safety and health in Malaysia. What it

aims to do is address the inadequacy of past legislations, which are still in force today so long

as it remains consistent with the provisions of the Occupational Safety and Health Act 1994.

The United Kingdom sees a different situation. While the Parliament of the United

Kingdom passed the Health and Safety in the Workplace etc. Act 1974, it is amendable

directly and indirectly by subsequent:

1. Acts of Parliament

2. Acts of the devolved Parliaments and Legislature:

a. Acts of Scottish Parliament;

b. Measures of the Welsh National Assembly;

c. Acts of the Northern Ireland Assembly.

3. Subsidiary legislation by the respective Secretaries of States;

4. Subsidiary legislation by the devolved executives of Scotland, Northern

Ireland and Wales in their jurisdictions.

The following tables will disclose the similarities and differences of the British and

Malaysian laws and the consequences of the passage and enforcement.

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 1.2 SIMILARITIES AND DIFFERENCES
Occupational Safety and Health Health and Safety at Work etc.

Act 1994 Act 1974

Differences Centralises enforcement and Creates a comprehensive agency for

legislation of occupational safety, the regulation, advise, promotion

health and environment related and enforcement of workplace

matters with the Federal safety and health.

Government.
Funding is 100% given to the Funding is derived from both the

Federal Government’s Department regional/devolved governments and

of Occupational Safety and Health. the Whitehall/Westminster.

National Institute of Occupational Health and Safety Laboratory is part

Safety and Health (NIOSH) not of the Health and Safety Executive

legally required1 [ CITATION and responsible for research,

Nat10 \l 1033 ]. monitoring, risk assessment.

Licensing and use of nuclear Nuclear Directorate regulates

materials under purview of the nuclear use at the workplace and is

Atomic Energy Licensing Board, a part of the HSE.[ CITATION Wik103

separate government body. \l 1033 ]

The National Council for The Health and Safety Commission

Occupational Safety and Health merged with the Health and Safety

created under s. 8, OSHA 1994, has Executive on 1 April 2008 creating

powers to execute the objects of a single entity for occupational

that Act (s. 11(1), OSHA 1994). safety and health. [ CITATION

Wik104 \l 1033 ]

1
NIOSH, Malaysia, is a Company Limited by Guarantee created by the Malaysian Government under the
Companies Act 1965. It is not a statutory body or a government department created by its own specific
legislation. DOSH is a statutory body as it is created under the authority of the OSHA 1994.

Page 3 of 10
 Minister makes regulations to The devolved governments and

refine the act, but no power to Whitehall has the power to pass

amend it. subsidiary legislation that can

amend the effect of the principal

act.
Similarities A set of duties created for employers and employees.
Enforcement agency permitted to conduct inspections, investigations and

recordkeeping of such activities.

Violations of the statutes carry some form of fines and imprisonment

terms.
A general rule: if subjected to inspections and investigations, the

employers have legal protection from having their manufacturing or

commercial secret being exposed by the enforcement officer.

Statistics related to occupational safety and health must be created and

updated regularly.

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2.0 CASE STUDY: BARBER V. SOMERSET COUNTY
COUNCIL [2004] UKHL 13
2.1 FACTS OF THE CASE
In 1995, Barber, a teacher, was employed as a head of department in a school.

Changes at the school resulted in a new role for Barber, but he found the changes and

increased hours very stressful.

Despite raising concerns with his employer, he received little sympathy, and soon

became ill with stress and depression. Eventually he suffered a nervous breakdown.

Barber sued his employer for damages for personal injury, and was awarded more than

£100,000. This decision was overturned by the Court of Appeal which considered three cases

together, known as Hatton v Sutherland CC, and provided clear guidance on when employers

might be liable for employees' work-related stress. However, Barber appealed, and his case

went to the House of Lords.

2.2 LEGAL ISSUE

Per Lord Scott of Foscote: the issue in this case is whether the Somerset County

Council, who employed Mr Barber as a teacher at their East Bridgwater Community School,

are liable to him in damages for the mental breakdown he suffered brought about by the

pressures and stresses of his workload.

2.3 COURT JUDGEMENT

For the purpose of the court judgement, I’m summarising Lord Walker of

Gestingthorpe’s judgement as all the Law Lords on the Bench concurred with his decision.

Where Lord Rodger of Earlsferry and Lord Scott of Foscote’s judgements are concerned, the

learned judges referred predominantly on the Appellant’s contractual duties.

In summary of Lord Walker of Gestingthorpe’s judgement, the employers owed a

duty of care to the employees to the degree that they ought to inquire on the appellant’s
Page 5 of 10
emotional and mental wellbeing, especially when a physician’s opinion supports the

appellant’s claims.

While the school may have been constrained by budget cuts and fiscal issues, they

should take measures to alleviate the pressure on the appellant.

Their Lordships found that after his first sickness absence, his employer should at

least have made 'sympathetic enquiries' and considered what could have been done to help.

The useful guidance given by the Court of Appeal means employers can ordinarily assume

that employees are up to their job.

A duty may arise however, as in this case, if any steps can be taken to assist an

employee who is having difficulty coping. Barber's employer was found wanting and as such

had breached its duty of care and was liable in negligence.

Page 6 of 10
3.0 RELATIONS WITH MALAYSIAN LAW
The Occupational Safety and Health Act 1994 is silent on stress at the workplace.

However, the general principles underlying the passage of the Occupational Safety and

Health Act 1994 include:

 Creating a safe and healthy environment;

 To take care of the welfare of the employees.

Based on the subsidiary legislations, there are no legal requirements for the employers to

report stress-related outcomes. For instance the Occupational Safety and Health (Notification

of Accidents, Dangerous Occurrences, Occupational Poisoning and Occupational Diseases)

Regulations 2004 is silent on stress or mental or emotional trauma.

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4.0 RECOMMENDATION
In the DOSH Guidelines on Occupational Safety and Health in the Office, it merely

states as the following:

“Workplace stress is of increasing concern in offices and is still poorly understood.

Stress arises when the demands on the worker exceed the capacity to cope. Stressful

situations should be identified in the office and safeguards must be implemented at

organisational level to minimise the risk. This might means making changes in the

organisation of the work2. [ CITATION Dep96 \l 1033 ]”

According to the Guidance for the Prevention of Stress and Violence at the

Workplace, the employers are advised to be wary of stress in the office and the causes.

Prompt intervention is recommended by the Department to prevent the situation from

escalating. The guide also suggests the need for the employer to conduct counselling,

performance monitoring – among others [ CITATION Dep02 \l 1033 ].

2
Pg. 14, Guidelines on Occupational Safety and Health in the Office

Page 8 of 10
5.0 CONCLUSION
In conclusion, legally the employers are not required to be concerned with a stressed

out worker. Yet, a stressed out worker can and will lower productivity. The workers will

interpret whether the employer cares or otherwise on the mental wellbeing of the employees.

Statistically speaking, the French workforce enjoys six weeks’ vacation per annum in

addition to a maximum of 39 working hours a week. As far as competitiveness is concerned,

France came in the 27th place in the World Economic Forum ranking. Funny enough, French

workers are the most productive – leaving the British, German, U.S., and Japanese

workforce! Norway, where workers work less than France, makes US$500 more than the

French, U.S. and German workers in terms of Gross National Income per capita (GNI)

[ CITATION Ack05 \l 1033 ].

In this 21st Century, workplaces are becoming more and more displaced. Instead of

being centralised in a company-owned premise, today’s employees begin to enjoy more

flexibility and freedom than their counterparts in the past. New concepts such as the Results

Only Work Environment (R.O.W.E.) see employees being paid for worked done instead of

hours clocked [ CITATION Wik105 \l 1033 ]. While infrastructure may differ, the constant, it

seems, is the stress on the employees. An approach by MindValley

(http://www.mindvalley.com/) is bringing out the whole staff for weeklong vacations.

Sooner or later, these trends and more will land on Malaysian shores. With the boom

in Internet use among present and future Malaysian workforce, the only certainty is soon.

Otherwise another issue which we need to deal with is “brain drain”.

Page 9 of 10
BIBLIOGRAPHY
Ackman, D. (22 March, 2005). France, Bastion Of Productivity. Retrieved 8 November, 2010, from
Forbes: http://www.forbes.com/2005/03/22/cx_da_0322topnews_print.html

Department of Occupational Safety and Health. (2002). Guidance for the Prevention of Stress and
Violence at the Workplace. Kuala Lumpur: Percetakan Nasional.

Department of Occupational Safety and Health. (1996). Guidelines on Occupational Safety and
Health in the Office. Kuala Lumpur: Percetakan Nasional.

National Institute of Occupational Safety and Health. (n.d.). About Us. Retrieved 15 October, 2010,
from National Institute of Occupational Safety and Health: http://www.niosh.gov.my/about-us.htm

Occupational Safety and Health Act 1994. (1994). Kuala Lumpur.

Soehod, K. b., & Laxman, L. K. (2007). Law on Safety and Health in Malaysia. Johor Bahru:
Universiti Teknologi Malaysia.

Wikipedia. (24 October, 2010). Health and Safety Executive. Retrieved 8 November, 2010, from
Wikipedia: http://en.wikipedia.org/wiki/Health_and_Safety_Executive

Wikipedia. (9 October, 2010). Health and Safety_Commission. Retrieved 8 November, 2010, from
Wikipedia: http://en.wikipedia.org/wiki/Health_and_Safety_Commission

Wikipedia. (14 October, 2010). ROWE. Retrieved 8 November, 2010, from Wikipedia:
http://en.wikipedia.org/wiki/ROWE

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