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Guarding of Machinery Convention, 1963 (No. 119) - Malaysia (RATIFICATION: 1974)

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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on occupational safety and health (OSH), the Committee considers it appropriate to examine Conventions Nos 119 (guarding of machinery) and 187 (promotional framework for OSH) together.

A. General provisions

Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)

Articles 2(1) and 5(1) of the Convention. Formulation, implementation, monitoring, evaluation and periodical review of a national programme and policy on OSH, in consultation with the social partners. Following its previous requests, the Committee notes the Government’s information on the progress achieved with regard to the goals of the Occupational Safety and Health Master Plans for Malaysia (OSHMP) for 2009 – 2015 and 2015 - 2020, in particular concerning the reduction in the rate of work-related fatalities and of occupational injuries. The Committee further notes that the OSHMP 2021 – 2025 was adopted in October 2021. The Government also indicates that tripartite consultations were held in developing laws and regulations, as well as programmes and policies on OSH, including the OSHMP. The Committee also notes the Government’s indication that the OSH Act of 1994 is under revision and that social partners are consulted through the National Council for OSH. The Committee requests the Government to provide information on the implementation of the OSHMP 2021 – 2025, including the activities carried out and the results achieved within its framework. It also requests the Government to provide information on the measures taken, in consultation with the social partners, with a view to formulating the OSHMP for the next period. Furthermore, the Committee requests the Government to provide information on the progress made in the revision of the OSH Act, and to transmit a copy of the new legislation, once adopted.

Article 2(2) and (3). Measures that could be taken to ratify the relevant OSH Conventions of the ILO. Following its previous comments, the Committee notes the Government’s indication in its report that it continues to comply with international labour standards on OSH and that the existing legal framework adheres to the relevant ILO instruments. The Government also indicates that once the revision of the OSH Act is completed, it will consider ratifying the Occupational Safety and Health Convention, 1981 (No. 155). The Committee requests the Government to provide further information on its plans concerning the ratification of Convention No. 155, once the revision of the OSH Act is completed, including with regard to consultations with the social partners on the matter.

Article 4(2)(d). Arrangements to promote, at the level of the undertaking, cooperation between management, workers and their representatives. The Committee previously noted that, pursuant to section 30(1) of the OSH Act, employers shall establish a safety and health committee at the place of work if they employ 40 or more persons. It requested the Government to provide further information on the arrangements to promote cooperation between management, workers and their representatives in enterprises of less than 40 employees. The Government indicates in its report that, in practice, an OSH representative shall be appointed in enterprises of less than 40 employees. Responsibilities of the OSH representative include reporting the OSH status of the concerned enterprise to the Department of Occupational Safety and Health (DOSH), administrating OSH documents, promoting an OSH culture and taking related actions. To date, there are 1,036 OSH representatives registered with the DOSH. There are also 20 approved training centres providing training programmes to OSH representatives. The Government also states that the on-going amendments to the OSH Act provide for the obligation to appoint an OSH representative in enterprises of less than 40 employees. The Committee requests the Government to continue to provide information on the measures adopted, in the context of the revision of the OSH Act, to ensure arrangements to promote, at the level of the undertaking, cooperation between management, workers and their representatives as an essential element of workplace-related prevention measures.

Article 4(3)(g). Collaboration with relevant insurance and social security schemes for occupational injuries and diseases. The Committee previously requested the Government to provide information on collaboration between the DOSH and the Social Security Organization (SOCSO) in their efforts to collect data on occupational accidents and diseases in the country. The Government indicates that a national accident directory is developed through data sharing between the DOSH and the SOCSO, which is also made public by media dissemination. The Government also states that it is planning to develop a single platform for reporting of occupational accidents. The Committee requests the Government to continue providing information on the development of the single platform for the reporting of occupational accidents. It also requests the Government to provide relevant information regarding the cooperation between the DOSH and the SOCSO on data collection regarding occupational diseases.

B. Protection against specific risks

Guarding of Machinery Convention, 1963 (No. 119)

Article 15 of the Convention. Appropriate inspection to supervise the application of the Convention. The Committee previously noted that, according to observations from the Malaysia Employers Federation, the inspection of machinery at an interval of every 15 months had put pressure on DOSH inspectors. The Committee also noted that, in 2012, 24 per cent of the posts for factory and machinery inspectors were vacant (126 of the 518 posts). In reply to its previous comment, the Government indicates that, as at August 2021, there were 1,224 factories and machinery inspectors and that 70 posts were vacant (6.5 per cent). The Government also refers to the Factories and Machinery (Special Inspection Scheme) (Risk-Based Inspection) Regulations adopted in 2014. According to Part II (sections 4–10), for pressurized machinery, the owner may apply for a risk-based inspection scheme. As proved by the DOSH after initial audit and inspection, inspections are carried out at an interval not exceeding 75 months, based on the category of risk associated with the concerned machinery, instead of the interval of 15 months required by section 19(1) of the Factories and Machinery Act 1967. The special inspection scheme may be renewed upon satisfactory results of the following inspections (Part VI, sections 23 – 28). Ad-hoc inspections and audits may also be carried out in the context of the risk-based inspection scheme as an inspector may deem necessary (Part IX, sections 43 and 44). The Government further indicates its intention to privatize regular inspection of certificated machinery to third party inspectors and establish a Regulatory Division to monitor the compliance of the appointed private inspectors with related legislation. This changes will be institutionalized thorough an amendments to the Factories and Machinery Act 1967. The Committee requests the Government to provide further information on the envisaged privatization of machinery inspection, including the procedures and criteria of the accreditation of third party inspectors, specific activities that they may perform, their interaction with inspectors of the DOSH and detailed functions of the Regulatory Division to monitor their compliance. It also requests the Government to indicate the measures taken in order to monitor and avoid possible conflicts of interest with respect to third party inspectors and the employers they inspect. Additionally, the Committee requests the Government to provide detailed information on the implementation of the risk-based inspection scheme established by the Factories and Machinery Regulations of 2014, including the number of enterprises covered by this scheme, the average duration of the scheme, the number of granted schemes revoked due to failure of compliance, and the violations detected during the initial, renewal and ad-hoc inspections. The Committee also requests the Government to provide a copy of the draft amendments to the Factories and Machinery Act 1967 in this regard.

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Article 15 of the Convention. Appropriate inspection to supervise the application of the Convention. The Committee notes the Government’s statement that the Department of Occupational Safety and Health (DOSH) undertakes periodical inspections of all factories at an interval of once every 15 months, as well as at any time deemed necessary. The Committee also notes the observations of the Malaysia Employers Federation (MEF), submitted with the Government’s report, stating that the inspection of machinery at an interval of once every 15 months has put pressure on DOSH inspectors. The MEF indicates that the increasing number of machines to be inspected each year has overloaded DOSH inspectors, and as a result, a lot of hazardous machinery in industries is left uninspected. It indicates that DOSH needs to increase the number of inspectors of machinery to address the shortage of inspections. In this regard, the Committee notes the information in the DOSH Report of 2012, the most recent annual report available on the Department’s website, that 24 per cent of the posts for factory and machinery inspectors were vacant (126 of the 518 posts for factory and machinery inspectors had not yet been filled). The Committee requests the Government to provide further information on steps taken to ensure that appropriate inspection for the purpose of supervising the application of the provisions of the Convention is ensured, including the measures taken to increase the number of factory and machinery inspectors.

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The Committee notes that the labour protection legislation adopted recently continues to give effect to the provisions of the Convention.

The Committee welcomes the fact that the Government in its recent report provides statistics regarding the number of prosecuted cases related to the Convention covering the period 1995–2000. It also notes that there appears to have been a sharp increase in this number of such cases in 2000 (ten) as compared to 1999 (one). The Committee requests the Government to provide further information regarding the causes for this increase, the outcome of these cases and any further information on measures taken to ensure a full application of the Convention.

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The Committee notes with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 17, paragraph 1, of the Convention. In its previous comments, the Committee took into account that: (i) section 6 of the Road Transport Act, 1987, made it illegal to use a motor vehicle which does not meet the rules concerning construction, weight, equipment, usage and age applicable to the category of vehicle concerned; and (ii) all vehicles registered by the Road Transport Department must conform to national or international safety standards. The Committee then asked the Government to supply a copy of the texts or summaries of regulations and standards applicable in this area.

The Government provided the list of subsidiary to the Road Transport Act, Rules and Orders. The Committee would be grateful to the Government if it would supply copies of the following texts with its next report:

-- Motor Vehicles (Construction and Use), 1959;

-- Motor Vehicles (Construction and Use) (Vehicles Carrying Petroleum Products) Rules, 1965;

-- Motor Vehicles (Construction, Equipment and Use) (Use of Liquified Petroleum Gas Fuel System in Motor Vehicles) Rules, 1982;

-- Motor Vehicles (Taximeter) Rules, 1959;

-- Weight Restriction Order (Federal Roads), 1989.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

-- Motor Vehicles (Construction and Use), 1959;

-- Motor Vehicles (Construction and Use) (Vehicles Carrying Petroleum Products) Rules, 1965;

-- Motor Vehicles (Construction, Equipment and Use) (Use of Liquified Petroleum Gas Fuel System in Motor Vehicles) Rules, 1982;

-- Motor Vehicles (Taximeter) Rules, 1959;

-- Weight Restriction Order (Federal Roads), 1989.

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The Committee has taken note of the information provided by the Government.

- Motor Vehicles (Construction and Use), 1959;

- Motor Vehicles (Construction and Use) (Vehicles Carrying Petroleum Products) Rules, 1965;

- Motor Vehicles (Construction, Equipment and Use) (Use of Liquified Petroleum Gas Fuel System in Motor Vehicles) Rules, 1982;

- Motor Vehicles (Taximeter) Rules, 1959;

- Weight Restriction Order (Federal Roads), 1989.

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The Committee notes the information provided by the Government in reply to its previous direct request concerning the measures which ensure application of the Convention to rail vehicles.

Article 17, paragraph 1, of the Convention. In reply to the Committee's request for information on measures to ensure the safety of road vehicle operators, the Government states that section 6 of Road Traffic Ordinance No. 49/58 makes it illegal to use a motor vehicle which does not meet the rules concerning construction, weight, equipment, usage and age applicable to the category of vehicle concerned. It adds that all vehicles registered by the Road Transport Department must conform to national or international safety standards. The Committee asks the Government to supply with its next report the texts or summaries of regulations and standards applicable in this area.