workplace safety & health law (2019) · 2019-08-13 · occupational safety and health manager...

Conseil juridique. Conseil fiscal. Luther.

Workplace Safety &

Health Law (2019)

Mr Fabian LorenzLuther Law Firm Limited6 August 2019

Agenda.

I. About Luther

II. Relevant Laws, Rules & Regulations

III. Occupational Safety and Health Law (2019)

IV. Final Comments

Luther, 6 August 2019 2

I. About Luther


I. About Luther.

European law firm with Asian offices in Yangon, Singapore, Kuala Lumpur, Delhi-Gurgaonand Shanghai

Ca. 380 lawyers and tax advisors in Europe Ca. 300 lawyers, tax advisors and professionals in Asia In Yangon since 2013 with ca. 50 European and Myanmar lawyers, tax advisors,

accountants and professionals Provision of:

Legal advice Tax advice Incorporation services Corporate secretarial services

Accounting HR administration and payroll Cash, fund and payment

administration


I. Luther in Asia.


II. Relevant Laws, Rules and

Regulations


II. Laws, Rules & Regulations.

Legal System

Mix of common law principles, post-independence and political opening acts/laws Problem: Corporate governance and compliance issues

Regulatory Framework Employment

Employment in Myanmar governed by both old and new laws and regulations, as well as internal policies and practices of the Department of Labour

Many laws dating back to the colonial period and post-independence period still in force Since 2011, Myanmar has started reform process and is currently overhauling legal framework Existing laws were revised or replaced, and new laws enacted In practice, employment heavily influenced by the policies and practices of the Department of Labour

(offer interpretations, but also additional requirements)



Notable Reforms (not exhaustive)

2012: New Foreign Investment Law

July 2015: Notification No. (84/2015) to the Settlement of Labour Dispute Law on Severance Payment

January 2016: Law Amending the Factories Act (1951) and new Shops and Establishment Law

October 2016: New Myanmar Investment Law November 2017: New Myanmar Companies Law July 2018: New Myanmar Companies Regulations October 2018: New Leave and Holidays Rules October 2018: New Shop and Establishments Rules March 2019: Occupational Safety and Health Law



Relevant Employment & Labour Laws (not exhaustive)

Employment and Skills Development Law (2013) Employment Restriction Act (1959) Factories Act (1951) as amended 2016 Income Tax Law (1974) as amended by Union Tax Law 2017 Labour Organization Law (2011) Law on the Rights of Persons with Disabilities (2015) Law Relating to Overseas Employment (1999) Leave and Holidays Act (1951) as amended 2014 Minimum Wage Law (2013)

Occupational Safety and Health Law (2019)

Oilfields (Labour and Welfare) Act (1951) Payment of Wages Law (2016) Settlement of Labour Dispute Law (2012) as amended 2014 Shops and Establishment Law (2016) Social Security Law (2012) Workmen’s Compensation Act (1923) as amended 2005 Further, various sector-specific laws contain labour regulations



Relevant Rules, Regulations & Policies (not exhaustive)

Instructions of the Factories and General Labour Law Inspection Department Labour Organization Rules (2012) Leave and Holidays Rules (2018) Minimum Wage Rules (2013) as amended in 2018 Ministry of Labour – Directive on Overtime Ministry of Labour – Notifications on Employment Contracts Ministry of Labour – Notifications on Minimum Wage Ministry of Labour – Notification on Severance Pay Ministry of Labour – Notifications on Official Employment Contract Templates Ministry of Labour – Official Work Rules Template Ministry of Labour – Official Pay Slip Template National Minimum Wage Committee Notification No. 2/2015 – Minimum Wage Settlement of Labour Dispute Rules (2010) Shops and Establishments Rules (2018)


III. Occupational Safety and Health

Law (2019)



12

2017Ministry of Labour published

comprehensive draft15 March 2019Union Parliament enacted Occupational Safety and Health Law

As various employment laws contain safety and health related provisions, government worked on unified framework for years

15 March 2019President of Myanmar signed the new law

To DateNot yet in force, subject to Notification to be issued by the President

History of the new Law

Luther, 6 August 2019


General Comments

Total of 17 Chapters

Various chapters focus on prevention (Chapter 16 - Managing the Preventive Works of OccupationalSafety and Health)

Compared to initial draft, scope of application much wider

New law will complement both the Factories Act (1951) and other prevailing laws, including the Shopsand Establishments Law (2016)

Any business must assess whether it is subject to the new law and carry out the necessary steps

Law shall help to establish, manage and maintain better working conditions, but is very vague

Note: No by-laws for the implementation have been published yet, it remains to be seen how it will beapplied in practice



Prevent and protect theoccupational hazards anddiseases in advance

Development of enterprises with good occupational

safety and health standards

Establish safe and healthy workplaces in accordance

with regional and international standards

ObjectsReduce and eliminate workplace accidents and occupational diseases

Implementation of workplace safety and health regulations for all industries

Protect workers and raise productivity

14

What shall the new law help to achieve?



National Occupational Safety and Health Council

Members from ministries as well as employer organizations, labour organizations and experts

Functions: Laying down, assessing, reviewing and amending national policies and work plans;

Coordinating with Government departments/organizations and local/foreign organizations;

Determining occupational diseases/poisoning, dangerous occurrences, hazardous substances, dangerousmachinery, dangerous work and workplaces;

Collecting data on accidents, diseases and poisonings;

Directing education and training programs; and

Forming Appellate Committee and necessary Working Committees



Who will (not) be subject to the new law?

The law lists the following enterprises: Enterprises governed by the Shops and Establishments Law (2016); Manufacturing enterprises (governed by the Factories Act (1951)); Industrial enterprises; Construction enterprises; Engineering enterprises; Mineral extraction and processing, gems extraction and processing enterprises; Petroleum and natural gas enterprises; Port enterprises; Agricultural enterprise; Livestock breeding enterprise; Inshore or offshore fishery enterprise; Education service enterprise; Health care service enterprise; Communication enterprise; Transportation enterprise; Hotel and tourism service enterprise; and Enterprises and workplaces thereof as prescribed from time to time through notification



When you start a business, you must register!

Any enterprise relevant to the Occupational Safety and Health Law shall register with theFactory and General Labour Laws Inspection Department

According to the wording of the law, duty of either Proprietor; or

Director

Any person who wishes to carry out a construction, extension or demolition of buildings,placement, installation, addition or modification of machinery or equipment in enterprisesrelevant to the law, shall inform the Factory and General Labour Laws Inspection Department

Note: Registered enterprises shall inform the Factory and General Labour Laws InspectionDepartment upon finishing, closing, alteration of location, type of work or owner of theenterprises.



Company

Occupational

Safety and Health Committee

Occupational

Safety and Health Manager


Occupational Safety and Health Manager or Committee - Forming

Depending on the size of its workforce, an enterprise shall appoint a manager or committee

While the law stipulates that managers shall be appointed and committees be formed in accordancewith the specifications of the Ministry of Labour, no further information (e.g. on qualificationrequirements, number of members) is provided


Occupational Safety and Health Manager or Committee - Duties

For the Occupational Safety and Health Manager, law provides few details:

Shall ensure a safe and healthy workplace, observe this Law, rules, orders, directives andproducers issued under this Law

The Occupational Safety and Health Committee shall have the following duties:

Submitting the appraisal to the Committee’s meeting after regular examination of thesituation of impacting occupational safety and health;

Advising the employer to carry out prevention of occupational accidents and educating plans;

Upgrading the cooperation between employer and worker to give training for theimprovement of the occupational safety and health situation and to obtain contributions;

Supervising the assessment of relevant occupational safety and health hazards; and

Carrying out the occupational safety and health functions prescribed by the Ministry andDepartment



Duties of Employers

Similar to provisions of general Shops and Establishment Law (2016) and Factories Act (1951) Employers shall evaluate the level of hazard of machinery and equipment, process materials, organic

materials and chemical substances utilized in the workplace to avoid detrimental health effects, providetheir employees with the appropriate body protection and gear to avoid workplace accidents andoccupational diseases and implement protective, preventive and emergency response measures

Employers shall appoint medical practitioner and nurse and provide necessary medicine andcontributions in enterprises which have workers not less than the number prescribed by the Ministry ofLabour



Duties of Employers (continued)

Employers shall not dismiss or demote any employee for any of the following reasons: Workplace accident or occupational disease, before receiving a medical certificate from an accredited physician; Lodging a complaint concerning a safety or health hazard issue; Carrying out a function of the Workplace Safety and Health Committee; or Discontinuation of work due to an imminent workplace accident or occupational disease

Employers shall bear the costs of medical check-ups for employees who have suffered a workplaceaccident or occupational disease and are not covered under the Social Security Law (2012)

Manufacturers, Importers, Fitters, Builders or Demolishers of hazardous materials, machinery andequipment to be utilized in workplaces shall procure safety certificates issued by the relevantdepartments



Duties of Employees Similar to provisions of general Shops and Establishment Law (2016) and Factories Act (1951) Employees shall:

Use protective clothing, material and equipment systematically, as issued by the employer for occupational safetyand health in accordance with the specifications of the Department;

Follow the instruction and advice made for occupational safety and health by the employer or Occupational Safetyand Health Committee or Occupational Safety and Health Manager under this Law and rules issued under this Law;

Follow occupational safety and health instructions, conditions, signs, wall posters, notices and warnings; Use instruments, machines, machinery parts, vessels, electricity and other substances systematically in the

workplace; Carry out work affecting the safety and health of himself and other due to his act or failure; Cooperate with the employer and Occupational Safety and Health Manager in carrying out their duties under this

Law; In finding any situation, subject or occurrence that may affect occupational safety and health, inform the employer,

Occupational Safety and Health Manager or manager himself or through the immediate supervisor immediately; Although he may refuse to continue his work in a situation of imminent danger, he will not refuse to perform in a safe

workplace arranged by the employer; and For the safety and health of workers from respective workplace, elect the representatives to be able to commute and

cooperate in time each worker or with labour organizations



Who shall enforce the law?

The Ministry of Labour may appoint inspectors to carry out inspections and take actionagainst defaulting workplaces:

Must be independent!

Inspectors may not be employed by any enterprise relevant to the law

Inspectors may not engage in any business directly or indirectly connected thereto

Powers: Inspectors may at any time without need of warrant enter inspect and investigate any workplace

relevant to the law;

An inspector having reason to believe that a workplace constitutes a safety or health risk or poses athreat to any property shall notify the employer in writing; and

Business may be temporarily suspended or permanently shut down



Offenses and Penalties

In case of non-compliance with provisions of this law, Occupational Safety and HealthManagers, employers or employees may be punished with imprisonment or with a fine orwith both


IV. Final Comments


IV. Final Comments.

General lack of enforcement of laws in practice Enter into employment contract within 30 days of employment Registration with the Township Labour Office (5 or more employees) Foreign consultants must be employed or register a business in Myanmar Use employee handbooks providing details on practices, policies and

procedures Appoint/Form OSH Mangager/Committee as soon as possible Use mutual separation agreement to terminate an employee


Q&A


Mr Fabian Lorenz

Senior Associate / Attorney-at-law (Germany)

Luther Law Firm Limited

Luther Corporate Services Limited

Uniteam Marine Office Building, 8th Floor, Unit#1No. 84 Pan Hlaing StreetSanchaung Township, Yangon

Phone: +95 1 500 021Email: [email protected]

www.luther-services.com

Thank you for your attention.

Contact in Yangon:


mailto:[email protected]

http://www.luther-lawfirm.com/

workplace safety & health law (2019) · 2019-08-13 · occupational safety and health manager...

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