WORKMEN'S COMPENSATION ACT 1952

any person employed otherwise than by way of manual labour whose earnings, calculated in accordance with section 9, exceed five hundred ringgit a month;

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a person whose employment is of casual nature and who is employed otherwise than for the purposes of the employer’s trade or business, not being a person employed for the purposes of any game or recreation and engaged or paid through a club;

a domestic servant;

any person who is a member of the armed forces or of any visiting force lawfully present in Malaysia;

any person in the civil employment of Her Britannic

Majesty’s Government in the United Kingdom, or in any other country of the Commonwealth whose contract of service was not made in Malaysia nor in Singapore;

a person employed, or selected for employment, in a civil capacity by the Government of Malaysia or by the

Government of any State or by any local authority before 1 April 1953 in the application of this Act in Peninsular

Malaysia, and before 1 January 1957 in the application of this Act in Sarawak where, in consequence of injury received by any such person in the discharge of his duties, a pension, gratuity or other allowance which would not be payable if such injury were received otherwise is paid to him or, in the case of his death, to any of his dependants as defined in this Act under any written law for the time being in force in Malaysia or any part thereof providing for the grant of such pension, gratuity or other allowance

(this paragraph shall not apply in Sabah);

any police officer, and any other person engaged to perform police duties in accordance with the provisions of any written law while so performing such duties;

an out-worker;

a tributer;

any member of the family of the employer who dwells with him in his house;

*(k) any class of persons whom the Minister may declare not to be workmen for the purposes of this Act.

*NOTE—see P.U. (B) 641/1976

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Workmen’s Compensation

If in any proceedings for the recovery of compensation under this Act it appears to the Commissioner or an Arbitrator or the Court that the contract of service or apprenticeship under which the injured person was working at the time when the accident causing the injury happened was illegal, the Commissioner, the

Arbitrator or the Court may, if having regard to all the circumstances of the case he or it thinks proper so to do, deal with the matter as if the injured person had at such time been a person working under a valid contract of service or apprenticeship.

Any reference to a workman who has been injured shall, unless the context otherwise requires, where the workman is dead, include a reference to his legal personal representative or to his dependants or any of them or to any public officer whom the

Minister may appoint to act on behalf of the dependants of the workman.

Interpretation

in relation to Peninsular Malaysia, in reference to any child, a child adopted in accordance with the provisions of the Adoption Act 1952 [Act 257];

*in relation to Sabah, in reference to any child, a child adopted or whose adoption has been registered in accordance with the provisions of any written law relating to the adoption of children from time to time in force in

Sabah or where there is no written law then a child whom the Commissioner certifies as having been adopted, prior to the date of injury, in accordance with religious or racial custom;

in relation to Sarawak, in reference to any child, a child adopted in accordance with the provisions of any written law relating to the adoption of children from time to time in force in Sarawak;

“adult” means a person who has completed his sixteenth year of age and “minor” means a person who has not completed his sixteenth year of age;

*NOTE—For modification to Federal Territory of Labuan–see P.U. (A) 273/1984.

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“approved hospital” means a hospital declared to be such under subsection 15(1);

“Arbitrator” means a person appointed by the Minister to be an arbitrator for workmen’s compensation for such area as may be specified in that appointment;

“Commissioner” means—

in relation to Peninsular Malaysia, the Director General of Labour and all Deputy Directors General of Labour,

State Directors of Labour and Assistant State Directors of Labour appointed under the Employment Act 1955[Act 265] and includes such Labour Officers appointed under the said Act as the Minister may declare to be vested with all or any of the powers conferred or duties imposed upon the Commissioner by this Act;

*in relation to Sabah, the Director of Labour appointed under the Labour Ordinance of Sabah [Sabah Cap. 67]

and includes a Deputy Director, an Assistant Director and any Labour Officer appointed under the said Ordinance whom the Minister may declare to be vested with all or any of the powers conferred or duties imposed upon the

Commissioner under this Act;

in relation to Sarawak, the Commissioner of Labour appointed under the Labour Ordinance of Sarawak [Swk

Cap. 76] and includes a Deputy Commissioner, an Assistant

Commissioner and any Labour Officer appointed under the said Ordinance whom the Minister may declare to be vested with all or any of the powers conferred or duties imposed upon the Commissioner under this Act;

“dependant” means any member of the family of a deceased workman who wholly or in part depended upon his earnings at the time of his death or would but for the disablement due to the accident have been so dependent:

Provided that a person shall not be deemed to be a partial dependant of another person unless he was dependant partially on contributions from that other person for the provision of the ordinary necessities of life;

*NOTE—For modification to Federal Territory of Labuan–see P.U. (A) 273/1984.

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Workmen’s Compensation

“domestic servant” means a person employed exclusively in the work or in connection with work of a private dwelling house and not of any trade, business or profession carried on by the employer in such dwelling house and includes a cook, house servant (including bedroom and kitchen servants), waiter, butler, child’s or baby’s nurse, valet, footman, gardener, washerman or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use;

“earnings” of a workman shall be deemed to include, in addition to his actual money earnings, any privilege or benefit the value of which is capable of being estimated in money, except—

a travelling allowance;

the value of any travelling concession;

a contribution paid by the employer towards any pension or provident fund;

a sum paid to the workman to cover any special expenses incurred by him by reason of the nature of his employment:

Provided that in the case of temporary disablement such privileges and benefits as the injured workman or any of his dependants continue to enjoy during the period of his said disablement to work shall not be deemed to be benefits for the purpose of calculating earnings;

“employer” includes the Government of Malaysia and the

Governments of each of the States; in respect of civilian employees engaged in Malaysia or in Singapore of any visiting force lawfully present in Malaysia or of any person in the civil employment of the Government of any Commonwealth country, whose contract of service was made in Malaysia or in Singapore, the Government of that Commonwealth country; any local authority; any person or body of persons whether statutory or incorporated or not; the legal personal representative of a deceased employer; and in relation to a person employed for the purpose of any game or recreation and engaged or paid through a club, the manager or members of the managing committee of the said club:

Provided that where the services of a workman are temporarily lent or let on hire to another person by the person with whom the

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workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the workman whilst he is working for that other person;

“insurer” includes any insurance society, association, company or underwriter;

“member of the family” means wife, husband, parent, grandparent, stepfather, stepmother, child, grandchild, stepchild, brother, sister, half-brother, half-sister, stepbrother and stepsister:

Provided that—

the child of a deceased workman shall be deemed to include the illegitimate child of such workman and his adopted child and any child whose adoption by him has been registered under the Registration of Adoptions Act 1952 [Act 253], and any child under the care, custody or control of such workman pursuant to Part III of the*Children and Young Persons Act 1947 [Act 232]; and

the parent of a deceased workman shall be deemed to include the father and the mother of an illegitimate child and the person who has adopted any child or has registered the adoption of any child under the Registration of

Adoptions Act 1952, and the person who has the care, custody or control of a child pursuant to Part III of the

Children and Young Persons Act 1947;

“out-worker” means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the materials or articles;

“partial disablement” means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in his disablement and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was able to undertake at the time of the accident:

*NOTE—The Children and Young Persons Act 1947 [Act 232] was repealed by the Child Protection Act 1999 [Act 468]—see subsection 50(2) of Act 468 and the Act 468 has since been repealed by the Child Act 2001 [Act 611]–see section 130.

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Workmen’s Compensation

Provided that every injury specified in Part II of the First Schedule shall be deemed to result in permanent partial disablement;

“registered medical practitioner” means a medical practitioner registered or exempted from registration under any written law relating to the registration of medical practitioners from time to time in force in Malaysia or any part thereof;

“registered ship” means any ship or vessel registered or licensed in Malaysia under any law relating to the registration or licensing of ships or vessels from time to time in force in Malaysia or any part thereof;

“seaman” means any person forming part of the crew of any registered ship and includes the master of any such ship;

“special hospital” means a hospital declared to be such under subsection 15(2);

“total disablement” means such disablement whether of a temporary or permanent nature as disables a workman for all work which he was capable of undertaking at the time of the accident resulting in such disablement:

Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the First Schedule, or from any combination of injuries resulting from a single accident and specified in Part II of the First Schedule where the aggregate of the losses of earning capacity specified in the said Schedule against these injuries amounts to or exceeds one hundred per centum;

“tributer” means a person who is permitted to win minerals or produce of any kind from or on the land of another and who, in consideration of such permission, gives a proportion of the minerals or produce so won to that other person or pays to him the value of such proportion;

*“West Malaysia” has the meaning assigned thereto in section 3 of the Interpretation Acts 1948 and 1967 [Act 388], and includes the Federal Territory.

*NOTE—All references to “West Malaysia” shall be construed as references to “Peninsular Malaysia”–see

Interpretation (Amendment) Act 1997 [Act A996], subsection 5(2).

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The exercise and performance of the powers and duties of a department of the Government of Malaysia or of any State or of any other Government or of a local authority shall, for the purposes of this Act, be deemed to be the trade or business of such

Government or local authority, as the case may be.

Power to exempt

An accident happening to a workman while he is, with the express or implied permission of his employer, travelling as a passenger by any vehicle, ship, vessel or aircraft to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by such means, be deemed to arise out of and in the course of his employment, if the accident would have been deemed so to have arisen had he been under such an obligation, and if at the time of the accident, the vehicle, ship, vessel or aircraft is being operated by or on behalf of his employer or by some other person by whom it is operated in pursuance of arrangements made with his employer and is not being operated in the ordinary course of a public transport service except when the injured workman is himself an employee of the public transport service concerned and would otherwise be entitled to receive compensation under paragraph (a) of this subsection.

An accident happening to a workman in or about any premises at which he is for the time being employed for the purposes of his employer’s trade or business shall be deemed to arise out of and

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Workmen’s Compensation in the course of his employment if it happens while he is taking steps, on an actual or supposed emergency at those premises, to rescue, succour or protect persons who are, or are thought to be or possibly to be, injured or imperilled, or to avert or minimize damage to property.

An accident happening to a workman shall be deemed to arise out of and in the course of his employment notwithstanding that he was at the time of the accident acting in contravention of any statutory or other regulations applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if—

the accident would have been deemed to have arisen had such act not been done in contravention as aforesaid or without instructions from his employer, as the case may be; and

No compensation shall be payable under this Act in respect of any disablement or death resulting from a deliberate self-injury or the deliberate aggravation of an accidental injury.

Minister may from time to time by notification in the Gazette prescribe, in circumstances in which if such accident had happened in Malaysia such workman would have been entitled to compensation

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under this Act, the employer of such workman shall be liable to pay compensation in accordance with this Act: provided that either the contract of service between such workman and his employer is made within Malaysia or the normal place of employment of such workman lies within Malaysia.

No compensation shall be payable under this Act in respect of any disablement or death resulting from personal injury, if the workman has at any time represented to the employer that he was not suffering or had not previously suffered from that or a similar injury, knowing that the representation was false.

For the purposes of this Act an accident arising in the course of a workman’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.

Compensation for occupational diseases

When a workman enters into a contract of service or apprenticeship with any employer to work in any occupation specified in the Second Schedule or is, with his consent, transferred by his employer to such an occupation, he shall, if requested to do so by the employer, submit himself for examination by a registered medical practitioner, the fee for which shall be paid by the employer; but such workman shall not be required to submit himself for examination by a registered medical practitioner otherwise than in accordance with Regulations made under this Act nor at shorter intervals than may be prescribed therein.

No compensation shall be payable under this section in respect of the disablement or death of a workman if the disablement begins or the death happens, as the case may be, more than twelve months after the workman has ceased to be employed in any employment to the nature of which the disease is due by the employer from whom the compensation is claimed:

Provided that compensation shall be payable in respect of the death of a workman if his death has been preceded, whether immediately or not, by any period of disablement in respect of which compensation is payable under this section.

For the purposes of calculating the monthly earnings of the workman in a claim for compensation under this section, the date of commencement of the disablement of the workman, or the date of his death, if there has been no previous period of disablement, shall be treated as the date of the happening of the accident, if he is then employed in any employment to the nature of which the disease is due by the employer from whom the compensation is claimed, and if he is not then so employed, the last day on which he was so employed shall for this purpose be deemed to be the date of the happening of the accident.

For all other purposes of this Act the date of commencement of the disablement of the workman, or the date on which a registered medical practitioner certifies that in his opinion the workman is suffering from such disease, whichever date is the earlier, or the date of his death if there has been no previous period of disablement, shall be deemed to be the date of the happening of the accident.

If the disease has been contracted by a gradual process, so that two or more employers are severally liable to pay compensation in respect thereof under this section, the aggregate amount of such compensation shall not exceed the amount that would have been

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payable if those employers had been a single employer, and in such case each of those employers shall, in default of agreement, be liable for such proportion of the compensation payable as the

Arbitrator thinks just.

Any disease specified in the Second Schedule and any employment mentioned therein may be deleted therefrom, and new diseases and employments may be added thereto, by the Minister.

Notwithstanding the foregoing provisions of this section, the Minister may, in respect of any disease specified in the Second

Schedule, by order require that any such disease shall be certified by a Medical Board appointed under any Regulations made under section 43; and in respect of any disease referred to in such order this section and section 14 shall be construed as if for references to a registered medical practitioner there were substituted references to such Medical Board.

Compensation limited to injuries received at work

Where there are both total and partial dependants nothing in this Act shall be construed as preventing the compensation from being apportioned partly to the total and partly to the partial dependants.

Where a dependant dies before a claim under this Act is made, or, if a claim has been made, before an agreement or award has been arrived at or made, the legal personal representative of the dependant shall have no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the workman.

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Workmen’s Compensation

Amount of compensation

where death has resulted from the injury, a lump sum equal to sixty months earnings or eighteen thousand ringgit, whichever is the less:

Provided that if the deceased workman did not leave any dependants, the lump sum shall be the actual amount of the expenses of the funeral of the workman or one thousand ringgit whichever is the less;

where permanent total disablement results from the injury—

in the case of an adult who has completed the eighteenth year of his age, a lump sum equal to sixty months earnings or twenty-three thousand ringgit, whichever is the less;

where permanent partial disablement results from the injury such percentage of the compensation which would have been payable in the case of permanent total disablement as is proportionate to the permanent loss of earning capacity caused by the injury:

Provided that in the case of an injury specified in the

First Schedule the compensation payable shall not be less than such percentage of the compensation which is payable in the case of permanent total disablement as is set opposite to that injury in the said Schedule:

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And provided further that if death follows a period of total or partial temporary disablement, the total of all half-monthly payments paid under paragraph (e) below and the lump sum payable in respect of such death shall together not exceed twenty-three thousand ringgit;

where more injuries than one are caused by a single accident and permanent disablement results the amounts of compensation payable in respect of all such injuries shall be aggregated but not so as to exceed in any case the amount which would have been payable in respect of permanent total disablement;

where temporary disablement, whether total or partial, results from the injury, a half-monthly payment payable on the sixteenth day from the date of the disablement, and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter, of one hundred and sixty-five ringgit or an amount equal to one-third of his monthly earnings, whichever is the less:

Provided that—

where permanent disablement follows a period not exceeding twelve months of total or partial temporary disablement there shall not be deducted from the lump sum payable in respect of such permanent disablement any half-monthly payments or allowance to which the injured workman is entitled and which he has received from his employer by way of compensation;

where the workman has been exclusively employed by the employer who is liable to pay compensation during a continuous period of not less than six months immediately preceding the accident in the grade in which he was employed at the time of the accident, his monthly earnings shall be deemed to be the average amount of his earnings during the last six completed months of that period;

where the workman has been exclusively employed by the employer who is liable to pay compensation in the grade in which he was employed at the time of the accident during a continuous period of less than six months immediately preceding the accident and there is another workman who has been exclusively employed on similar work by the same employer for a continuous period of not less than six months immediately preceding the accident, the monthly earnings of the former workman shall be deemed to be the average amount of the earnings of the latter workman during the last six completed months of that period;

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where reliable evidence of the earnings of the relevant workman under paragraph (a) or (b) does not exist or cannot be adduced without undue delay or expense, regard may be had to evidence of the earnings of workmen employed on similar work in the same locality at or about the date of the accident;

where the earnings of a workman cannot be determined according to the provisions of paragraph (a), (b) or (c)

or where the earnings of a workman have been determined according to the provisions of paragraph (a), (b) or (c)

and are less than one hundred and twenty-six ringgit a month, then the earnings of the workman shall be deemed to be one hundred and twenty-six ringgit a month.

Where a workman is employed in the same occupation under contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his monthly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.

For the purposes of this section a period of service shall be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days.

Subsections (1) and (2) shall apply to the calculation of monthly earnings for the purposes of the definition of “workman”

in section 2.

Distribution of compensation

Any other money which is payable as compensation may, and where the person to whom it is payable so requests shall, be deposited with the Commissioner.

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Workmen’s Compensation

The receipt of the Commissioner shall be a sufficient discharge for any compensation deposited with him.

On the deposit of any money under subsection (1) as compensation in respect of an accident resulting in the death of a workman, the Commissioner may deduct there from the actual amount of the expenses of the funeral of the workman or one thousand ringgit, whichever is the less, and may pay the same to the person by whom such expenses were incurred.

The Commissioner shall make such inquiry under section 27 as he may deem necessary to determine the number of dependants of a deceased workman and the extent to which they were dependent upon him, and may in respect of any dependant or alleged dependant not being within Malaysia accept as evidence the certificate of a competent authority holding an equivalent position appointed under any law relating to workmen’s compensation in force in the country or territory in which such dependant or alleged dependant resides:

Provided that nothing herein contained shall prevent the

Commissioner from taking into consideration any other evidence as to the existence of dependants and the extent of dependence.

Compensation deposited in respect of an accident resulting in the death of a workman shall, subject to any deduction made under subsection (4), be apportioned among the dependants of the deceased workman or any of them in such proportion as the

Commissioner thinks fit, or may, in the discretion of the

Commissioner, be allotted to any one dependant.

Commissioner at the request of the person to whom it is payable, such sum may be invested, applied or otherwise dealt with for the benefit of the woman or of such minor or of such other person during his disability or of the person at whose request the said sum was so deposited, as the case may be, in such manner as the

Commissioner may direct.

If the Commissioner is satisfied after such inquiry as he may deem necessary that no dependant of a deceased workman exists or can be traced and the circumstances are such that there is no reasonable likelihood that any dependant can be traced he shall repay the balance of the money deposited with him under subsection (1) to the person by whom it was deposited.

The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.

Where after inquiry made of his own motion or on application made to him the Commissioner is satisfied that, because of neglect of children on the part of a parent, or of the death or a change in the circumstances of any dependant, or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of that order as he thinks just in the circumstances of the case:

Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall in any case involve the repayment by a dependant of any sum already paid to him.

Any party aggrieved by any order or decision of the

Commissioner under this section may, at any time within fourteen days of the communication to him of such order or decision, apply to the Arbitrator to vary such order or decision.

Compensation not to be assigned, attached or charged

No notice to the employer shall be necessary where a fatal accident has occurred.

The want of or any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings if the employer is proved to have had knowledge of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling the claim that the employer is not, or would not be, if a notice or amended notice were then given and the hearing postponed, prejudiced in his defence by such want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from Malaysia or other reasonable cause.

The failure to make a claim within the period above specified shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from

Malaysia or other reasonable cause.

Notice to the employer, or if there is more than one employer, to one of such employers, in respect of an injury maybe given either in writing or orally or to the foreman or other person under whose supervision the workman was employed, or to any person designated for the purpose by the employer, and shall state in ordinary language the cause of the injury and the date at which the accident happened.

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The notice if in writing may be given by delivering the same at, or sending it by registered post addressed to, the residence or place of business of the person to whom it is to be given.

Where the employer is a body of persons, corporate or unincorporate, the notice, if in writing, may be given by delivering it or by sending it by registered post addressed to the employer, at the office, or, if there be more than one office, any one of the offices, of such body.

The notice hereby required may be given by the Commissioner on behalf of any workman, and a notice so given shall have the same effect as if given by the workman himself.

Notice to Commissioner by employer

Such notice shall be given within ten days of the occurrence of the accident.

For the purpose of this section an employer’s premises shall be deemed to include any premises under his control or management whether exclusive or not and the approaches thereto and any other land in fact occupied in connection therewith, whether such approaches or other land form part of a public road or are otherwise open to the public or not, and any place where the person injured was required to work by his employer or his employer’s foreman or other agent; and an accident to or in connection with any vehicle belonging to the employer or driven by a person employed by him shall be deemed to have occurred on the employer’s premises.

A notice under this section may contain a denial of liability to pay compensation and shall not be construed as an admission unless liability be admitted by clear and express words.

Any employer failing or omitting to give notice as required by this section shall be guilty of an offence and shall be liable,

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Workmen’s Compensation on conviction, to a fine not exceeding five thousand ringgit for a first offence, and a fine not exceeding ten thousand ringgit for any subsequent offence:

Provided that no court shall take cognizance of an offence under this section except on the complaint of the Commissioner.

For the purposes of this section “employer” shall include the person, if any, referred to in section 19 as “the principal”.

Medical examination and treatment

If a workman, on being required to do so by the employer under subsection (1), or by the Commissioner, or by an Arbitrator, at any time refuses to submit himself for examination by a registered medical practitioner whose services have been offered to him by the employer free of charge, or in any way obstructs the same, his right to compensation shall be suspended during the continuance of such refusal or obstruction.

If a workman having been so required, and before the expiry of the period within which he is liable under subsection (1), to submit himself for medical examination, voluntarily leaves, without having been so examined, the place at which he was residing at the time of the accident, his right to compensation shall be suspended until he notifies his employer of his new address and offers himself for such examination.

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Where a workman, whose right to compensation has been suspended under subsection (2) or (3), dies without having submitted himself for medical examination as required by those subsections, the Commissioner may, if he thinks fit, direct the payment of compensation to the dependants of the deceased workman.

Where under subsection (2) or (3) a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension, and, if the period of suspension commences before the expiry of the waiting period referred to in paragraph 4(2)(a), the waiting period shall be increased by the period during which the suspension continues.

Where an injured workman has refused to be treated by a registered medical practitioner whose services have been offered to him by the employer free of charge or, having accepted such offer, has failed to carry out or deliberately disregarded the instructions for his treatment of such medical practitioner, then—

Where an injured workman is admitted to or treated at either an approved or a special hospital, the employer shall, in addition to the payment of compensation to the workman or, where the workman’s death supervenes, to that workman’s dependants, be liable to pay directly to the management of such hospital all ward fees and treatment fees in respect of such workman and the cost of such medicines and of such artificial limbs, wheelchair, and surgical appliances (including the cost of renewal of such artificial limbs, wheelchair and surgical appliances) as are certified by the registered medical practitioner in charge of the approved or special hospital to be reasonably necessary and which are in fact supplied to such workman:

Provided that the Minister shall from time to time by notification in the Gazette prescribe the maximum amounts for which an employer shall be liable in respect of the several fees and costs specified in this subsection.

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If the injured workman refuses treatment at an approved or special hospital any award of compensation made to him may, at the instance of the employer, be suspended or reviewed by the

Commissioner.

Review

Any half-monthly payment may, on review under this section, and subject to the provisions of this Act, be continued, increased, decreased or ended.

Power of review

If a workman receiving a half-monthly payment leaves

Malaysia for the purpose of residing in another country without giving notice as hereinbefore provided, he shall thereupon cease to be entitled to any benefits under this Act during his absence from Malaysia and he shall, for the purposes of paragraph 8(e) be deemed to have received half-monthly payments during such absence.

Liability in case of workmen employed by contractors

Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the person who would have been liable to pay compensation to the workman if this section had not been enacted.

Nothing in this section shall be construed as preventing a workman from recovering compensation under this Act from the contractor instead of the principal, and a claim made against a principal or a contractor, as the case may be, shall not bar subsequent proceedings under this Act against the other to recover so much of the compensation agreed or awarded as may remain unpaid.

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This section shall not apply in any case where the accident occurred elsewhere than at or about the place where the principal has undertaken to execute work or which is otherwise under his control or management.

Remedies both against employer and stranger

the workman may take proceedings against that person to recover damages and may claim against any person liable to pay compensation under this Act, but he shall not be entitled to recover both damages and compensation;

and

if the workman has recovered compensation under this

Act, the person by whom the compensation was paid, and any person who has been called upon to pay an indemnity under subsection 19(2) shall be entitled to be indemnified by the person so liable to pay damages as aforesaid and all questions as to the right to and amount of any such indemnity may, in default of agreement, be settled by an

Arbitrator.

Bankruptcy of employer

If the liability of the insurers to the workman is less than the liability of the employer to the workman, the workman may prove for the balance in the bankruptcy or liquidation or, as the case maybe, may recover the balance from the receiver or manager.

Where in any case such as is referred to in subsection (1)

the contract of the employer with the insurers is void or voidable by reason of non-compliance on the part of the employer with any terms or conditions of the contract (other than a stipulation for the payment of premia), the provisions of that subsection shall apply as if the contract were not void or voidable, and the insurers shall be entitled to prove in the bankruptcy or liquidation for the amount paid to the workman:

Provided that this subsection shall not apply in any case in which the workman fails to give notice to the insurers of the happening of the accident and of any resulting disablement as soon as practicable after he becomes aware of the institution of the bankruptcy or liquidation proceedings and that the employer was insured and with whom.

There shall be included among the debts which—

Where the compensation is a half-monthly payment, the amount due in respect thereof shall, for the purposes of this section, be taken to be the amount of the lump sum into which the half-monthly payment could, if commutable, be commuted if application were made for the purpose under section 17 and a certificate of the Commissioner as to the amount of such sum shall be conclusive proof thereof.

Subsection (4) shall apply in the case of any amount for which an insurer is entitled to prove under subsection (3), but otherwise those provisions shall not apply where the bankrupt or the company being wound up has entered into such a contract with insurers as is referred to in subsection (1).

This section shall not apply where a company is wound up voluntarily for purposes only of reconstruction or of amalgamation with another company.

Special provisions relating to seamen

the notice of the accident and the claim for compensation may, except where the person injured is the master of the ship, be served on the master of the ship as if he were the employer, but where the accident happened and the disablement commenced on board the ship, it shall not be necessary for any seaman to give any notice of the accident;

in the case of the death of a master or seaman the claim for compensation shall be made within six months after the news of the death has been received by the claimant

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Workmen’s Compensation or, where the ship has been or is deemed to have been lost with all hands, within eighteen months after the date on which the ship was, or is deemed to have been, so lost;

where an injured master or seaman is discharged or left behind in any territory in the Commonwealth or in a foreign country depositions respecting the circumstances and nature of the injury may be taken by any judge or magistrate in that territory or by a consular officer in the foreign country, and if so taken shall be transmitted by the person by whom they are taken to the Minister, and such depositions or certified copies thereof shall, in any proceedings for enforcing the claim, be admissible in evidence;

in the case of the death of a master or seaman leaving no dependants, the Commissioner shall, if the owner of the ship is under any law relating to shipping in force for the time being in Malaysia or any part thereof liable to pay the expenses of burial of the master or seaman, return to the employer the full amount of the compensation deposited under subsection 10(1) without making the deduction referred to in subsection (4) of that section;

no half-monthly payment shall be payable in respect of the period during which the owner of the ship is, under any law relating to shipping in force for the time being in Malaysia or any part thereof, liable to defray the expenses of maintenance of the injured master or seaman;

any sum payable by way of compensation by the owner of a ship under this Act shall be paid in full notwithstanding anything contained in section 360 of the Merchant Shipping

Ordinance 1952 [Ord. 70 of 1952] in the application of this Act in Peninsular Malaysia, or in section 503 of the

Merchant Shipping Act 1894 [57 and 58 Vict. C. 60] of the United Kingdom in the application of this Act to

Sabah and Sarawak.

Returns as to compensation

Any person making default in complying with any direction notified under this section shall be guilty of an offence and shall be liable, on conviction, to a fine not exceeding five thousand ringgit.

Contracting out

Notwithstanding subsection (1) the Minister may by order approve an insurance scheme, and upon the coming into force of the order, every employer shall insure and keep himself insured under the approved insurance scheme in respect of any liability which he may incur under this Act to every workman employed by him.

For the purposes of subsection (2) “approved insurance scheme” means a scheme underwritten by an insurer registered under the Insurance Act 1963 and established in a manner approved by the Minister.

In the event the Minister revokes an order made under subsection (2) the provisions of subsection (1) shall apply.

Any employer who for the purpose of defraying or partly defraying the cost of insurance in respect of his liability to pay compensation under this Act makes any deduction from the earnings of a workman in his employment shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding one year or to both.

Any employer who fails to insure himself in accordance with this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding two years or to both.

An application to the Commissioner to settle any question may be made by or on behalf of a workman or the employer and shall contain a concise statement of the circumstances of the accident and of the resulting injury:

Provided always that where the Commissioner has reasonable cause to believe that an accident has occurred resulting in injury to or the death of any workman he may of his own motion and at any time hold an inquiry to ascertain whether such accident has occurred and whether any workman has been injured and whether any compensation payable under this Act is being paid.

No such memorandum shall be recorded until seven days have expired after communication by the Commissioner of notice to the parties concerned.

Where it appears to the Commissioner that an agreement for the payment of a sum, whether by way of commutation of a half-monthly payment or otherwise, or an agreement for the amount of compensation ought not to be recorded by reason of the inadequacy of the sum or amount or by reason of the agreement having been obtained by fraud or undue influence or other improper means he may refuse to record the memorandum of the agreement and if he and the employer and the workman are unable to settle the question by agreement, the Commissioner shall refer the matter to an Arbitrator.

An agreement for the payment of compensation which has been recorded under this section shall be enforceable under this

Act notwithstanding anything contained in the Contracts Act 1950

[Act 136] or in any other law for the time being in force.

Effect of failure to record an agreement

A question is not settled by agreement unless the workman, the employer and the Commissioner all signify their consent by signing an acknowledgment of agreement or unless an agreement between the workman and the employer is recorded by the

Commissioner under section 28.

An application for the settlement of any question which is addressed to an Arbitrator shall contain a certificate by the

Commissioner that he has held an inquiry under section 27 and that agreement has not been reached.

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An application requesting the decision of an Arbitrator on any question may be drawn up and submitted to an Arbitrator by a workman, by the employer, by the Commissioner on behalf of a workman or by the Commissioner of his own motion, or by any person aggrieved by any decision of the Commissioner under section 8, 10, 14 or 15.

An application to an Arbitrator for the settlement of any question shall be made in such form and shall be accompanied by such fee, if any, as may be prescribed and shall contain, in addition to any particulars which may be prescribed and to the certificate under subsection (3), a concise statement of the circumstances in which the application is made and of the relief or order which the applicant seeks and of the questions on which agreement both has and has not been reached:

Provided that the payment of fees shall be waived when the

Commissioner makes an application either of his own motion or on behalf of a workman.

The Commissioner shall, at the request of any person applying for the same and upon payment of the prescribed fees, supply to him a copy of his records together with a copy of any relevant correspondence and shall authenticate the same.

If in the course of an inquiry held by the Commissioner under section 27 the workman and the employer and the

Commissioner all agree on any question and the Commissioner records the agreement in writing, that question shall not be submitted to an Arbitrator.

Agreement to be free of stamp duty

by an advocate and solicitor in Peninsular Malaysia or an advocate in Sabah and Sarawak;

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Workmen’s Compensation

by an officer of a trade union or of such association or combination of workmen or employers as may be approved by the Minister, who is authorized by the said union, association or combination and by the person in question to appear on that person’s behalf;

where the said person is a workman, by the Commissioner;

or

where the said person is an employer, by a person in his permanent and exclusive employment or by his insurer, or, where the insurer is a company, by an agent authorized, generally or specifically under the seal of the company, to represent the company in such proceedings.

Where the Government is a party to any proceedings under this Act such appearance, application or act may be made by the head of the department by, in or under which the workman was employed or by any officer of such department authorized in writing by the head thereof or by any Federal Counsel.

Experts to assist Arbitrator

If an officer vested with all the powers conferred and the duties imposed upon the Commissioner by this Act is satisfied by any party to any proceedings before him under this Act that such matter can be more conveniently dealt with by any other such

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officer, whether in the same State or not, he may, subject to

Regulations made under this Act, order such matter to be transferred to such other officer either for report or for disposal, and, if he does so, shall forthwith transmit to such other officer all documents relevant to the decision of such matter and, where the matter is transferred for disposal, shall also transmit in the prescribed manner any money or securities remaining in his hands or held by him for the benefit of any party to the proceedings.

Such other officer to whom any matter is so transferred shall, subject to Regulations made under this Act, inquire thereinto and, if the matter was transferred for disposal, continue the proceedings as if they had originally commenced before him.

On receipt of a report from the officer to whom any matter has been transferred for report under subsection (2) the officer by whom it was referred shall decide the matter referred to in conformity with such report.

Powers of the Commissioner and of an Arbitrator

An Arbitrator may in respect of any dependant or alleged dependant not being within Malaysia, accept as evidence the certificate of a competent authority holding an equivalent position to that of a Commissioner, appointed under any law relating to workmen’s compensation in force in the country or territory in which such dependant or alleged dependant resides:

Provided that nothing herein contained shall prevent the Arbitrator from taking into consideration any other evidence as to the existence of dependants and the extent of dependence.

The Commissioner or an Arbitrator shall make a brief memorandum of the substance of the evidence of every witness

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Workmen’s Compensation as the examination of the witness proceeds, and such memorandums shall be signed by the Commissioner or the Arbitrator with his own hand and shall form part of the record:

Provided that the evidence of any medical witness shall be taken down as nearly as may be word for word.

Any person who in any way wilfully obstructs the service of or obedience to any summons and any person summoned who neglects to attend and to produce documents as required in such summons and any person who commits in respect of such enquiry any offence described in Chapter X of the Penal Code [Act 574]

shall be guilty of an offence and shall be liable, on conviction, as provided in Chapter X of the Penal Code.

Every person who gives evidence before the Commissioner or an Arbitrator shall be bound to answer truthfully all questions put to him by the Commissioner or the Arbitrator and any person who wilfully makes any false statement or who gives any evidence in any enquiry under this Act which he knows to be untrue, or who does any other act, which if done in a judicial proceeding would be punishable under Chapter XI of the Penal Code, shall be guilty of an offence and shall be liable, on conviction, as provided in that

Chapter.

Every Arbitrator shall be deemed to be a public servant within the meaning of the Penal Code.

Arbitrator’s order to be sent to Commissioner

An appeal shall lie to the Federal Court from any decision of a Judge under this section.

Appeal from Arbitrator

If a Judge of the High Court shall sign a certificate that the decision of an Arbitrator involves a question of law which it is desirable in the public interest to have determined by the High

Court, upon an application made in that behalf by or on behalf of a workman or his employer, an appeal shall lie to the High Court.

An appeal shall lie to the Federal Court from any decision of a Judge under this section.

An appeal shall not lie in any case in which the parties have agreed to abide by the decision of the Arbitrator or in which the order of the Arbitrator gives effect to an agreement come to by the parties.

Subject to Rules of Court, the procedure in an appeal to the

High Court shall be the procedure in a civil appeal from a Sessions

Court with such modifications as the circumstances may require.

Enforcement of orders and agreements

Where the Commissioner has sent a certified copy of an order or of an agreement to the Registrar to be recorded under subsection (1), and subsequently on review under section 10, 14,15

or 16 an order is made varying the amount of compensation to be paid under such order or agreement, the Commissioner shall send a certified copy of the said order or agreement as varied by him to the said Registrar who shall cause the said copy to be recorded and thereupon the original order or agreement as varied by the subsequent order shall for all purposes thenceforth be enforceable in lieu of the original order or agreement as a judgment of the

Sessions Court notwithstanding that the same may in respect of amount be in excess of the ordinary jurisdiction of the said Court.

Limitation of workman’s right of action

if he has applied to the Commissioner to settle any question in respect of the injury under subsection 27(2); or

if an agreement has been come to between the workman and the employer and such agreement has been recorded under section 28; or

if he has recovered damages in respect of the injury in any court from any other person.