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Amendment Act

Lembaga Pembangunan Industri Pembinaan Malaysia (Amendment) Act 2011

Amends the Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994

Official textFrom Laws of Malaysia Online, unchanged

s 1Short title and commencement

(1)

This Act may be cited as the Lembaga Pembangunan

Industri Pembinaan Malaysia (Amendment) Act 2011.

(2)

This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette and the Minister may appoint different dates for the coming into operation of different provisions of this Act.

s 2Amendment of section 2

The Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 [Act 520], which is referred to as the “principal Act” in this Act, is amended by substituting for section 2 the following section:

“2. (1) In this Act, unless the context otherwise requires—

“accreditation” means a procedure by which the Lembaga or any person authorized by it gives formal recognition that a body or person is competent to carry out a specific task relating to the construction industry;

“this Act” includes any subsidiary legislation made under this Act;

“member” means a member of the Lembaga including the

Chairman;

“construction material” means any type, size and nature of material, initial, temporary, intermediate or finished, whether manufactured locally or imported used for the purposes of construction industry;

“building” means any permanent or temporary building or structure including any house, hut, shed or roofed enclosure, whether used for the purpose of human habitation or otherwise, and also any wall, roof, fence, platform, staging, gate, post, pillar, paling, frame, hoarding, slip, dock, wharf, pier, jetty, landing-stage, road or bridge, or any structure support or foundation connected to the foregoing and any other erection, as the Minister may, by order published in the Gazette, declare to be a building;

“deal” means to handle, use, manufacture, supply, market, transfer, sell or buy, whether wholesale or retail, import or export;

“construction industry” means the industry related to construction works, including design, manufacturing, technology, material and workmanship and services for purposes of construction;

“training institution” means an institute, a place or premise providing training and other related activity for construction personnel;

“construction works” means the construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition of—

(a)

any building, erection, edifice, structure, wall, fence or chimney, whether constructed wholly or partly above or below ground level;

(b)

any road, harbour works, railway, cableway, canal or aerodrome;

Lembaga Pembangunan Industri Pembinaan Malaysia

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(c)

any drainage, irrigation or river control works;

(d)

any electrical, mechanical, water, gas, petrochemical or telecommunication works; or

(e)

any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer, aqueduct, culvert, drive, shaft, tunnel or reclamation works, and includes—

(A)

any works which form an important and integral part of or are preparatory to or temporary for the works described in paragraphs (a) to (e), including site clearance, soil investigation and improvement, earth-moving, excavation, laying of foundation, site restoration and landscaping; or

(B)

procurement of construction materials, equipment or workers, necessarily required for any work described in paragraphs (a) to (e);

“Chief Executive” means the Chief Executive appointed under section 11;

“codes of practice” means any code, guideline, standard, rule, specification or approved practice of the Lembaga;

“contractor” means a person who carries out or completes or undertakes to carry out or complete any construction works;

“registered contractor” means a contractor registered in accordance with this Act;

“Fund” means the fund established under section 15;

“training” includes preparing or undergoing certain process to upgrade a person’s skill and knowledge in relation to construction industry;

“Lembaga” means the Lembaga Pembangunan Industri

Pembinaan Malaysia established under section 3;

“Minister” means the Minister for the time being charged with the responsibility for matters relating to works;

“construction workmanship” means the technique, method or process of construction, which includes the end product of the construction works;

“authorized officer” means—

(a)

an officer of the Lembaga authorized under section 35; or

(b)

a police officer not below the rank of Inspector under section 35V;

“general construction worker” means any employee or class of employee who is not skilled and who is engaged in manual work;

“skilled construction worker” means any employee possessing the accepted level of skill, knowledge, qualification and experience of one or more of the trades as determined by the Lembaga and listed in the Third Schedule;

“semi-skilled construction worker” means any employee possessing the accepted level of skill, knowledge, qualification and experience of one or more of the trades as determined by the Lembaga;

“certification” means a procedure by which the Lembaga or any person authorized by it gives written assurance that a process, practice or service conforms with specified requirements;

“Chairman” means the Chairman of the Lembaga appointed under section 5;

“Manager” means any officer of the Lembaga who holds the position equivalent to Grade 41 and above in the Government service;

“construction project manager” means any employee possessing the accepted level of skill, knowledge and experience as may be determined and who is assigned to the construction site or any other such place to organize,

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plan, control and co-ordinate the construction works from the inception to completion;

“construction site supervisor” means any employee possessing the accepted level of skill, knowledge and experience who is assigned to a construction site or any other such place to supervise the construction works;

“construction personnel” means—

(a)

general construction workers;

(b)

semi-skilled construction workers;

(c)

skilled construction workers;

(d)

construction site supervisors;

(e)

construction project managers; and

(f)

any other employee in construction industry as may be determined by the Lembaga;

“registered construction personnel” means a construction personnel registered or certified in accordance with this

Act;

“Industrialised Building System or IBS” means the technique of construction whereby components are manufactured in a controlled environment, either at site or off-site and subsequently transported, positioned and assembled into construction works;

“standards” has the same meaning as that assigned to it in the Standards of Malaysia Act 1996 [Act 549] and the

National Skills Development Act 2006 [Act 652];

“company” has the same meaning as that assigned to

“corporation” under subsection 4(1) of the Companies Act 1965 [Act 125].

(2)

For the purpose of this Act, any person who has been awarded or executed any contract for construction works, or has undertaken to carry out, manage or complete any construction works, or has carried out, managed or completed any construction works shall be deemed to be a contractor unless proven otherwise.”.

s 3Amendment of section 3

Section 3 of the principal Act is amended by inserting after the words “Lembaga Pembangunan Industri Pembinaan Malaysia”

the words “, which may be referred to for all purposes by the acronym “CIDB”, and”.

s 4Amendment of section 4

The principal Act is amended by substituting for section 4

the following section:

s 4“Functions of the Lembaga

(1)

The functions of the Lembaga shall be—

(a)

to promote and stimulate the development, improvement and expansion of the construction industry;

(b)

to advise and make recommendations to the Federal

Government and the State Government on matters affecting or connected with the construction industry;

(c)

to promote, stimulate and undertake research into any matter relating to the construction industry;

(d)

to promote, stimulate and assist in the export of service relating to the construction industry;

(e)

to provide consultancy and advisory services with respect to the construction industry;

(f)

to promote and encourage quality assurance in the construction industry;

(g)

to regulate the conformance of standards for construction workmanship and materials;

(h)

to obtain, publish, initiate and maintain information relating to the construction industry including the establishment of a construction industry information system;

(i)

to provide, promote, review and coordinate training in the construction industry;

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(j)

to register and acredit contractors, to impose any conditions of registration and accreditation of the contractors and to revoke, suspend or reinstate the registration and accreditation;

(k)

to register, accredit and certify construction personnel and to revoke, suspend or reinstate the registration, accreditation and certification of such construction personnel;

(l)

to regulate the implementation for quality and safe construction works;

(m)

to regulate the implementation of Industrialised

Building System in the construction industry; and

(n)

to attend to any complaint or report made in relation to any failure of construction works or completed construction works which affects public safety and take appropriate actions to address it.

(2)

The Lembaga shall have the power to do all things expedient or reasonably necessary for, or incidental to, the performance of its functions and, in particular, but without prejudice to the generality of the foregoing—

(a)

to carry on all activities, particularly activities relating to the construction industry, the carrying on whereof appears to it to be requisite, advantageous or convenient for or in connection with the performance of its functions;

(b)

to give formal recognition and written assurance including awarding certificate for the purpose of certification;

(c)

with the approval of the Minister and Minister of

Finance—

(i)

to enter into any partnership, joint venture, privatization programme, scheme, enterprise, undertaking or any other form of co-operation or arrangement for the sharing of profits or carry on its activities in association with, or otherwise, any person, public authority or Government;

(ii)

to acquire shares or securities in any public authority, corporation or other body and to dispose of or hold such shares or securities;

(iii)

to establish a corporation by such name as the Lembaga thinks fit to carry out and have the charge, conduct and management of any project, scheme or enterprise which has been planned or undertaken by the Lembaga either under the control or partial control of the

Lembaga;

(iv)

to establish or promote the establishment of companies under the Companies Act 1965

and to carry out or engage and have the charge, conduct and management of any project, scheme or enterprise which has been planned or undertaken by the Lembaga either under the control or partial control of the

Lembaga;

(d)

to provide financial assistance in the form of loans or otherwise to persons engaged in the construction industry for the purpose of promoting the said industry and provide any guarantees on their behalf;

(e)

to commission any person or body to carry out research or development, or both, relating to the construction industry;

(f)

to impose fees or any other charges as it deems fit for giving effect to any of its functions or powers;

(g)

to receive or to pay in consideration of any services that may be rendered by it or any person rendering the service, such commissions or payments as may be agreed upon with any person; and

(h)

to do such other things as it deems fit to enable it to carry out its functions and powers effectively.

(3)

The Second Schedule shall apply to every corporation established by the Lembaga under subparagraph (2)(c)(iii).

(4)

Subject to section 7, it shall be the responsibility of the Lembaga in performing its functions under this Act to

Lembaga Pembangunan Industri Pembinaan Malaysia

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ensure that the functions are performed in such manner as shall be in furtherance of the policy of the Government for the time being in force and in particular relating to the construction industry.”.

s 5Amendment of section 11

Section 11 of the principal Act is amended by deleting the word “Officer” wherever appearing.

s 6Amendment of section 15

Section 15 of the principal Act is amended–

(a)

in paragraph (2)(g), by substituting for the words “of contractors and the accreditation, certification and registration of skilled construction workers and construction site supervisors” the words “, accreditation, certification and training of contractors and construction personnel under this Act”;

(b)

by deleting the word “and” at the end of paragraph (2)(h);

and

(c)

by inserting after paragraph (2)(h) the following paragraph:

“(ha) moneys collected and received under section 38C;

and”.

s 7Amendment of section 20

Section 20 of the principal Act is amended by inserting after the word “Minister” wherever appearing the words “and Minister of Finance”.

s 8Amendment of section 21

Section 21 of the principal Act is amended by inserting after the word “Minister” wherever appearing the words “and Minister of Finance”.

s 9Amendment of section 22

Section 22 of the principal Act is amended by inserting after the word “Minister” wherever appearing the words “and Minister of Finance”.

s 10Amendment of section 23

Section 23 of the principal Act is amended by inserting after the word “employ” the words “or appoint”.

s 11Substitution of section 24

The principal Act is amended by substituting for section 24

the following section:

s 24“Delegation of Lembaga’s functions and powers

(1)

The Lembaga may, subject to such conditions, limitations or restrictions as it deems fit to impose, delegate any of its functions and powers, except the power to borrow money, to grant loans, to invest, to make regulations, or powers as stipulated under paragraph 4(2)(c) to–

(a)

any member of the Lembaga;

(b)

any committee established by the Lembaga; or

(c)

any officer or servant of the Lembaga, and any function or power so delegated may be performed, exercised or discharged by the member, committee, officer or servant, as the case may be, in the name and on behalf of the Lembaga.

(2)

A delegation under this section shall not preclude the

Lembaga itself from performing or exercising at any time any of the delegated functions and powers.”.

s 12Amendment of Part VI

Part VI of the principal Act is amended in the heading, by inserting after the word “REGISTRATION” the words “AND

ACCREDITATION”.

Lembaga Pembangunan Industri Pembinaan Malaysia

(Amendment)

s 13Amendment of section 25

Section 25 of the principal Act is amended—

(a)

by substituting for subsection (1) the following subsection:

“(1) No person shall carry out or complete, undertake to carry out or complete any construction work or hold himself out as a contractor, unless he is registered with the Lembaga and holds a valid certificate of registration issued by the Lembaga under this Act.”; and

(b)

by inserting after subsection (2) the following subsections:

“(3) The Lembaga may, for the purpose of the registration of contractors, impose such conditions as it thinks fit.

(4)

The Lembaga may suspend, revoke, reinstate or refuse any registration of any person under this

Act.

(5)

A person aggrieved by the decision of the

Lembaga made under subsection (4) may, within thirty days after the date the decision of the Lembaga was communicated to him, appeal to the Minister in writing against the decision and the decision made by the Minister shall be final.”.

s 14New section 25A

The principal Act is amended by inserting after section 25

the following section:

s 25A“Accreditation of contractors

(1)

The Lembaga may accredit contractors in the form and manner prescribed under regulations made under this

Act.

(2)

The Lembaga may, for the purpose of the accreditation of contractors, impose such conditions as it thinks fit.”.

s 15Amendment of section 26

Section 26 of the principal Act is amended by substituting for the words “which shall contain the names, business addresses and other particulars of contractors who are registered as registered contractors” the words “of the registered and accredited contractors under this Act”.

s 16Amendment of section 27

Section 27 of the principal Act is amended—

(a)

in subsection (1)—

(i)

by inserting after the words “any person to” the words “disclose and”; and

(ii)

by substituting for the words “any contractor or construction works” the words “the construction industry or anything required under the Act”;

(b)

in subsection (2), by substituting for the words “to the person at the construction site, his working place or at his residence” the words “by way of personal service or by registered post”;

(c)

in subsection (3), by inserting after the words “to be”

the words “disclosed and”; and

(d)

in subsection (4), by inserting after the word “information”

the words “under this section”.

s 17Substitution of section 29

The principal Act is amended by substituting for section 29

the following section:

s 29“Penalty for carrying out construction works without being registered

Any person who contravenes subsection 25(1) shall be guilty of an offence and shall, on conviction, be liable to a fine of not less than ten thousand ringgit but not more than one hundred thousand ringgit.”.

Lembaga Pembangunan Industri Pembinaan Malaysia

(Amendment)

s 18Amendment of section 30

Section 30 of the principal Act is amended—

(a)

in the shoulder note, by deleting the words “to unregistered contractor”;

(b)

by substituting for subsection (1) the following subsection:

“(1) Where the Lembaga finds that construction works are being carried out or completed, or undertaken to be carried out or completed by any person who is not registered with the Lembaga under this Act, the

Lembaga shall by notice in writing served on him require him to abstain from commencing or proceeding with the construction works or from undertaking to carry out or complete the construction works, with or without conditions.”;

(c)

by inserting after subsection (1) the following subsection:

“(1A) Where the Lembaga finds that construction works are being carried out or completed, or undertaken to be carried out or completed by a registered contractor in contravention of any provision of this

Act, the Lembaga may, by notice in writing served on him, require him to abstain from commencing or proceeding with the construction works or undertaking to carry out or complete the construction works, with or without conditions.”; and

(d)

in subsection (2)—

(i)

by inserting after the words “subsection (1)” the words “or subsection (1A)”; and

(ii)

by substituting for the words “be liable to a fine not exceeding five hundred ringgit, and in the case of a continuing offence, to a fine not exceeding five hundred ringgit” the words “be liable to a fine not exceeding five thousand ringgit and in the case of a continuing offence, to a fine not exceeding one thousand ringgit”.

s 19Amendment of section 31

The principal Act is amended by substituting for section 31

the following section:

s 31“Contractors are subject to this Act

Every contractor, whether registered under this Act or not, shall be subject to this Act.”.

s 20Substitution of Part VII

The principal Act is amended by substituting for Part VII the following Part:

“PART VII

REGISTRATION, ACCREDITATION, CERTIFICATION AND

TRAINING OF CONSTRUCTION PERSONNEL

s 32Interpretation

For the purposes of this Part, “trades” means the trades or occupation normally associated with skilled construction workers.

s 33Registration of construction personnel

(1)

A person shall not be involved or engaged or undertake to be involved or engaged as a construction personnel unless he is registered with the Lembaga and holds a valid certificate of registration issued by the Lembaga under this Act.

(2)

Subsection (1) shall not apply to any construction personnel who has a professional qualification and is registered under any written law.

(3)

The Lembaga shall keep and maintain a Register which shall contain the names, addresses, trades, skills and other particulars of registered construction personnel.

Lembaga Pembangunan Industri Pembinaan Malaysia

(Amendment)

(4)

A person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit.

Accreditation and certification of construction site supervisor and skilled construction worker

s 33A

(1)

No construction site supervisor or skilled construction worker shall be involved or engaged, or undertake to be involved or engaged as a construction site supervisor or skilled construction worker unless he is accredited and certified by the Lembaga and holds a valid certificate issued by the

Lembaga under this Act.

(2)

For the purpose of this Act, skilled construction workers are those specified in the Third Schedule.

(3)

The Minister may, by order published in the Gazette, amend the Third Schedule.

(4)

The Lembaga shall keep and maintain a Register which shall contain the names, addresses, trades, skills and other particulars of accredited and certified construction site supervisors and skilled construction workers.

(5)

A person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit.

(6)

Any person who engages a construction site supervisor or skilled construction worker who is not accredited and certified by the Lembaga to carry out any construction work shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit.

s 33BTraining institution, etc.

(1)

The Lembaga, for the purpose of training, accreditation and certification of construction personnel may—

(a)

establish, promote and accredit training institutions;

(b)

establish a body to carry out evaluation or assessment or to conduct examination of the training institutions;

(c)

establish a body to develop, monitor and modify the curriculum as to the courses of studies, standards and training programmes offered by the training institutions;

(d)

give formal recognition and written assurances including awarding certificates or any other qualifications to the training institutions;

(e)

suspend or revoke the accreditation of training institutions for contravening or failing to comply with the conditions of accreditation; and

(f)

do any other things which the Lembaga deems expedient or necessary for the purposes of this

Part.”.

s 21New Part VIIA

The principal Act is amended by inserting after Part VII the following Part:

“PART VIIA

STANDARDS AND CODES OF PRACTICE IN THE

CONSTRUCTION INDUSTRY

s 33CLembaga to certify construction materials

(1)

The Lembaga shall, in the manner determined by the Lembaga, certify the construction materials used in the construction industry and specified in the Fourth Schedule in accordance with the standards specified in that Schedule.

(2)

The Minister may, by order published in the Gazette, amend the Fourth Schedule.

Lembaga Pembangunan Industri Pembinaan Malaysia

(Amendment)

(3)

The Lembaga may keep and maintain a Register of the details and record of all certified construction materials.

(4)

The Lembaga may, for the purpose of certification under subsection (1), impose any condition as it thinks fit.

(5)

The Lembaga may suspend, revoke, reinstate or refuse the certification in circumstances as may be determined by the Lembaga.

s 33DDealing with non-certified construction materials

(1)

A person shall not deal or undertake to deal, whether directly or indirectly, with the construction materials specified in the Fourth Schedule unless the construction materials have been certified by the Lembaga.

(2)

Any person who deals or undertakes to deal with the construction materials specified in the Fourth Schedule without the certification of the Lembaga shall be guilty of an offence and shall, on conviction, be liable to a fine of not less than ten thousand ringgit but not more than five hundred thousand ringgit.

s 33ENotice by the Lembaga for person dealing with non-certified construction materials

(1)

Where any construction material which is not certified in accordance with this Act is dealt with or is undertaken to be dealt with or will be dealt with by any person, the

Lembaga may, by notice in the prescribed form, serve on such person requiring him to abstain from commencing or proceeding with, engaging in or being involved in or undertaking to be engaged or involved in, dealing with the non-certified construction material.

(2)

Any person who fails to comply with the requirements of the notice under subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit and in the case of a continuing offence, to a fine not exceeding five hundred ringgit for every day or part of a day during which the offence continues after conviction.

s 33FCodes of practice for the construction industry

The Lembaga or any other body authorized by law may, from time to time, formulate, develop, revise and approve any code of practice which is suitable and necessary for the construction industry.”.

s 22Amendment of section 34

The principal Act is amended by substituting for section 34

the following section:

s 34“Imposition of levy

(1)

Every contractor shall declare and submit to the

Lembaga, in the manner as may be prescribed by the

Lembaga, any contract which he has been awarded on any construction works.

(2)

For every contract referred to in subsection (1), whether stamped or not, having a contract sum of above five hundred thousand ringgit, the contractor shall be liable to pay to the

Lembaga a levy at the rate of a quarter per centum of the contract sum.

(3)

Every contractor shall disclose fully to the Lembaga all the facts and circumstances affecting his liability to pay the levy.

(4)

The Lembaga shall notify the contractor of the amount of levy to be paid within such period as it may prescribe and such notification by the Lembaga shall be prima facie evidence as to the amount of levy to be paid by the contractor.

(5)

The Minister may, by order published in the Gazette, vary the rate of levy specified in subsection (2).

(6)

In the case where there are more than one contractor who are parties to a contract referred to in subsection (1), each and every such contractor are jointly and severally liable to pay the levy, unless otherwise proven to the contrary to the satisfaction of the Lembaga.

Lembaga Pembangunan Industri Pembinaan Malaysia

(Amendment)

(7)

Where the Lembaga has reason to believe that any condition in any contract referred to in subsection (1) has the direct or indirect effect of—

(a)

altering the contract sum subjected to levy which is payable or which would otherwise have been payable;

(b)

relieving any person from any liability which has arisen or which would otherwise have arisen to pay the levy;

(c)

evading or avoiding any duty or liability which is imposed or would otherwise have been imposed on any person by this Act; or

(d)

hindering or preventing the operation of this Act in any respect, the Lembaga may, without prejudice to such validity as it may have in any other respect or for any purpose, disregard or vary such condition and make such adjustments as it thinks fit, with a view to counteracting the whole or any part of such direct or indirect effect of such condition in the contract.

(8)

In exercising its powers under subsection (7), the

Lembaga may—

(a)

treat the total value of any construction works or any part of it to be the value of the contract sum;

(b)

make such computation or amendment of any value of any construction works or contract as may be necessary to revise any person’s liability to pay the levy or impose any liability to pay the levy on any person in accordance with its exercise of those powers; and

(c)

make such amendments as may be necessary to revise any person’s liability to pay the levy or impose any liability to pay the levy on any person in accordance with its exercise of those powers.

(9)

Where a contractor fails to pay any levy due within the prescribed period by the Lembaga, the contractor shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or four times the amount of such levy payable, whichever is higher.

(10)

A contractor who contravenes subsection (1) or (3)

shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit.”.

s 23New section 34A

The principal Act is amended by inserting after section 34

the following section:

s 34A“Levy payable as civil debt due to the Lembaga

Notwithstanding any other written law, the amount of any levy payable under this Part shall be recoverable as a civil debt due to the Lembaga.”.

s 24New Part VIIIA

The principal Act is amended by inserting after Part VIII the following Part:

“PART VIIIA

DUTY OF CONTRACTOR

Read on from s 34B