Workmen's Compensation 1 LAWS OF MALAYSIA REPRINT Act 273 WORKMEN'S COMPENSATION ACT 1952 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 WORKMEN'S COMPENSATION ACT 1952 First enacted ... ... ... ... ... ... 1952 (F.M. Ordinance No. 85 of 1952) Revised ... ... ... ... ... ... ... ... 1982 (Act 273 w.e.f. 22 July 1982) PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 LAWS OF MALAYSIA Act 273 WORKMEN'S COMPENSATION ACT 1952 ARRANGEMENT OF SECTIONS Section 1 Short title PART I INTERPRETATION AND APPLICATION 2. Meaning of "workman" 3. Interpretation 3A. Power to exempt PART II WORKMEN'S COMPENSATION FOR INJURY 4. Employer's liability for compensation 5. Compensation for occupational diseases 6. Compensation limited to injuries received at work 7. Persons entitled to compensation 8. Amount of compensation 9. Method of calculating earnings 10. Distribution of compensation 11. Compensation not to be assigned, attached or charged 12. Notice and claim 13. Notice to Commissioner by employer 14. Medical examination and treatment 15. Approved hospitals and special hospitals 4 ACT 273 Laws of Malaysia Section 16. Review 16A. Power of review 17. Commutation of half-monthly payments 18. Workman leaving Malaysia to reside elsewhere 19. Liability in case of workmen employed by contractors 20. Remedies both against employer and stranger 21. Bankruptcy of employer 22. Special provisions relating to seamen 23. Returns as to compensation 24. Contracting out 25. Commissioner may receive and pay to dependants money due to a dead workman from his employer 26. Compulsory insurance by employer PART III THE COMMISSIONER AND ARBITRATORS 27. Commissioners to hold inquiries 28. Recording of agreements 29. Effect of failure to record an agreement 30. Arbitrator to decide when parties fail to agree 31. Agreement to be free of stamp duty 32. Appearance of parties 33. Experts to assist Arbitrator 34. Enquiry by Arbitrator 35. Powers of the Commissioner and of an Arbitrator 36. Arbitrator's order to be sent to Commissioner 37. Costs 38. Power to submit cases 39. Appeal from Arbitrator 40. Enforcement of orders and agreements 41. Limitation of workman's right of action Workmen's Compensation 5 Section 42. Reciprocal arrangements for payment of workman's compensation. 43. Regulations 44. Repeal FIRST SCHEDULE SECOND SCHEDULE THIRD SCHEDULE 6 ACT 273 Laws of Malaysia Workmen's Compensation 7 LAWS OF MALAYSIA Act 273 WORKMEN'S COMPENSATION ACT 1952 An Act to provide for the payment of compensation to workmen for injury suffered in the course of their employment. [Peninsular Malaysia--1 April 1953, L.N. 162/1953; Sabah and Sarawak--1 June 1981, P.U. (A) 157/1981] Short title 1.  This Act may be cited as the Workmen's Compensation Act 1952. PART I INTERPRETATION AND APPLICATION Meaning of "workman" 2. (1) In this Act, unless the context otherwise requires, the expression "workman", subject to the proviso to this subsection, means any person who has, either before or after the commencement of this Act, entered into or works under a contract of service or of apprenticeship with an employer, whether by way of manual labour or otherwise, whether the contract is expressed or implied or is oral or in writing, whether the remuneration is calculated by time or by work done and whether by the day, week, month or any longer period: Provided that the following persons are excepted from the definition of "workman"-- (a) any person employed otherwise than by way of manual labour whose earnings, calculated in accordance with section 9, exceed five hundred ringgit a month; 8 ACT 273 Laws of Malaysia (b) 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; (c) a domestic servant; (d) any person who is a member of the armed forces or of any visiting force lawfully present in Malaysia; (e) 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; (f) 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); (g) 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; (h) an out-worker; (i) a tributer; (j) 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 Workmen's Compensation 9 (2) 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. (3) 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 3. (1) In this Act, unless the context otherwise requires-- "adopted" means-- (a) 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]; (b) *in relation to Sabah, in reference to any child, a child a d o p t e d 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; (c) 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 Labuan­see P.U. (A) 273/1984. 10 ACT 273 Laws of Malaysia "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-- (a) 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; (b) *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; (c) 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 Labuan­see P.U. (A) 273/1984. Workmen's Compensation 11 "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) a travelling allowance; (b) the value of any travelling concession; (c) a contribution paid by the employer towards any pension or provident fund; (d) 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 12 ACT 273 Laws of Malaysia 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-- (a) 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 (b) 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. Workmen's Compensation 13 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). 14 ACT 273 Laws of Malaysia (2) 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 3A.  The Minister may by order exempt, subject to such conditions as he may deem fit to impose, any person or class of persons from all or any of the provisions of this Act. PART II WORKMEN'S COMPENSATION FOR INJURY Employer's liability for compensation 4. (1) (a) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, save as hereinafter provided, be liable to pay compensation and any expenses incurred in the treatment and rehabilitation of such workmen under section 15 in accordance with the provisions of this Act. (b) 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 s o m e 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. (c) 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 Workmen's Compensation 15 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. (d) 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-- (i) 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 (ii) such act was done for the purposes of and in connection with the employer's trade or business. (2) (a) An employer shall not be liable to pay compensation in respect of any injury which does not disable the workman for a period of at least four days from earning full wages at the work at which he was employed; and no compensation shall be payable in respect of the first four days of such disablement unless the disablement lasts for a period of at least fourteen days. (b) An employer shall not be liable to pay compensation in respect of an injury to a workman resulting from an accident if it is proved that the injury to the workman is directly attributable to the workman having been at the time thereof under the influence of alcohol or a drug, unless such injury results in the death. (3) 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. (3A) (a) If a workman is injured or dies as a result of an accident which occurs in Singapore or in any other territory which the 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 16 ACT 273 Laws of Malaysia 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. (b) If a workman is injured or dies as a result of an accident in Malaysia for which compensation is payable under the Workmen's Compensation Act of Singapore [Singapore Cap.157], the employer of such workman shall not be liable to pay compensation under this Act in addition to any compensation he is liable to pay under the Workmen's Compensation Act of Singapore. (4) 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. (5) 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 5. (1) If a workman who is employed in any occupation described in the Second Schedule contracts a disease or injury shown in the said Schedule to be related to that occupation, or if a workman who has been employed in such occupation contracts such a disease or injury within twelve months after ceasing to be so employed, and if disablement or the death of such workman results from that disease, compensation shall be payable as if the disease were a personal injury by accident arising out of and in the course of that employment, and all the other provisions of this Act shall apply accordingly, subject to the provisions of this section: Provided that where the workman has developed any of the diseases mentioned in the said Schedule, that disease shall, unless the contrary is proved, be presumed to be due to the nature of the occupation if the workman has been employed in any of the specified occupations within thirty days of the date on which a registered medical practitioner certifies that in his opinion the workman is suffering from that disease. Workmen's Compensation 17 (2) 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. (3) 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. (4) 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. (5) 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. (6) 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 18 ACT 273 Laws of Malaysia 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. (7) 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. (8) 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 6.  Save as provided in sections 4 and 5 no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of the relevant employment. Persons entitled to compensation 7. (1) The compensation shall be payable to or for the benefit of the workman, or, where death results from the injury, to or for the benefit of his dependants as provided by this Act. (2) 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. (3) 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. Workmen's Compensation 19 Amount of compensation 8.  Subject to this Act the amount of compensation shall be as follows, namely-- (a) 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; (b) where permanent total disablement results from the injury-- (i) 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; (ii) in the case of any other adult, a lump sum equal to eighty-four months earnings or twenty-three thousand ringgit, whichever is the less; and (iii) in the case of a minor, a lump sum equal to one hundred and eight months earnings or twenty- three thousand ringgit, whichever is the less: Provided that where an injury results in permanent total disablement of such a nature that the injured workman must have the constant help of another person, additional compensation shall be paid amounting to one quarter of the amount which is otherwise payable under this paragraph; (c) where permanent partial disablement results from the injury such percentage of the compensation which would h a v e 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: 20 ACT 273 Laws of Malaysia 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; (d) 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; (e) 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-- (i) 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 e n t i t l e d and which he has received from his employer by way of compensation; (ii) where permanent disablement follows a period e x c e e d i n g twelve months of total or partial temporary disablement there shall be deducted from the lump sum payable in respect of such permanent d i s a b l e m e n t 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 in respect of any period in excess of twelve months, subject to a maximum deduction equivalent to the said lump sum; Workmen's Compensation 21 (iii) where resident treatment in a hospital or outpatient medical treatment is necessary as a result of the accident, abstention from work for such treatment shall be regarded as total temporary disablement for the purposes of payment of compensation: And provided further that no half-monthly payment shall in any case exceed the amount, if any, by which half the amount of the monthly earnings of the workman before the accident exceed shalf the monthly amount which he is earning or is in the opinion of the Commissioner able to earn in some suitable employment or business after the accident: And provided further that if the disablement ceases before the date on which any half-monthly payment falls due, there shall be payable in respect of that half-month an amount proportionate to the duration of the disablement during that half-month. Method of calculating earnings 9. (1) For the purposes of this Act the earnings of a workman shall be computed in such manner as is best calculated to give his true monthly earnings at the date of the accident, subject to the following provisions: (a) 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; (b) 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; 22 ACT 273 Laws of Malaysia (c) 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; (d) 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. (2) 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. (3) 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. (4) 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 10. (1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or to a minor, shall be made otherwise than by deposit with the Commissioner, and any such payment made directly to any dependant of a deceased workman or to any woman or minor shall be deemed not to be a payment of compensation for the purposes of this Act. (2) 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. Workmen's Compensation 23 (3) The receipt of the Commissioner shall be a sufficient discharge for any compensation deposited with him. (4) 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. ( 5 ) T h e 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: P r o v i d e d 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. (6) 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 C o m m i s s i o n e r thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependant. (7) (a) Where any lump sum deposited with the Commissioner is payable to a woman or to a minor or other person under a legal disability, or where any lump sum has been deposited with the 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. (b) Where a half-monthly payment is payable to any workman under a legal disability the Commissioner may, of his own motion or on application made to him in that behalf, order that the payment 24 ACT 273 Laws of Malaysia be made during the disability to any dependant of the workman or to any other person whom the Commissioner thinks best fitted to provide for the welfare of the workman. (c) In all other cases compensation whether or not deposited with the Commissioner shall be paid to the person entitled thereto. (8) 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. (9) The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made. (10) 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. (11) 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 11.  Save as provided by this Act, no lump sum or half-monthly payment payable under this Act shall in any way be capable of being assigned or charged or be liable to attachment or pass to any Workmen's Compensation 25 person other than the workman by operation of law nor shall any claim be set off against the same. Notice and claim 12. (1) Except as provided in this section proceedings for the recovery of compensation for an injury under this Act shall not be maintainable unless notice of the accident in respect of which such compensation is claimed has been given to the employer within seven days after the happening thereof and unless a claim for compensation with respect to such accident has been made within six months from the happening of the accident causing the injury, or, in case of death, within six months from the date of the death. (2) No notice to the employer shall be necessary where a fatal accident has occurred. (3) 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. (4) 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. (5) 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. 26 ACT 273 Laws of Malaysia (6) 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. (7) 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. (8) 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 1 3 . ( 1 ) E v e r y employer shall give notice in writing to the Commissioner of the occurrence of any accident on his premises in connection with anything done for the purposes of the employer's trade or business and which results in the death or immediate disablement total or partial of any person injured. (2) Such notice shall be given within ten days of the occurrence of the accident. (3) 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. (4) 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. (5) Any employer failing or omitting to give notice as required by this section shall be guilty of an offence and shall be liable, Workmen's Compensation 27 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. (6) 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 14. (1) When notice of an accident has been given to an employer by a workman or by the Commissioner on the workman's behalf the employer may offer to have the workman examined, free of charge to the workman, by a registered medical practitioner, and the workman shall as soon as possible submit himself for such examination; and any workman who is in receipt of a half-monthly payment under this Act shall, if so required, submit himself for such examination from time to time: Provided that no workman shall be required to submit himself for such examination otherwise than in accordance with Regulations made under this Act. (2) 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. (3) 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. 28 ACT 273 Laws of Malaysia (4) 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. (5) 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. (6) 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-- (a) where the workman is in receipt of half-monthly payments under the provisions of this Act, the Commissioner may order the suspension of such half-monthly payments until such workman accepts such treatment or has carried out such instructions, and may further, where he is satisfied that the duration of the workman's disability has been prolonged by such refusal, failure or disregard, order the restriction of the period of such half-monthly payments to such period, calculated from the date of injury, as the disability of the workman might reasonably have been expected to have lasted for, had he accepted treatment and followed instructions; or (b) where the workman has suffered permanent disablement and the Commissioner is satisfied that such disablement has been aggravated by such refusal, failure or disregard the Commissioner may order that compensation be paid to the workman appropriate to such disablement as he might reasonably have been expected to have suffered if he had been regularly treated by a registered medical practitioner. Approved hospitals and special hospitals 15. (1) The Minister of Health shall from time to time by notification in the Gazette declare which hospitals are approved hospitals for Workmen's Compensation 29 the purpose of this Act; and, where a workman is so injured that a registered medical practitioner certifies that his treatment in an approved hospital is necessary, the employer shall at his own expense cause such workman to be conveyed to and from such approved hospital for treatment in such manner as in the opinion of the registered medical practitioner is appropriate to his condition. (2) (a) Where the Minister of Health is satisfied that suitable equipment and supervision are available in any hospital for the treatment and convalescence of injured workmen and especially for giving them treatment for the re-education of injured parts and the restoration, so far as practicable, of bodily powers and general health, he may by notification in the Gazette declare such hospital to be a special hospital for the purpose of this Act; and any injured workman may be admitted for treatment to such special hospital on the recommendation of the registered medical practitioner in charge of an approved hospital, provided that the registered medical practitioner in charge of such special hospital certifies that in his opinion such treatment will benefit the workman. (b) Where any injured workman is admitted or attends for treatment under paragraph (a) in a special hospital, his employer shall at his own expense cause such workman to be conveyed to and from such special hospital as the registered medical practitioner in charge of such special hospital shall direct. (3) 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. 30 ACT 273 Laws of Malaysia (4) 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 16. (1) Any half-monthly payment payable under this Act, either under an agreement between the workman and the employer and consented to and recorded by the Commissioner or under the award of an Arbitrator, may be reviewed by the Commissioner on the application either of the employer or of the workman accompanied by a certificate of a registered medical practitioner that there has been a change in the condition of the workman. (2) 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 16A.  The Commissioner shall, by virtue of this subsection, have power to review and to vary any order originally made under the Ordinances and Enactments specified in the Third Schedule to this Act. Commutation of half-monthly payments 17.  Any half-monthly payments may, by agreement between the workman and the employer consented to and recorded by the Commissioner, or, if the workman and the employer cannot agree or the Commissioner does not consent and the payments have been continued for not less than six months, on application to the Arbitrator, be commuted into a lump sum to be paid instead of such half- monthly payments of such amount as may be agreed to by the parties and consented to by the Commissioner or determined by the Arbitrator, as the case may be. Workman leaving Malaysia to reside elsewhere 18. (1) If a workman receiving a half-monthly payment intends to leave Malaysia in order to reside in another country, he shall give to the Commissioner fourteen days previous notice of his Workmen's Compensation 31 intended departure; and the Commissioner shall forthwith in form the employer who may agree with the workman to continue the payments in the country in which the workman intends to reside, and in default of agreement either party may apply to the Arbitrator for the commutation of such half-monthly payments into a lump sum to be paid instead of such half-monthly payments and the Arbitrator shall thereupon determine the amount of such lump sum. (2) 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 19. (1) Where any person (in this section referred to as "the principal") in the course of or for the purpose of his trade or business contracts with any other person otherwise than as a tributer (in this section referred to as "the contractor") for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to a n y workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him and where a claim has been made to the principal for compensation this Act shall apply as if references to the principal were substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed. (2) 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. (3) 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. 32 ACT 273 Laws of Malaysia (4) 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 20.  Where any injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof-- (a) 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 (b) 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 21. (1) Where any employer has entered into a contract with any insurers in respect of any liability under this Act to any workman, then, in the event of the employer becoming bankrupt or making a composition or scheme of arrangement with his creditors, or, if the employer is a company, in the event of the company having commenced to be wound up or a receiver or manager of the company's business or undertaking having been duly appointed or possession having been taken by or on behalf of the holders of debentures secured by a floating charge of any property comprised in or subject to the charge, the rights of the employer against the insurers as respecting that liability shall, notwithstanding anything in any written law relating to bankruptcy or the winding-up of companies for the time being in force in Malaysia or any part thereof, be Workmen's Compensation 33 transferred to and vest in the workman, and upon any such transfer the insurers shall have the same rights and remedies and be subject to the same liabilities as if they were the employer, so, however, that the insurers shall not be under any greater liability to the workman than they would have been under to the employer had the transfer not happened. (2) 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. (3) 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. (4) There shall be included among the debts which-- (a) under section 43 of the Bankruptcy Act 1967 [Act 360], are to be paid in priority to all other debts; (b) under section 292 of the Companies Act 1965 [Act 125], are to be paid in priority to all other debts; and (c) under section 191 of the Companies Act 1965, are to be paid in priority to any claims for principal or interest in respect of debentures, the amount due in respect of any compensation or liability for compensation accrued before the following dates, that is to say: