Key Amendments to the Occupational Safety and Health (Amendment) Act 2022

The Occupational Safety and Health Amendment Bill 2020 as well as the Factories and Machinery (Repeal) Bill 2020 have been passed by the Senate. The amendments are expected to enter into force in June/July 2023, having considerable impact on employers in Malaysia.

Key Amendments

Extension of the applicability of the Occupational Safety and Health Amendment Act 2022 (“OSHA”)

The existing Occupational Safety and Health Act 1994 (“Existing Act”) only applies to specific industries such as manufacturing, mining and quarrying, construction, utilities, finance, insurance, real estate and business services.

The OSHA section 1(2), now extends to “all places of work throughout Malaysia…”.

Employers´ duties now extend to any place where work is carried out. This applies to private and public sectors.

Duties of principal

Under the new OSHA, a principal now has the duty to ensure the safety and health of any contractor engaged by the principal, any subcontractor or indirect contractor and any employee employed by such contractor or subcontractor when at work.

Section 3(1) of the OSHA defines a principal as “any person who in the course of or for the purposes of his trade, business, profession or undertaking contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal”.

The duties of the principal are only imposed where the contractor, subcontractor or employee is working under the principal’s direction as to the manner in which the work is carried out and not the specific works.

Duties on employers to conduct risk assessment

The new OSHA, section 18B(1) provides a duty on employers and principals to conduct a risk assessment with regard to the health and safety risk affecting any person at their place of work. Furthermore, if the risk assessment indicates a risk control is required to reduce the safety and health risk, the employer or principal shall enforce such control. Employers and principals are encouraged to use the Guidelines for Hazard Identification, Risk Assessment and Risk Control 2008.

Appointment of an occupational safety officer and health coordinator

The new OSHA provides a provision requiring an employer to appoint one of their employees to act as an occupational safety and health coordinator for places of work that are not included in any class or description of place of work in the Gazette requiring a safety and health officer. This is subject to the employer having five or more employees at the work place.

The role of the occupational safety and health coordinator is to coordinate occupational safety and health issues at the workplace. This role differs from the role of a safety and health officer. A safety and health officer is required to ensure the observance of the provisions of the OSHA and any regulation made thereunder, at the work place.

The penalty for not appointing a safety and health officer where required, or an occupational safety and health coordinator ensues a fine not exceeding RM50,000.00 or imprisonment for a term not exceeding six months, or both.

Right of employee to remove himself from imminent danger

Prior to an employee being entitled to remove himself from imminent danger, there are two conditions to be satisfied:

the employee must inform their employer or representative that they have a reasonable justification to believe that an imminent danger exists at their work place; and
the employer fails to take any action to remove the danger.

An imminent danger is defined as “a serious risk of death or serious body injury to any person that is caused by any plant, substance, condition, activity, process, practice, procedure or place of work hazard.”

Increased penalties

The fine for employers, self-employed persons and principals (section 15-18A) for a breach of duties has been increased from RM50,000.00 to RM500,000.00.

Amongst other duties are:

ensuring the safety, health and welfare to work for all their employees;
providing a safety and health policy;
conducting risk assessment in relation to the safety and health risk posed to any person who may be affected through their job at the place of work;
developing and implementing procedures to deal with emergencies that may arise in the course of the employees’ work.

Additionally, the fine for a breach of duties under section 20-22 which applies to manufacturers, designers, importers and suppliers, has also been increased from RM20,000.00 to RM200,000.00.

The duties of manufacturers, designers, importers and suppliers include the following:

ensuring, as far as it is practicable, that the plant is so designed and constructed as to be safe and without risk to health when properly used;
ensuring, as far as it is practicable, that any substance is safe and without risks to health when properly used.

Directors and office bearers liability

Under Section 52 of OSHA, directors and certain office bearers such as partners, compliance officers and managers, may now be jointly and severely liable for offences committed by the company or other relevant bodies.

The amended section 52 also provides a defence mechanism for directors and office bearers which put the onus on the person to prove that the offence was committed:

without their knowledge; and
without their consent or connivance, and that they have taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.

Furthermore, the new section 52A places a higher responsibility upon directors and office bearers to monitor the conduct of their employees, agents or agent’s employees. The OSHA imposes a higher duty of care on directors and office bearers as the directors and office bearers will now be subject to the same punishment or penalty as the person’s employee, agent or agent of the employee.

Conclusion

Employers should take note of the extension of the applicability of OSHA, as “all places of work in Malaysia” would include work from home. This suggests that employees working from home are protected under OSHA, too. Employers are urged to have strict policies and guidelines with regard to work from home as it is highly unlikely for employers to have control of an employee’s home safety.

With the rapid work environment changes, it is no longer just the physical health and safety of the employees. Equal importance should be given to the psychological health of the employees.

Employers have a responsibility to conduct risk assessments and are strongly advised to have trainings and programs to ensure safety and to reduce the exposure to health and safety risks.