Amendments to the Occupational Safety and Health Act take effect on June 1, 2024

The Minister of Human Resources of Malaysia has, by way of Gazette Notification [P.U.(B) 128/2024] confirmed that the Occupational Safety and Health (Amendment) Act 2022 (“the Amendment Act”) will come into operation on 1 June 2024. Simultaneously, the Factories and Machinery Act 1967 (“FMA”) will also be repealed. The repealed provisions of the FMA will be consolidated with changes into the Amendment Act.

The following subsidiary legislation will also be enforced 1 June 2024:

Occupational Safety and Health (Plant Requiring Certificate of Fitness) Regulation 2024 [P.U.(A) 99/2024]; and
Occupational Safety and Health (Licensed Person) Order 2024 [P.U.(A) 100/2024].

We previously wrote about the key amendments to the Occupational Safety and Health (Amendment) Act 2022 when it was a Bill which can be found here. We would like to highlight some of the salient changes made to the Act through the Amendment Act.

Expansion of scope of workplace

Prior to the Amendment Act, the Occupational Safety and Health Act (“OSHA”) was only applicable to specific industries such as manufacturing and wholesale and retail traders as stated in the First Schedule. Now with the Amendment Act, it is extended to cover all places of work with limited exceptions. During the Parliamentary debates it was suggested that the Amendment Act also be extended to employees working from home.

Definition of “employer” and “principal”

The Amendment Act clearly distinguishes between "employer" and "principal". An "employer" simply means "any person who has entered into a contract of service to employ any other person as an employee" while a "principal" is "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".

Expanded duties on employers, self-employed persons and/or principal

Duty on principal to ensure safety of contractors and sub-contractors
A principal is required to ensure the safety and health of any contractor, subcontractor, indirect sub-contractor, any employee employed by the contractor or sub-contractor when at work. However, obligation of the principal is only where the contractor, sub-contractor or employee is working under the direction of the principal.
Duty to conduct and implement risk assessment in relation to health and safety risks
Every employer, self-employed person and principal must conduct a health and safety risk assessments in relation to any person who maybe at risk by their work at their workplace. If the risk assessment indicates that risk control is required to reduce or eliminate the risk, such control must be implemented.
Appointment of occupational safety and health coordinator
Every employer who has five or more employees at work must appoint one of its employees as an occupational safety and health coordinator (“Coordinator”). The Coordinator shall be responsible to oversee and manage all occupational safety and health matters at work. If an employer has appointed a safety and health officer at the place of work shall be deemed to have complied with the requirement to appoint a Coordinator. The role of the Coordinator is less extensive than the role of the safety and health officer.
To develop and implement procedures to deal with emergencies
Employers, self-employed persons and principals are required to develop and implement procedures for dealing with emergencies that may arise when a person is at work.

Employees’ right to ‘remove’ themselves from ‘imminent danger’ at the workplace

An employee is given the statutory right to remove themselves from imminent danger at the work place if the employer fails to take action to remove such danger after the employee has informed the employer that they have reasonable suspicion to believe there is an imminent danger at their place of work. ‘Imminent danger’ means a serios danger which may result in death or serious bodily injury caused by a plant, substance, activity, process, practice, procedure of place of work hazard. An employee who exercises this right shall not be discriminated against and is protected from any undue consequences.

Increased penalties and punishments

The maximum penalties and punishments have been significantly increased under the Amendment Act.

Type of Offence	New Maximum Penalty/Punishment
Failure of an employer, self-employed person or principal to uphold their duties under Sections 15 to 18 and the new Sections 18A and 18B	RM500,000 fine or imprisonment for a term not exceeding two years, or both
Failure of any designer, manufacturer or supplier to uphold their duties under Sections 20 or 21	RM200,000 fine or imprisonment for a term not exceeding two years, or both
Failure of an employer to establish a safety and health committee where there are more than 40 employees at the work place or as directed by the Director General	RM100,000 fine or imprisonment for a term not exceeding one year or both
Failure of an employer to appoint a Coordinator or safety and health officer	RM50,000 or a maximum imprisonment of six months, or both
Failure of an employer or principal to comply with the improvement or prohibition notice issued under Section 48	RM500,000 fine or imprisonment for a term not exceeding two years, or both RM2,000 fine for each day during which the offence continues
Any person who contravenes any provisions of the Amendment Act and where no penalty is expressly provided for the specific offence	RM100,000 fine or imprisonment for a term not exceeding one year, or both RM2,000 fine for each day during which the offence continues

Directors and office bearers are jointly and severally liable

Where a company commits an offence under the Amendment Act or any of its subsidiary legislations, the director, compliance officer, partner, manager, secretary or other officers of the company may now be held jointly and severally liable for such an offence. The above persons will be deemed guilty unless they can prove that the offence was committed without the individual’s knowledge or consent and that the individual has undertaken all reasonable precautions to deter the occurrence of the offence.

Attendance of occupational safety and health training course

Ministers may now mandate specific groups of individuals to participate in an occupational safety and health training course, as outlined in the order, which must be administered by a registered training provider deemed competent. It is the employer’s obligation to ensure that their relevant employees have completed the training course before authorising these employees to perform any task where such training is required.

Conclusion

The Amendment Act without any doubt provided higher protection towards employees to create a safer working environment. That being said, the Amendment Act will impact employers in a significant manner in view of the increased responsibilities and heavier penalties. Employers are encouraged to audit their current practices and take the necessary actions to ensure compliance.