The Occupational Safety and Health Amendment Act 2022 came into force on 1 June 2024 and has brought about substantial changes to the Occupational Safety and Health Act 1994 (“OSHA”). The amendments expanded the scope of OSHA, strengthened enforcement mechanisms and consolidated the OSHA and repealed the Factories and Machinery Act 1967.
What are the key changes?
1. Scope of OSHA
Before the amendments, OSHA only applied to specific industries. Post amendment, OSHA applies to “all places of work throughout Malaysia”, which includes public services and statutory authorities. This widened scope promotes a safer working environment for all industries, covering office workers as well. However, there are still exemptions for domestic servants, armed forced, and specific maritime workers under the Merchant Shipping Ordinance.
2. Expanded duties of a principal
The principal is now responsible for the safety and health of any contractor, subcontractor or indirect subcontractor engaged by the principal when at work. This responsibility expands to the employees of the principal’s contractor and subcontractor.
The responsibilities of developers or main contractors have now been significantly widened. Practically, developers or main contractors now would pay more attention to the safety of the workers, contractually impose obligations on its subcontractors to ensure that safety measures are complied with and/or include indemnity clauses for subcontractors who failed to adhere to these safety measures.
3. Additional duties to principals and employers
Obligations of principals and employers are expanded to include these duties:
- duty to develop and implement procedures to deal with emergencies at work (s 15(2)(f) OSHA);
- duty to conduct risk assessment (s 18B OSHA);
- duty to appoint an Occupational Safety Officer and Health Coordinator (s 29A OSHA);
- duty to ensure specific employees’ attendance of occupational safety and health training course (s 31A OSHA).
4. “Ergonomic, physiological and psychological” danger
Section 66 of OSHA has been amended to allow the Minister to regulate and require the monitoring by employers or occupiers of the conditions at work place, including ergonomic, physiological and psychological needs. No regulations have been made yet on these areas, but this opens the door for regulating dangers that lurk beyond “physical” dangers.
5. Increased Penalties and Punishments
The amendments significantly increased the penalties and punishments to ensure compliance with OSHA. Considering the increased exposure, it may be necessary for employers to review their insurance coverage and reassess whether operational costs would increase.
6. Additional Employee Rights
The amended OSHA provides that an employee, after informing his employer that he has reasonable justification to believe that there is an “imminent danger” at his place of work, has the right to remove himself from the danger or the work if the employer fails to take any action to remove the danger.
“Imminent danger” means a serious risk of death or serious bodily injury to any person that is caused by any plant, substance, condition, activity, process, practice, procedure or place of work hazard.
The employee shall be protected against any undue consequences and should not be discriminated against.
7. Appointment of Coordinator
Post-amendments, section 29A OSHA provides that employers with 5 or more employees at work shall appoint one of its employees as an occupational safety and health coordinator, for the purposes of coordinating occupational safety and health issues at the place of work.
8. Liability
The amendment extends liability to corporate officers, including directors, managers, and secretaries. However, it provides a defence mechanism if they can prove that the offense occurred without their knowledge or consent and that they took reasonable precautions to prevent it. This approach encourages proactive safety management at the leadership level.
Key Takeaways
The amendments modernize Malaysia’s workplace safety framework, addressing contemporary challenges by acknowledging that workplace hazards extend beyond factories, machinery, and physical dangers.
Employers must consider all potential risks in the workplace and adopt a proactive, systematic approach to mitigate them before they materialize. Failure to do so could result in substantial penalties.
***
This article was written by Sabrina Chang (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.
