As the COVID-19 pandemic continues, an employer’s duty to maintain a safe and healthy workplace for its employees becomes increasingly important. It is also timely that the Occupational Safety and Health (Amendment) Bill 2020 (“Bill”) was tabled for first reading in Parliament on 2 November 2020 to introduce significant amendments to the Occupational Safety and Health Act 1994 (“OSHA”).

Here are some of the key proposed amendments:

  1. Extension of the applicability of OSHA to all workplaces

Under the current OSHA, Section 1 provides that the OSHA would only apply to specific industries as provided in the First Schedule of the Act. These industries include, among others, manufacturing, mining and quarrying, construction, utilities, finance, insurance, real estate and business services.

The proposed amendments now seek to extend the applicability of OSHA to all places of work throughout Malaysia including those in the public services and statutory authorities. “Place of work” is defined under the OSHA as premises where persons work or premises used for the storage of plant or substance.

  1. Rights of employee to remove himself from imminent danger

Under the proposed amendment, an employee is allowed the right to remove himself from his place of work or danger if:

  • he has reasonable justification to believe there exists an imminent danger at his place of work; and
  • the employer does not take any action to remove the danger after being informed by the employee or his representative of the said danger.

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

Further, in the event an employee removes himself from the danger, the amendments also provide that the employee shall be protected against undue consequences and shall not be discriminated against.

  1. New duties and responsibilities for employers 

In addition to the duties of an employer as provided in Section 15 of the OSHA, the Bill proposes to introduce new duties and responsibilities for employers such as:

  • the development and implementation of procedures for dealing with emergencies that may arise while his employees are at work;
  • to conduct a risk assessment in relation to the safety and health risk posed to any person who may be affected by his undertaking at the place of work; and
  • to implement risk control in the event the risk assessment indicates that risk control is required to eliminate or reduce the safety and health risk.

The above emphasises the importance of an employer to be aware of emergencies and the risks in relation to the health and safety of his employees. The duty would be on the employer to implement control procedures and develop an action plan to minimise the risk of exposure which would potentially harm the health and safety of the employees.

  1. Duties on principal 

The Bill also proposed for an imposition of duties on principals. Principal is defined under the Bill 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”.

Similar to the duties and responsibilities imposed on an employer, a principal has a duty, under the Bill, to ensure the safety and health of any contractor or subcontractor engaged by the principal and any employee employed by such contractor or subcontractor when at work.

Such duties are not exactly foreign as the current OSHA does provide for the duties of an employer or a self-employed person to include independent contractors and the independent contractor’s employees where the employer or self-employed person has control over the workers.

However, the proposed amendments now provide a clearer position on the duties and the party owing such duties to workers who are not engaged through the typical employer-employee arrangement.

  1. Increase in penalties and liability of director 

Under the proposed amendments, the penalty in breach of an employer’s duties under OSHA has been increased from a fine of RM50,000.00 to RM500,000.00. This is to ensure that employers comply stringently with their duties to provide employees with a safe and healthy environment to work.

The proposed amendments have also provided an avenue for director or officer of a company to avoid liability by proving that: (i) the offence under the OSHA was committed without his knowledge and; (ii) that the offence was committed without his consent and reasonable precautions and due diligence had been exercised to prevent the commission of the offence.

The onus would therefore be on the director or the officer of the company to prove that they have taken reasonable steps to prevent the commission of offence from occurring.  Employers should therefore ensure they have the right policies, procedures and systems in place so that they can rely on the “reasonable precautions and due diligence” defence. 

Takeaways

As at the time of writing this article, the amendments above are still proposals and it is still too premature to comment on the effectiveness of these amendments.

It is hoped that the final Bill that is passed will address some potential uncertainties in these amendments. For example, if the proposals are passed, OSHA would then apply to anywhere a worker is requested to work. Due to the current pandemic, it has become common (and in some situations, mandatory) for employees to work from home. When an employee works from home, how will an employer be able to discharge their duties under OSHA? What are the expectations on an employer in ensuring the employee’s home is a safe and healthy workplace?

Likewise, the amendments allow an employee to remove himself from “imminent danger” without undue consequences or discrimination. There is no definition of these terms, but presumably it is to protect against employers dismissing or imposing disciplinary action against an employee who removes himself from an imminent danger that was not rectified. While “imminent danger” is defined, it is still drafted generally – for example, would the risk of contracting COVID19 amount to “imminent danger” or “serious risk of death or serious body injury”? If so, what level of risk would amount to an imminent danger? More clarity in the Bill would be helpful in determining how employers can address this situation.

That being said, the proposed amendments do demonstrate that the Department of Occupational Safety and Health (“DOSH”) is committed and determined to ensure that employers and principals are responsible and accountable for safety and health among their workers.

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This article was written by Donovan Cheah and Natalie Ng. Donovan has been named as a Recommended Lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019, 2020 and 2021, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

 

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