The Occupational Safety and Health (Amendment) Bill 2020 (“OSH (Amendment) Bill 2020”) and the Factories and Machinery (Repeal) Bill 2020 (collectively, the “Bills”), were passed by the Dewan Rakyat (House of Representatives)and the Dewan Negara (Senate) on 27 October 2021 and 13 December 2021 respectively. The Bills will become law upon receipt of Royal Assent and come into force on a date to be determined by the Minister of Human Resources (“Minister”) by notification in the Gazette.
 
The Bills will bring about significant amendments to the existing Occupational Safety and Health Act 1994 (“OSHA”), which as amended by the OSH (Amendment) Bill 2020 will hereinafter be referred to as the “Amended OSHA”. This includes the introduction of 27 new sections, the removal of 2 sections and the amendment of 35 existing sections. Further, with the repeal of the Factories and Machinery Act 1967 (“FMA”), the Bills seeks to integrate the OSHA and the FMA provisions into one comprehensive health and safety legislation.
 
We set out below the key changes under the Amended OSHA when the Bills come into operation after becoming law.
 
No. 1: The Amended OSHA applies to all places of work  
 
Save for employers,  domestic servants, armed forces and work on board ships governed under inter alia the Merchant Shipping Ordinance 1952,¹ the Amended OSHA extends to “all places of work throughout Malaysia including the public service and statutory authorities”.² In this respect, the Amended OSHA’s scope of applicability is now inclusive and extends inter alia the employers’ duties to any place where work is carried out, in contrast with the existing OSHA which applies to only specific industries such as the construction, hotel and restaurant industries.³
 
Although there is no express provision in the Amended OSHA providing for its applicability to employees working from home, it appears that employees working from home are similarly protected under the Amended OSHA, as clarified by the Minister during the Parliamentary debate,⁴ in line with the increased remote working trend in recent times.
 
No. 2: New duties on principal, employer and self-employed person
 
Duty on principal to ensure the safety of contractors and sub-contractors
       
The Amended OSHA introduces obligations that apply to a “principal”, which as defined, refers to “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”.⁵
 
Under the Amended OSHA, a principal is required  to ensure the safety and health of the following persons when at work: (a) any contractor engaged by the principal; (b) any subcontractor or indirect subcontractor; and (c) any employee employed by such contractor or subcontractor.⁶ The abovementioned duties are imposed on the principal only where the contractor, subcontractor or employee is working under the direction of the principal as to the manner in which the work is carried out.⁷
 
Measures that a principal is required to introduce include, among others, the provision and maintenance of plant and systems of work that are safe;⁸ the provision of information, instruction, training and supervision necessary to ensure the safety and health of persons at work;⁹ and the provision and maintenance of a safe working environment.¹⁰
 
Duty to conduct risk assessment
 
There is now a duty on every employer, self-employed person and principal to conduct a “risk assessment” in relation to the safety and health risk posed to any person who may be affected by his job at the place of work.¹¹ Further, if the risk assessment indicates that risk control is required to eliminate or reduce the safety and health risk, the employer, self-employed person or principal shall implement such control.¹² For the purposes of these duties, “risk assessment” is the process of evaluating the risks to safety and health arising from hazards at work and determining the appropriate measures for risk control.¹³
 
With regards to the duty to conduct risk assessment, the Guidelines for Hazard Identification, Risk Assessment and Risk Control 2008 issued by the Department of Occupational Safety and Health provide a useful starting point of reference for employers, self-employed persons or principals alike.    
 
Duty to develop and implement procedures to deal with emergencies
 
The Amended OSHA imposes a new duty on employers, self-employed persons and principals to develop and implement procedures to deal with emergencies that may arise in the course of the employees’ work.¹⁴   
 
No. 3: Appointment of occupational safety and health coordinator
 
For places of work that are not included in any class or description of place of work as published in the Gazette requiring a safety and health officer,¹⁵ a new provision requires an employer to appoint one of its employees to act as an occupational safety and health coordinator (“OSH Coordinator”) if he employs five or more employees at the workplace.¹⁶ The OSH Coordinator’s role is to coordinate occupational safety and health issues at the place of work; as opposed to the role of a safety and health officer (“SHO”) in inter alia ensuring the observance of the provisions of the Amended OSHA and any regulation made thereunder, at the place of work.¹⁷  
 
The penalty for contravention of the requirement to appoint an OSH Coordinator, or a SHO (where applicable) is a fine not exceeding RM50,000.00 or imprisonment for a term not exceeding six months or both.¹⁸
 
No. 4: Employees’ right to ‘remove’ themselves from ‘imminent danger’ at the workplace
 
An employee is now granted the statutory right to remove himself from imminent danger¹⁹ at his place of work or the work if the employer fails to take any action to remove such danger.²⁰ 
 
The employee may exercise this right only after fulfilling these pre-conditions:

For the purposes of this requirement, “imminent danger” refers to 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.
 
Employees who remove themselves from such danger are expressly protected under the Amended OSHA from “undue consequences” and discrimination.²¹
 
No. 5: Increased penalties and punishments for recalcitrant employers, self-employed persons, principals, and manufacturers
 
The fines that may be imposed against employers, self-employed persons and principals who breach their respective duties under Sections 15 to 18 and the New Sections 18A and 18B of the Amended OSHA are increased from RM50,000.00 to RM500,000.00.²² These duties include, inter alia, the duty to: (a) ensure, so far as is practicable, the safety, health and welfare to work of all his employees;²³ (b) formulate a safety and health policy;²⁴ (c) ensure the safety and health to persons other than his employees;²⁵ (d) conduct a risk assessment in relation to the safety and health risk posed to any person who may be affected by his job at the place of work;²⁶ and (e) develop and implement procedures to deal with emergencies that may arise in the course of the employees’ work.²⁷
 
For designers, manufacturers and suppliers who breach their duties under the Amended OSHA, the fines are increased from RM20,000.00 to RM200,000.00.²⁸ These duties include: (a) the duty of a person who designs, manufactures, imports or supplies any plant for use at work to ensure, so far as is practicable, that the plant is so designed and constructed as to be safe and without risks to health when properly used;²⁹ and (b) the duty of a person who formulates, manufactures, imports or supplies any substance for use at work to ensure, so far as is practicable, that the substance is safe and without risks to health when properly used. ³⁰
 
No. 6: Directors and office bearers jointly and severally liable
 
Directors and specified office bearers, including a director, compliance officer, partner, manager, secretary or other similar officer of a company³¹, may now be liable jointly or severally liable for offences committed by the company or other relevant body. However, it is a defence if such person proves that the offence was committed without his knowledge and without his consent or connivance and that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.³²
 
Further, a person who is liable for the acts or omissions of (a) his employee in the course of his employment; (b) his agent when acting on behalf of that person; or (c) the employee of that person’s agent when acting in the course of his employment by the person’s agent or otherwise on behalf of the person’s agent acting on behalf of that person, will be subject to the same punishment or penalty as the person’s employee, agent or employee of the agent as aforesaid.³³
 
Therefore, there is a greater need for the directors and specified office bearers to have a system in place for closer supervision of the conduct of the employee, agent or agent’s employee as the Amended OSHA imposes a higher duty of care on all directors and office-bearers.
 
No. 7: Inspection of plant and certificate of fitness
 
Under the Amended OSHA, the Minister may grant a licence to any person to carry out inspection of any plant prescribed by the Minister and to issue a certificate of fitness in respect of the plant inspected.³⁴ It appears that the licensee’s powers have been narrowed under the Amended OSHA, in contrast to the powers under the FMA, where the Minister may grant a licence to any person to perform any of the functions specified under the FMA.³⁵
 
For the avoidance of doubt, this certificate of fitness relates to prescribed plants pursuant to the Amended OSHA,³⁶ and is distinct from the certificate of fitness for occupation and/or certificate of completion and compliance issued for inter alia buildings and premises under the relevant by-laws. Further, the Minister may also authorise a licensed person to inter alia collect charges, fees or levy in respect of the services provided.³⁷ In this regard, the Minister may impose any conditions as he thinks fit to regulate these licensed persons including revoking the licence in the event of a breach of the conditions.³⁸    
 
No. 8: Notification of occupation of place of work, installation and inspection of plant
 
Under the Amended OSHA, any person who occupies or uses any premises as a place of work or undertakes any activity in a place of work as prescribed by the Minister is required to give notice to the officer³⁹ containing such particulars to enable enforcement to be carried out proactively. This notice requirement has been widened to cover any place of work under the Amended OSHA, in contrast to the notice requirement under the FMA which applies to only premises used as a factory.⁴⁰
 
Additionally, no person shall operate or cause or permit to be operated any prescribed plant unless the plant has a valid certificate of fitness issued by an officer or licensed person. Moreover, an occupier may apply to the Director General for an approval for a special scheme of inspection pertaining to inspections for certain classes of plant.⁴¹   
 
In essence, these requirements relating to the fitness and certification of prescribed plants under the Amended OSHA are obligations carried over from the FMA relating to the fitnesss and certification of prescribed machineries.
 
Commentary
 
The amendments to the existing OSHA are welcomed in view of the extended application of the Amended OSHA to “all places of work in Malaysia”. In this respect, employers should take note that employees working from home are similarly protected under the Amended OSHA, in line with current workplace developments. As an employer is unlikely to have possession or control of an employee’s home, it would be helpful if the Minister issues regulations or guidelines to clarify an employer’s responsibilities in relation to the health and safety of employees working from home.
 
Under the Amended OSHA, the Minister may now regulate and require the monitoring by employers or occupiers of conditions at a place of work including the physiological and psychological needs and health of their employees.⁴² This development marks the progression in recognising that the employees’ psychological needs are equally important as their physical health and safety, and warrant protection by inter alia the employers.
 
Furthermore, regulations made by the Minister under the Amended OSHA may prescribe any act or omission in contravention of the regulations to be an offence and be subject to a fine not exceeding RM500,000.00 or to imprisonment for a term not exceeding two years or to both. In view of these potential heavy penalties, all relevant stakeholders including employers, self-employed persons, principals and manufacturers should kept themselves informed of any new regulations and developments pursuant to the Amended OHSA.   
 
In light of the substantial amendments made to the existing OSHA, it is hoped that the Amended OSHA will continue to fulfil its objectives including the reduction of the nation’s occupational accident and death rates, in line with the Department of Safety of Health’s key performance index.⁴³
 
Article by Shannon Rajan (Partner) and Jeremiah Ch’ng (Associate) of the Occupational, Safety and Health Practice of Skrine.

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