The Occupational Safety and Health (Amendment) Act 2022 came into force on 1 June 2024, amending the Occupational Safety and Health Act 1994 ("
Amended OSHA"). Notably, one of the interesting developments ushered in by the Amended OSHA was the introduction of the
Construction Work (Design and Management) Regulations 2024 [P.U.(A) 147/2024] ("
CWDM Regulations 2024").
With effect from 1
st June 2024, the CWDM Regulations 2024 will have a significant impact on any project which involves construction work including the planning, design, management and other work involved in a project until the end of the construction phase.
It is worth noting that the CWDM Regulations 2024 bears a significant resemblance to the Guidelines on Occupational Safety and Health in Construction Industry (Management) 2017 (“
Construction Industry Guidelines 2017”) issued by the Department of Occupational Safety and Health, Malaysia (“
DOSH”). Like the CWDM Regulations 2024, the Construction Industry Guidelines 2017 appear to have been developed based on the United Kingdom’s Construction (Design and Management) Regulations 2015. Therefore, the views taken by DOSH in relation to the Construction Industry Guidelines 2017 would be relevant in understanding the expectations and responsibilities of various parties under the CWDM Regulations 2024.
A. CLIENT DUTIES IN PROJECT MANAGEMENT
Most clients, particularly those who only occasionally commission construction work, would not be experts in the construction process. For this reason, DOSH does not expect clients to take an active role in managing the construction work. However, the client is required to make suitable arrangements for managing the project so that safety, health and welfare is secured.
Under Part II of the CWDM Regulations 2024, clients, who are defined as principals or any person for whom a project is carried out, bear responsibilities to:
Non-compliance with the aforementioned duties may lead to clients being deemed guilty of an offence, subjecting them to fines of up to RM500,000.00, or to imprisonment for up to one year, or to both.
Additionally, clients must fulfil their duty to notify the Director General of Occupational Safety and Health in writing for projects scheduled to last longer than 30 working days or exceeding 500 person days
1 as soon as practicable prior to the commencement of the construction phase. Failure to notify would subject the clients to fines of up to RM100,000.00, or to imprisonment for up to one year, or to both.
In relation to domestic clients, i.e. clients whose projects are not related to their business activities, the requirements under Part II would need to be carried out by the construction work contractor, principal construction work contractor or principal construction work designer (as the case may be). Failure of domestic clients to appoint the principal designer and contractor would result in either the designer or contractor under the project assuming principal roles.
DOSH considers clients (excluding domestic clients) to be at the top of the construction value chain and to have the greatest influence on a project. As such, these CWDM Regulations 2024 make the client accountable for their decisions and approach on safety, health and welfare in relation to the project.
B. SAFETY AND HEALTH RESPONSIBILITIES OF CONSTRUCTION WORK DESIGNERS AND CONTRACTORS
i. Pre-Construction Phase
General
Construction work designers and construction work contractors play crucial roles in prioritising safety and health in construction projects. They must possess the requisite skills, knowledge, and experience to safeguard the well-being of all involved which, amongst others, may involve collaborating with others, reporting safety concerns, and providing comprehensive information as and when required. Non-adherence to these general duties could lead to fines of up to RM100,000.00, or to imprisonment for up to one year, or to both.
Construction Work Designers
Construction work designers, including the principal construction work designer, must consider and manage safety and health risks in their designs, provide necessary information about the design, construction and maintenance of the structure, and sufficiently assist others in complying with their duties under the CWDM Regulations. During the pre-construction phase, the principal construction work designer must further adhere to prevention principles, manage risks, ensure compliance among designers, facilitate cooperation, provide prompt information, and collaborate with the principal construction work contractor. Failure to comply with these requirements could subject the principal construction work designer to a fine of up to RM200,000.00, or to imprisonment for up to one year, or to both.
A project-specific safety and health file must also be prepared, continuously reviewed and updated, and presented to the client upon project completion. The safety and health file should contain any information relating to the project which would be needed to ensure safety and health. Any non-compliance carries a heavy fine of up to RM500,000.00, or to imprisonment of up to one year, or to both.
Construction Work Contractors
Construction work contractors are expected to draw up a construction phase plan which specifies the safety and health arrangements and site rules, considering where necessary, the industrial activities which take place at the site. Where applicable, the plan should include specific measures to deal work with particular risks. Non-compliance with this requirement will result in a fine of up to RM500,000.00, or to imprisonment for up to one year, or to both.
ii. Construction Phase
Management of the construction
During the construction phase, the principal construction work contractor is primarily responsible for planning, managing and monitoring of the construction to ensure that it is carried out without any risk to safety and health. In doing so, the principal construction work contractor is to take into account the general principles of prevention in planning the various items or stages of work and in deciding the estimated time frame required to complete the works. In addition, the principal construction work contractor is responsible for providing suitable site inductions, and controlling site access. According to DOSH, the inductions should be site specific and should highlight any particular risks and control measures that those working on the project need to know about. Site inductions should also be provided to those who do not regularly work on the site, but who visit it on an occasional (for example, architects) or once-only basis (for example, students). Any non-compliance with these requirements would result in a fine of up to RM500,000.00, or to imprisonment for up to one year, or to both.
Engagement with workers
In addition to the above, the CWDM Regulations 2024 impose obligations on the principal construction work contractor to engage with construction workers, and to develop and promote a safer working culture. To this end, the principal construction work contractor will also need to ensure that the workers or their representatives are allowed to inspect and take copies of information in relation to safety, health and welfare of the workers at the construction site.
C. GENERAL REQUIREMENTS ACROSS CONSTRUCTION SITES
The CWDM Regulations 2024 set out various safety and health related requirements necessary to safeguard the well-being of workers and others present at construction sites. These requirements are in relation to the following:
Compliance with these regulations, whenever applicable, is essential for construction work contractors and domestic clients to avoid being subjected to fines of up to RM500,000.00, or to imprisonment for up to one year, or to both.
D. SAFETY AND HEALTH ASSISTANCE
The CWDM Regulations 2024 empower individuals or entities with duties under the same to enlist the assistance of others to undertake safety and health measures and to make necessary arrangements to ensure cooperation among the appointed persons. The appointees are required to possess the requisite skills, knowledge, training and experience to understand associated risks and fulfil their designated roles effectively.
E. SAFETY AND HEALTH SUPERVISOR
Additionally, the importance of having qualified personnel to uphold safety and health standards on construction sites is demonstrated by the requirement for the principal construction work contractor to appoint a competent site safety supervisor to assist in regulatory compliance. Failure to make such appointment would result in fines of up to RM50,000.00, or to imprisonment for up to six months, or to both.
F. GENERAL PRINCIPLES OF PREVENTION
The CWDM Regulations 2024 set out the principles which duty holders are expected to use in their approach to control risks to safety and health in a particular project. According to DOSH, a risk management process is a systematic way of making a workplace as safe as possible and it should also be used as part of the design process.
The general principles of prevention are set out in Schedule 1 of the CWDM Regulations 2024 and may be summarised as follows: