The Occupational Safety and Health (Amendment) Bill 2020, known as the OSHA, is a further step in improving workplace safety in Malaysia. It combines the former Occupational Safety and Health Act (1994) and the Factories and Machinery Act (1967) into a single piece of legislation.
The Occupational Safety and Health Amendment Bill 2020 was passed by Parliament in October 2021, and Royal Assent was given to the new Occupational Safety and Health Amendment Act 2022 in March 2022, but at the time it was gazetted in December 2022 it had not yet come in force. The old OSHA 1994 still applies, as the new OSHA will only come into operation on a date appointed by the Minister and notified in the Gazette. However, it is expected to happen very soon, so employers must be aware of the changes to the law on occupational safety before it kicks in.
Important Changes to the Occupational Safety and Health (Amendment) Act
In this legal analysis, we will explore some important changes to the OSHA and their potential impact on employers and workers.
- People who break the OSHA could be in big trouble. If you’re an employer, self-employed, or a principal, you might have to pay up to RM200,000 for breaching the Act (previously RM20,000). If you’re making, designing, importing, or supplying stuff, you could be fined up to RM500,000 (previously RM50,000).
(Sections 15 to 18A- for employers, self-employed persons and principals)
(Sections 20 to 22- manufacturers, designers, importers and suppliers)
Note: Imposition of fines for violations is left to the discretion of the courts. For example, out of the 345 reported cases for breaching Section 15(1) OSHA 1994 on the Department of Occupational Safety and Health’s website, only 2.3% of cases have been sentenced with the maximum fine.
- OSHA has widened its scope to protect those who are working from home or working in a factory. But if you’re in the army, on a ship, or working as a helper at someone’s house, the Act doesn’t apply to you.
(Section 1 (2))
- The OSHA now also encompasses the workplace safety of contractors, subcontractors, indirect contractors and their employees.
- Employees now have the right to refuse to work if they believe there’s an immediate danger in the workplace. But first, they must inform their employer about the said danger, and if the employer doesn’t do anything to address the danger, employees can refuse to come to work.
- Employers are now required to perform risk assessments to identify and reduce safety and health risks. These assessments involve evaluating workplace hazards and deciding how to control those risks. Since the term “emergency” is not specifically defined in the new OSHA or the former OSHA 1994, it broadens the responsibilities of employers regarding emergencies that might happen in the workplace. In a simpler context, employers are expected to have a general understanding of different types of emergencies, both related to safety and health, to meet their obligations.
Directors, partners, and compliance officers
- Directors, partners, and compliance officers now have greater responsibility, and have to be extra careful, or they could face heavy penalties if they are found to have committed offences under the OSHA as they can be held liable jointly and severally. However, they will not be held accountable if it can be demonstrated that:
- The offence was committed without their knowledge; or
- The offence was committed without their consent, and that reasonable precautions have been exercised.
Also, directors now a higher duty of care, and can expect to be given equally heavy penalties.
(Sections 52 and 52A)
Occupational Safety and Health Coordinator
- Under Section 29(3) of the old OSHA 1994, self-regulation concerning workplace safety and health is a practice mandated only for companies that are required to employ designated safety and health officers (SHOs). These are industries deemed to be hazardous and employing over 100 workers.
The main duty of a SHO is to implement a safety and health programme with the aim of accident prevention. However, for businesses not subject to the SHO requirement, safety programs are often insufficient.
- According to the new provisions after OSHA amendment, employers operating in workplaces not required to have a SHO must instead appoint and provide training to an employee designated as an Occupational Safety and Health Coordinator (OSHC). The OSHC’s role is to coordinate matters related to occupational safety and health within that organization. This provision seeks to extend safety oversight to a broader range of businesses and protect the occupational well-being of employees.
Conclusion The new amendments have expanded the scope of the OSHA to cover nearly all workplaces, eliminating any uncertainties about its application. While these amendments demonstrate a proactive approach to worker safety, the successful implementation and implications of the new changes require close attention from all involved parties to ensure the goal of creating safer workplaces is achieved. As the saying goes, safety is not left to chance, and the OSHA aims to prioritize safety in the workplace.
This article was written by Caleb Goh and Ng Sin Tee, our intern from Marcus Tan & Co’s Litigation Department.