On 16th March 2022, the Federal Legislation had gazetted the Occupational Safety and Health (Amendment) Act 2022 (“Amended OSHA”) by introducing significant amendments to the Occupational Safety and Health Act 1994 (“OSHA”). The key amendments are that it provides workers with a better quality of safe and healthy environment and also places additional responsibilities on employers/principals towards their employee.
Here are some of the key changes:
1. Section 2 of Amended OSHA – OSHA applies to all places of work
The Amended OSHA extends to “all places of work throughout Malaysia including in the public services and statutory authorities”. This is in contrast with the OSHA which applies to only specific industries such as the agriculture, wholesale and retail trades. Hence it appears that employees working from home are now similarly protected under the Amended OSHA, as the rise of remote work is likely to continue.
2. Section 18A of Amended OSHA – Duty on principal to ensure the safety of contractors and sub-contractors
- Mandatory requirement for principal employers to, so far as is practicable, ensure the safety and health of:
- any subcontractor or indirect subcontractor when at work; and
- any contractor engaged by the principal at work;
- any employee employed by such contractor or subcontractor when at work.
However, this is only applicable when the contractor, subcontractor or employee is working under the direction of the principal as to the manner in which the work is carried out.
The measures necessary to ensure the safety and health of the persons at work include, among others, the provision and maintenance of plant and systems of work that are safe; the provision and maintenance of a working environment that is safe; and the development and implementation of procedures for dealing with emergencies that may arise while the persons are at work.
3. Section 18B of Amended OSHA – Duty to conduct and implement risk assessment
Every employer, self-employed person or principal shall conduct a risk assessment in relation to safety and health risk posed to any person who may be affected by his undertaking at the place of work. If a risk assessment indicates that risk control is required to eliminate or reduce the safety and health risk, the employer, selfemployed person or principal shall implement such control.
4. Increase in penalties
- a. Section 19 of Amended OSHA – Increment of penalty from RM50,000 to RM500,000 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 Amended OSHA;
- b. Section 23 of Amended OSHA – Increment of penalty from RM20,000 to RM200,000 for designers, manufacturers and suppliers who breach their duties under the Amended OSHA.
5. Section 26A of Amended OSHA – Rights of employees
Under the Amended OSHA, an employee has the right to remove himself from an imminent danger at his place of work, provided that:
- a. the employee must first his employer or his representative that he has reasonable justification to believe there exist an imminent danger at his place of work; and
- b. the employer, despite being informed, 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 amendments do demonstrate that the Department of Occupational Safety and Health is committed to ensure that employers and principals are responsible and accountable for safety and health among their workers.