In 2023, there were 200 prosecutions brought in for non-compliance with the Occupational Safety and Health Act 1994 (OSHA) and the Factories and Machinery Act 1967 (FMA). To tighten up the occupational health and safety regime in Malaysia, significant and far-reaching changes to the OSHA will come into effect on 1st of June 2024 through the Occupational Safety and Health (Amendment) Act 2022. These changes include the introduction of new duties and obligations on employers as well as extended rights of employees.
The current version only applies to specific industries such as manufacturing, mining and quarrying, construction, agriculture, forestry and fishing, wholesale and retail trades, finance, insurance, real estate and business services. Following the amendment, the Act shall apply to “all places of work throughout Malaysia”. This not only extends the scope of application to all sectors; the unrestricted wording also suggests that remote working arrangements are also covered. This poses extraordinary challenges for employers, as the home workplace is usually largely unmonitored.
The amendments extend the range of duties of employers, self-employed persons and principals. All of the above must develop and implement procedures to deal with emergencies that may arise during work. Furthermore, a risk assessment, which means the process of evaluating the risks to safety and health arising from hazards at work and determining the appropriate measures for risk control, must be conducted. After detecting such risks, every employer, self-employed person or principal shall implement control measures in relation to the safety and health risk posed to any person who may be affected by his undertaking at the place of work. The scope of “any person” includes a broad coverage to extend to individuals other than employees and may potentially include visitors. Since it is not possible to completely eliminate all risk, the question remains to what extent measures must be taken.
If a contractor engaged by the principal, any (direct or indirect) subcontractor or any employee employed by such contractor or subcontractor is working under the direction of the principal, the principal is required to ensure safety and health of that persons.
In order to make the protection of the occupational health and safety regime even more comprehensive, the role of the occupational safety and health coordinator (SHC) was created for those companies that were not already required to appoint an occupational safety and health officer (SHO) under the previous law and that employ at least five employees. The role of the SHC is to coordinate occupational safety and health issues at the place of work, which is less extensive than the role of an SHO. Moreover, the minister responsible is permitted to mandate any class or description of persons to attend an occupational safety and health training course that is conducted by a registered training provider.
A further provision for the protection of employees in the event of imminent danger has been introduced. If 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 (imminent danger) arises, an employee is entitled to remove himself from the danger without having to fear undue consequences or discrimination. For this, two conditions must be satisfied: (1) The employee has informed his employer that he has reasonable justification to believe there exists an imminent danger at his place of work and (2) the employer fails to take any action to remove the danger.
The outlined amendments are intended to encourage employers to prioritize workplace safety and invest in measures to prevent accidents and injuries. In this respect, significantly increased penalties serve as a deterrent: The fine for employers, self-employed persons and principals for a breach of duties has been increased from RM50,000.00 to RM 500,000.00. Directors and other certain office bearers in management positions may now be charged jointly and severally for offences committed by the company or other relevant bodies. To exonerate himself, the individual bears the burden of proving that the offense 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 offense.