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After more than two years since the bill was passed by Parliament, the Occupational Safety and Health (Amendment) Act 2022 (“Amendment Act”) will finally come into force on 1 June 2024.
Additionally, new subsidiary legislations, i.e., the Occupational Safety and Health (Plant Requiring Certificate of Fitness) Regulations 2024 and the Occupational Safety and Health (Licensed Person) Order 2024, will also come into force simultaneously as the Amendment Act.
Outlined below are some of the key changes brought about by the Amendment Act:
(1) Expansion of Scope and Applicability
Presently, the Occupational Safety and Health Act 1994 (“Act”) applies only to specific industries such as manufacturing, mining and quarrying, construction, utilities, finance, insurance, real estate, and business services.
Following the amendments, the Act will now extend to “all places of work throughout Malaysia, including the public service and statutory authorities”.
(2) Introduction of a Principal and Corresponding Duty
A “principal” 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”.
With the amendments, a principal is required to ensure the safety and health of the any contractor it engages, any subcontractor or indirect subcontractor, and any employee employed by such contractor or subcontractor, so long as such persons are working under the direction of the principal. To this end, certain measures to be taken by the principal are specified. These include having to provide and maintain any plant and systems of work, provide information, instruction, training, and supervision, and provide and maintain a safe working environment.
(3) New Duties on Employers, Self-employed Person, and Principals
The Amendment Act also introduces new duties on a principal, employer, and self-employed person, such as to conduct a “risk assessment” in relation to the safety and health risk posed to any person who may be affected by their job at the place of work, and to develop and implement procedures to address emergencies that may arise in the course of the employees’ work.
(4) Appointment of an Occupational Safety Officer and Health Coordinator
Pursuant to the Amendment Act, an employer with five or more employees will be required to appoint one of their employees to act as an occupational safety and health coordinator for places of work that are not included in any class or description of place of work in the Gazette requiring a safety and health officer.
The role of the occupational safety and health coordinator is to coordinate occupational safety and health issues in the workplace. This role differs from the role of a safety and health officer, who is tasked with ensuring the observance of the provisions of the amended Act and any regulation made thereunder, at the workplace.
The penalty for not appointing a safety and health officer where required, or an occupational safety and health coordinator, ensues a fine not exceeding RM50,000.00, or imprisonment for a term not exceeding six months, or both.
(5) Increased Protection Afforded to Employees
According to the amended Act, an employee may remove themselves from imminent danger at their place of work or the work itself if the employer fails to take any action to address such danger.
The employee may only avail themselves of this right if, after informing the employer that they have reasonable justification to believe there is an imminent danger at their place of work, the employer fails to take any action to address the danger. Employees who exercise their right to remove themselves are expressly protected from “undue consequences” and discrimination.
(6) Increased Penalties
The maximum fines that may be imposed on employers, self-employed persons, and principals convicted of certain offences under the amended Act will increase ten-fold, from RM50,000 to RM500,000.
Similarly, the maximum fines that may be imposed on designers, manufacturers, and suppliers convicted of certain offences under the amended Act will also increase ten-fold, from RM20,000 to RM200,000.
(7) 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 company, may now be jointly or severally liable for offences committed by the company or other relevant body.
With less than two months before the Amendment Act comes into force, all employers, self-employed persons, and principals are advised to take note of the key changes mentioned above and to put in place the necessary policies and guidelines to meet the higher standards required under the amended Act.
If you have any queries, please contact Associate, Aida Faralyana Binti Azlan (afa@lh-ag.com), or her team Partner, Hoi Jack S’ng (hjs@lh-ag.com).
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