THE Occupational Safety and Health Act 1994 (Osha) has been amended and the Factories and Machinery Act 1967 (FMA) is to be repealed. The amendments introduced by the Occupational Safety and Health (Amendment) Act 2022 (amended Osha) and the Factories and Machinery (Repeal) Act 2022 were gazetted on March 16 2022, and are pending an enforcement date to be decided by the human resources minister.
The following themes can be observed from the incoming changes:
Greater accountability by employers
Osha has been amended to apply to all places of work except for work with the armed forces, work onboard ships and work in private homes as domestic helpers. This is a departure from the existing position where Osha only applied to a set list of industries such as manufacturing, construction, hotels, restaurants and retail.
Employers of currently excluded industries will soon be subject to a statutory duty to ensure the safety, health and welfare of all their employees at work, and must comply with a slew of safety and health obligations under Osha. These include the requirement to appoint an occupational safety and health coordinator at the workplace, and a duty to conduct risk assessment on safety and health risks in the workplace.
Further, under the amended Osha, the employer’s duties will be extended to contractors, subcontractors and the employees of such contractors and subcontractors engaged by and working under the direction of the employer. To meet this extended duty, the employer must take measures such as developing and implementing emergency procedures, providing training, and arranging sufficient resources to ensure safety and health obligations are met.
Greater protection for employees
The amended Osha also allows employees to proactively safeguard their health and safety. For instance, employees will have the statutory right to remove themselves from risk of death or serious bodily injury at their workplace if, after informing their employer, the employer fails to take any action to remove such danger.
Employees are also empowered to speak up about safety and health issues, as the amended OSHA prohibits employers from taking any action against, first, employees who assist the authorities in any inspection or investigation; and, second, any party who complains about any risk to health and safety matters to the employer or the authorities.
More regulations on machinery
Certain parts of the FMA (which is to be repealed) have been included in the amended Osha, in particular, the requirement of a certificate of fitness before the installation and operation of any plant. Activities such as plant installation, plant operation and health risk assessment will, under the amended Osha, have to be carried out by persons registered as “a competent person” under the act, whereas under the FMA, such registered competent persons were only required to be in charge of the operation of selected machinery.
This reflects the purposive intention to create a comprehensive health and safety legislation by merging Osha and FMA into the amended Osha.
Conclusion
The Malaysian workplace is undergoing major changes – from the amendments to the Employment Act 1955 (expected to come into force on Jan 1, 2023); to amendments to the Osha; and the repeal of the FMA, which will modify the Malaysian workplace as we know it.
Employers should note that the amended Osha will impose greater penalties compared with the existing regime. Employers found to have contravened their obligations will be liable to an increased fine of RM500,000 or imprisonment of two years or both.
Further, the amended Osha stipulates that every person who – at the time of the commission of any offence under the Osha – is a director, manager, secretary or other like officer of the body corporate, may be charged severally or jointly in the same proceedings with the company.
While the FMA does contain provisions on safety, health and welfare of employees, these are limited compared to the Osha. The FMA is also specific on the types of machinery it does and does not regulate. Compared with the amended Osha’s provisions on plants, the amended Osha does not appear to fill the void although this could be rectified in the future with more prescribed regulations from the minister.
Ultimately, the philosophy of the Osha is self-regulation. The onus to comply is placed on both employers and employees. Legal professionals can assist organisations to ensure compliance with these new amendments, for example by drafting the employee whistleblowing policies that work to protect both the employer and the employees. Organisations are encouraged to regularly consult legal professionals to stay abreast of the ever-changing web of Osha laws and regulations.
Only time will tell whether the new Osha can achieve what it sets out to do, but for now, employers should be aware and make plans to accommodate these incoming changes to the Malaysian workplace.
This article is contributed by Sim Shin Ying of Christopher & Lee Ong.
