A. Introduction
Effective 1st June 2024, the Occupational Safety and Health Act 1994 (“OSHA” / “Act”) effectively incorporates and enforces the amendments under the Occupational Safety and Health (Amendment) Act 2022 (“OSHA Amendment Act 2022”). These amendments underscore a heightened focus on proactive risk management and the importance of addressing potential hazards to safeguard the well-being of all stakeholders.
Previously, the Act only applies to limited industries. Post the amendments, the Act is now widened to include all kinds of workplaces and industries, except for domestic employment, armed forces, and specific shipping ordinances that govern work on board ships.
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B. Highlights
- 1. New duties and obligations on Employers / Principals
Under the new S18A, principals are now responsible to ensure the safety and health of contractors, subcontractors, and their workers operating under the principal’s direction.
S18B(1) now obligates every employer, self-employed person or principal to conduct risk assessments to evaluate potential hazard or risk that may be posed to any persons at the workplace. In the same connection, employers or principals are then required under S18B(2) to implement risk control and measures to eliminate or mitigate the safety and health related risks.
Further, S29A mandates every employer, with 5 or more employees, to appoint an employee to act as an occupational safety and health coordinator for the purpose of coordinating occupational safety and health issues at the workplace.
Employers also have a new duty imposed by S31A of the Act to ensure certain classes of employees (as would be directed by Minister’s order published in the gazette) to attend and complete occupational safety and health training course.
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- 2. Protection of Employees in Imminently Dangerous Situations
For the first time, S26A grants a legal right to employees to remove themselves from dangerous work environment, (i) if they have reasonable justification to believe that there is an imminent danger at the place or the work itself, and (ii) if the employee failed to take any action to remove the said danger.
Employees who exercise their rights under this new S26A are to be protected against undue consequences and shall not be discriminated against.
“Imminent danger” is defined under the same section as ‘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’.
In addition, Fourth Schedule has also been newly introduced into the Act to outline situations that constitute ‘serious bodily injury’.
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- 3. Heavier Penalties for Non-Compliance
Overall, penalties for non-compliance have been significantly increased, signalling the government’s commitment to establishing a strong deterrent against violation of occupational safety and health provisions of the Act.
Detailed comparison of penalties before and after amendments (effective 1.6.2024):-
|
Section |
Types of Offences |
Previous Penalty |
Current Penalty |
|
19 |
Failure of an employer to comply with duties under SS15, 16, 17, 18, 18A & 18B |
· ≤ RM50,000 fine · ≤ 2 yrs imprisonment · Or both |
· ≤ RM500,000 fine · ≤ 2 yrs imprisonment · Or both |
|
23 |
Failure of any designer, supplier or manufacturer to comply with duties under SS20 & 21 |
· ≤ RM20,000 fine · ≤ 2 yrs imprisonment · Or both |
· ≤ RM200,000 fine · ≤ 2 yrs imprisonment · Or both |
|
24(2) |
Failure of employee to comply with general duties at work under S24(1) |
· ≤ RM1,000 fine · ≤ 3 months imprisonment · Or both |
· ≤ RM2,000 fine · ≤ 3 months imprisonment · Or both |
|
27(3) |
Discrimination against employees by employer or trade union |
· ≤ RM10,000 fine · ≤ 1 yr imprisonment · Or both |
· ≤ RM100,000 fine · ≤ 1 yr imprisonment · Or both |
|
29(5) |
Failure of occupier of workplace to comply with duties under S29 |
· ≤ RM5,000 fine · ≤ 6 months imprisonment · Or both |
· ≤ RM50,000 fine · ≤ 6 months imprisonment · Or both |
|
29A(5) |
Failure of employer to appoint an occupational safety and health coordinator (when there are 5 or more employees) under S29A(1) |
Nil |
· ≤ RM50,000 fine · ≤ 6 months imprisonment · Or both |
|
30(4) |
Failure of employer to establish a safety and health committee (when there are 40 or more employees) |
· ≤ RM50,000 fine · ≤ 6 months imprisonment · Or both |
· ≤ RM100,000 fine · ≤ 1 yr imprisonment · Or both |
|
31A(4) |
Failure of an employer to ensure attendance of selected employees to complete occupational safety and health training courses under S31A(2) |
Nil |
· ≤ RM50,000 fine · ≤ 6 months imprisonment · Or both |
|
31B(2) |
Any person who is not competent to carry out activities under Fifth Schedule, or unqualified to conduct training course |
Nil |
≤ RM100,000 fine |
|
35(3) |
Failure to comply with Director General’s order under S35(1) that prohibits the use of any plant or substance likely to affect safety and health of persons |
Nil |
· ≤ RM500,000 fine · ≤ 2 yrs imprisonment · Or both |
|
49(2) |
Failure of an employer or principal to comply with the improvement or prohibition notice under S48 |
· ≤ RM50,000 fine · ≤ 5 yrs imprisonment · Or both *Continuing offence RM500 fine per day |
· ≤ RM500,000 fine · ≤ 2 yrs imprisonment · Or both *Continuing offence RM2,000 fine per day |
|
51 |
General penalty: Any person who contravenes any provision of the OSHA where no penalty is specifically provided |
· ≤ RM10,000 fine · ≤ 1 yr imprisonment · Or both *Continuing offence RM1,000 fine per day |
· ≤ RM100,000 fine · ≤ 1 yr imprisonment · Or both *Continuing offence RM2,000 fine per day |
|
67(3) |
Breach of duty of confidentiality |
· ≤ RM20,000 fine · ≤ 2 yrs imprisonment · Or both |
· ≤ RM100,000 fine · ≤ 2 yrs imprisonment · Or both |
- 4. Extension of liability to directors and officers of company
Under the revamped S52, the liability for OSHA-related offences committed by company, limited liability partnership, firm, society or other body of persons (collectively or separately referred to as “entity”), is now extended to the director, compliance officer, partner, manager, secretary, or other officers of any such entity.
This includes individual who purports to act in the capacity of any such entity, and those who in any manner or extent responsible for the management of any affairs of any such entity.
Individuals as specified above can now be held jointly and severally liable for such an offence, despite committed by the entity.
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C. Conclusion
The OSHA Amendment Act 2022 represents a significant advancement in workplace safety and health legislation in Malaysia. Collectively, the amendments introduced to the OSHA reflect a comprehensive shift in Malaysia’s commitment to enhancing workplace safety and aim to establish a safer, more accountable work environment across industries nationwide. These amendments are most welcomed, however, it is imperative for employers to promptly adapt to these changes to ensure compliance with the new standards and provisions to safeguard the well-being of all stakeholders.
About the authors
Chau Yen Shen
Principal Associate
Dispute Resolution
Halim Hong & Quek
yschau@hhq.com.my
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Esther Lee Zhi Qian
Associate
Dispute Resolution
Halim Hong & Quek
esther.lee@hhq.com.my
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