The Amended Occupational Safety and Health Act 1994 (Malaysia)

Prior to the 2022 OSHA Amendments, the OSHA 1994 only applied to specific industries prescribed under the First Schedule of the OSHA 1994, including manufacturing, wholesale and retail trades, finance, insurance, real estate and business services. At the same time, the then OSHA 1994 was complemented by the FMA 1967 which regulated factories’ machinery and the safety and health of persons in factories.

Following the repeal of the FMA 1967, any registration made, approval, certificate of fitness or certificate of competency given or issued under the FMA 1967 are dealt with under the OSHA 1994. Further, the 2022 OSHA Amendments have widened the scope of application of the OSHA 1994, to all places of work throughout Malaysia, except for employers of domestic servants, domestic servants, armed forces and work on board ships governed under inter alia the Merchant Shipping Ordinance 1952.

Under Section 29 of the OSHA 1994, an occupier of a place of work in the industries that are specified by the Minister of Human Resources,※2 must employ a competent person to act as a safety and health officer.

Following the 2022 OSHA Amendments, for places of work that do not require a safety and health officer pursuant to Section 29 of the OSHA 1994, there is a new Section 29A of the OSHA 1994 which requires an employer of 5 or more employees at the workplace, to appoint one of its employees as an occupational safety and health coordinator.

The statutory role of occupational safety and health coordinator is to coordinate occupational safety and health issues at the place of work. The role is less extensive than that of the safety and health officer who must be appointed exclusively to ensure the observance at the place of work of the OSHA 1994 and the promotion of a safe conduct of work at the place of work.

The amended OSHA 1994 defines “principal” as “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”.

Under the new Section 18A of the OSHA 1994, a principal has a duty to take, so far as is practicable, such necessary measures to ensure the safety and health of the following persons when at work:

1. any contractor engaged by the principal;
2. any subcontractor or indirect subcontractor;
3. any employee employed by such contractor or subcontractor,

if the aforesaid persons are working under the direction of the principal.

Section 18A(3) of the OSHA 1994 sets out a list of non-exhaustive measures to ensure the relevant persons’ safety and health, including the provision of necessary information, instruction, training and supervision to ensure, so far as is practicable, the safety and health of the persons at work, the development and implementation of procedures for dealing with emergencies that may arise while the persons are at work.

Other than the aforesaid persons, Section 18A(4) of the OSHA 1994 also imposes an additional duty on the principal to take, so far as is practicable, necessary measures to ensure the safety and health of persons who may be affected by any undertaking carried on by him or her at the place of work.

The amended OSHA 1994 has a new Section 18B which requires every employer, self-employed person and principal to conduct a risk assessment in relation to the safety and health risks posed to any person who may be affected by his or her undertaking at the place of work. “Risk assessment” is defined under Section 18B(3) of the OSHA 1994 to mean “the process of evaluating the risks to safety and health arising from hazards at work and determining the appropriate measures for risk control”.

Where a risk assessment indicates that risk control is required to eliminate or reduce the safety and health risk, the relevant employer, self-employed person and principal must implement such control.

Further, every employer is also imposed with a new duty under Section 15(2)(f) of the OSHA 1994 to develop and implement procedures for dealing with emergencies that may arise.

“Imminent danger” is a new term defined at the new Section 26A(3) of the OSHA 1994 to mean “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”.

If an employee has reasonable justification to believe there exists an imminent danger at his place of work, the new Section 26A(1) of the OSHA 1994 confers a right upon the employee to remove himself or herself from the danger or the work if the employer fails to take any action to remove the danger.

Section 26A(2) of the OSHA 1994 further clarifies that an employee who removes himself or herself from the said danger will be protected against undue consequences and will not be discriminated against.