Malaysia’s Occupational Safety and Health (Amendment) Act explained

Did you know that neglecting occupational safety and health (OSH) is estimated to cause a 4% loss in the GDP revenue per year in Malaysia?

Ensuring a safe and healthy work environment is a shared responsibility — and as a business owner or employer, it’s imperative you stay across the latest legislative updates.

Let’s get you up to speed with all the key changes you need to know about, with regards to OSH.

Disclaimer: The information in this article is current as at 10th Jan 2023, and has been prepared by Employment Hero Pty Ltd (ABN 11 160 047 709) and its related bodies corporate (Employment Hero). The views expressed in this article are general information only, are provided in good faith to assist employers and their employees, and should not be relied on as professional advice. The Information is based on data supplied by third parties. While such data is believed to be accurate, it has not been independently verified and no warranties are given that it is complete, accurate, up to date or fit for the purpose for which it is required. Employment Hero does not accept responsibility for any inaccuracy in such data and is not liable for any loss or damages arising either directly or indirectly as a result of reliance on, use of or inability to use any information provided in this article. You should undertake your own research and to seek professional advice before making any decisions or relying on the information in this article.

What is the Occupational Safety and Health (Amendment) Bill?

The Occupational Safety and Health (Amendment) Bill 2020 (OSH Bill) was passed by the House of Representatives in October 2021, bringing about significant amendments to the existing Occupational Safety and Health Act (1994).

New sections were introduced, certain sections were amended, and certain sections were deleted from the principal Act. These amendments were aimed at providing a higher standard of safety, health and welfare to workers. It also offers greater protection to employees and places a higher degree of accountability on employers.

The OSH Bill was gazetted in March 2022 as the Occupational Safety and Health (Amendment) Act 2022, and will come into effect in all places of work throughout Malaysia, on a date soon to be determined.

What were the previous legislations relating to occupational safety and health?

The previous legislations were primarily the Occupational Safety and Health Act (1994) as well as the Factories and Machinery Act (1967). However, in line with new challenges and new occupations arising from industrialisation, they needed to be updated.

After many years of debate, the Occupational Safety and Health (Amendment) Act 2022 and the Factories and Machinery (Repeal) Act 2022 were gazetted on 16th March 2022. This means that the OSHA and the FMA provisions are now consolidated into one comprehensive health and safety legislation, which all industries can adhere to.

What are the key changes outlined in the new OSHA?

1. Increase in protection for employees

The scope and applicability of the amended OSHA has been extended to include all workplaces throughout Malaysia, including the public service and statutory authorities — unlike the existing OSHA which applies only to specific industries such as manufacturing, hospitality, and construction. This also means that employer duties extend to any place where work is carried out.

However, it remains to be seen if the amended OSHA will apply to employees who work from home, since there is no expressed provision for it despite recent remote working trends. While it might be difficult for you as an employer to control the work environment at home, we recommend creating a checklist of ‘gold standard’ elements that an employee’s work environment should have when working from home.

The amended OSHA also explicitly addresses the rights of workers with regard to safety and health risks. It provides employees with the right to remove themselves from ‘imminent danger’, if the employer fails to take any action to remove such danger, even after being informed by the employee.

2. Additional duties on principles/employers towards employees

The amended OSHA also introduces the definition of ‘principal’, defined 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”.

Companies who fall under this definition will have a duty under the new S18A to ensure the safety and health of contractors, subcontractors and employees employed by contractors or subcontractors, by complying with the statutory requirements under the amended OSHA.

Employers also have an additional duty under S18B to conduct a risk assessment in relation to safety and health risks posed to any employee in the workplace, and to implement risk control where necessary to eliminate or reduce such risks. Directors and officer bearers may also be jointly and severally liable for an offence under the OSHA — the burden of proof is upon them to prove that they are not liable.

There is also a new duty imposed on employers, self-employed persons and principals to develop and implement procedures to deal with emergencies which may arise.

3. Increased penalties

There will be an increase in penalty rates from RM50,000 to RM500,000 for employers or principals who breach their respective duties under the amended OSHA.

4. Appointment of occupational safety and health coordinator

A new provision in the amended OSHA also requires an employer to appoint one of its employees as an occupational safety and health coordinator, if five or more employees are employed at the workplace, and if the place of work is not included in any class or description of place of work as published in the Gazette requiring a safety and health officer.

The OSH coordinator’s role is to coordinate occupational safety and health issues at the place of work; as opposed to the role of a safety and health officer (SHO), who ensures the observance of the provisions of the amended OSHA and any regulation made thereunder at the place of work.

The penalty for failure to appoint an OSH Coordinator, or a SHO (where applicable) is a fine not exceeding RM50,000, or imprisonment not exceeding six months, or both.

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When will these changes come into effect?

An enforcement date for the amended OSHA has yet to be decided.

How can employers prepare for the implementation and enforcement of the amended OSHA?

Before the amended OSHA comes into effect, employers should be aware of all the key changes mentioned above, and make plans to accommodate these incoming changes.

Start firming up your workplace health and safety policies, and also create a risk assessment guide so your teams can conduct necessary safety and health checks.

A workplace health and safety policy is essential because it sets out the responsibilities of your company, employees and contractors clearly, with the aim of keeping the workplace safe and productive. It also helps to outline your commitment to provide a safe and healthy workplace, utilising only safe working methods and the safe use of equipment.

The policy should include information on how your company is keeping the team safe, all necessary communication required relating to safety, information and procedures on managing workplace injuries and how to ensure a safe return to work post-injury.

Once your policy has been updated and finalised to include all the new guidelines from the amended OSHA, you should ensure that everyone across the business has read and acknowledged it. They should also be easily accessible by your team anywhere and at any time, for reference whenever needed.

Having a well-written workplace health and safety policy doesn’t just play an important role in expressing your organisation’s values and culture. It also helps to safeguard and protect your organisation from risk. If you don’t have relevant policies in place, it can be difficult to defend certain legal claims brought up by an employee.

Implementing a policy to mitigate occupational safety and health risks

Your greatest asset is the health and safety of your employees.

If you’re looking for a straightforward and effective way to share and implement a workplace safety and health policy, Employment Hero can help. Our all-in-one HR and payroll software allows you to manage your people easily with built-in policies, contracts and templates ready to go when you need them.

Get your employees to read and acknowledge workplace policies electronically, especially with all things pertaining to health and safety. With Employment Hero, you can issue a new policy straight to your team’s mobile app, and have full visibility over their acknowledgement status.

Within your organisation, you may have employees that require a certain qualification, pass certain training courses, or hold a particular licence to ensure workplace safety and health. Employment Hero’s Certification Settings feature allows you to set up your organisation’s requirements and request supporting documentation from employees such as mandatory certificates, keep tabs on the certification renewal period, and more.

Looking for more helpful resources? Check out our guide on employment law updates for Malaysian SMEs.

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