Introduction
The Occupational Safety and Health Act 1994 (“OSHA 1994”) serves as Malaysia’s primary legislation for safeguarding individuals’ safety, health, and welfare at work by addressing risks arising from workplace activities. Significant changes were made to OSHA 1994 through the Occupational Safety and Health (Amendment) Act 2022 (“OSHAA 2022”), representing a significant milestone in enhancing workplace safety standards in Malaysia. Effective 1 June 2024, the amendments broadened OSHA 1994’s scope, imposed new responsibilities on principals, employers, and self-employed individuals, and implemented stricter safety regulations across various sectors.
In this article, we shall discuss a few key amendments of OSHA 1994 and OSHAA 2022 which shall include the following:
1. Expansion of scope of all workplaces
2. Additional duties on principal, employer and self-employed person
3. Duty to conduct and implement risk assessment
4. Appointment of occupational safety and health coordinator
5. Employees’ right to “remove” themselves from “imminent danger” at the workplace
6. Increased penalties and punishments for employers, self-employed persons, principals, and manufacturers
7. Directors and office bearers are jointly and severally liable
Salient Amendments to the OSHA 1994
1. Expansion of scope of all workplaces
Before the OSHAA 2022, the scope and applicability of workplaces under the First Schedule of OSHA 1994 were only limited to the following industries:
1. Manufacturing
2. Mining and Quarrying
3. Construction
4. Agriculture, Forestry and Fishing
5. Utilities:
(a) Electricity;
(b) Gas;
(c) Water; and
(d) Sanitary Services
6. Transport, Storage and Communication
7. Wholesale and Retail Trades
8. Hotels and Restaurants
9. Finance, Insurance, Real Estate and Business Services
10. Public Services and Statutory Authorities
Post-amendments, OSHAA 2022 have widened the scope of application of the OSHA 1994, to all workplaces including public services and statutory authorities in Malaysia, except for the following services:
(a) Domestic employment, which covers individuals employing or being employed as domestic servants as defined under the Employment Act 1955;
(b) The armed forces; and
(c) Work on board ships regulated by the Merchant Shipping Ordinance 1952 [Ord. No. 70 of 1952], the Sabah Merchant Shipping Ordinance 1960 [Ord. No. 11 of 1960], or the Sarawak Merchant Shipping Ordinance 1960 [Ord. No. 2 of 1960].[1]
2. Additional duties on principal, employer and self-employed person
Under OSHA 1994, the terms “principal,” “employer,” and “self-employed person” are defined as follows:
- Principal: Any individual who, in the course of or for the purposes of their trade, business, profession, or undertaking, engages a contractor to carry out, wholly or partially, any work undertaken by the principal.
- Employer: Any person who has entered into a contract of service to employ another individual as an employee.
- Self-Employed Person: An individual who works for gain or reward outside of a contract of service, regardless of whether they employ others.
OSHA 1994 mandates that an employer or self-employed person is obligated to take necessary measures to ensure the safety and health of their employees. However, the amendment act has expanded these duties under the newly introduced Section 18A of OSHAA 2022, which requires a principal to take necessary measures to ensure the safety and health of the following individuals while they are at work under their direction:
(a) any contractor engaged by the principal;
(b) any subcontractor or indirect subcontractor;
(c) any employee employed by such contractor or subcontractor
Section 18A(3) of OSHAA 2022 outlines a non-exhaustive list of measures that principals must take to ensure the safety and health of relevant individuals. These measures include providing necessary information, instructions, training, and supervision to promote safety and health at work, as well as developing and implementing procedures to address emergencies that may arise during work activities.
In addition, Section 18A(4) of OSHAA 2022 imposes a further duty on principals to take, as far as practicable, necessary measures to safeguard the safety and health of individuals who may be affected by any activities carried out by the principal at the workplace.
3. Duty to conduct and implement risk assessment
The OSHAA 2022 introduces a new Section 18B, requiring all employers, self-employed individuals, or principals to conduct a risk assessment to address safety and health risks that may affect individuals due to their activities at the workplace. This requirement was not included in the previous version of the OSHA 1994.
The risk assessment involves evaluating workplace hazards, assessing the associated safety and health risks, and determining suitable risk control measures.[2] If the assessment identifies the need for risk control to eliminate or reduce these risks, the employer, self-employed individual, or principal must implement the necessary measures.
Additionally, under the new Section 15(2)(f) of OSHAA 2022, employers are also obligated to develop and implement procedures to manage emergencies that may arise at the workplace.
4. Appointment of occupational safety and health coordinator
Under Section 29 of OSHA 1994, occupiers of workplaces in industries specified by the Minister of Human Resources are required to hire a competent person to serve as a safety and health officer.
Following OSHAA 2022 amendments to OSHA 1994, a new Section 29A of OSHAA 2022 was introduced for workplaces that do not fall under the requirement for a safety and health officer under Section 29 of OSHA 1994. Under this provision, employers with five or more employees must appoint one of their employees as an occupational safety and health coordinator.[3]
The occupational safety and health coordinator’s primary responsibility is to manage safety and health matters at the workplace. This role is more limited in scope compared to a safety and health officer, who is specifically appointed to ensure compliance with OSHA 1994 and to promote a culture of safety in the workplace.[4]
In the event an employer fails to comply with Section 29A(1) of OSHAA 2022, the employer shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding RM50,000.00 or to imprisonment for a term not exceeding six months or to both.[5]
5. Employees right to remove themselves from imminent danger at the workplace
According to Section 26A(3) of OSHAA 2022, imminent danger is defined 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”.
The new Section 26A(1) of OSHAA 2022 grants employees the right to remove themselves from a workplace if they have a justifiable suspicion of imminent danger, provided:
i. The employee informs their employer about the imminent danger; and
ii. The employer fails to take any action to eliminate the danger.
Section 26A(2) of the OSHAA 2022 further clarifies that an employee who removes themselves from such danger are protected against undue consequences and will not be discriminated against.
6. Increased penalties and punishments for employers, self-employed persons, principals and manufacturers[6]
The maximum fines for breach of duties under OSHA 1994 have been significantly increased, and the fines range between RM 100,000.00 to RM500,000.00, depending on the breach. Non-compliance may also attract imprisonment for a term not exceeding 2 years.
Employers, self-employed persons, and principals (Sections 15-18A) now face fines of up to RM500,000.00, a sharp rise from the previous RM50,000.00. Key responsibilities include:
- Ensuring the safety, health, and welfare of all employees at work;
- Establishing and implementing a safety and health policy;
- Conducting risk assessments to identify and manage safety and health risks affecting individuals at the workplace; and
- Developing and implementing emergency procedures for potential workplace hazards.
Similarly, the penalties for breaches under Sections 20–22, applicable to manufacturers, designers, importers, and suppliers, have been increased from RM20,000.00 to RM200,000.00. The duties of these parties include:
- Ensuring, as far as practicable, that plants are designed and constructed to be safe and without health risks when used correctly; and
- Ensuring that substances are safe and pose no health risks when properly utilized.
7. Directors and office bearers are jointly and severally liable
Section 52 of OSHA 1994, as amended, may now hold the director, compliance officer, partner, manager, secretary or other officers of the company (collectively referred to as “office bearers”) jointly and severally liable for offences committed by their company or other relevant entities.
The burden of proof rests on the individual to establish these facts. Such liability may be exempted if they can prove that:
i. The offence occurred without their knowledge; and
ii. They neither consented to nor were complicit in the offence and took all reasonable precautions and exercised due diligence to prevent its occurrence.
Conclusion
The amendments to OSHA 1994 reflect Malaysia’s commitment to enhancing workplace safety, addressing current occupational challenges, and protecting a much larger category of workers. By broadening the scope of the Act and imposing stricter obligations on employers and principals, the amendments clarify that OSHA applies to “all places of work in Malaysia,” including work-from-home arrangements. This suggests that employees working remotely are also protected under the Act.[7] Furthermore, the increased penalties for non-compliance and the introduction of new requirements such as risk assessments and safety coordinators emphasise the growing importance of workplace safety in a rapidly changing economic environment. As such, employers are strongly encouraged to take these changes seriously and ensure compliance with the updated safety standards.
For further information, please contact:
Izzati Asyiqin Adzhar, Azmi & Associates
Izzati.Asyiqin@azmilaw.com
- Occupational Safety and Health Act 1994 (OSHA), Subsection 1(2), First Schedule.
- Occupational Safety and Health (Amendment) Act 2022, Section 18B(3).
- Occupational Safety and Health (Amendment) Act 2022, Section 29A.
- Rödl & Partner, ‘Key Amendments to the Occupational Safety and Health (Amendment) Act 2022’ <https://www.roedl.com/insights/newsflash-asean/2023-02/malaysia-key-amendments-occupational-safety-health-act>.
- Occupational Safety and Health (Amendment) Act 2022, Section 29A(4).
- Occupational Safety And Health (Amendment) Act 2022, Section 41.
- Ibid.
