Frequently asked questions on amendments to Malaysia Occupational Safety and Health Act

On 2 April 2024, the Minister of Human Resources of Malaysia stipulated that the Occupational Safety and Health (Amendment) Act 2022 (Amendment Act) would take effect on 1 June 2024.

Concurrently, the following subsidiary legislation will also be enforced on the aforementioned date:

• Occupational Safety and Health (Plant Requiring Certificate of Fitness) Regulations 2024 [P.U.(A) 99/2024] (Certificate of Fitness Regulations)
• Occupational Safety and Health (Licensed Person) Order 2024 [P.U.(A) 100/2024] (Licensed Person Order). 

Below, we provide our responses to some of the frequently asked questions regarding the Amendment Act and subsidiary legislation.

What are the primary amendments introduced by the Amendment Act?

The Amendment Act brings about significant changes to the Occupational Safety and Health Act 1994 (OSHA), including but not limited to: 

• Extension of OSHA’s applicability to all places of work.
• New duties on principal, employer and self-employed persons.
• Appointment of occupational safety and health coordinator for businesses employing five or more employees.
• Employees’ right to “remove” themselves from “imminent danger” at the workplace.
• Enhanced penalties and punishments for recalcitrant employers, self-employed persons, principals, and manufacturers.
• Expansion of categories of persons who are to be jointly and severally liable for offences by companies or other bodies of persons.
• Integration of requirements under the Factories and Machineries Act 1967 (to be repealed from 1 June 2024) to allow for OSHA to become a comprehensive health and safety legislation. 

Examples of places of work now covered under OSHA

The Amendment Act will extend the scope and applicability of OSHA to include all places of work throughout Malaysia, significantly broadening the original scope of OSHA which only applied to specific industries such as manufacturing, hospitality and construction.

Henceforth, other sectors such as private schools and colleges, private hospitals and clinics, sports and fitness centres, co-working spaces, etc. will be covered under OSHA.

Pursuant to a clarification by the Minister during the Parliamentary debates on the Amendment Act, it would appear that the applicability of OSHA also extends to employees working from home (WFH).

New safety and health obligations

What are the new obligations which employers need to consider and comply with?

Briefly, some of the pertinent new obligations which employers would need to comply with are as follows:

• Employers who do not require a safety and health officer will need to appoint a safety and health coordinator (OSH Coordinator) if they employ five or more employees.
• A duty to assess and manage safety and health risks posed to any person who may be affected by his undertaking at the place of work.
• A duty to develop procedures to deal with emergencies which may arise in the course of the employees’ work. 

In addition to the above, the Certificate of Fitness Regulations widens the range of equipment which the employer would require a Certificate of Fitness to operate.

Does the OSH Coordinator need to undergo any specific training before carrying out his responsibilities?

While the Amendment Act is silent on this, the Department of Occupational Safety and Health, Malaysia (DOSH) requires prospective OSH Coordinators to undergo a course conducted by DOSH or training institutes registered with DOSH, before being certified as a “Trained Person” capable of coordinating safety and health issues at the workplace.

A list of approved training centres in Malaysia can be found here. 

What are the responsibilities of the OSH Coordinator?

Based on DOSH’s website, the responsibilities of the OSH Coordinator would include: 

• To provide assistance to the employer in relation to steps to be taken to safeguard the safety and health of employees.
• To supervise the workplace to ensure adherence to safety and health requirements.
• To assist the employer to comply with notification requirements via the JKKP 6 (Notification of Accidents and Dangerous Occurrences) and JKKP 7 (Notification of Occupational Poisoning and Occupational Diseases) forms and to maintain the register via JKKP 8 (Register of Occupational Accidents, Dangerous Occurrence, Occupational Poisoning and Occupational Diseases) form.
• To assist the employer to carry out risk assessments at the workplace.
• To carry out other instructions from the employer in relation to health and safety at the workplace.

If a manufacturer has an administrative building adjacent or in close proximity to the manufacturing plant, will the manufacturer be required to appoint an OSH Coordinator for the administrative building when it has already appointed an OSH Officer to manage safety in the manufacturing plant?

The requirement to appoint an OSH Coordinator is premised upon the specific “place of work,” defined as “premises where persons work or premises used for the storage of plant or substance.” The word “premises” is then defined to include “any land, building or part of any building.”

Based on the above, it would appear that the manufacturing plant and administrative building constitute separate places of work.

Therefore, the obligation to appoint an OSH Officer or OSH Coordinator would apply independently to the plant and building, requiring the manufacturer to appoint an OSH Coordinator for the administrative building (if he employs five or more employees) even though an OSH Officer has already been appointed for the manufacturing plant.

Risk assessments

What is the methodology involved in carrying out risk assessments?

DOSH has issued the Guidelines for Hazard Identification, Risk Assessment and Risk Control (HIRARC Guidelines) to provide a systematic and objective approach to assessing hazards and their associated risks.

Under the HIRARC Guidelines, DOSH has outlined four steps for the HIRARC process, namely: 

• Classify work activities.
• Identify hazards.
• Conduct risk assessments (analyse and estimate risk from each hazard), by calculating or estimating the likelihood of occurrence, and the severity of the hazard.
• Decide if the risk is tolerable and apply control measures (if necessary). 

The HIRARC Guidelines provide a clear methodology for carrying out risk assessments. In essence, a risk assessment is a method of quantifying risks taking into consideration the likelihood and severity of a hazardous situation. The HIRARC Guidelines also provide qualitative and semi-quantitative methods to assist employers to assess risks and formulate a risk matrix accordingly.

Are there any standards which the employer would have to comply with in carrying out its risk assessments?

It is likely that DOSH will rely on the HIRARC Guidelines to determine whether risk assessments have been appropriately carried out. Therefore, it is advisable that employers refer to and comply with the said guidelines when assessing risks.

How does one develop procedures to deal with emergencies?

Procedures for dealing with emergencies fall within one of the following four phases of emergency management: 

• Prevention
• Preparedness
• Response
• Recovery. 

An emergency action plan is the necessary output of the emergency preparedness process. It covers designated actions which employers and workers must take to ensure employee safety during an emergency.

According to DOSH, at minimum, an emergency action plan would need to include a preferred method of reporting emergencies, evacuation policies and procedures, emergency escape procedures and route assignments, contact lists, emergency shutdown procedures, lists of rescue and medical duties, and the designation of an assembly location, etc.

A comprehensive guide for establishing an emergency action plan can be found in the Guidelines on Occupational Safety and Health Management Systems issued by DOSH (pages 38 to 41).

In addition to the above, the employer should provide the relevant information, training, and instructions to its employees in relation to the emergency procedures. Emergency drills should also be conducted from time to time.

Will the revised penalties apply to offences committed before 1 June 2024?

The revised penalties will not apply retrospectively for offences committed prior to 1 June 2024.

Shannon Rajan is a partner and co-head of the Occupational, Safety and Health practice at Srkine Advocates and Solicitors in Kuala Lumpur. Tatvaruban Subramaniam is a partner in the Occupational Safety and Health practice and Environmental Crisis Management practice at Skrine in Kuala Lumpur. Lim Chin Lun is an associate) in the Occupational Safety and Health practice at Skrine. Republished with permission of Skrine, Advocates and Solicitors, Malaysia.