Second batch of answers on Malaysia’s new health and safety obligations for employers
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.
Here is our second of our two-part series of answers for top employer questions on the new legislation (see here for Part 1).
In terms of offences committed by companies or other bodies corporate, how will the Amendment Act broaden the range of persons who may be charged or found liable together with the company or other body corporate?
Under the original Section 52 of OSHA, where a body corporate contravenes the provisions of OSHA, any person who at the time of commission of the offence was a director, manager, secretary or other like officer of the body corporate are deemed to have contravened the provision as well and may be charged jointly or severally with the body corporate.
However, the Amendment Act replaces Section 52 with a new provision which provides that where a company, limited liability partnership, firm, society or other body of persons commits an offence, any person who at the time of the commission of the offence was a director, compliance officer, partner, manager, secretary or other similar officer, or was purporting to act in the capacity or was in any manner or to any extent responsible for the management of any of the affairs of the Body of Persons may be charged severally or jointly together with the Body of Persons.
Therefore, the range of persons who can be held liable together with the company or other bodies corporate will be significantly expanded.
Work-from-home safety
How is an employer expected to ensure the safety of its employees in a WFH situation?
A company’s duty to ensure the safety, health and welfare of its employees under OSHA is not absolute. Rather, the duty is qualified to the extent that it is “practicable” for the employer to do so.
According to Section 3(1) of OSHA, the term “practicable” means practicable having regard to:
- The severity of the hazard or risk in question.
- The state of knowledge about the hazard or risk and any way of removing or mitigating the hazard or risk.
- The availability and suitability of ways to remove or mitigate the hazard or risk.
- The cost of removing or mitigating the hazard or risk.
There are presently no specific guidelines issued by DOSH setting out the health and safety requirements to be complied in a WFH situation. A company may consider implementing the following measures for its WFH programme:
- Prepare a specific WFH health and safety policy that will be the governing document for health and safety throughout the WFH period.
- As part of the WFH health and safety policy, carry out a risk assessment to consider whether the various aspects of the home workspace (i.e. ventilation, temperature, lighting, space, chair, desk, computer, electrical cords etc.) are suitable for the tasks the employee is required to perform.
- Where a physical assessment is not possible, the company can also consider alternative methods (including virtual inspections) of assessing the employee’s workspace at home.
- As an alternative to (b) and (c) above, the company could prepare a document to equip employees with information on how to conduct their own risk assessments of their respective home working environments and develop a method to ensure that the company receives the information for assessment.
- Once the relevant risk assessments are conducted, the company should ensure that its employees are made aware of all identified health and safety risks and the possible measures to remove or mitigate these risks.
- Seek confirmation or an undertaking from its employees that they are willing and able to work from home and that they will take reasonable steps to ensure their own well-being while doing so, including having a designated work environment at home.
- Provide employees with contact details of designated persons (e.g. Human Resource and IT) whom they may contact while working from home if they have any issues or questions about working from home, setting up an effective and safe work environment, or if they require any equipment or assistance with any equipment.
- Communicate regularly with its employees to ensure they remain safe and healthy and verify their adherence to the guidelines, practices and procedures established by the company in respect of WFH.
The above list is not exhaustive as to the actions that can be taken in order to satisfy the standard under OSHA. What is “practicable” will vary on a case-to-case basis, and a company should consult with its OSH Officer to develop a comprehensive WFH policy that will be sufficient to comply with its OSHA obligations.
Certificate of Fitness
Explain the expansion in scope for machineries which require a Certificate of Fitness under the Certificate of Fitness Regulations.
The scope for machineries requiring a Certificate of Fitness has now expanded from specifically unfired pressure vessels and hoisting machines to pressure vessels and lifting machineries.
How does one apply for a Certificate of Fitness?
Any person who intends to operate a plant which requires a Certificate of Fitness shall serve a written notice pursuant to the new Section 27D(2) of OSHA on a DOSH officer or licensed person.
Upon receipt of the notice, the officer or licensed person will carry out an inspection of the plant and if the plant complies with the requirements stipulated in Regulation 4(1) of the Certificate of Fitness Regulations, the officer or licensed person will upon the payment of the prescribed fees, issue the Certificate of Fitness.
What are the key changes in terms of an employer’s obligations arising from the Certificate of Fitness Regulations?
There are no significant changes in terms of an employer’s obligations under the Certificate of Fitness Regulations. It appears that the Certificate of Fitness Regulations mainly serve to transfer obligations under the Factories and Machineries Act 1967 upon its repeal on 1 June 2024 to OSHA, enabling OSHA to serve as one comprehensive health and safety legislation.
Health and safety inspections
Who does the Licensed Person Order apply to?
The Licensed Person Order applies to a person who has been granted a licence under the new Section 7A(1) of OSHA to carry out inspections of any plant prescribed by the Minister and issue Certificates of Fitness in respect of the said plant (and to persons employed by them as inspectors of the plant).
What is the significance of the Licensed Person Order to an owner and/or occupier?
The First Schedule of the Licensed Person Order sets out the inspection standards of the plant in detail. These standards may serve as a reference for the owner and/or occupier when preparing for the inspection for the purpose of obtaining the Certificate of Fitness.
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.
