OSH (Amendment) Act 2022 & FM (Repeal) Act 2022

Summary

OSHA 1994 is an Act for the control of risks related to work or arising from work activities in relation to: Ensure the safety, health and welfare of working people; Protecting people other than employees against occupational safety and health risks; and Promote a work environment that suits the physiology and psychology of employees. It promotos self-regulating.

FMA 1967 is an Act for factory control relating to: Safety, health and welfare of people in the factory; Registration and registration of machines; and Matters related to factories and machinery. It is prescriptive in nature.

After 2.5 years tabled for second reading and approved in the Dawan Rakyat, the Occupational Safety and Health (Amendment) Act 2022 and the Factories and Machinery (Repeal) Act 2022 will officially come into operation on 1 June 2024.

Substantial amendments were proposed in the bill which consisted of two sections being removed, an addition of 27 new sections, and amendments to 35 existing sections. 

Key changes to OSHA 1994 include: 

• Extended scope of applicability: OSHA to be applicable to all “places of work” across Malaysia, including those in public services and statutory authorities (Section 2).
• Employees’ right to remove themselves from imminent danger when there is a reasonable justification that there is an imminent danger at the workplace; and the employer does not take any action to remedy the imminent danger after being informed by employees (Section 26A).
• The amendment Act introduces new responsibilities on employers towards employees – development and implementation of procedures for dealing with emergencies that may occur at the workplace (Section 15(2)(f)), and formulation of occupational safety and health policies (Section 16).
• Duty on principal to ensure the safety of contractors and sub-contractors – Mandatory requirement for principal employers to ensure the safety and health of any subcontractor or indirect subcontractor while at work, any contractor engaged by the principal at work, and any employee employed by such contractor or subcontractor while at work, to the greatest extent practicable (Section 18A). This is only applicable where the contractor, subcontractor, or employee is operating under the direction of the principal as to the manner in which the work is carried out. The measures required to ensure the safety and health of workers include, among other things, the provision and maintenance of safe plant and systems of work; the provision and maintenance of a safe working environment; and the development and implementation of procedures for dealing with emergencies that may arise while the workers are on the job.
• Every employer, self-employed person, or principal is required to complete a risk assessment in regard to the safety and health risks posed to any individual who may be affected by his activities at the workplace. If a risk assessment determines that risk management is required to eliminate or decrease the safety and health risk, the employer, self-employed person, or principal must put such control in place (Section 18B).
• For workplaces which a safety and health officer is not required per Section 29 of the Act, the employer shall appoint one of his employees to act as an occupational safety and health coordinator if he employs five or more employees at his place of work (new Section 29A).
• The Minister may, by order published in the Gazette, require any class or description of persons to attend an occupational safety and health training course as specified in the order that is conducted by a registered training provider (new Section 31A(1)). The employer of any person required to attend any training course under subsection (1) shall ensure that the person has completed such training course before allowing that person to perform any work for which the training is required.
• No action against person carrying out occupational health service – No employer shall take any action against any person who carries out an occupational health service for (a) making a complaint about any matter which is considered as a risk to health; or (b) making a report to the Director General regarding any patient whom he believes to be suffering from any occupational disease or occupational poisoning.
• Higher penalties: the Bill proposed to amend Section 19 of OSHA where maximum fines are increased from RM50,000.00 to RM500,000.00 in the event employers/principals violate any of its duties and obligations. In addition, there is also an increased in penalty from RM20,000 to RM200,000 for violations under Section 21 and Section 22 (Manufacturer’s duty on plant and materials at the workplace). On top of that, the Bill also seeks to amend Section 52 of OSHA by adding a clause stating that any violation committed by a company, a director or the officer may be charged severally or jointly in the same proceedings as the company and convicted of the same offence and liable to the relevant penalties.

Revocation of FMA 1967

The existing Factories and Machinery Act 1967 will be repealed when the Factories and Machinery (Revocation) Act 2020 is gazetted. The prescriptive approach utilised in FMA 1967 for occupational safety and health was not in line with the dynamic nature of modern technology thereby resulting in the removal of the Act. With the revocation of FMA 1967, any registration made, or order, notice, direction, written authority, authorization, certificate of qualification, special inspection scheme or certificate of competency granted or issued, under FMA 1967 shall be managed under OSHA 1994. Any notice issued under Subsections 19 (2), 39 (3) or 40 (4) of FMA 1967 shall be dealt with as if FMA 1967 were not repealed.