The Occupational Safety and Health (OSH) Act in Malaysia is long outdated, first drafted in 1994, it has been 27 years since. In 2020, the current Human Resources Minister Datuk Seri M. Saravanan has finally tabled the OSH (Amendment) Bill 2020 which would bring changes to the act.

What will happen to the old regulations? 

According to s.28 of the Interpretation Acts 1947 and 1967, “where a written law repeals in whole or in part any former written law and substitutes other provisions therefor, subsidiary legislation made under the repealed law shall, in so far as it is not inconsistent with the substituted provisions, remain in force until revoked or replaced by subsidiary legislation made under the repealing law, and shall be deemed for all purposes to have been made thereunder”.  

As such, the existing regulations under the Factory and Machinery Act 1967 such as the Factories and Machinery (Safety, Health and Welfare) Regulations 1970, Factories and Machinery (Fencing of Machinery and Safety) Regulations 1970 and Factories and Machinery (Asbestos) Regulations 1986, will still remain in force until revoked or replaced by subsidiary regulations under the new Occupational Safety and Health (Amendment) Act 2020. 

Scope 

The Occupational Safety and Health (Amendment) Act 2020 changed the scope of from the previous scope of 10 industries which included (1) manufacturing, (2) mining and quarrying, (3) construction, (4) agriculture, forestry and fishing, (5) utilities which included electricity, gas, water and sanitary services, (6) transport, storage and communication, (7) wholesale and retail trades, (8) hotels and restaurants, (9) finance, insurance, real estate and business services and (10) public services and statutory authorities, to all industries in Malaysia except those listed in the amended first schedule.  

Industries which are excluded in the amended act include domestic employment, armed forces and works on board ships which are governed by the Merchant Shipping Ordinance 1952, the Sabah Merchant Shipping Ordinance 1960 and the Sarawak Merchant Shipping Ordinance 1960.  

The proposed amendment would allow the Act to have a wider scope of coverage, which offers more protection to industries which were initially left out from the original First Schedule.  

Interpretations 

Due to the changes in the Act, there were some new interpretations which was added and some were being amended. The changes of interpretations include those for certificate of fitness, competent person, contractor, Director General, employee, employer, licensed person, occupational health service, officer, principal, registered medical practitioner, registered training provider, and serious body injury. 

Appointment of officers, etc. 

There are some changes in Part II of the Act which outlines the appointment of independent inspecting bodies and licensed persons.  

Changes are made for section 5 of the Act, where the previous section 5 on the appointment of officers was entirely replaced with an amended section 5. The new section deals with the appointment of officers for the Act.  

The proposed subsection 5(1) seeks to empower the Minister to appoint officers necessary for the purposes of Act 514 who shall be public officers from the Factory and Machinery Inspector Scheme of Service. 

The proposed subsection 5(2) seeks to provide that the Deputy Director General shall exercise the powers and perform the duties of the Director General if the Director General, for any reason, is unable to exercise or perform such powers or duties. 

The proposed subsection 5(3) seeks to empower the Minister to appoint any public officer from any scheme of service other than specified in subsection 5(1) to be an officer for all or any of the purposes of Act 514. 

The proposed subsection 5(4) seeks to provide that an officer appointed under paragraph 5(1)(b) and subsection 5(3) shall perform all the duties assigned, and may exercise all the powers conferred, upon the Director General under Act 514 and the proposed subsection 5(5) provides that the officers shall be subject to the control, direction and supervision of the Director General. 

Licensed person 

Section 7A, 7B, 7C and 7D are new sections which are introduced into the Act on the requirements for appointment of licensed person, revocation of license, granting of new license upon revocation and representation as a licensed person. It is defined in s.3 of the Act that a licensed person is a person who is granted a license under subsection 7A(1) which deals with carrying out inspection of any plant prescribed and to issue a certificate of fitness in respect of the inspected plant.  

Section 7A allows the minister to grant a license to any person to perform an inspection and issue a certificate of fitness for any plant prescribed under the Act. This would include high risk machinery such as pressure vessels, lifting equipment and boilers.  

Section 7B provides the authority to revoke the license of a licensed person in the event of any breach of condition set by the license. While section 7C further provides the authority to the minister after consulting with the Director General to appoint another person to carry out the function of the revoked license.  

Section 7D seeks to prohibit any person who is not granted a license or whose license has been revoked to represent himself as a licensed person.   

National Council for Occupational Safety and Health 

Section 9 increased the number of members which are seated at the National Council for Occupational Safety and Health from 12 – 15 members to 22 – 25 members. The increase in numbers come from an additional two persons from organizations which are representing employers and employees respectively, Secretary General of the Ministry of Human Resources, Director General of Occupational Safety and Health, Director General of Health, an addition of one other person from the Ministry or Departments, Executive Director of the National Institute of Occupational Safety and Health, and the Chief Executive Officer of the Social Security Organization. 

The powers and functions of the council has also been further improved upon in section 11, where three additional functions were tagged on to the council members including the making of recommendations for (1) procedures, arrangements, training, education or appropriate measures to be taken to enhance community awareness on occupational safety, health and welfare; (2) the area of occupational safety and health research to be developed by relevant institutions and the publication of the results of such research; and (3) the development and establishment of a mechanism to generate, process, store and disseminate information on occupational safety, health and welfare. 

The subsection 11(3) also requires that the council to coordinate all matters and activities related to occupational safety and health which are implemented or carried out by the Government. 

The subsection 12(1) assigns the role of secretary to the Director General of Occupational Safety and Health. 

Duties of Employers, Self-Employed Persons and Principals 

The general duties which are outlined in section 15 is further improved to include the development and implementation of procedures for dealing with emergencies which may arise while the employees are at work. 

A new section 18A has been added into the Act, which outlines the duties of a principal towards their contractors, subcontractors and employees employed by the contractor or subcontractor at work. The general duties are similar to that of section 15, but include additional duties to provide information on aspects which may affect the safety and health of those who are not contractors and subcontractors working under the principal. This would include the general public.  

Section 18B is a new section which is included to establish a duty for every employer, self-employed person or principal to conduct a risk assessment in relation to the safety and health risk posed to any person who may be affected by their undertaking at the place of work. This section also requires risk control measures to be implemented to eliminate or reduce the risk when it is determined to be necessary by the risk assessment.  

Duties of Designers, Manufacturers and Suppliers  

A new subsection was added into Section 20 which requires designers, manufacturers, importers and suppliers for plant for the use at work to take such steps to supply the buyer with any revisions of information on new risk which could give rise to safety and health.  

A new subsection was added into Section 21 which requires formulators, manufacturers, importers or suppliers for substances for use at work to take such steps to supply the buyer with any revisions of information on new risk which could give rise to safety and health.  

General duties and rights of employees 

A new section 26A is introduced into the Act, which provides rights to the employee to remove themselves from any danger or work if after informing the employer or employer’s representative that the employee has reasonable justification to believe there exist an imminent danger and the employer fails to take any action to remove the danger. In this section, imminent danger is defined to be serious risk of death or serious bodily injury which can be caused by any plant, substance, condition, activity, process, practice, procedure or place of work hazard.  

This section also protects employees who choose to exercise this right against undue consequences and discrimination. 

An additional subsection was added on to section 27, where protection against discrimination are now provided to employees who have assisted an officer or assessor in any inquiry in the conduct of any inspection or investigation.  

Notification of occupation of place of work, installation of plant, etc 

A new Part VIA is introduced into the act, and contains eight new provisions which are namely 27A, 27B, 27C, 27D, 27E, 27F, and 27G.  

Section 27A introduces the obligation to people who occupies or uses an prescribed premises as a place of work or undertakes any prescribed activity in a place of work to give notice to an officer.  

Section 27B empowers the minister to prescribe any plant for which a certificate of fitness is required.  

Section 27C prohibits plant which requires certificate of fitness to be installed without the written approval of the Director General.  

Section 27D prohibits the operation of prescribed plant installed unless a certificate of fitness is obtained. The section also allows the minister to provide terms and conditions and a duration of validity of the certificate of fitness. 

Section 27E provides that inspection of a plant which certificate of fitness is required to be performed at such period and in the manner, which is prescribed by the Minister.  

Section 27F allows occupiers to apply to the Director General for approval for a special scheme of inspection for inspections for certain classes of plant and its auxiliaries. If this is being approved, the inspection of the plant would be conducted according to the special scheme of inspection.  

Section 27G empowers the Director General to make special orders for the conduct and guidance of persons employed in any service involving the management or operation of, or attendance on, or proximity to, any plant or process carried on in any place of work as appear to be necessary to ensure their safety and health. Employers shall ensure that the persons exposed to danger are aware of any such special orders and those persons shall observe the special orders.  

Occupational Health Services 

Section 28 is being amended to provide the Minister authority to make regulations requiring such arrangements for the occupational health service where it appears to the Minister that any situations specified in the Act such as (1) cases of illness which may be due to nature of the process or conditions of work, (2) changes in the process or substance used may cause a risk of adverse effect to health, or (3) risk to adverse effects to health employed in occupations specified in the Third Schedule which include handling of fumes, dust, silica, asbestos, tar, pitch, bitumen, x-rays, ionizing radiation or compressed air. 

Section 28A provides protection to any person who carries out an occupational health service for making a complaint about any matter which is considered to be a risk to health or for making a report to the Director General regarding any patient who is believed to be suffering from any occupational poisoning or disease.  

Safety and Health Officers 

The terminology which are found in Section 29 was amended from “employed” to “appointed”.  

Subsection 29(4) was amended to state that the person appointed as a safety and health officer may only be appointed for one place of work at any one time unless permitted by the Director General.  

Occupational Safety and health Coordinator  

A new competency is being created under Section 29A. This requires employers who employ five or more employees at the place of work and the place of work is not included in any class or description as published in the Gazette to appoint one of his employees to act as an occupational safety and health coordinator to coordinate occupational safety and health issues at the place of work. 

Occupational Safety and Health Training Course 

Section 31A is introduced to provide the Director General authority to issue a written direction to require any class or description of personnel to attend occupational safety and health training course that is conducted by a registered training provider. Employer of the person who is required to attend a training course shall ensure that the person has completed such training prior to performing any work.  

The Director General may also issue a written direction requiring refresher course if he deems that it is necessary.  

Competent person and registered training provider 

A new Part VIIIA is introduced into the Act, this part contains five section which are 31B, 31C, 31D, 31E and 31F.  

Section 31B seeks to provide that any activities which are specified in the Fifth Schedule can only be carried by persons who are being registered as a competent person, and any occupational safety and health training course shall be conducted only by a person who has been registered as a registered training provider. These include activities (1) to fabricate, install, erect, dismantle, test, inspection, maintain, repair or service any plant or engineering control equipment, (2) to operate, handle or be in charge of any plant, (3) to carry out medical surveillance and health examination, (4) to conduct health risk assessment for any chemical that is hazardous to health, (5) to conduct indoor air quality risk assessment, (6) to monitor or test work environment, plant or place of work and (7) to conduct any occupational safety and health training, assessment or examination.  

Section 31C provides the procedures for the application of registration for competent persons and registered training providers. This section also empowers the Director General to approve or refuse the application for registration. 

Section 31D provides the validity of registration for the competent person and registered training providers.  

Section 31E provides that the renewal of registration shall be done before the date of expiry of registration at such time and manner as determined by the Director General.  

Section 31F will empower the Director General to cancel the registration of a competent person or registered training provider if they (1) failed to comply with the provision of the Act or any subsidiary legislation, (2) failed to comply with conditions imposed on the registration, (3) obtained or procured  the registration by fraud or misrepresentation or (4) are no longer fit to act as a competent person or registered training provider. However, the Director General shall first provide an opportunity for the competent person or registered training provider to make representation in writing. 

Notification of accidents, dangerous occurrence, occupational poisoning and occupational diseases, and inquiry 

Section 32 of the Act has been amended to include occupational diseases or occupational poisoning specified in any regulation or order made under the act. This change is necessary as the Factory and Machinery Act 1967 will be repealed and thus makes the reference to be invalid.  

A new subsection 33(2A) is being added into the Act to allow assessors which are appointed by the Director General to enter and inspect the premises for the purposes of an inquiry under subsection 33(2).  

A new Section 34(A) is established to provides the duties of the owner or occupier of a place of work, or any employer in a place of work, and employees of the owner, occupier or employer, to provide any assistance needed in any inquiry under the Act.  

Section 36 of the Act has been deleted, which means that an appeal on a prohibition order under section 35 will no longer be available to aggrieved person. 

Enforcement and Investigation 

Section 39 of the Act is being amended to remove references made to the Factories and Machinery Act 1967 which is being repealed. In addition to this, subsection 39(2) introduces three new paragraphs (f), (g) and (h) respectively to provide additional powers for an officer while making an examination, inspection and investigation. 

Offences in relation to inspection, examination or investigation 

A new paragraph is introduced in section 47(ea) to make it an offence for any person who fails to comply with any direction given by an officer for the purposes of any inspection, examination or investigation.  

Improvement notice and prohibition notice 

Subsection 48(1) is amended to allow persons who have been issued an improvement notice and required to take measures to remove any danger or rectify any defect within such period as specified or extended period as the officer may allow.  

Offences committed by body corporate 

Section 52 is amended to deal with the liability of director, etc., of a company, etc. 

A new section 52A is introduced to establish a penalty for a person who would be liable to any punishment or penalty for any act, etc., committed by his employee or agent or the agent’s employee. 

Section 55 of the Act is deleted as the provisions of this section which relates to the defense in any proceedings has been covered in the newly amended section 52.  

A new section 60A has been introduces to provide that all report, record, or register and any extracts therefrom kept and certified by an officer shall be prima facie evidence of the facts stated in any proceedings under the Act or it’s subsidiary legislation.  

Subsection 63(1) and 63(2) is amended to reflect the deletion of section 36 of the Act.  

Regulations 

Section 66 of the Act which deals with the power of the Minister to make regulations is amended.  

A new subsection 66(3) is introduced to enable any regulations made under the Act to provide for offences 

Duty to keep secrets 

Section 67 is amended to provide requirements for confidentiality of information. The amendments improved the clarity on the terminology of “manufacturing or commercial secret”.  

Exemptions 

A new section 67A introduced to empower the Minister upon the recommendation of the Director General to exempt any plant, substance, process, person or place of work, or class of person or class of place of work, from any provision of the Act or its subsidiary legislation. 

Power to amend schedules 

A new Section 67B is introduced to empower the Minister to amend the Schedules to the Act, except the First Schedule by order published in the Gazette.  

Penalty 

The penalty under the Act greatly enhanced.  This is to ensure that the management are more focused on safety in the workplace.