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THE The Occupational Safety and Health (Osha) Act 1994 has been amended and the Factories and Machinery (FMA) Act 1967 is to be repealed. Amendments introduced by the Occupational Safety and Health (Osha Amended) Act 2022 and the Factories and Machinery (Repeal) Act 2022 were published on March 16, 2022 and are awaiting a release date. application to be decided by the Minister of Human Resources.

The following themes can be observed from the incoming changes:

Greater accountability of employers

Osha has been amended to apply to all workplaces except work in the armed forces, work on board ships and work in private homes as domestic workers. This is a departure from the existing position where Osha only applied to a fixed list of industries such as manufacturing, construction, hotels, restaurants and retail.

Employers in currently excluded industries will soon be under a legal obligation to ensure the safety, health and welfare of all their employees at work, and will have to comply with a host of safety and health under Osha. These include the requirement to appoint a workplace safety and health coordinator and the requirement to carry out a workplace safety and health risk assessment.

In addition, under the amended Osha, the duties of the employer will be extended to contractors, subcontractors and employees of such contractors and subcontractors engaged by and working under the direction of the employer. To meet this extended obligation, the employer must take steps such as developing and implementing emergency procedures, training, and having sufficient resources in place to ensure safety obligations are met. and health.

More protection for employees

The modified Osha also enables employees to proactively protect their health and safety. For example, employees will have the legal right to remove themselves from the risk of death or serious bodily injury in their workplace if, after notifying their employer, the employer fails to take action to eliminate the danger.

Employees are also empowered to speak out on safety and health matters, as amended OSHA prohibits employers from taking action against, first, employees who assist authorities in any inspection or investigation; and, secondly, any party who complains of a health and safety risk to the employer or the authorities.

More machine regulations

Parts of the FMA (which is to be repealed) have been included in the amended Osha, in particular the requirement for a certificate of fitness before the installation and operation of any plant. Activities such as plant installation, plant operation and health risk assessment will, under the amended Osha, have to be carried out by persons registered as a “competent person”. under the statute, whereas under the FMA these registered competent persons were only required to be responsible for the operation of the selected machines.

This reflects the deliberate intention to create comprehensive health and safety legislation by merging Osha and FMA into the amended Osha.

Conclusion

The Malaysian workplace is undergoing major changes – amendments to the Employment Act 1955 (expected to come into force on January 1, 2023); amendments to Osha; and the repeal of the FMA, which will change the Malaysian workplace as we know it.

Employers should note that the amended Osha will impose heavier penalties than the current regime. Employers found guilty of breaching their obligations will be subject to an increased fine of RM500,000 or imprisonment for two years or both.

In addition, the amended Osha provides that any person who – at the time of the commission of an offense under Osha – is a director, director, secretary or other similar officer of the body corporate, may be charged individually or jointly in the same proceeding. with the company.

Although the FMA contains provisions on the safety, health and welfare of employees, these are limited compared to Osha. The FMA is also specific about the types of machines it regulates and does not regulate. Compared to the amended Osha provisions on plants, the amended Osha does not appear to fill the gap, although this may be rectified in the future with more prescribed regulations from the Minister.

Ultimately, Osha’s philosophy is self-regulation. The obligation to comply rests with both employers and employees. Legal professionals can help organizations comply with these new changes, for example by drafting employee whistleblower policies that aim to protect both employer and employees. Organizations are encouraged to consult with legal professionals regularly to keep abreast of the ever-changing network of Osha laws and regulations.

Only time will tell if the new Osha can achieve what it sets out to do, but for now employers need to be aware and make plans to adapt to these changes coming to the Malaysian workplace. .

This the article is written by Sim Shin Ying of Christopher & Lee Ong.