Occupational Safety and Health (Amendment) Act 2022 PDF

Cont’ Module1.2 Occupational Safety and Health (Amendment) Act 2022 Passed by Dewan Rakyat on 27 October 2021 Date of Royal Assent...... 4 March 2022 Date of publication in the Gazette...... 16 March 2022  Background...

Cont’ Module1.2 Occupational Safety and Health (Amendment) Act 2022 Passed by Dewan Rakyat on 27 October 2021 Date of Royal Assent...... 4 March 2022 Date of publication in the Gazette...... 16 March 2022  Background Two Main Legislations / Acts on Safety in Malaysia  Occupational Safety and Health Act, 1994 (OSHA 1994) passed by Parliament, enacted and enforced by DOSH since 1994. After 27 years, the amendment should be made in order to improve and facilitate methods of ‘regulating behavior’ in safe working environment toward the safe work culture.  Factories and Machinery Act, 1967 (FMA 1967) Amended in 2006 on new definition of the machinery and plant, empowerment of person/body to perform DOSH’s function. 2  Background – Why Amendment  Feedback from stakeholders and o rganizations that involve in OSHA & FMA  Conflict of decision on OSH issue from OSHA and FMA perspective  Both act should be reviewed to ensure it meets the current needs and also the expectations of the future.  New emerging issues on OSH that come with new technology. To ease the administration of OSH legislation and facilitate the industry Comply with one Act only compared to two Acts before OSHA 1994 + FMA 1967 = OSHA (Amendment) 2022 3  Why Migration? To strengthen existing Legislation 1. Includes all industries 5. Legalize administrative work Apply to all industries in Malaysia Provide enabler for OYK/FYK appointment Accountabilities of OYK/FYK (Competent Person) 2. Covers all industry player Developer (in const. industry) 6. Increase the penalty rate Multi employer (contractor, sub contractor etc) RM 50,000 to RM500,000 3. Responsibilities & accountabilities of industry 7. Improve the compound provision player To facilitate better mechanism on compounding Contractor, sub contractor and appealing. Outsourcing, Labor supplier 8. Provision for Rights of Employees and Young 4. Empowering Majlis Negara (MNKKP) Person strengthen the role & function of Chairman & Rights of Employees to remove himself from MNKKP (National Safety Council) members dangerous environment. Broaden of MNKKP’s function Young Person – not allowed to work in hazardous activity.  PRELIMINARY OSHA 1994 OSHA (Amendment) 2022 Section 1 Amendment to Section 1 – Short title and application This Act shall apply to all places of work in Malaysia, including public services and statutory authorities First Schedule [subsection 1(3)] – Non-Application of this Act 2) Subject to subsection (3), this Act shall apply 2. The Occupational Safety and Health Act 1994 [Act 514], which is throughout Malaysia to the industries specified in referred to as the “principal Act” in this Act, is amended in section 1— the First Schedule. (a) by substituting for subsection (2) the following subsection: 3) Nothing in this Act shall apply to work on board “(2) Subject to subsection (3), this Act shall apply to all places of work ships governed by the Merchant Shipping throughout Malaysia including in the public services and statutory Ordinance 1952[Ord. No.70 of 1952], the authorities.”; and Merchant Shipping Ordinance 1960 of Sabah [Sabah Ord. No. 11 of 1960] or Sarawak (b) by substituting for subsection (3) the following subsection: [Sarawak Ord. No. 2 of 1960] or the armed “(3) Nothing in this Act shall apply to the work specified in the First forces. Schedule.”. 5  IMPROVEMENTS IN OSHA (AMENDMENT) 2022 Application Amendment; S1(2) Subject to subsection (3), this Act shall apply to all places of work throughout Malaysia including in the public services and statutory authorities. S1(3) Nothing in this Act shall apply to the work specified in the First Schedule. Apply to all place of work except : Domestic servant Armed forces (ATM) Work on board ships 15  DUTY HOLDER: DUTIES & RESPONSIBILITIES OSHA 1994 OSHA (Amendment) 2022 Employer Employer – Immediate Employer - Immediate Employer – Principal Employer - Principal Employer Principal Contractor Contractor, Subcontractor Occupier Section 3. Interpretation. Amendment of section 3 (1) In this Act, unless the context 3. Section 3 of the principal Act is amended— otherwise requires- (a) in subsection (1)— "employer" means the immediate (v) by substituting for the definition of “employer” the following definition: employer or the principal employer ‘ “employer” means any person who has entered into a contract of service to or both; employ any other person as an employee;’; (vi) by deleting the definition of “immediate employer”; (vii) by deleting the definition of “principal employer”; 7  APPOINTMENT OF OFFICERS OSHA 1994 OSHA (Amendment) 2022 None New Section 7(a), 7(b), 7(c) & 7(d) “Appointment of licensed person”, “Revocation of license”, “Granting of new license upon revocation” and “Representing as licensed person” With recommendation of DG, Minister may grant licensed on such conditions and limitations to any person to perform any function specified in this A c t as the functions of a Licensed Person Amendment of section 3 3. Section 3 of the principal Act is amended— (a) in subsection (1)— (viii) by inserting before the definition of “occupier” the following definition: ‘ “licensed person” means a person who is granted a license under subsection 7a(1);‘; New section 7 - “Appointment of licensed person, etc. 7a. (1) Notwithstanding any other provisions of this Act, the Minister shall have the power to grant a license on such conditions as he may think fit to any person to carry out inspection of any plant prescribed by the Minister and issue a certificate of fitness in respect of the plant inspected. 9  GENERAL DUTIES OF EMPLOYERS, SELF-EMPLOYED PERSONS AND PRINCIPAL OSHA 1994 OSHA (Amendment) 2022 General duties of employers and self -employed General duties of employers persons to their employees Removal of “self-employed person” Procedures for dealing with emergencies Section 15. General duties of employers and self- employed persons to their employees. Amendment of section 15 (1)It shall be the duty of every employer and every self- 14. Section 15 of the principal Act is amended— employed person to ensure, so far as is practicable, the safety, health and welfare at work of all his employees. (a) in the shoulder note, by deleting the words “and self-employed persons (2)Without prejudice to the generality of subsection (1), the to their employees”; matters to which the duty extends include in particular- (a) the provision and maintenance of plant and systems (b) in subsection (1), by deleting the words “and every self-employed person”; …….; (b) the making of arrangements for ensuring, so far as (c) in subsection (2)— is ……; (i) in paragraph (d), by deleting the words “or self-employed person”; (c) the provision of such information, instruction, (ii) by inserting after paragraph (e) the following paragraph: training ….; “(f) the development and implementation of procedures for dealing (d) so far as is practicable, as regards any place of with emergencies that may arise while his employees are at work.” work under the control of the employer or self- employed person,……; (e) the provision and maintenance of a working environment for his employees that is, so far as is 9 practicable, ………...  GENERAL DUTIES OF EMPLOYERS, SELF-EMPLOYED PERSONS AND PRINCIPAL OSHA 1994 OSHA (Amendment) 2022 None New Section 18(a) “Duties of principal Amendment of section 3 3. Section 3 of the principal Act is amended— (a) in subsection (1)— (xviii) by inserting before the definition of “registered medical practitioner” as inserted in subparagraph (xiii) the following definition: ‘ “principal” means any person who in the course of or for the purposes of his trade, business, profession or undertaking contracts with a contractor for the execution by or under the contractor of the whole or any part of any work undertaken by the principal;’; New section 18A -- “Duties of principal 18a. (1) It shall be the duty of every principal to take, so far as is practicable, such measures as are necessary to ensure the safety and health of— (a) any contractor engaged by the principal when at work; (b) any subcontractor or indirect subcontractor when at work; and (c) any employee employed by such contractor or subcontractor when at work. 10  IMPROVEMENTS IN OSHA (AMENDMENT) 2022 Duties of principal 18A. (1) It shall be the duty of every principal to take, so far as is practicable, such measures as are necessary to ensure Imposes duties to the “principal”. the safety and health of— Explain the duties of the developer/owner towards his contractors or sub-contractors, (a) any contractor engaged by the principal when at work; employees etc. (b) any subcontractor or indirect subcontractor when at work; and (c) any employee employed by such contractor or subcontractor when at work. (2) The duty imposed on the principal in subsection (1) shall only apply where the contractor, subcontractor or employee referred to in that subsection is working under the direction of the principal as to the manner in which the work is carried out. “subcontractor” means any person who contracts with a contractor for the execution by or under the subcontractor of the whole or any part of any work undertaken by the contractor for his principal, and includes To ensure, issues related to OSH is foreseen any person who contracts with a subcontractor to carry out the whole or and taken into consideration at the initial any part of any work undertaken by the subcontractor for a contractor. planning and design stage. 17  GENERAL DUTIES OF EMPLOYERS, SELF-EMPLOYED PERSONS AND PRINCIPAL OSHA 1994 OSHA (Amendment) 2022 None New Section 18(b) “Duty to conduct and implement risk assessment” To implement such control New section 18B -- “Duty to conduct and implement risk assessment” 18B. (1) Every employer, self-employed person or principal shall conduct a risk assessment in relation to the safety and health risk posed to any person who may be affected by his undertaking at the place of work. (2) Where a risk assessment indicates that risk control is required to eliminate or reduce the safety and health risk, the employer, self-employed person or principal shall implement such control. (3) For the purposes of this section, “risk assessment” means the process of evaluating the risks to safety and health arising from hazards at work and determining the appropriate measures for risk control.”. 12 GENERAL DUTIES AND RIGHTS OF EMPLOYEE OSHA 1994 OSHA (Amendment) 2022 none New Section 26(a) “Rights of Employee” – to remove himself from danger if the employer fails to take any action to remove the danger Employer cannot discriminate Meaning of “imminent danger” New section 26 -- “Rights of employees 26a. (1) An employee, after informing his employer or his representative that he has reasonable justification to believe there exist an imminent danger at his place of work, shall have the right to remove himself from the danger or the work if the employer fails to take any action to remove the danger. (2) An employee who removes himself from the danger in accordance with subsection (1) shall be protected against undue consequences and shall not be discriminated against. (3) For the purposes of this section, “imminent danger” means a serious risk of death or serious bodily injury to any person that is caused by any plant, substance, condition, activity, process, practice, procedure or place of work hazard.”. 13  IMPROVEMENTS IN OSHA (AMENDMENT) 2022 Rights of employees 26A. (1) An employee, after informing his employer or his representative that he has reasonable justification to believe there exist an imminent danger at his place of work, shall have the right to remove himself from the danger or the work if the employer fails to take any action to remove Improve the rights of employee conforming to the danger. the Article 13, ILO C155 Employees' right to remove themselves (2) An employee who removes himself from the danger in from the place of work if there are imminent accordance with subsection (1) shall be protected against danger that could risk their safety and health. undue consequences and shall not be discriminated against. For the purposes of this section, “imminent danger” means a serious risk of death or serious bodily injury to any person that is caused by any plant, substance, condition, activity, process, practice, procedure or place of work hazard. 18 NOTIFICATION OF OCCUPATION OF PLACE OF WORK, INSTALLATION AND INSPECTION OF PLANT, ETC. Provisions under FMA 1967 migrated into OSHA (Amendment) 2022 OSHA 1994 OSHA (Amendment) 2022 none New Part VI(A) “Notification of Occupation of Place of Work, Installation and Inspection of Plant, etc.” Prescription of plant requiring certificate of fitness Installation of plant Certificate of fitness Periodical inspection of plant Special scheme of inspection 12  IMPROVEMENTS IN OSHA (AMENDMENT) 2022 Machinery Integrity Part VIA: Notification of Occupation of Place of Work, Incorporate management Installation and Inspection of Plant, Etc. elements of machinery integrity, machinery inspection, Certificate NOTICE OF OCCUPATION OF PLACE OF WORK of Fitness and Special Scheme of Periodical Inspections of factory is abolished Inspection PRESCRIPTION OF PLANT REQUIRING CERTIFICATE OF FITNESS INSTALLATION OF PLANT CERTIFICATE OF FITNESS PERIODICAL INSPECTION OF PLANT To be stipulated in the Certificated Machinery Regulations Licensed Person (OBL) which is being drafted. Provision to enable Licensed Persons to be SPECIAL SCHEME OF INSPECTION appointed to carry out plant inspections and Regulations related to Special of Scheme Inspection is issue Certificates of Fitness. maintained and improved Improving plant management by industry. Address the issue of machinery inspection SPECIAL ORDERS OF DIRECTOR GENERAL backlog 23  IMPROVEMENTS IN OSHA (AMENDMENT) 2022 AMMENDMENT SECTION 29: SAFETY AND HEALTH OFFICER (SHO) Act 514 (BEFORE AMENDMENT) Act 514 (AFTER AMENDMENT) Safety and Health Officer Safety and Health Officer S.29. (1) This section shall apply to such class or S.29. (1) (1) This section shall apply to such class or description of industries as the Minister may, by order description of place of work as the Minister may, by order published in the Gazette, specify. published in the Gazette, specify. (2) An occupier of a place of work to which this (2) An occupier of a place of work to which this section section applies shall employ a competent person to applies shall appoint a person who is competent to act as a act as a safety and health officer at the place of safety and health officer at the place of work. work. ………….. ………..… S.29 (4) A person shall be appointed as a safety and health officer only for one place of work at any one time, S.29(4) to replace unless permitted otherwise by the Director General;  SAFETY AND HEALTH ORGANIZATIONS OSHA 1994 OSHA (Amendment) 2022 None New Section 29 (A) “Occupational Safety and Health Coordinator” : a. For employer not required to employ SHO b. With > 5 workers If employer has employed SHO – has comply to this Section no need to appoint OSH Coordinator New Section 29(A) -- “Occupational safety and health coordinator 29a. (1) An employer whose place of work is not included in any class or description of place of work as published in the Gazette under subsection 29(1) 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. (2) An employee appointed as an occupational safety and health coordinator under subsection (1) shall be appointed for the purpose of coordinating occupational safety and health issues at the place of work. 18  IMPROVEMENTS IN OSHA (AMENDMENT) 2022 Appointment of OSH-C NEW SECTION 29A: OCCUPATIONAL SAFETY AND HEALTH COORDINATOR The need to appoint an employee to act as an Occupational Safety and 29A (1) An employer whose place of work is NOT included in any Health Coordinator (OSH-C). To assist employers in class or description of place of work as published in the Gazette coordinating OSH legislation and under subsection 29(1) shall appoint one of his employees to act as OSH programs in the place of an occupational safety and health coordinator if he employs five work. or more employees at his place of work. Employers who have appointed a Safety and Health Officer (SHO) even though the workplace is not included in the SHO Order under S.29, do not need to appoint OSH-C 20  SAFETY AND HEALTH ORGANIZATIONS OSHA (Amendment) Act 2022 OSHA 1994 New Section 31 (A) None “Occupational safety and health training course” a. DOSH shall publish any class or description of person to attend an OSH training course b. Training to be done by a registered training provider Person/Employee to complete training before allowing to perform any work Refresher course may be needed by DOSH 16  IMPROVEMENTS IN OSHA (AMENDMENT) 2022 OSH Training NEW SECTION 31A: Occupational Safety and Health Training Courses. The needs for certain “class or description of persons” to attend (1) The Minister may, by order published in the Gazette, require any prescribed OSH training. class or description of persons to attend an occupational safety Ensure those prescribed employees and health training course as specified in the order that is conducted gain enough exposure and knowledge by a registered training provider. before performing work activities. (2) 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. Director General may, issue instructions to the prescribed employees attending the refresher course. 22  COMPETENT PERSON AND REGISTERED TRAINING PROVIDER OSHA 1994 OSHA (Amendment) Act 2022 None New Part VII (A) “Competent Person and Registered Training Provider” No person shall: a. Carry out any activity as per 5th Schedule unless has been registered as competent person b. Conduct any OSH training unless registered as training provider Application for registration – register, pay fee, approval conditions, withdrawal Validity of registration - 3 years Renewal of registration – competent person and training provider Cancellation of registration - competent person and training provider 17  NOTIFICATION OF ACCIDENTS, DANGEROUS OCCURRENCE, OCCUPATIONAL POISONING AND OCCUPATIONAL DISEASES, AND INQUIRY OSHA 1994 OSHA (Amendment) Act 2022 None New Section 34 (A) “Duties of the owner, occupier, etc., in inquiry” To provide such assistance needed for the purposes of any inquiry under this Act. 23  LIABILITY FOR OFFENCES OSHA 1994 OSHA (Amendment) Act 2022 Section 52 Substitute of Section 52 Offenses committed by body “Liability of director, etc., of company, etc.” corporate a. May be charge severely or jointly Section 52. Offences committed by body corporate. b. Liable to the same punishment or penalty (1) Where a body corporate contravenes any Amendment of Section 52 - substituting for section the following: provision of this Act or any regulation made thereunder, every person who at the time of the commission of the offence is a director, “Liability of director, etc., of company, etc. manager, secretary or other like officer of the 52. Where any person commits an offence under this Act or any subsidiary legislation body corporate shall be deemed to have made under this Act is a company, limited liability partnership, firm, society or other contravened the provision and may be charged body of persons, a person who at the time of the commission of the offence was a jointly in the same proceedings with the body director, compliance officer, partner, manager, secretary or other similar officer of the corporate or severally, and every such director, company, limited liability partnership, firm, society or other body of persons or was manager, secretary or other like officer of the body corporate shall be deemed to be guilty of purporting to act in the capacity or was in any manner or to any extent responsible for the offence. the management of any of the affairs of the company, limited liability partnership, firm, (2) A person may be proceeded against and society or other body of persons or was assisting in its management— convicted under the provision of subsection (1) whether or not the corporation has been (a) may be charged severally or jointly in the same proceedings with the company, proceeded against or has been convicted under limited liability partnership, firm, society or the body of persons; 24 that provision.  LIABILITY FOR OFFENCES OSHA 1994 OSHA (Amendment) Act 2022 None New Section 52 (A) “Liability of person for act, etc., of employee, etc.” Any person would be liable to any punishment or penalty for any act, omission, neglect or default committed: a. By the employee b. By the agent c. By any person acting on behalf of the agent That person shall be liable to the same punishment or penalty for every such act, omission, neglect or default 25  PENALTY Increasing the penalty - deterrent effect Item OSHA 1994 OSHA (Amendment) Act 2022 RM10,000 RM100,000 General Penalty - Imprisonment 1 year RM 50,000 RM 500,000 Employer Duties Imprisonment 2 years Imprisonment 3 years RM 1,000 RM 2,000 Employees Duties Imprisonment 3 months Imprisonment 3 months RM 5,000 RM 50,000 OYK (Competent Person) Imprisonment 6 months Imprisonment 1 year - RM 200,000 FYK (Competent Firm) - Imprisonment 2 years Compound - RM 3,000 RM 50,000 RM 500,000 Imprisonment 5 years Imprisonment 3 years Non-compliance of Notice Daily continuous offence – RM 500 Daily continuous offence – RM 2,000 24  LIST OF SUBSIDIARY LEGISLATIONS No Subsidiary Regulations No Subsidiary Regulations OSH Construction Industry Management Regulations - 1 10 Provision and Use of Work Equipment Regulations - PUWER OSHCIM 2 Risk Management Regulations – RM & ICOP RM 11 Lifting Operation and Lifting Equipment Regulations – LOLER Use and Standards of Exposure of Chemicals Hazardous to 3 Safety and Health Officer Regulations - SHO & SHO Orders 12 Health Regulations (USECHH) Control of Industrial Major Accident Hazards Regulations 4 Safety, Health and Welfare Regulations - SHW 13 (CIMAH) 5 Certificated Machinery Regulations Notification of Accident, Dangerous Occurrence, Occupational 14 Poisoning and Occupational Disease Regulations (NADOPOD) 6 Special Scheme Inspection Regulations - SSI Classification, Labelling and Safety Data Sheet of Hazardous 15 Chemicals Regulations (CLASS) 7 Working at Height Regulations - WAH 16 Safety and Health Committee Regulations (SHC) 8 Exemption for Certificated Machinery Order 17 Personal Protective Equipment Regulations (PPE) 9 Class or description of persons to attend OSH Training Order 18 Prohibition of Use of Substances Order   Amendment of OSHA and Repeal of FMA will be enforce together on the same date. ENFORCEMENT DATE OF  The enforcement date also will take into OSHA (AMENDMENT) 2022 consideration the readiness of new & subsidiary legislations in substituting Regulations repealed under FMA. FMA (REPEAL) 2022  Readiness of MyKKP online service system.  Expected enforcement date will be in June 2023. The announcementof the enforcement date will be published through Gazette. THANK YOU 29