Occupational Safety & Health Act 1994 (Amendment 2022) & FMA Repeal – Quick-Review Notes

Objectives & Context

• Replace prescriptive Factories & Machinery Act $1967$ (FMA, Act $139$) with self-regulation based Occupational Safety & Health Act $1994$ (OSHA, Act $514$).
• Align with ILO Convention $C155$, close legal gaps, update to latest technology & enforcement needs.
• OSHA (Amendment) $2022$ adds self-regulatory mechanisms; FMA (Repeal) $2022$ abolishes old machinery regime.

Legislative Milestones

• Stakeholder dialogues: $2011$–$2015$ ➔ draft ➔ AGC review $2017$–$2019$.
• Cabinet approval $Oct\,2020$; Dewan Rakyat approval $Oct\,2021$; Dewan Negara $Dec\,2021$.
• Acts gazetted $16\,Mar\,2022$; major provisions enforced $1\,Jun\,2024$.

Scope of OSHA After 1 Jun 2024

• Applies to all places of work incl. public service & statutory authorities.
• Excludes domestic servants, armed forces, and work aboard merchant ships.

Key Additions & Changes

• Total OSHA structure: $92$ sections & $5$ schedules (↑ from $67$ & $3$).

Duties & Rights

• Expanded employer duty (S.15) to include emergency procedures.
• NEW principal duty (S.18A) toward contractors & their workers.
• Mandatory Risk Assessment (S.18B) before work; implement controls when required.
• Employee Right to Remove from imminent danger (S.26A) with protection from discrimination.

Occupational Health

• "Medical surveillance" replaced by Occupational Health Services covering protection, promotion & disease prevention.

Personnel Requirements

• Safety & Health Officer (SHO) – one competent person per workplace; may serve multiple sites only with DG approval (S.29).
• OSH Coordinator (OSHC) – mandatory for employers with $\ge5$ workers where SHO not required (S.29A).
• OSH Training – Minister may mandate specified personnel to complete courses before work (S.31A).

Competency & Licensing

• Part VIIA regulates Competent Persons & Registered Training Providers
  • Registration, renewal every $3$ yrs, cancellation (S.31B–31F).
  • Fifth Schedule lists $7$ activities (e.g., plant inspection, CHRA, IAQ, noise monitoring, training).
• Licensed Person (S.7A) – private inspectors authorised to examine prescribed plant & issue Certificate of Fitness (CF).

Plant & Machinery

• Part VIA introduces:
  • Notice of Occupation of Place of Work.
  • Installation & Inspection of Plant.
  • CF & Special Scheme Inspection (SSI).
  • Factory periodical inspections abolished.

Governance

• National Council for OSH (NCOSH) expanded to ≤$25$ members, broader representation.

Penalties (Deterrent Increase)

• General penalty: $RM100\,000$ or $1$ yr jail.
• Breach of employer/principal duties: up to $RM500\,000$ or $2$ yrs jail.
• Employee breach: $RM2\,000$ or $3$ months jail.
• Daily continuing offences: $RM2\,000$ per day.
• Directors/officers liable if offence due to consent, connivance or neglect (S.52).

Transition From FMA

• Existing CF, approvals, notices remain valid until expiry; dealt with under new OSHA regulations.
• Pending applications & legal proceedings continue under FMA until completion (S.4–S.6 of Repeal Act).

Subsidiary Legislation (selected, in force by 1 Jun 2024)

• OSH (Plant Requiring Certificate of Fitness) Regulations $2024$.
• OSH (Construction Work – Design & Management) Regulations $2024$.
• OSH (Fee for Registration of Competent Person & Registered Training Provider) Regulations $2024$.
• OSH (Licensed Person) Order $2024$.
• Existing key chemical & management regs retained: Noise $2019$, CLASS $2013$, USECHH $2000$, CIDB MAH $1996$, Safety & Health Officer Regs $1997$, Safety & Health Committee Regs $1996$, etc.

Enforcement Date Summary

• OSHA (Amendment) Act A$1648$ & FMA (Repeal) Act $835$ effective on date appointed by Minister – 1 Jun 2024 for main provisions & new subsidiary regulations.