1.2 OSHA 1994 as Amended by Act A1648: Structure, Duties, Rights & Penalties
Key Takeaways
OSHA 1994 applies to all places of work throughout Malaysia, including the public services and statutory authorities, except domestic employment, the armed forces and work on board ships listed in the First Schedule.
Section 18B of OSHA 1994 requires every employer, self-employed person and principal to conduct a risk assessment and to implement any risk control that the assessment shows is needed.
Breaching sections 15, 16, 17, 18, 18A or 18B now carries a fine of up to RM500,000, two years' imprisonment or both under section 19.
Section 26A gives an employee who has informed the employer of an imminent danger the right to remove himself from the danger if the employer fails to act.
Improvement notices and prohibition notices are both issued under section 48 of OSHA 1994; failing to comply is an offence under section 49 punishable by up to RM500,000 or two years or both.
From prescriptive rules to self-regulation
Malaysian safety law began with boiler and machinery laws aimed at specific equipment. The Factories and Machinery Act 1967 (Act 139) extended this to factories and construction sites through detailed, prescriptive regulations. The Occupational Safety and Health Act 1994 (Act 514) took a different approach, modelled on the British Robens philosophy. It sets broad general duties and leaves the people who create the risks to manage them. It also allows older laws to be replaced gradually by regulations and approved industry codes of practice. That is objective (d) in section 4.
OSHA 1994 received Royal Assent on 15 February 1994 and was published in the Gazette on 24 February 1994. Its biggest amendment, Act A1648, came into force on 1 June 2024, the same day the FMA 1967 was repealed by Act 835. The current DOSH reprint is the text "as at 1 June 2024".
The four objects (section 4)
- Secure the safety, health and welfare of persons at work against risks arising from work activities.
- Protect other people at a place of work, such as visitors and the public, against those risks.
- Promote an occupational environment adapted to workers' physiological and psychological needs.
- Provide a way to replace older OSH laws progressively with regulations and approved industry codes of practice.
Scope and how the Act sits with other laws
- Section 1(2): the Act applies to all places of work throughout Malaysia, including the public services and statutory authorities. Before Act A1648, only the sectors listed in the original First Schedule were covered.
- Section 1(3) and the First Schedule: the Act does not apply to domestic employment (domestic servants under the Employment Act 1955), the armed forces, or work on board ships governed by the Merchant Shipping Ordinances of 1952 (Peninsular) and 1960 (Sabah and Sarawak).
- Section 2: OSHA is in addition to other OSH laws, and it prevails where there is a conflict.
"So far as is practicable"
Most duties are qualified by the phrase "so far as is practicable". Section 3 defines "practicable" by reference to four factors:
| Factor | Exam meaning |
|---|---|
| (a) Severity of the hazard or risk | Higher severity demands more effort |
| (b) State of knowledge about the hazard and ways to remove or mitigate it | What a competent person should know |
| (c) Availability and suitability of ways to remove or mitigate it | Whether a workable control exists |
| (d) Cost of removing or mitigating it | Cost counts, but is weighed against severity |
Section 60 places the onus on the accused to prove what was not practicable.
The tripartite council: NCOSH
Part III establishes the National Council for Occupational Safety and Health (NCOSH) (section 8). Under section 9 it has 22 to 25 members appointed by the Minister:
- five from employer organisations
- five from employee organisations
- the Secretary General of the Ministry of Human Resources and the Director General of DOSH
- five government representatives, including the Director General of Health
- the Executive Director of NIOSH and the Chief Executive Officer of SOCSO
- at least three persons from OSH-related bodies, at least one of whom must be a woman
Under section 11 the Council investigates matters and makes recommendations to the Minister, including on legislation, enforcement, management–labour cooperation and industry codes of practice. NCOSH advises; DOSH enforces; NIOSH trains and examines.
General duties (Parts IV to VI)
Employers: section 15
Section 15(1) requires every employer to ensure, so far as is practicable, the safety, health and welfare at work of all his employees. Section 15(2) lists what that includes:
| Paragraph | Duty | Construction example |
|---|---|---|
| (a) | Safe plant and systems of work | Inspected scaffolds; a permit system for hot work |
| (b) | Safe use, handling, storage and transport of plant and substances | Gas cylinder storage; diesel handling |
| (c) | Information, instruction, training and supervision | Site induction; toolbox meetings; competent supervisors |
| (d) | Safe place of work and safe access and egress | Guarded floor openings; ladders in excavations |
| (e) | Safe working environment and adequate welfare facilities | Drinking water, toilets, rest areas |
| (f) | Procedures for dealing with emergencies | Evacuation plan and rescue arrangements |
Section 15(3) was deleted by Act A1648.
Other duty holders
- Section 16: employers must prepare, revise and bring to employees' notice a written OSH policy. Under the 1995 exception regulations this does not apply to undertakings with not more than five employees.
- Section 17: employers and self-employed persons must protect persons other than their employees, such as the public outside the hoarding.
- Section 18: occupiers must keep premises and their access safe for non-employees working there.
- Section 18A: a principal must take practicable measures to ensure the safety and health of its contractors, subcontractors and their employees when they work under the principal's direction as to the manner of the work (section 18A(2)). Section 18A(3)(b) expressly includes allocating sufficient time, budget and other resources for construction work.
- Section 18B: every employer, self-employed person or principal must conduct a risk assessment of risks to any person affected by the undertaking, and must implement the risk control the assessment shows is needed. Risk assessment is now a statutory duty in its own right.
- Sections 20 and 21: designers, manufacturers, importers and suppliers of plant and substances must make them safe and supply adequate information.
Employees: sections 24 to 27
- Section 24: take reasonable care of yourself and others; cooperate with the employer; wear or use the PPE provided; comply with OSH instructions. The maximum penalty is RM2,000, three months or both.
- Section 25: interfering with or misusing safety provisions carries up to RM20,000 or two years or both.
- Section 26: the employer may not charge employees for anything provided under the Act, such as PPE.
- Section 26A: after informing the employer of an imminent danger, an employee may remove himself from the danger if the employer fails to act, and must not suffer undue consequences or discrimination. "Imminent danger" means a serious risk of death or serious bodily injury caused by any plant, substance, condition, activity, process, practice, procedure or place-of-work hazard.
- Section 27: an employer may not dismiss or victimise an employee for raising safety complaints, sitting on the safety committee or helping an investigation.
Safety organisations at the workplace (Part VII)
| Section | Requirement |
|---|---|
| 29 | Occupiers of places listed by ministerial order (the SHO Order 1997) appoint a competent Safety and Health Officer |
| 29A | Employers not covered by section 29 who have five or more employees appoint one employee as OSH coordinator |
| 30 | A safety and health committee is required where 40 or more persons are employed, or where the Director General directs |
| 31A | The Minister may order classes of persons to attend OSH training courses by registered training providers |
Part VIA (sections 27A to 27G) brought plant certification from the FMA into OSHA, including certificates of fitness and periodical inspection. Part VIIA (sections 31B to 31F) created the competent person registration system that now covers the SSS. Part VIII (section 32) requires employers to notify the nearest DOSH office of accidents, dangerous occurrences, occupational poisoning and occupational diseases; the details are in the NADOPOD Regulations 2004 (Section 1.3).
Enforcement (Parts XI and XII)
DOSH officers have powers of entry, inspection, examination, seizure and investigation (sections 39 to 47). Section 48 provides two notices:
| Notice | Trigger in section 48 | Effect |
|---|---|---|
| Improvement notice, s.48(1) | The place of work, plant, substance or process is likely to be a danger, cause bodily injury, be a serious health risk or damage property | Remove the danger or rectify the defect within the period specified |
| Prohibition notice, s.48(2) | The defect is likely to cause immediate danger to life or property | Use or operation is prohibited until the danger is removed and the defect made good to the officer's satisfaction |
Under section 49, a notice must be complied with even if an appeal has been lodged. Failing to comply without reasonable excuse carries up to RM500,000 or two years or both, plus a daily fine for continuing offences. Under section 50, an aggrieved person may appeal to the Director General within 30 days, and then to the Minister's appeal committee within a further 30 days.
Penalties after Act A1648
| Offence | Maximum penalty |
|---|---|
| Breach of sections 15, 16, 17, 18, 18A or 18B (section 19) | RM500,000 or 2 years or both |
| Employee duties, section 24 | RM2,000 or 3 months or both |
| Failure to appoint an SHO (s.29) or OSH coordinator (s.29A) | RM50,000 or 6 months or both |
| Failure to establish a safety and health committee (s.30) | RM100,000 or 1 year or both |
| General penalty where none is specified (section 51) | RM100,000 or 1 year or both, plus up to RM2,000 a day for continuing offences |
Under section 52, directors, compliance officers, managers and similar officers of a convicted company may be charged with it. They are deemed guilty unless they prove the offence happened without their knowledge or consent and that they took all reasonable precautions.
Applying the Act: a falsework emergency
During a pre-pour check the SSS finds buckled, unbraced props under a fifth-floor transfer slab and stops the pour. The subcontractor's manager threatens to dock the concreting crew's wages if they refuse to go back on the deck.
- The crew informed the supervisor of the danger, so they are protected under section 26A. Victimising them would also breach section 27.
- The subcontractor, as employer, is exposed under section 15(2)(a) and (d). The principal contractor, which directs the method of work, is exposed under section 18A and under CDM 2024 regulation 21 (stability of temporary works).
- If a DOSH officer attends, a prohibition notice under section 48(2) is the likely tool. Work stays stopped even if the contractor appeals.
A contractor's risk assessment shows that a mobile scaffold needs outriggers, but the contractor never fits them. Which OSHA 1994 provision most directly requires the contractor both to assess and to implement the control?
Section 15(2)(f), the duty to develop emergency procedures
Section 26A, the employee's right to leave imminent danger
Section 18B, the duty to conduct and implement risk assessment
Section 31A, the Minister's power to order training courses
A DOSH officer finds a tower crane with a cracked mast section that could collapse at any moment. Under OSHA 1994, which instrument and section apply?
An improvement notice under section 49
A prohibition notice under section 50
A compound offence notice under section 52
A prohibition notice under section 48(2)
Which of these workers is outside the scope of OSHA 1994 under the First Schedule?
A domestic servant under the Employment Act 1955
A clerk working for a local authority in a district council office
A foreign construction worker employed by a subcontractor
A road worker employed by a statutory body on a highway project
Sections you finish are checked off in the contents.