Lavania & Balan Chambers

Introduction

The amendments to the Occupational Safety and Health Act 1994 (“OSHA”) and the repeal of the Factories and Machinery Act 1967 (“FMA”) took effect on 1.6.2024. The intention of the parliament in doing so is to provide comprehensive safety and health legislation that applies across all industries.

The amendments, amongst others, are to widen the application of OSHA, strengthen the protection of employees, increase penalties, and place additional duties on the Employers.

Alongside these changes, the Minister of Human Resources introduced the Occupational Safety and Health (Construction Work) (Design and Management) Regulations 2024 (“OSHR”), which also came into effect on 1.6.2024. The OSHR is crucial for all construction stakeholders as it establishes key responsibilities and compliance requirements for construction projects.

In this article, we will explore the main key responsibilities outlined in the OSHR for three primary stakeholders in a construction project: The Client/Employer, the Construction Work Designer (as defined in OSHR), and the Construction Work Contractor.

Client’s/Employer Responsibilities under OSHR

Under the OSHR, the Client/Employer has, amongst others, the following key responsibilities:

1.  Allocating sufficient time, funds, and resources^[1];

2.  Ensuring, as far as practicable, the construction work is carried out without risks to the safety and health^[2];

3.  Provide basic facilities as specified in the Second Schedule^[3]; and

4.  Providing pre-construction information promptly to every construction work designer^[4]; and

5.  To take reasonable steps to ensure the principal construction work designer and the contractors comply with their respective duties under the OSHR.^[5]

Failure to comply with these duties may result in fines up to RM500,000.00, imprisonment for up to one year, or both.

Further, Section 8 of the OSHR also mandates that the Client/Employer shall, as soon as practicable, notify the Director General if the construction work on a construction site is scheduled to last longer than thirty working days or exceed five-hundred-person days^[6]. Failure to comply with this can result in fines up to RM100,000.00 or imprisonment for up to one year, or both.

In addition to the above, OSHR provides that if a construction project involves multiple contractors or it is foreseeable that multiple contractors will be involved, the Client/Employer shall appoint a principal construction work designer and a principal construction work contractor in writing before the construction phase begins.^[7]

If the Client/Employer fails to make these appointments, they will assume the responsibilities of both roles, including fulfilling the duties specified for the principal construction work designer and contractor.^[8]

Construction Work Designer Responsibilities under OSHR

Under OSHR, the Construction Work Designer is defined as any person who is, in the course of, in furtherance of a business - prepares or modifies a design or arranges for or instructs any person under his control to prepare or modify a design, relating to a building, structure, product or mechanical or electrical system intended for a particular structure.

Pre-Construction Phase

During the pre-construction phase, the principal construction work designer must plan, manage, and monitor the pre-construction phase and coordinate matters relating to safety and health during the pre-construction phase. Non-compliance may result in fines up to RM200,000.00, imprisonment for up to one year, or both^[9].

Construction Phase

Insofar as the construction phase is concerned, the principal construction work designer must assist the principal construction work contractor in preparing the construction phase plan by giving the contractor all information that is relevant to the construction phase^[10].

Safety and Health File

In addition to the above, the OSHR also imposes a duty on the construction work designer to prepare a safety and health file for the project. Upon completion of the project, the construction work designer shall pass the safety and health file to the Client/Employer. Non-compliance in this regard carries penalties of up to RM500,000.00 in fines, imprisonment for up to one year, or both.^[11]

Construction Work Contractor Responsibilities

Pre-Construction Phase

During the pre-construction phase, the construction work contractor is required to develop a construction phase plan that outlining the safety and health arrangements and site rules, considering where necessary, the industrial activities which take place at the site. Where applicable, the plan should include specific measures to deal work with particular risks. This plan must be updated as necessary throughout the project.^[12]

Construction Phase

Insofar as a construction work contractor is concerned, he shall plan, manage and monitor the construction phase and coordinate matters relating to safety and health during the construction phase.^[13]

Engagement With Construction Worker

Furthermore, the principal construction work contractor is required to establish and maintain arrangements for cooperation with workers to ensure their safety, health, and welfare on a construction site. This includes consulting workers or their representatives on safety matters not addressed by their employers and allowing them to inspect or copy relevant safety information, except when such disclosure could harm national security or involve personal data without consent.^[14]

Non-compliance can lead to fines of up to RM500,000.00, imprisonment for up to one year, or both.

Conclusion

In a nutshell, the OSHR sets out clear responsibilities and duties of the clients, designers, and contractors in ensuring the safety and health of a construction site. We must take note that beyond meeting these legal requirements, these duties also align with ESG principles by prioritising the welfare of the workers and upholding the ethical standards.

Compliance with the OSHR is crucial - not just to avoid penalties, but as a commitment to responsible and sustainable practices in the construction industry. As the saying goes – an ounce of prevention is worth a pound of cure.

This article is authored by Balan Nair Thamodaran (Partner) and Julian Chen (Associate) of the Construction and Adjudication Practice of Lavania & Balan Chambers. It contains general information only. The contents are not intended to constitute legal advice on any specific matter nor is it an expression of legal opinion and should not be relied upon as such.