OSH LAWS and the Caribbean Courtroom
OSH Laws and the Caribbean Courtroom - Staying out of Court and out of Jail Vanessa Thomas Williams May 2012
Convention 2012 Theme Execute, Grow, Sustain
Occupational Safety and Health Occupational refers to the workplace/ industrial establishment Safety The control and elimination of recognized hazards to attain an acceptable level of risk.
Occupational Safety and Health Health Illhealth is an adverse physical or mental condition. To qualify as an occupational health and safety problem, an adverse physical or mental condition must be identifiable. It must also be caused or aggravated by a work activity or a work related situation.
Regional OSH Laws Trinidad and Tobago The Occupational Safety and Health Act 2004 The Occupational Safety and Health (Amendment) Act 2006
Regional OSH Laws Guyana The Occupational Safety and Health Act 1997 The Occupational Safety and Health (Amendment) Act 2009
Regional OSH Laws The Factories Act Barbados Accidents and Occupational Diseases (Notification) Act Safety and Health at Work (SHaW) Act 2005
Regional OSH Laws Jamaica The primary legislation remains The Factories Act and its accompanying regulations are: The Factories Regulations 1961 The Building Operations and Works of Engineering Construction 1968 The Ship and Docks Regulations 1968
Regional OSH Laws Jamaica Jamaica s Ministry of Labour and Social Security is in the process of introducing The Occupational Safety and Health Act. This Act is intended to possess jurisdiction that will be more extensive than the current Act. Some of the forms that are presently being used by employers are expected to be discontinued or redesigned to conform with the new Act.
General Duties The advent of new Safety and Health laws across the Caribbean Region has introduced the codification of several common law duties owed by the parties to the employment relationship towards each other.
General Duties Employers The legislation stipulates that the employer has a fundamental duty to ensure so far as is reasonably practicable, the safety, health and welfare at work of all his employees. s. 6 Occupational Safety and Health Act, as amended [Trinidad and Tobago]
General Duties An employer has a responsibility to provide and/or keep - - a safe plant and system of work, - adequate and suitable protective clothing or devices of approved standards to employees likely to be exposed to risks, - records, and give notice of accidents (particularly causing death or critical injury) and industrial/ occupational diseases, and - registers of each accident, incident or death and health records
General Duties An Employee is obligated to - take reasonable care for the safety and health of himself and others who may be affected by his acts or omissions at work co-operate with an employer to ensure that duties or requirements are performed Use correctly the personal protective clothing or devices provided for his use Exercise discretion in refusal to work in a responsible manner Not to be under the influence of an intoxicant
Breach of statutory duties A breach of statutory duties usually triggers enforcement of the laws by way of: notices and inspections; issue of prohibition notices; stop work orders; and legal action.
Access to Redress Several institutions are vested with the requisite jurisdiction to hear complaints related to workplace safety and health matters: Magistrates Court High Court Industrial Disputes Tribunal Industrial Court
Legal Action At these various institutions, the range of avenues available include: Criminal prosecution Initiating of Civil Action Initiating legal applications based on the commission of safety and health offences
Prosecution A.) Current Legislation in England= prosecuting of controlling minds. B.) OSHA, as amended (Trinidad) by virtue of s. 83 = prosecuting of- 1. Director, 2. Manager, 3. Secretary or other Officer of a company where it is proven that any of the above persons consented, connived, acquiesced, or facilitated by neglect any offence in the law. 18
Access to Court At the basis of initiating proceedings at the Industrial Disputes Tribunal, High Court or Industrial Court (Trinidad) is the employment relationship, that is, between the employer and the employee. It is important to note however, that both employees and independent contractors have legal rights under the OSH laws.
Penalties Jamaica s. 22 of the Factories Act Any person who contravenes or fails to comply with any of the provisions of this Act, or of any regulations made thereunder, for which no penalty is expressly provided by this Act commits an offence and shall be liable on summary conviction before a Resident Magistrate to a fine. and in default of payment to imprisonment
Penalties Trinidad 83. (1) of the Occupational Safety and Health Act, as amended Subject to subsection (2), where a person contravenes a provision of this Act or any Regulations made thereunder or fails to comply with any duty, prohibition, restriction, instruction or directive issued under this Act or any such Regulations, he commits a safety and health offence and is subject to the jurisdiction of the Industrial Court unless otherwise specified
Penalties No means of fire escape (s.26) Medical Examination of employees in industrial establishment (s.37 (2))- note that new and current employees may be subjected to medical examinations Failure to give notice of death/ critical injury (s.46 (4)) s.(48 (6)) Where occupational disease notice not given Failure to maintain young persons register (s.55(2)) $10,000.00 + JAIL+$1,000.00 for every day it continues Cost to be borne by employer (after commencement of ACT) $10,000.00 + JAIL $5,000.00 + JAIL To refer to s. 85- $20,000 + JAIL
Statistics Trinidad TOTAL CASES UP TO APRIL 16, 2012 Total number of cases started under the Occupational Safety and Health Act = TWENTY-FIVE (25)
Getting it right Basic checklist of recommended actions 1. Preparation of Risk Assessment The ranking of risks by three criteria: exposure, consequence or severity, and probability is an effective means of prioritizing actions in order to reduce and/or eliminate risks faced by your company, its employees, customers and others. [Risks include among other things, risks to occupational diseases, death, incidents, accidents and safety and health hazards] 24
Getting it right Basic checklist of recommended actions 2. Circulation of Manual The circulation and/or posting of a suitable Safety and Health Manual comprising various policies, to communicate standards and expectations, is of critical importance. 3. Implementation of Incident/ Accident Reporting Procedures and Workplace Investigations This generally fosters a good safety culture. 25
5 W S Of Incident investigations WHY QUIZ WHO WHEN WHERE WHAT Investigative teams should comprise first-line supervisor, employees(s) involved, safety team member, safety and health professionals. Others may include engineering, medical, legal, insurance etc. As soon as possible: Best practice specify timelines such as: Investigations must commence within 8 hours of occurrence. At site of incident; interviews may be conducted elsewhere if the site location is unsafe or does not allow confidentiality. Investigators should gather solid facts, identify and evaluate causal factors and select corrective actions. 26
Getting it right Basic checklist of recommended actions 4. Training for Management and Staff The training and general education about safety practices is mandated by legislation and it is recommended that such training be offered on a continuous basis to educate staff. 5. Constitution of OSH Committees The determination and establishment of the Safety and Health Committee ensures that everyone owns safety.
Getting it right 6. Implementation of Safety Management Systems- Safety performance in the workplace is measured by way of ensuring the review of the safety management system, in particular- The conduct of health surveillance in accordance with risk assessment reports; The operation and maintenance of certain registers, health and other records (for specific periods) - young persons, accidents, incidents, death, and medical; An examination of safety leadership; and generally The periodic review of job safety analyses and other safety programmes. 28
Getting it right Requirements for Safety Management System A working safety committee or safety representative capable of carrying out weekly or daily inspections A written safety policy clearly stating the safety policy of the company Documented hazard identification system Documented qualitative and quantitative hazard assessment and evaluation Adequate and suitable safety signs giving appropriate warning of hazards Proper documentation of all safety procedures Establish and maintain a safety training programme Proper accident reporting procedure Adequate first aid equipment and trained personnel to handle emergencies