OSH LAWS OSH LAWS

and the and the

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OSH Laws OSH Laws OSH Laws OSH Laws

and the and the and the and the

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---- Staying out of Court and out of JailStaying out of Court and out of JailStaying out of Court and out of JailStaying 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 Ill health is an adverse physical or mental condition. To qualify as an occupational health and safety problem, an adverse 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

20042004

• The Occupational Safety and Health

(Amendment) Act 2006

Regional OSH Laws

Guyana

• The Occupational Safety and Health Act

19971997

• The Occupational Safety and Health

(Amendment) Act 2009

Regional OSH Laws

Barbados

• The Factories Act

• 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 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. 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 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 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 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 � 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;• 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:matters:

• Magistrates’ Court

• High Court

• Industrial Disputes Tribunal

• Industrial Court

Legal Action

At these various institutions, the range of avenues available include:

• Criminal prosecution• 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-

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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.

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 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 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 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) $10,000.00 + JAIL+$1,000.00 for every day it continues

�Medical Examination of employees in industrial establishment (s.37 (2))- note that new and current employees may be subjected to medical examinations

Cost to be borne by employer (after commencement of ACT)

be subjected to medical examinations

�Failure to give notice of death/ critical injury (s.46 (4))

$10,000.00 + JAIL

�s.(48 (6)) Where occupational disease notice not given

$5,000.00 + JAIL

�Failure to maintain young persons’ register (s.55(2))

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

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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]

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

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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.

WHY QUIZ

WHO 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.

5 W’S Of Incident investigations

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medical, legal, insurance etc.

WHEN As soon as possible: Best practice specify timelines such as: ‘Investigations must commence within 8 hours of occurrence.’

WHERE At site of incident; interviews may be conducted elsewhere if the site location is unsafe or does not allow confidentiality.

WHAT Investigators should gather solid facts, identify and evaluate causal factors and select corrective actions.

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 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;

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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.

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 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