The Safety & Health at Work Act 2005 replaces the existing Factories Act Cap 347 but has not been promulgated into law as yet. This Act seeks to cover all workplaces, including factories. It, however, does not include a private household where persons work or are employed only in domestic service.
Another piece of legislation which speaks to safety and health at work is the Accident and Occupational Diseases (Notification) Act (Cap. 338). The purpose of this Act is to provide for the notification of accidents and occupational diseases. It stipulates that a book be kept by the employer for recording accidents. Furthermore a written notice of an accident at work should be sent to the Chief Labour Officer if it causes lost of life, or causes worker to be away from work for more than 3 days.
Responsibilities of the Employer
Ensuring employees’ safety and health are of the utmost importance for any company. Without adherence to the Act the employer may face serious consequences as the law specifies penalties-fines and prison sentences-for any failures to comply with its provisions.
a fine of $500 and if the offence continues after such conviction the person convicted is liable to a further fine of $100 for each day in respect of which the offence continues. And causes death or injury that results in permanent injury such owner or occupier is liable on summary conviction to a fine of $5000 or to imprisonment for a term of 12 months or to both. (Source: Safety and Health At Work Act, 2005-12, Section 110 Sub-section 1 and 2)
Employers have a duty of care to provide:
- Competent fellow employees;
- Safe plant and equipment;
- A safe system of work with effective supervision; and
- A safe place of work.
Competent Fellow Employees
- An employer would be in breach of his duty of care if he knowingly employs workers whose actions could bring harm to fellow employees, namely those with insufficient training and/or experience to operate machinery; and who play practical jokes on the job. The Act provides for adequate training and supervision of employees to use machinery in the workplace.
It is understood that employees must be competent, trained and be able/willing to follow the rules and regulations set out by the employer, non-compliance is grounds for disciplinary action and/or dismissal. However, employees should not be discriminated against if they come forth with comments, suggestions, requests for inspection or refuse to work because of perceived hazardous conditions.
Safe Plant and Appliances
- The employer has two main duties under this heading which are to provide his employees with the adequate plant and equipment to perform the job safely; and to ensure that the equipment used is safe and properly maintained. This duty extends to third parties who install or put into use any equipment or substance at the workplace. The Act gives details on the information that is required on the equipment and/or substance and the persons to whom it must be communicated, namely all workers who will come into contact with the equipment, the trade union and workers’ representatives’ at the workplace and the members of the Health and Safety Committee.
A Safe System of Work with Effective Supervision
- This duty demonstrates the breadth of responsibility of the employer with regards to the physical layout of the job and refers to the plethora of safety issues which must be addressed to ensure safe working environments. Many of the safety precautions are explicitly stated in the Act and range from protective clothing, instruction and the supervision of the employee. For example, the Act extensively covers the requirements for employees working with dangerous fumes, and in confined spaces. It also states the types of conditions that should exist in the workplace specifically related to temperature, ventilation and the provision of special clothing to ensure reasonable protection and comfort. Additionally, it includes provisions relating to noise and vibration and requires the employer to take adequate steps to prevent hearing impairment; ensure compliance by the wearing of protective equipment and arrange periodic medical examinations to assess employees who are exposed to conditions of noise and vibration.
It should be noted that the employer cannot absolve himself from liability if an employee is injured on the job by stating that the employee was aware of the safety procedures. It is incumbent on the employer to provide the training and supervision; the employer will be in breach if he is aware that an employee is non-compliant with the safety procedures and does nothing to correct the employee.
A Safe Place of Work
- This duty requires that employers take all necessary actions to ensure that employees are not exposed to any dangers arising out of the place where the employee is expected to work. The Act explicitly states that it is the duty of the employer to ensure so far as is reasonably practicable that the place of work be maintained in a condition that is safe and without risks to health. Furthermore, employers must ensure that there is provision and maintenance of means of access to egress from the place of work that are safe and without risks to health.
The duty to provide a safe place of work extends to the right of an employee to refuse to work should there be sufficient evidence to indicate that the employee’s health and safety are in imminent danger. The employee may refuse to carry out the tasks assigned to him pending consultation with his safety committee, trade union, staff association or the Chief Labour Office.
There is, additionally, a duty of care to ensure that the premises of a third party, where an employee is expected to work, are reasonably safe – the extent of which is dependent on the nature of the work to be performed and the degree of control that the employer can reasonably exercise.
The legislation makes special provision for the safety of female employees who are pregnant or nursing. It dictates that the employer adapt the working conditions of the employee to minimize exposure to chemicals or working conditions which may be dangerous to the employee’s health or the health of the unborn child or nursing child. In the absence of this, the employee should be assigned alternative work without prejudice to her substantive job. This section is new and progressive as more and more women are entering the non-traditional workplace, e.g. tilers and masons, and would therefore be more exposed to chemicals or working conditions which may be dangerous to the unborn child.
The Act stipulates that employers consult with employees on the development of measures to promote safety and health in the workplace. It also mandates the creation of a health and safety committee for businesses with 25 or more employees or the appointment of safety delegates where the workforce is less than 25.
Responsibilities of the Employee
With respect to safety and health issues, employees have a duty of care to their employer to use reasonable skill and care in the execution of their job. The Act implores the employee to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work. Additionally he is required to correctly use the personal protective clothing or devices provided for his use. An employee who does not comply with the general duties of an employee at work as outlined in the Act can be fined BB$500.00 and/or be imprisoned for one month.