Safety on the job
Recently, following pronouncements by Government that they would finally be promulgating the Safety and Health at Work Act seven year after it was passed in Parliament; companies and some ministries stated that they would be developing or amending existing policies to support the act. However, anyone reviewing many of the existing safety and health policies would see that there is an alarming disparity in content; suggesting that in some cases, the majority of these policies will require a complete rewrite of the existing policy.
In other cases, many companies will need to introduce a written policy because the policy is either verbal or conceptual and therefore, in extreme cases, incapable of being enforced. The reason for the introduction of a written policy is that both employer and employee never mutually agreed on a safety and health programme that included training and administrative procedures that would guide, and where appropriate, implement penalties for any infraction of the safety and health policies of the company.
According to the act, penalties can be invoked where infractions of the act are evident. However, these are all avoidable situations. The Factories Act and the Public Health Act have long been the tools by which many companies used a guide for establishing safety and health policies and procedures for their employees.
The use of these two acts has required legal interpretation resulting in some cases the introduction of convoluted procedures, which according to some managers, created cumbersome administrative procedures for employees to follow and managers to enforce.
Case in point: Company “A” requires all employees to wear safety shoes while on the job. Employees of Company A have filed complaints to management that the wearing of the shoes results in injuries to the feet of the employees, resulting in employees refusing to wear the shoes. Company “A” then consults their attorneys who advises them of their rights as employers as well as the rights of the employees under public liability.
The issue here is that the employer does not want any of its employees to be injured on the job and the employees are indicating that the shoes are also causing injury. The entire process is further complicated by a safety and health policy that is yet to be introduced in written form and agreed on by management, unions, and the individual employees.
Additionally, this lack of a written policy limits the employer in demanding compliance with the policy, and strengthens the employees claim that management never presented the policy at the time of their employment; and therefore cannot now demand that they follow the unwritten policy.
To resolve this issue, three things need to occur. The first is that the company must introduce a comprehensive safety and health policy that outlines all of the guidelines and administrative procedures to protect the employees from injury while on the job.
Second is that the employee, after consultation with management must also mutually agree to the guidelines and administrative procedures in the policy as part of their agreement for employment.
Third is that both the employer and the employee must provide and receive appropriate training that supports the implementation of the policy. Failure to resolve any of these three issues results in an exacerbation of implementation of OSH policy and procedures.
Within Government, the scenario of Company “A” is even more complicated than within the private sector. This is due to the fact that Government, as the single largest employer in a country, lacks the political expediency to implement a comprehensive safety and health policy for its employees.
Does this make a difference? Is this lack of a written OSH law a problem? Do government agencies avoid creating a policy because there has yet to be a problem with employees? Do government agencies avoid implementing a policy because there are no consequences or fines associated with the lack of apolicy? Do agencies avoid creating and/or implementing a policy because Barbados is not an aggressively litigious society as in the US, and companies can provide a severance package to a disgruntled employee, send them on their way, and just hire a new person? Why is it that companies, including Government agencies, just do not seem to care about having an OSH policy in place and enforced?
There are laws in place. It is quite possible that one of the reasons why both Government and the private sector have a lacklustre approach to developing comprehensive OSH policies is the lack of enforcement of the existing regulations of the Factories Act and the Public Health Act including the subsequent consequences on the effects of penalties on production.
It is quite possible that the seven-year hiatus of the promulgation of the 2005 Safety and Health at Work Act has contributed to the creation of a false-sense of security from the legal consequences of a class action suit by employees who have been injured on the job.
It is also quite possible that the nonexistence of this act further supports the claim that an employer may be “above the law”. Therefore, it would appear that under these circumstances that it would be in the best interest of all employees to become personal advocates of safety and health in the workplace.
Against this background, it is incumbent that all employees establish a forum of advocacy that promotes safety and health at work regardless of political rhetoric that may be present in the society. There is statistical evidence to support employees who have been severely injured or even killed while on duty, that due to the nebulous contents of some policies currently in place, successful litigation is difficult to achieve.
Insurance companies have long been advocating that this lack of enforceable safety and health procedures and training by employers in the use of dangerous equipment; or carrying out functions that may be interpreted in law as “hazardous” needs to be urgently corrected. Insurance companies have been pressing their clients for the development and introduction of such policies. However, some companies have countered this request by claiming budgetary constraints are affecting their ability to implement such a process.
Is it safe to say, therefore, that there is a dollar-value on human life, which is actually lower than the product produced by private sector or service provided by public sector? This view of placing a dollar value on human life has long been the political catalyst that has forced both government and the private sector in Europe and the United States to introduce and enforce legislation that protects the worker and places the dollar value of human life above the profit margins of the employer.
Historically, it has taken Europe and the United States almost five-decades of employee agitation to complete the introduction of comprehensive safety and health policies. Within the Caribbean, many countries are still at an embryonic stage of development of safety and health policies, procedures, and implementation in both the private and public sector.
With national elections constitutionally due within the next year, will this issue of promoting the safety and health rights of the employee become another topic on the platforms of competing political parties? Will the upcoming elections be the catalyst through which the introduction and enforcement finally becomes a reality, or will it become just another part of the manifesto of the competing parties and suffer the fate of low prioritisation on the agenda? Only time and the contents of political platforms will tell the true story of this ongoing saga.
Next week I am going back to church…