Evolution Of Health And Safety Law Employment Essay

Published Date: 02 Nov 2017

Contents

Evolution of Health and Safety

The origins of Occupational Health Services (OHS) lie in Europe, particularly in Italy, Germany and the U.K. About 160 years ago, during the Industrial Revolution, OHS were offered by enlighten physicians and industrialists at conventional general practitioner-level health services for heavily burdened, poor and socially disadvantaged working people. Workers had tough times during those days. They were subjected to long hours of work and exposed to hazardous working environment with the advent of machines. Accidents and injuries were commonplace and workers had to make their own effort to learn how to avoid them.

A new era in OHS was launched after the Second World War, when legislation on OHS was enacted in many countries, obligating employers to prevent and control work-related health hazards by means of risk-oriented preventive measures and, among others, through health examinations. Since that time, the need for health and safety control has increased by initially industrialization followed by the development of technology and globalisation more recently. Hence, the provision of safe working conditions is no longer optional or employer-dependent, but has become of an international concern which has even led to the development of laws and legislations at the national and international level making OHS the twin thread running through every business or enterprise.

Legislations

Occupational Safety and Health was governed by sparse pieces of legislation until 1988. In fact, it became inadequate with time, and was not in line with world’s evolution due to rapid globalisation process. Legislation relating to conditions of work dates as far back as 1878 when the "Labour Ordinance" was introduced. As time goes on, other legislations which followed were as listed below:

Aloe Fibre Factories Ordinance 1927;

Workmen’s Compensation Act 1931;

Boilers Act 1934;

Employment of women, young persons and children ordinance 1934;

Factories (Safety of Workers) Ordinance 1939;

Factories (General Health Provisions) Regulations 1946;

The labour (temporary housing and sanitary Arrangement) regulations 1948;

Pesticides Control Act 1972;

Labour Act 1975;

Labour Regulations 1976;

Health, Safety & Welfare Regulations 1980;

The Occupational Safety, Health & Welfare Act 1988 (repealed) [1] .

The Occupational Safety and Health Act 2005

Despite enormous advances in technology, preventive medicines and the means to prevent accidents, the International Labour Organisation (ILO) and the World Health Organisation (WHO) estimate that each year around 1.2 million work-related deaths, 250 million accidents and 160 million work-related diseases occur worldwide. Death, illness and injury on such a scale impoverish individuals and their families, and undermine attempts to improve working conditions. In addition to immeasurable human suffering, they cause major economic losses for enterprises and societies as a whole, such as lost productivity and reduced work capacity. The need to protect employees in the industry has led Mauritian labour law to evolve overtime.

Workmen’s Compensation Act (WCA) 1931

Under the WCA, all manual and non-manual workers whose annual earnings do not exceed Rs 72,000 are compensated for personal injuries and for fatal injuries or death by accidents arising out of and in the course of employment; compensation is paid to the dependants. Moreover, government officials participating in missions, seminars and training sessions are insured during their flights. Some types of employees are also entitled to a varied sum up to Rs 800 a month, being the payment for risk allowance.

This WCA outlines the liability of employers to workmen, whether or not holding a substantive appointment, for personal injuries or death by accidents and for occupational diseases arising out of and in the course of employment. However it should be noted that it does not take into consideration, among others, non-manual employees earning more than Rs 72,000 annually, members of the Mauritius Police Force and a member of the armed forces of the state. [2] So it can be said that this Act does consider a category of workman only.

Health, Safety & Welfare Regulations 1980 (OSHWR 1980)

At the beginning some laws were being enforced with difficulties and some of them contained doubtful provisions due to a lack of proper framework. In the late seventies, however, a decisive step was taken to increase the protection of worker’s health and safety.

With the arrival of a British factory Inspector and the employment of a Mauritian Engineer in 1977, the need for a new legislation was felt. The Occupational Safety, Health and Welfare Regulations were made in 1980 under section 57 of the Labour Act 1975.

It should however be noted that this Act was applicable only to workplaces in the private sector and only to workers earning monthly wages not exceeding Rs 2500 per month. Workers from the Public sector were not covered and the onus was on the employer alone. This showed that such a regulation had some limitations and inadequacies that led to the introduction of another law, the Occupational Safety, Health & Welfare Act (OSHWA) in 1988.

The Occupational Safety, Health & Welfare Act 1988 [3] (OSHWA 1988)

The OSHWA was enacted on 29th November 1988 and proclaimed on 1st May 1989 after some regulations were made under section 80 (1) of the Act on 26th April 1989. These regulations are as follows:

Fees and Registrations Regulations [4] ;

First Aid Regulations [5] ; and

Woodworking Machines Regulations [6] .

In order to provide for further protective measures regarding specific hazards, other regulations were to be made, namely the electricity at work [7] and noise at work [8] with no avail.

Main purpose and objects of OHSWA 1988

Its main purpose was to "consolidate, harmonize and update the law relating to safety, health and welfare". The restrictions uncounted by the previous laws were lifted and the fundamental shift in responsibility was brought about. The employer was no longer solely responsible for all the acts of the employee.

The employees had a duty for self and others who may be affected by their acts or omissions at work. The OSHWA brings about the view that Health and safety is of concern to both employers and employees at all levels in the hierarchy (including those at top management level).

Works being performed under a contract of employment was also covered by the Act. Those category of workers; both public and private sectors, outworkers, independent workers, contractors, designers, manufacturers, importers and self-employed which were not being covered under the OSHWR 1980, were now taken into consideration in order for appropriate measures were taken to prevent their activities to become a source of danger to others.

The OSHWA also established a more effective framework for safety and health, promotion and performance in organisations through provisions related to information, instructions, communications, training, supervision, monitoring and consultation.

It should be noted however that despite the fact that the OSHWA 1988 had a wider scope of action, there was still certain reservation as to its applicability to the public sector, namely in relation to Posting of Abstract or notices [9] , Keeping of Documents [10] , Employment of Safety & Health Officers [11] , Safety & Health Committees [12] , the Administration [13] section and the Registration of Factories [14] section; which were not binding on the state.

Notwithstanding such limitations, the Government took appropriate administrative measures in 1999 with the setting up an Occupational Safety and Health Unit within the Ministry of Civil Service Affairs & Administrative Reforms to cater for the safety and health needs of public sector employees.

Some of the provisions of the OSHWR 1980 are still applicable namely; Electricity [15] , Foundries [16] and Regulations for Building and Excavation work [17] have not been repealed as stated at section 82 (h) of OSHWA 1988.

The Occupational Safety and Health Act 2005 (OSHA 2005)

In October 2005 a new law was enacted, repealing the OSHWA 1988 and aims at "consolidating and widening the scope of legislation and safety, health and welfare of employees at work". As compared to the OSWHA 1988, the OSHA 2005 unreservedly binds the state, meaning it is applicable invariably in the public sector.

The OSHA 2005 is not much different from the OSHWA 1988 but it is more elaborated with regards to the duty holder’s responsibilities. The implicit provisions contained in the previous Act has been rendered more explicit, especially provisions relating to risk management [18] , safety and health policy [19] , vehicle lifts [20] , escalators [21] , manual handling operations [22] and health surveillance of employee [23] s. Enforcement has also been made in relation to the penalties. Since this act was in operation, there has been various regulations made in order to strengthen the protection of employees, this is going to be discussed in the second chapter.

The Jurisdiction of the Industrial Court in relation to Health and Safety

Jurisdiction under the Industrial Courts Act 1973

In Mauritian Law, the Industrial Court has jurisdiction to deal with Health and safety issues. It was first established under the Industrial Courts Ordinance Act 1944. Now it is established under section 3 [24] of the Industrial Court Act 1973. It has exclusive civil and criminal jurisdiction to try any matter or regulations relating to Labour laws [25] .

The Industrial Court is composed of two Magistrates [26] who are appointed by the Judicial and Legal Service Commission [27] . The powers [28] of the Magistrates are enacted under section 5 of the Industrial Court Act 1973. Any person against whom judgment has been given may appeal [29] subject to the same conditions as appeals from a decision of a District Magistrate or make a request for a ‘‘new trial [30] â€™â€™. A reviewing authority consisting of the Chief Justice or such other judges as he may depute exists as referred to in section 12 of the Industrial Court Act.

Jurisdiction under the Occupational Safety and Health Act 2005

The Industrial Court has the power to make orders [31] when it is satisfied on complaints made by the Permanent Secretary [32] or an officer delegated by him that any premises on which workers are actually working are not in good condition and that work cannot be carried due to safety, health and welfare issues. In such a case, the Industrial Court may make an order to prohibit (indefinitely or until steps have been taken to prevent such risks) the use of the premises or to prevent the work from being carried on in contravention of the OSHA 2005. Such an order may be revoked or varied on the application of the employer (owner) of the premises.

Moreover the industrial Court also has the power to impose a fine and sanctions on any person who committed an offence in contravention of the Act as per section 94 of the OSHA 2005 and it may also make such an order, directing the offender to comply with the Act or become liable to pay Rs100 per day for non-compliance. The court also has the power to modify agreements [33] so as to enable the owner or occupier of premises to make alterations to his premises to comply with the provisions of the Act or to conform to any standards imposed by the Act.

Health and safety inspectorate

The Occupational Safety and Health Inspectorate (OSHI) enforce the Occupational Safety, Health and Welfare Act 1988 and the Occupational Safety and Health Act 2005. It assists in the formulation of legislation on occupational safety and health and provides practical guidance, in respect of security, safety, health and welfare at the work place.

In order to perform the service delivery more efficiently and in a coordinated manner, the activities of the OSHI are divided into the Enforcement Unit; the Occupational Safety and Health Information and Training Centre; the Accident Investigation and Prosecution Unit and the Specialist Support Service Unit.

The Enforcement Unit is responsible to register all factories yearly and issue certificates of registration after payment of the prescribed fees; carry out inspection at places of work; enquire into complaints made by employees, employers, trade unions and the public; and make appropriate recommendations for remedial measures

The Occupational Safety and Health Information and Training Centre plans, organises and implements occupational safety and health training programmes to create awareness through sensitisation campaigns among the working community and the population

The Accident Investigation and Prosecution Unit enquires into all accidents and dangerous occurrences; and makes appropriate recommendations to prevent recurrence and prosecutes employers, whenever justified, for breach of the provisions of occupational safety and health legislations

The Specialist Support Services Unit carries out specialised inspections related to chemical, electrical, construction and machinery safety; conducts surveys; tenders remedial advice; and provides specialised training programmes

The OSHI also provides information on occupational safety and health issues and operates the "Centre d’information sur la santé et la sécurité au travail". The Director, of the Occupational Safety and Health is responsible for the overall administration of the Occupational Safety and Health Inspectorate and the Specialist Support Services.

To perform his duties, he is supported by officers of the OSHI cadre and those of the Specialist Support Services and the general supporting staff.