Joint select committee agrees incident reporting time frame be excluded from draft OSH bill

Senior staff reporter

Tuesday, July 02, 2019

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THE labour ministry is to examine whether time-specific clauses in the draft Occupational Safety and Health (OSH) Bill for the reporting of an accident or near accident in the workplace, and the definition of serious injury in relation to those time frames, should be amended.

It took the decision yesterday after Members of Parliament and Senators on the Joint Select Committee which is now reviewing the bill raised numerous concerns about the provisions for a time frame in which an incident must be reported; the definition of “immediate”; and the factors determining whether an injury is considered “serious”.

The debate surrounded clauses 35-37 of the Bill, which defines a notification period for an occurrence of occupational accident, the outbreak of an occupational disease which results in death, serious injury or illness, or a dangerous incident.

As outlined in clause 36, “serious injury or illness” means an illness or injury requiring the person to have “immediate treatment as an inpatient in a hospital; immediate treatment for, among other things, amputation; a serious head injury; serious eye injury; serious burn; a spinal injury; or loss of bodily function”.

The Bill also says medical treatment should be sought within 48 hours of exposure to a substance or any other injury or illness prescribed by the regulations.

Senators and MPs argued that “immediate” treatment could be affected by the time which may have elapsed before an injury is recognised as serious.

Opposition senators Lambert Brown and Wentworth Skeffrey argued that the provisions need to suit the Jamaican culture and context.

Skeffrey insisted that there should be no time frame for seeking medical attention for what are considered serious injuries, as these often do not manifest immediately following an accident.

“You have to make these laws within our own culture and experiences… Let's understand that [for] citizens, generally, medical care is something that sometimes they don't rush to. What might appear to be a simple incident, you take it for granted, and you don't go to the doctor, but as time elapses you get the recognition that it's getting worse, so you go there three or four days after,” Senator Skeffrey said.

In response, senior director for the Occupational Safety and Health Department in the Ministry of Labour and Social Security Marlon Mahon explained that incident notification is important in order to have the ministry intervene as soon as an incident, a near-miss incident, or accident occurs. He stressed that the clause in question is not intended to absolve the employer or others in the workplace of responsibility, or imply that an injury is not serious outside of that 48-hour period.

“The definition of “serious injury and illness” is really to trigger the notification so that the ministry is notified of the incident and accident so that it can trigger a compliance mechanism from our part to preserve the incident site pending any further direction that we may need to get,” he explained, pointing to the 48-hour notification clause.

“What this is really stating is that once we get this notification, this gives us the authority to issue a prohibition or non-disturbance notice so that we can do our investigation. We have to ensure that it is not indefinite because, for investigative purposes, preserving the incident scene is very important,” he added.

He said that “immediately” for serious injuries, should be interpreted as “immediately practicable”.

Another Opposition senator, Angela Brown Burke, noted that there appears to be an anomaly between obtaining the notification in order to protect the scene, and the protection of the worker.

“I'm not sure if in your explanation I am convinced that the workers' protection is given the same level of concern as your need to get that notification [and] because of what the entire Bill is supposed to do, the absence of that is a little concerning to say the least,” she stated.

Petrona Sealey-Browne of the Office of the Parliamentary Counsel, and Solicitor General Marlene Lynch-Aldred also agreed that the time definition be removed as it could muddy the application of the provisions.

“The timing doesn't need to be in the definition of “injury” or “illness”. When we are talking about notification, that is where you would build-in your timed responses…the reporting and timing of the report doesn't have to be linked to whether or not you may think the person has had an injury…I think we are going down a bad path, I think we are then going to have issues with responsibilities and duties, and even the offences,” Lynch-Aldred argued.

The OSH Bill is intended to protect the basic rights of employees and prescribes penalties for employers, including the state for breaches.

Prime Minister Andrew Holness said earlier this year that the Bill is expected to be passed by December.

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