LAST week this column examined the existing duties owed by an employer to his employees. Based on the overwhelming response received, I thought that I should look at ways in which the law should be improved in keeping with reforms which are shortly to be carried out in Barbados. The Barbadian Safety and Health at Work Act 2005 has been passed by both houses of Parliament and will enter into force when it is proclaimed by the Governor General.

The Parliament of Jamaica has for some time now declared an intention to effect similar changes in our laws relating to workers’ safety. The intended changes are to be contained in new legislation to be entitled the Occupational Safety and Health Act. I endeavoured to obtain a copy of the Bill but a draft is not yet available.

The biggest shortcoming of the existing law is its piecemeal approach wherein only a few workplaces are regulated. The workplaces currently regulated include factories, mines and quarries, and each is regulated by separate Acts of Parliament. This means that most workplaces are unregulated. The most far-reaching reform of the Barbadian Act, for example, is that it applies to all workplaces (except private households) and brings them under one regulatory framework established under that Act. If implemented in Jamaica, this will be a considerable departure from the prevailing multi-agency system and will in its stead establish one national authority for occupational health and safety.

Another major change in the Barbadian legislation is that it affirms the four (4) duties owed by the employer at common law; that is, the provision of:

i. a competent staff of employees;

ii. an adequate plant and equipment;

iii. a safe place of work; and

iv. a safe system of work with effective supervision.

However, these duties are expanded and in some cases novel duties imposed. For instance, together with effective supervision, the employer must provide information, instruction and training as is necessary to ensure health and safety. An instance of a novel right is that workplaces and workspaces must meet prescribed ergonomic standards.

Another novel duty for employers under the Barbadian legislation is that where a female employee becomes pregnant, she should not be subjected to working conditions which endanger either her health or that of her unborn child. Furthermore, where appropriate, she should be assigned alternative work (without prejudicing her right to return to her previous job).

Employees are also prescribed rights and duties under the Act. These include duties to take reasonable care for their own health and safety and to correctly use personal protective clothing and devices provided to them. By far, the most substantial and novel right conferred on employees is a right to refuse to work where he believes that his health and safety are in imminent danger. Having so determined, he must thereafter consult his trade union, staff association or Chief Labour Officer for further action to be taken.

Another substantial change is the requirement for a Health and Safety Committee in workplaces having more than 25 employees. This committee is charged with developing measures to promote safety and health in such workplaces. This allows for self-regulation and participation by both management and employees in safety management.

Where contraventions of the Act occur, there is a single central authority empowered to issue prohibition and improvement notices as are deemed appropriate to remedy the contraventions. Breaches of the Act will constitute criminal offences which upon conviction can result in the imposition of a fine and/or imprisonment. Worthy of note, as well, is that an employee who fails to correctly use protective gear provided by his employer may also be found to be guilty of a criminal offence.

The Barbadian Act does not remove the existing claim of breach of employer’s duties which are set out above. The new statutory rights will be supplemental to the former claim and provide further heads of claim for injured employees, or for the estate of employees who die during the course of employment.

The comprehensive approach of the new legislation in Barbados is far-reaching and more meaningfully enforces health and safety standards than the legal framework currently existing in Jamaica. We hope that similar far-reaching changes will be a feature in our own new laws.

Christopher Kelman is a Partner at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Christopher may be contacted at christopher.kelman@mfg.com.jm or via www.myersfletcher.com.