Laying down the law on workers’ right to refuse work

Discord reared its head at the National Health and Safety Conference held recently at the Centre of Excellence, Macoya, as employers and employees alike called for the formation of a united front to ensure that the new Health and Safety Act seeks the interests of all workers.

The conference, organised by Health and Environment Solutions, was titled “Exploring the Impact of Occupational Safety and Health Regulations for Business and Industry in TT.” Government recently announced its intention to enact Occupational Health and Safety Laws  (OSH Bill 2003), which will compel all private and state organisations and departments to establish and maintain safe working conditions for all workers. The proposed laws also seek to empower the worker with the right to refuse to work with pay and with protection from dismissal or reprisal. The Act is expected to go before Parliament in the near future.

Amidst much applause and desk-thumping, President General of the Oil field Workers Trade Union, Errol McLeod, announced his union’s plan to hold a similar conference within three weeks time, where all of the concerns of local workers will be addressed. One major aspect of controversy was Section 15 of the Act which entitles an employee to refuse to do work which is likely to endanger himself or another employee. There was much speculation that such a clause would allow workers a “get out of work free card.”

However, McLeod dismissed these concerns, noting that there was no evidence to show that workers had ever taken advantage of a provision, which is now in the law, by refusing to work in a situation they believed to be dangerous. “The employer is most likely to be the one to overlook threatening situations,” he said.  McLeod stressed that the establishment of guidelines and standards should not be solely left to the employers but should instead involve all stakeholders. “We should not leave it to the employer to determine whether the employer should approve or disapprove,” he asserted. McLeod’s point was backed by President-General of the Seamen and Waterfront Workers Trade Union (SWWTU), Michael Annisette, who stated in a telephone interview that, while his union fully supported the implementation of the Act, there was  “the need to keep up with the times.” As long as a specific function endangers a worker’s life, he has the right to refuse to work, he argued. “This is acceptable worldwide,” he said.

“For the employers who believe that the workers will take advantage of this, the Act provides numerous safeguards against this eventuality where the employer can go to the unions or even to court if this problem arises,” Annisette said. Furthermore, Chief Inspector for the Ministry of Labour and Small and Micro Enterprises Development, Devnath Roopnarine, said that the present Act which was merely a revised edition of the Act of 2002, required employers to undertake a risk assessment of their entire operation in order to avoid or prevent workers from taking that kind of action. Another problem pinpointed by McLeod and Annisette was lack of the proper manpower which would allow the Occupational Safety and Health Agency (OSHA) to effectively perform its functions of enforcement.

McLeod stressed there was a lack of resources devoted to factory inspectorates. “With a lack of resources there will be a lack of qualified manpower and the inability to carry out sufficient visits to workplaces in order to discover unsafe practices or violations of the standards established by the Act,” he said. McLeod expressed his belief that the obvious solution to this problem would be to involve the workers themselves in the process of enforcement. “It is the workers,” McLeod went on, “who are exposed to the health and safety hazards of work and who have the greatest interest in ensuring the enforcement of the standards established by the Act,” he said. “Therefore, it ought to be the policy of the legislation to include and encourage as much as possible participation of workers in the enforcement of health and safety standards.”

According to McLeod, the solution to this problem lies in the organised establishment of Health and Safety Committees at the workplace. However, McLeod lamented, the Bill’s major flaw was that it did not provide for the establishment of such committees. In addition, the relevant minister is empowered, not required, to make regulations providing for the setting-up of Joint Safety and Health Committees. “The difficulty with these bare-boned provisions is two-fold,” McLeod admitted. “Firstly, it leaves the establishment of Joint Health and Safety Committees to employers and it leaves unanswered questions such as who are to be the workers’ representatives.”

“Secondly,” he went on, “it does not state exactly what the functions and powers of the Joint Health and Safety Committees will be. In other words, the Bill fails to give Health and Safety Committees status.” McLeod commended Health and Environment Solutions for bringing together government, business, industry and labour to discuss the topic. Existing safety legislation, under the Factories Ordinance of 1948, applies only to persons employed in factories, stressing that the ordinance is wholly inadequate and outdated. “It must be the main, if not the only purpose of legislation such as the Occupational Safety and Health Act, to establish broad and detailed health and safety standards which employers are required to attain for the protection of the health and safety of their employees,” he said.