That OSHA — getting it right

This was brought further to the fore in a recent circular issued by the Ministry of Education entitled Procedure for Refusal to Work. While the ministry purported to use the Occupational Safety and Health Act (OSHA) as the basis for the directives included in this circular, it chooses to omit significant portions of the Act that are critical in the decision- making process.

It is this propensity to bend reality that leads us to bring this cavalier treatment of the OSHA as it relates to workers’ well-being to the attention of the public and other workers whose rights may be infringed in the implementation of this law.

The circular specifically states, “Section 15 of the OSH Act is triggered if the employee has sufficient reasons to believe that there is serious and imminent danger to life or health.” However, it is important to note that this only part of the condition.

Indeed, this provision of the law also states, “An employee may refuse to work or do particular work where he has reason to believe that (a) there is serious and imminent danger to himself or others or unusual circumstances have arisen which are hazardous or injurious to health or life.” A comparison of what was contained in the circular in relation to the provisions of the Act leaves one to question the ministry’s intent. The procedure outlined in the circular, through the omission of the latter portion, reveals a lack of recognition that imminent danger is not the only condition arising out of unsafe working conditions; injury and long-term illnesses are other potential outcomes of continuing to work in unsafe or unhealthy conditions.

A quick search of such cases in Trinidad and Tobago and other jurisdictions will bear out the truth of this.

Moreover, there is a tendency to place the burden of proof on the shoulder of the employee. However, this is not the case. The employee simply has to “have reason to believe” that the workplace is unsafe. The issue of “sound reasons” does not arise. There is no requirement for the employee to provide evidence.

In fact the burden is on the employer to prove that the workplace is safe. This is borne out in that Act as stated in Section 6 (1) inter alia, “It shall be the duty of every employer to ensure, so far as reasonably practical, the safety, health and welfare at work of all his employees.” So, is it unreasonable or impractical to expect the employer to repair leaking sewerage plants, malfunctioning electrical systems and rotting floorboards and buildings? The ministry further ascribes to itself “powers it does not have” by seeking to define imminent danger, as well as position the principal as the one to be satisfied that these conditions exist.

It must be noted that the Act is silent on how imminent danger is to be defined and it is clear on the procedures to be followed by the employee. It is also very clear on the protections afforded the worker when he exercises his rights within the provisions of the Act.

Section 20 A states, inter alia, “No employer or person acting on behalf of an employer shall: (a) dismiss or threaten to dismiss a worker; (b) discipline or suspend or threaten to discipline or suspend a worker; or (c) impose any penalty upon a worker, or intimidate or coerce a worker.” While we recognise that the concept of employer responsibility may be relatively new to the TT context, we implore the ministry to tread with care when implementing regulations, mindful of taking all provisions into consideration in their rightful contexts.