The Safety and Health At Work Act, 2005 is expected to be proclaimed very soon, ushering in significant changes to law as it relates to health and safety at the workplace.
The long title to the act describes it as an act to make provision:
(a) for securing the health, safety and welfare of persons at work;
(b) for protecting other persons against risk to health and safety in connection with the activities of persons at work;
(c) for controlling the release of certain emissions into the environment;
(d) for consolidating the law relating to health, safety and welfare in the workplace; and
(e) for related matters. Workplace, as defined in the act, means “any place where persons work or are employed, including a factory, but does not include a private household where persons work or are employed only in domestic service”.
With very few exceptions, the act applies to all workplaces in Barbados.
At common law an employer has a duty to:
(a) employ competent staff;
(b) provide safe plant and equipment;
(c) provide a safe place of work;
(d) provide a safe system of work.
The above duties are captured in the language of the act, but the act goes further and adds to those duties.
For example, Section 66(c) requires the employer to provide “such information, instruction, training and supervision as is necessary to ensure, so far as practicable, the health and safety at work of employees”.
And Section 7(4) provides as follows:
“It shall be the duty of the every occupier to prepare and as often as may be appropriate, revise a statement of general policy with respect to the workplace, safety, health and welfare and the organisation and arrangements for the time being in force for carrying out the policy and to bring the policy and any revision of it to the notice of all employees.”
There are some new statutory duties such as the requirement that the “workplace, work spaces and procedures meet prescribed ergonomic standards”.
Special provision is also made for the protection of pregnant women in the workplace. Sections 6(7) to (10) of the act impose certain duties on the employer after he has been notified by a female employee that she is pregnant once she has provided the medical certificate.
These provisions require the employer to adapt the working conditions of the employee to minimize exposure to chemicals or working conditions which may be dangerous to the employee’s health or the health of the unborn child or nursing child. In the absence of this, the employee should be assigned alternative work without prejudice to her substantive job.
This section is especially appropriate having regard to the fact that women are increasingly entering the non-traditional workplace, e.g. tillers, painters and masons, and would therefore be more exposed to chemicals or working conditions which may be dangerous to the unborn child.
Section 6 (7) reads:
“An employer shall, after being notified by a female employee that she is pregnant and upon production of a medical certificate to that effect, adapt the working conditions of the female employee to ensure that she is not
(a) involved in the use of, or exposed to chemicals, substances or anything dangerous to the health of the unborn child; or
(b) subjected to working conditions dangerous to the health of the unborn child, and where appropriate, the employer may assign alternative work, where available to her without prejudice to her right to return to her previous job.”
Section 6 (10) reads:
“Notwithstanding any other law, during an employee’s pregnancy and for a period of six months after the birth of her child, the employer shall offer her suitable alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of work where the employee is required to perform work that poses a danger to her safety or health or that of her child, unless there is no alternative employment or that in doing so the employer will incur costs greater than ordinary administrative costs.”
This is an introductory article. Over the coming weeks I shall attempt to cover as much of the provisions of the act as possible.
The Safety and Health At Work Act is an ambitious piece of progressive legislation. It enjoins all employed and others at the workplace to be sensitive to the necessity for securing and protecting the safety and health of those at the workplace.
• Cecil McCarthy is a Queen’s Counsel.
