The Long Awaited OSHA

IT is well established in the gamut of case law that employers owe a common law duty of care to ensure for the safety of their employees by providing them with a safe place and system of work.[1] However to date, there is the absence of adequate statutory framework in place to hold work places accountable for creating unsafe environs that cause such injuries.

As a result, employees during the execution of their duties oftentimes suffer injuries which can range from minor to horrific with life debilitating consequences. Such employees are forced to pursue legal action either via the standard negotiation of settlements or the litigious route of filing suit in either the Supreme Court or Resident Magistrate’s Court which can be seen as counterproductive given that the accident has already happened with the only consolation being compensation.

Indeed, this is alarming given the lengthy delays in the court system in this jurisdiction and sometimes settlement negotiations although arguably the aim of Occupational Health and Safety Act (OSHA) legislation is preventative with less emphasis on compensatory redress in holding work places accountable given that same would provide stringent guidelines for workplace safety. The recent dismal statistics show that less than a fifth of Jamaican workplaces are covered by existing laws that touch on workplace safety, however the passage of OSHA law would have a significant effect as it would bring an additional 22,000 workplaces under scrutiny.[2]

Presently, the Occupational Safety Health Hazard (OSH) Division for the Ministry of Labour conducts investigations into work place safety. However, said division is experiencing a shortage given that their recent statistics show that in 2013-2014 383 reports were made with only 204 qualified for investigation. Even more alarming is the fact that only 1906 inspections were carried out by said division which represented a 10% decrease in the number of reported cases. In 2013-2014 there were seven on the job deaths reported to the ministry and a 74% increase in the workplace when compared to 2012-2013[3]

 The importance of the relevant legislation such as the Factories Act  and its accompanying regulations  which would be The Factories Regulations 1961, The Building  Operations and Works of Engineering Construction (Safety Health and Welfare )Regulations 1968, the Docks (Safety, Health and Welfare Regulations) must not be trivialized given that same emphasizes  the need for employers to provide a safe place and system of work for their employees particularly but not limited to in workplaces which are factories  and use machinery to give examples.

Additionally, "The Building Operations and Works of Engineering Construction (BOWEC), Part V111, Sections 74-79,” concerns the safety and precautions at excavation sites. There are guidelines with respect to shoring up the sides of trenches, type of material to be used, storing or placing of materials near the side of the trench - all this to be inspected and a written report made by "the competent person", i.e. the trained safety professional.

Section 21 of the Factories Act mandates that workplaces report to the Ministry of Labour fatal accidents or those accidents that cause their employees to be absent for more than two days.

Further, Regulation 3 (1) of the Factories Regulations 1961 stipulates that – ‘Every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every worker as it would be if securely fenced.’

In the recent decision of Omar Wilson v VGC Holdings Limited Claim No. 2011 HCV 04996 heard March 29, June 3&9, October 19 & November, 2011, the claimant had an impressive tenure of 12 years as a machine operator with the Defendant company and suffered a devastating and life debilitating injury of a severed right hand below the elbow. The Claimant stated that he was instructed by his supervisor to remove a piece of metal from under the cylinder machine when the machine broke down. The cause of action was brought against the Defendant successfully in negligence and breach of statutory duty under the Factories Regulations.  The claimant was awarded general damages – $7,500,000.00 with interest at 3% from October 14, 2010 to October 19, 2011; Loss of Future Earnings – $2,496,000.00 (no interest); Handicap on the Labour Market – $400,000.00 (no interest). Special Damages d. Medical Expenses – $57,000.00 with interest at 3% from August 13, 2010 to October 19, 2011; Loss of Earnings – $258,000.00 with interest at 3% from August 13, 2010 to October 19, 2011; Household Helper (Pre-hearing cost) – $169,250.00 with interest at 3% from August 13, 2010 to October 19, 2011Household Helper (Future cost) – $2,340,000.00 (no interest) h. Cost of Prosthesis (including initial cost, socket change, one and two year follow-up and replacements) – $11, 769,950.

 More recently, in the Patrick Morton v OJ Koolers Claim No. 2011 HCV 06092 decision Heard 22^nd July 22,and 23^rd,           2014 and March 3, 2015 . The claimant was a production assistant operating the bag juice machine when his hand was crushed by said machine. It was held that there was a duty to keep the machines in such a manner that does not cause injuries to persons and that the evidence in that case meant that there was nothing to restrict the Claimant from placing his hand in the machine and that the dangerous part of the machine was not fenced. Additionally, that in leaving the Claimant to take precautions against obvious risks of danger and in not implementing a safe system, the Defendant has failed to discharge its common law duty of providing a safe system of work and has breached its statutory duty under the Factories Act.  The claimant was awarded Special damages - $17,000.00 with interest at 3% from May 26, 2010 March 3, 2015 Loss of earnings - $240,000.00 with interest at 3% from May 26, 2010 to March 3, 2015 General damages Pain and Suffering and Loss of amenities - $6,000,000.00 with interest at 3% from the date of service of the claim form to March 3, 2015 Handicap on the Labour market - $800,000.00 Loss of future earnings - $2,874,300.00 (no interest) Future medical expenses - JA$420,000.00 and US$6,000.00.

The Patrick Morton and Omar Wilson cases are example of personal injury claims which garner sizeable compensation awards for devastating injuries sustained by the Claimants. As the adage goes, there some things money cannot buy and that is the quality of life.

Undoubtedly, the OSHA legislation will be effective  given the stringent guidelines and recommendations for the handling of chemicals at work, ventilation,  emergency exits, fire escapes to name a few. There is also provision in the regulations for the operation of equipment such as drill presses, lathes, forklifts and welding equipment.

Prior to the impending OSHA Act, there had been little or minimum requirements  safety and health standards and was limited in its scope given that sectors such as schools, universities, hospitals, hotels, agri-business and other forms of economic activity were excluded. Understandably, in all the aforementioned injuries can occur with dire consequences and unfortunately the embattled beleaguered employee is left with inadequate protection in relation to same.

There was also no provision as it relates to noise control and hazardous chemicals two elements that are common place in the Jamaican landscape and can be seen in the commonest of examples such as having workers remain in the building whilst it is being painted and having the workers being exposed to dangerous fumes. Such conditions can only be ripe for other health issues such as “sick building” syndrome[4] which must be considered given that for many workers in this jurisdiction many hours are spent in office, when in reality, the office is the workplace making them ill.

Further, said proposed legislation can hardly be described as legislation without teeth given the penalties such as fines in the amount of $100,000 for failing to advise annually the Ministry of Labour of the number of their employees employed and a $500,000 fine is proposed against any individual who prevents inspectors from entering the work place. The maximum fine is $1 million for breaches by employers and a maximum prison term of one year.[5]

The Agriculture, Labour and Social Security Minister Derrick Kellier  has recently announced  that the OSHA Bill is expected to be approved by  Parliament by the end of the 2015/2016 fiscal year.[6] Indeed, this has been much awaited in light of criticisms by government officials that the lack of OSHA legislation has caused the country to miss out on business deals with Europeans and other foreign investors because the workplaces were not OSHA 18001 compliant. To date the OSHA Bill is still being worked on with the debate been put towards the 2018/2019 legislative year

CONCLUSION

The proposed OSHA legislation would improve the quality of the workplace environment by ensuring the safety and protection of the workers thereby reducing the risks of personal injury claims and would as a result improve optimal performance and quality productivity in the workplace. Given the backlog in the Jamaican court system such a change is needed for this anticipated legislation which has been in the pipeline for over a decade. After all, a happy workplace is a productive work one.

[1] Davie v New Merton London Borough Council [1959] 1 All ER 344, Walter Dunn v Glencore Alumina Company (Windalco) 2005  HCV 1810 and Schaasa Grant v Dalwood Jamaica Urban Transit Company Claim No. 2005 HCV 0302

[2] “Workers Compensation Fund Proposed as Companion to OSHA” by Ava Collinder published in the Jamaica Gleaner May 9, 2014

[3] “Injured and ignored- Labour ministry short of investigators to probe workplace accidents” The Jamaica Gleaner published February 9, 2015.

[4] Sick building syndrome (SBS) is used to describe situations in which building occupants experience acute health and comfort effects that appear to be linked to time spent in a building, but no specific illness or cause can be identified. A 1984 World Health Organization (WHO) report suggested up to 30% of new and remodeled buildings worldwide may be subject of complaints related to poor indoor air quality.^[1]Sick building causes are frequently pinned down to flaws in the heating, ventilation, and air conditioning (HVAC) systems. Other causes have been attributed to contaminants produced by outgassing of some types of building materials, volatile organic compounds (VOC), molds (see mold health issues), improper exhaust ventilation of ozone (byproduct of some office machinery), light industrial chemicals used within, or lack of adequate fresh-air intake/air filtration –Wikipedia.

[5] [5] “Workers Compensation Fund Proposed as Companion to OSHA” by Ava Collinder published in the Jamaica Gleaner May 9, 2014

[6] “OSHA expected to be approved by Parliament this fiscal year” The Jamaica Observer published April 29, 2015.