Employers’ duties under SHaW 2005Sheena Mayers. (FP)
By Sheena Mayers | Fri, January 18, 2013 - 12:00 AM
This week we take a look at the pending Safety And Health At Work Act (SHaW) 2005 and, specifically, we will take a closer look at the responsibilities of employers under the act.
With that said, it is prudent to first highlight three definitions to which special attention should be paid: owner, occupier and employer. An employer is defined as a person who employs people for the purpose of carrying out a trade, business, profession, office, vocation or apprenticeship.
The occupier is defined as the person who has control over a workplace and the work that is done there, while the owner is the person receiving rent for the premises in connection with which the work is carried on.
It is possible for all three of these: owner, occupier and employer to be the same, however, this is not always the case. There are many situations where the employer and occupier are the same person while the owner is a separate entity, which is typical when a rental arrangement exists.
However, it is also possible for the employer and the occupier to be different entities. These distinctions can become important depending on the operations of the business and bears further relevance in the act as the duties of the different parties are explicitly stated.
It is the owner, for example, who is responsible for maintaining the safety of the workplace where civil works are being undertaken by subcontractors.
The duties of the occupier and employer as identified in the act are similar, however they are not completely new. In fact, many of these can be traced to the common law duty of care and are now explicitly and clearly stated under Section 6 of the legislation. The employer/occupier’s duties can be summarized as follows:
• To ensure so far as reasonably practicable the health, safety and welfare at work of all employees. What is the difference between safety, health and welfare? Safety is the prevention of damage or injury, while health is the absence of illness and welfare seeks to meet the basic physical needs of persons through the provision of adequate facilities.
• To provide a safe place of work to ensure the health and safety of the employees. In providing a safe and healthy place of work there are areas which will require attention, such as adequate ventilation, lighting, overcrowding, temperature, noise and cleanliness. These are addressed under Part IV of the act.
• To provide safe equipment and tools for doing the work. Part II of the act, Sections 11 to 48, look at safety provisions which include regulations on operating different types of machinery, provisions to warn of fire and means of escape. Additionally, the act specifically states that every thing in the workplace shall be constructed of sound material and properly maintained.
• To provide competent and safety-conscious fellow workers. It is a general duty of employees to take reasonable care for their health and safety as well as that of their co-workers. Therefore, they are required to comply with all safety instructions issued by the employer.
• To provide safe systems of work. More often people will establish procedures for activities such as the storage and removal of dangerous chemicals, however, ensuring that workspaces and procedures meet ergonomic standards is also vital.
• To provide the necessary information, instruction, training and supervision. This means that people should only utilize equipment which they are trained to operate and the training and certification should be documented. Additionally, the SHaW Act 2005 specifically states that persons with special needs are to be given instruction and training in a method that allows them to understand.
As highlighted, the SHaW Act 2005 speaks to the safety, health and welfare within all workplaces and each of these areas is addressed. Therefore, it is incumbent on employers to assess their methods of work to ensure they eliminate or minimize risks to employees.
Additionally, besides having responsibilities to the employees, occupiers are to ensure that others visiting their premises are not exposed to risks.
It is often easy for employers to focus on the cost of compliance when reviewing health and safety needs; there are risk assessments to be done, training for committee members to be coordinated and signage to be erected.
However, the Barbados Employers’ Confederation (BEC) always encourages companies to look at occupational health and safety from both sides of the coin.
Yes, there will be upfront costs but these should be balanced against the costs of not being proactive in health and safety which include higher employers’ liability claims, increased lost days due to sickness and a loss of reputation.
As businesses prepare for the expected proclamation of this piece of legislation, the BEC stands ready to assist in whatever way possible.
• Sheena Mayers is an industrial relations officer at the Barbados Employers' Confederation.
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