Occupational Safety & health vs the public
So what happens when your workplace is unsafe and your employer is the Government (and salary negotiations are ongoing)?
The following chaos ensues:
Over the last five months, Trinidad & Tobago has seen unprecedented actions by personnel in public offices around the country where scores of workers have protested and ceased work citing poor health and safety conditions in the workplace. While a great deal of media focus has been on the closure and “slow-down” of immigration services; to date, the following public/government offices have been closed:
Following a large public outcry and legal proceedings taken by the Ministry of Labour – filing an injunction to cease industrial action and contempt charges against Head of the Public Services Association (PSA), Mr. Watson Duke- workers returned to offices but under changeable working conditions including half day schedules and varying degrees of offices (and services) being closed indefinitely. At the San Fernando Magistrate Court, workers have been protesting health and safety conditions at the courthouse since August 5th 2014, signing the attendance register and leaving for the day.
Even while this is ongoing, Mr. Duke has indicated that several other offices will also shut down soon – these include Trinidad House, St Vincent Street, Port-of-Spain, and Customs and Excise, Nicholas Plaza, Port-of-Spain.
HEALTH & SAFETY VIOLATIONS CLAIMS
The Public Services Association and public workers have relied on Section 15 of the Occupational Safety and Health Act (“the OSH Act”), Chapter 88:08 to justify their refusal of work.
This in turn necessitated inspection of the offices in question by Inspectors of the Occupational Safety and Health Agency (OSHA), in accordance with Section 17 of the OSH Act.
Findings of at least two (2) OSHA reports in July and August 2014 on the Immigration Office, Frederick Street, Port-of-Spain and San Fernando Magistrate Court respectively were released to the media by the PSA. These findings include:
|Immigration Office, Port-of-Spain-July 2014|
San Fernando Magistrate Court-August 2014
Faulty electrical wiring, mosquito infestations, fire safety risks and sick building syndrome were some of the other reasons cited for refusal to work at other government offices.
Yet according to media reports, in support of its application for contempt charges to be brought against Mr. Watson Duke for continued alleged “industrial action”, the Labour Minister filed an affidavit from Gaekwad Ramoutar, the Chief Inspector of the Occupational Safety and Health Agency (OSHA), stating there was no imminent threat to life, limb or health (at the Immigration office, Port-of-Spain):
“The actual safety and health workplace risk at the time of the inspection was not assessed to be unacceptable, based on the findings documented in the inspection record form completed by Dr. Holder and Mr. Gillette. I (Ramoutar) determined, together with the senior inspector, Mr. Colin Gaskin, that the issuing of a prohibition notice on the Immigration Division head officer at #67 Frederick Street was not warranted and no such notice has been issued.”
REQUIREMENTS of THE OSH ACT- Duties of the Employer
As stipulated by the OSH Act, Duties of the Employer include:
(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees.
(2) (e).so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
(f)the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards amenities and arrangements for their welfare at work; ….
Where, following the investigation or any steps taken to deal with the circumstances that caused the employee to refuse to work or do particular work it is, pursuant to section 16, found that the employee has reasonable grounds to believe anything mentioned in section 15, the employee may refuse to work or to do the particular work and the employer or the employee or a person on behalf of the employer or employee shall cause an inspector to be notified thereof.
(1) Pending the investigation and decision of the Chief Inspector, no employee shall be assigned to use or operate the equipment, machine, device or article or to work in the industrial establishment or in the part of the industrial establishment being investigated as long as there is continuing imminent and serious danger to the life or health of any employee or person and until after the employer or his representative has taken remedial action, if necessary, to deal with the circumstances that caused the employee to refuse to do particular work.
(2) The employee who refuses to work under section 15, shall be deemed to be at work and his employer shall pay him at the regular or premium rate, as may be proper for the time extending from the time when the worker started to refuse to work under section 15 to the time when the Inspector or the Chief Inspector has decided under section 18 that the equipment, machine, device, article or the industrial establishment or part thereof presents an imminent and serious danger to the life or health of the employee or any person.
|A 2012 policy set by the Government of the Republic of Trinidad and Tobago for the outfitting of government offices also stipulates that office layouts must meet legislative obligations and government policies for workplace health, safety and accessibility.|
GOVERNMENT/ EMPLOYER RESPONSE
The Government’s response (through the Minister of Labour) to these events included the following:
The Ministry of Communication also issued a release in July 2014 at the onset of these PSA-led protests that the charge of poor health and safety conditions was being used as a “red herring” to force the government’s hands on salary negotiations. The release further held while the Government was seeking an amicable resolution, protecting the public interest was also of prime importance and legal options would (at that point) be explored.
Analysing the issues
For HSE practitioners and future policy-makers, the ongoing situation between the public workers, PSA and the Government of Trinidad presents unique challenges that may shape future legislation and our perspective on workplace safety.
Do the needs of the many outweigh the few?
The government is in a precarious position in its bilateral role as an employer of labour as well as a provider and protector of public services and interest. The shutdown of the Immigration offices in both Port-of-Spain and San Fernando in early July 2014 raised a large public outcry with members of the public, politicians and even ministers accusing the PSA (Duke) of holding the country to ransom when these services are most urgently needed. The refusal to work by immigration personnel at the offices’ busiest periods definitely tipped the scales towards workers’ and garnered massive public attention to their issues.
The government, as a provider of essential public services, is forced to heed the public’s call and act swiftly to resolve the problem – solution – go to Industrial Court and impel the workers’ return to their duties.
Would the public’s reaction been more empathetic towards the workers had it been a different time of year, a different company –say private owned and not responsible for providing a public service? Should that make a difference?
Would there have been such a virulent reaction by the media and public, if a public service were not being compromised at a seemingly critical time?
As noted by the Minister of Labour in his response to the shutdown, these safety issues/hazards did not occur overnight- yet the blanket refusal of workers to accept these conditions (at an opportune time) is what drew public attention and inspired an OSH evaluation and response on a governmental level.
What choice do we leave workers to effect action and change when enforcement of the legislation is ineffective or rather when the legislator is guilty of breaching his own legislation?