Legal Insights

The Occupational Safety and Health Act Chap. 88:08 (“OSHA”) applies to all “industrial establishments” including such industrial establishments owned by or occupied by the State. Under OSHA an “industrial establishment” means a factory, shop, office, place of work or other premises but not premises occupied for residential use only or other categories of establishment which may have been exempted by the Minister under the Act. “Premises” include any place, and, in particular any vehicle, vessel, aircraft, any offshore installation and any tent or moveable structure.

OSHA revised and extended the law regarding the safety, health and welfare of persons at work and in so doing it imposes duties and obligations on certain persons in a wide variety of workplaces. When OSHA came into force on February 17, 2006 it repealed various outdated legislation including the Employment of Women (Night Work) Act, Chap. 88:12 and more particularly the Factories Ordinance, Ch. 13 No. 2 (“the Ordinance”) (though notably under Sections 99 and 100 OSHA preserves all regulations and orders made pursuant to the Ordinance). Although an unofficial transition period for adjustment by industries was given after its proclamation this has long since passed and the Occupational Safety and Health Agency (“the Agency”) established under OSHA actively performs its statutory functions.

Apart from the Agency, OSHA also provides for the establishment of the Occupational Safety and Health Authority (“the Authority”). The Authority has the primary function of policy formulation and is responsible to the Government (the line Minister with primary responsibility for oversight of OSHA matters is the Minister of Labour and Small Enterprise Development) for the implementation of OSHA and among other things acts as an advisory body on policy, standards and matters related to Occupational Safety and Health and makes recommendations on regulations and the establishment of codes of practice.

The Agency functions as the enforcing body with legal powers of access to industrial establishments and to this end OSHA provides for the appointment of a supervisory body of inspectors, medical inspectors and a Chief Inspector. These inspectors are vested with a variety of powers including powers of access, power to issue compliance directives and/or notices and also to initiate proceedings for non-compliance in the Industrial Court. In short, the Agency enforces compliance with OSHA and any policies, standards or codes developed by the Authority.

OSHA addresses a variety of workplace issues including workplace health, safety, welfare, occupational diseases and employment of young persons. To this end OSHA imposes duties on employers, occupiers, employees and manufacturers and suppliers of goods. Some of these duties are not only owed to persons working at the industrial establishment but also to visitors and persons in the environs who might be affected by the activities carried out at the industrial establishment.

Under OSHA an “employer” is defined as a person who employs persons for the purpose of carrying out any trade, business, profession, office, vocation or apprenticeship. There are certain general duties owed by employers to, among other things, ensure the safety, health and welfare at work of all employees, so far as is “reasonably practicable”. Although not mentioned in OSHA, employers should establish “due diligence procedures”, that is, a system that provides for the taking of reasonable steps to ensure that the duties imposed by OSHA are performed. Other specific duties pertain in relation to the health and safety of employees, the employment of young persons (16 years or less in age), where hazardous chemicals or substances are present and in relation to the action to be taken in the event of accidents and occupational diseases.

In addition to employers, occupiers are also specifically identified under OSHA. An “occupier” is defined for the purposes of OSHA as the person who has the ultimate control over the affairs of an industrial establishment. Many of the duties of an occupier are owed directly to employees. An occupier owes certain general duties in terms of formulating general policy on health and safety of employees and the preparation of various emergency plans, the appointment of a safety practitioner and also to ensure that no unsafe structures exist at the industrial establishment. In addition, an occupier is responsible for managing the environment and protecting the public from dangers created by the operations of the industrial establishment. An occupier also owes other duties to the safety (including fire safety), health and welfare of employees, and in relation to the action to be taken in the event of accidents and occupational diseases.

Employees are also subject to certain duties under OSHA. An “employee” is defined as any person who has entered into a contract with an employer to do work for hire or reward. This definition includes public officers, the protective services and teachers. OSHA also specifically provides that a person who works in an industrial establishment of any kind whatsoever, incidental to or connected with the process or article made, is deemed to be employed therein. The duties owed by an employee include the duty to: take reasonable care for the safety of himself and others; to report contraventions of OSHA to his employer; to use personal protection and clothing devices correctly; to ensure that he is not intoxicated at work so as to be a danger to himself and others and to act reasonably in exercising his discretion (where applicable) to refuse to work.

There are also duties on designers, manufacturers, importers and suppliers of any technology, machinery, plant, equipment or material for use in any industrial establishment to ensure that these items are safe and without risks to health when properly used. However, financiers under hire-purchase agreements, conditional sale agreements and credit sale agreements are specifically excluded from these duties and provisions.

OSHA provides for a variety of penalties in the event of a person being convicted of a statutory offence. Directors and/or officers of companies who can be shown to have consented, acquiesced or connived in such offences can also be held personally liable. Criminal proceedings are handled by a Court of summary jurisdiction whilst civil proceedings fall under the jurisdiction of the Industrial Court. Aggrieved persons are also entitled to lodge complaints with the Industrial Court and such offenders, quite apart from statutorily imposed penalties and terms of imprisonment, also face the possibility of civil awards in damages being made against them under OSHA.

In terms of civil liability for OSHA violations, there are judgments of the Industrial Court in favour of the Authority against companies for breaches of OSHA where injury and/or death resulted. The fines in those cases ranged from TT$15,000.00 to TT$20,000 for each individual section that was breached, together with an order for compensation to be paid to the employee or to his estate. There have also been several high-profile instances of government offices being shut down by the Public Services Association (“PSA”) due to alleged OSHA violations. There are also conflicting judgments of the High Court of Justice as to whether mixed claims in negligence at common law and for breach of statutory duty under OSHA may be brought in the High Court. It will be up to the Court of Appeal to resolve this question.

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