By Dale Beresford
One expects that whenever workplace accidents occur there will be an expectation that management of the workplace has to account for the accident and its consequences. This is an obligation under the law though it does not necessarily mean that the accident and its consequences are fault of the workplace management.
The Occupational Safety and Health Act of 1997 speaks clearly to employer responsibility for providing a safe and healthful environment in which employees dwell and work.
The law also requires the Ministry of Labour, Human Services and Social Security (MOLHSS) to be responsible for setting of suitable workplace safety and health standards and ensuring that those standards are maintained in compliance with the law. Among other things, the regulations provide for the issuance to workplaces of appropriate citations and imposing fines for safety and health transgressions.
Some countries take the enforcement of standards much more seriously than others. In the United States fines arising out of safety and health transgressions in 2013 amounted to US$750 million. Additionally, in 2013, 64 referrals for criminal prosecution were made to the Department of Justice.
I have no corresponding figures for Guyana since, insofar as I am aware, no such records are kept. I would venture to say without fear of serious contradiction that there is a considerable dichotomy between what applies in the United States and several other countries and what obtains here in Guyana. I doubt that even the relevant enforcement agency would deny its serious delinquency addressing the issue of strict enforcement of the law as far as safety and health is concerned. I venture to say too that the delinquency has been considerable and widespread
In previous issues of the Stabroek Business I have commented on the many and varied deficiencies of the MOLHSS in matters pertaining to serious enforcement of regulations, proactive education and compliance support, targeted outreach to small businesses and effective partnerships and collaborative initiatives. What we are faced with is a situation in which bad practices are allowed to fester on account of a combination of ingrained company transgression of safety and health regulations and official inattention to the importance of ensuring the enforcement of those regulations. Where penalties for transgressions are not applied inertia and indifference will inevitably become the norm.
Violations, classifications and penalties
There are different classifications of violations and penalties that apply to workplace safety and health regimes. These are:
- Other than Serious citation
- Serious violations
- Wilful violations
- Repeat violations
Other than Serious citations apply in cases where the transgression does not amount to an imminent threat to life or can result in serious harm. Such a citation may, for example, be applied in cases where a label marking a refrigerator for biohazard storage is absent. The fine arising out of an Other Than Serious citation can be as high as $20,000. Here, the amount of the fine can vary based on the history of the offending enterprise, previous violations and the good-faith efforts of the enterprise.
A Serious violation occurs when the transgression can clearly result in death or serious physical harm and when the employer knew or ought to have known of the transgression.
An example of this is not locking out or tagging out (Lockout-Tag Out [LOTO] or lock and tag is a safety mechanism that obtains in industry and seeks to ensure that dangerous machines are disabled and not restarted before completion of maintenance) The fine for this type of infraction can reach $50,000 This too may vary through negotiations and good faith on the part of the employer.
A Wilful violation is one of the most serious violations for which a company can be cited.
A wilful violation occurs when the entity intentionally and knowingly creates a circumstance that is deemed to be dangerous. (Strange as it may seem wilful violations have been known to occur)
This type of violation also increases the penalty significantly. If an employee is killed on a job resulting from a wilful violation, the employer, if convicted, can receive a very large fine and might even be imprisoned.
A Repeat violation occurs in cases where any violation remains uncorrected following official intervention. These can also result in hefty fines and additional daily penalties until the anomaly is corrected.
It makes little sense to dwell on the lack of capacity of the MOLHSS to enforce the safety and health regulations. That is already a known fact and whether the deficiency reposes in institutional indifference or in a lack of capacity, it should be corrected before the issue of safety and health at the workplace becomes a national nightmare. There is a school of thought that supports the view that the absence of a higher number of workplace accidents is a function of not more than good fortune and good fortune is not a permanent circumstance.
The other point that should be made here is that official deficiencies in the application of the regulations have created a widespread workplace indifference. There exists, it seems, a line of logic amongst some workplaces that they have nothing to fear because the authorities are not about to show up. That is as much an indictment of the authorities as it is of the delinquent workplaces.
Creating a culture of best practices in safety and health goes beyond the strict enforcement of the law. It is, among other things, a matter of the conscience of the employer and a recognition that the employee is the most valuable resource.
Here is Guyana, the expansion of the economy as reflected in the growth of the construction, engineering and commercial sectors, among others, is still not attended by commensurate attention to safety and health considerations. In fact, in far too many instances, there is evidence of insufficient investment (or sometimes none at all) in infusing safety and health regimes on dangerous worksites. It is a circumstance that causes it to appear as though workers are altogether expendable.
Dale Beresford is a Workplace Safety Solutions Specialist