Occupational Safety & Health (Part II)

Pull Quote: ‘Take care of your health; you have no right to neglect it, and thus become a burden to yourself, and perhaps to others’
– W. Hall

TWO SUNDAYS ago, Part I ended with a look at 34. (3) of the Occupational Safety and Health Act, 1997: APPEALS FROM ORDER OF AN INSPECTOR. Today, I begin with 34. (4) of the Act, concerning what the Minister or the OSH Commissioner may do under this head.
The Minister, having regard to the circumstances, may determine the appeal or direct that an appeal be determined on his behalf by the Commissioner. On an appeal, the Minister or, where directed, the Commissioner may substitute his findings for those of the inspector who made the order. In such circumstances, the Minister or, where directed, the Commissioner may rescind or affirm the order or make a new order in substitution thereof. The Minister or, where directed, the Commissioner for such purpose has all the powers of an inspector. The order of the Minister or Commissioner shall stand in the place of and the like effect under this Act and the regulations as the order of the inspector.

The Act goes on to state:
34.(7): In this section, an order of an inspector under this Act or the regulations includes any order or decision made or given or the imposition of any term or condition therein by an inspector under the authority of this Act or the regulations or the refusal to make an order or decision by an inspector.
34.(8): A decision of the Minister or the Commissioner, as the case may be, under this section is final.
34.(9): On an appeal under this section, the Minister or, where the Commissioner has been directed under Subsection (4), the Commissioner so directed, may suspend the operation of the order appealed from pending the disposition of the appeal.

Obstruction of inspector
No person is allowed to hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest or interfere with an inspector in the exercise of his duties as given to him under this Act or the Regulations.
35. (2) of this Act states: “Every person shall furnish all necessary means in the person’s power to facilitate any entry, inspection, examination, testing or inquiry by an inspector in the exercise of his powers or performance of his duties under this Act or the Regulations.”
35. (3) states: “No person shall knowingly furnish an inspector with false information or neglect or refuse to finish information required by an inspector in the exercise of his duties under this Act or the Regulations.”
35. (4): “No person shall interfere with any monitoring equipment or device in a workplace.”
35. (5): “No person shall knowingly:
(a) hinder or interfere with a committee, a committee member or a safety and health representative in the exercise of a power or performance of a duty under this Act;
(b) furnish a committee, a committee member or a safety and health representative with false information in the exercise of a power or performance of a duty under this Act; or
(c) hinder or interfere with a worker selected by a trade union or trade unions or a worker selected by the workers to represent them in the exercise of a power or performance of a duty under this Act.”

Information confidential
An inspector, or any person assigned to accompany an inspector, with respect to an examination, test or inquiry, shall not publish, disclose or communicate to others any information, material statement, report or result of any examination, test or inquiry acquired, furnished, obtained, made or received under the powers conferred under this Act or the Regulations.
Further, no person shall publish, disclose or communicate to any person any secret manufacturing process or trade secret acquired, furnished, obtained, made or received under the provisions of this Act or the Regulations.

The Act, 36.(1)(d) states: “No person shall disclose any information obtained in any medical examination, test or X-ray of a worker made or taken under this Act except in a form calculated to prevent the information from being identified with a particular person or case.”

36. (2): “No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with other Act, or in order to employ or continue to employ a worker in a food manufacturing establishment, to a health record concerning a worker without the worker’s written consent.”
36. (3): “An inspector or a person who, at the request of an inspector, accompanies an inspector, or a person who makes an examination, test, inquiry or takes samples at the request of an Inspector, is not a compellable witness in a civil suit or any proceeding, except an inquest under Section 71 of this Act (referred to later on), respecting any information, material, statement or test acquired, furnished, obtained, made or received under this Act or the Regulations.”
36. (4):    “The Authority may communicate, or allow to be communicated, or disclosed information, material, statements or the results of a test acquired, furnished, obtained, made or received under this Act or the Regulations.”
Finally, on this question of information that is confidential, when it comes to health and safety of workers, persons are free to provide any information, including confidential business information, in a medical emergency for the purpose of diagnosis or treatment.
Copies of reports
The Authority may, upon receipt of a request in writing from the owner of an industrial establishment who has entered in an agreement to sell the same and upon payment of the fee or fees prescribed, furnish to the owner or a person designated by the owner copies of reports or orders of an inspector made under this Act in respect of the workplace as to its compliance with Subsection 52 (1) (referred to later on).

Immunity
Immunity can apply under the Act, but there must be very good reason for this. No action or other proceeding for damages or prohibition shall be instituted respecting any act done in good faith in the execution or intended execution of a person’s duties. In a person’s exercise or intended exercise of powers given under this Act or for any alleged neglect or default in the execution or performance in good faith of the person’s duties can be considered good reason for immunity.
Levy to defray expenses
The Minister has power to levy to defray expenses and this is outlined in 39. (1) of the Act. It reads as follows:
“The Minister may fix an amount that shall be levied by the National Insurance Board established under the National Insurance and Social Security Act against employers of workers in industrial establishments, to defray the expenses of the administration of this Act and such amount shall not exceed an amount prescribed by the Minister for the fiscal year in which this Act comes into force and shall be subject to an increase in each subsequent fiscal year by a sum not exceeding ten percent of the amount fixed, for the preceding fiscal year.”
And the Act goes on to state in 39. (2): “The National Insurance Board shall add to the assessment and levies made under the National Insurance and Social Security Act upon employers under that Act a sum calculated as a percentage of the assessments and levies and which percentage shall be determined as the proportion that the amount fixed under Subsection (1) bears to the total sum that the National Insurance Board fixes and determines to be assessed for payment by such employers and the National Insurance and Social Security Act shall apply to such sum and to the collection and payment thereof in the same manner as it applies to an assessment and levy made under that Act.”
This part of the OSH Act concludes with the following two articles:
39. (3): The National Insurance Board shall collect the assessment and levy imposed under this section, and shall pay the amounts so collected to the Authority.
39. (4): Regulations made under Section 75. (2) (c) (h) (referred to later) shall prescribe the provisions for giving effect to this section.
To be continued on Wednesday….
*The writer is the former General Secretary of the Clerical & Commercial Workers’ Union (CCWU) and also a former President of the Federation of Independent Trade Unions of Guyana (FITUG) and a former Vice President of the Guyana Trades Union Congress (GTUC). He served the Caribbean Congress of Labour (CCL) as Research Officer 1983 – 1998.

SHARE THIS ARTICLE :
Facebook
Twitter
WhatsApp
All our printed editions are available online
emblem3
Subscribe to the Guyana Chronicle.
Sign up to receive news and updates.
We respect your privacy.