An employer's nightmare?

With EU membership firmly in mind, the Occupational Health and Safety Authority Act was enacted by means of Act XXVII 2000.

The Act came completely into force in January this year. Before this law came into force, health and safety at the workplace was catered for under a number of different Acts of Parliament.

The situation was untidy, unsatisfactory and brought about a measure of uncertainty. There was overlapping jurisdiction between entities whose task it was to enforce the law. In this predicament, the setting up of the Occupational Health and Safety Authority is welcome.

The Factories Ordinance and the Occupational Health and Safety (Promotion) Act (both repealed) brought about a general feeling of apathy in the day-to-day implementation of safety rules and little interest was shown in the subject.

The new Act now lays down the general obligations of all concerned in one single enactment, with the enforcement under the control of one single administration.

At the time of writing, the oldest regulations enacted under the Factories Ordinance (repealed in 1994) remain in force, but old regulations are expected to be progressively repealed and replaced by regulations and approved codes of practice which will be designed to maintain and improve the standards of health and safety coherently.

Several fundamental changes are brought about by the new legislation. In the first place, the Act covers all workplaces in the private and public sector, encapsulating all persons bound by a contract of employment and all persons working under a contract for service.

Contractors temporarily working for an employer on piecework are also covered. More importantly, the Act states that the protection of occupational health and safety shall be considered a matter of public interest.

Interestingly, the Act may also apply to people who are not employees or other self-employed persons engaged by an employer if these people are affected by the activities which are being carried out in places of work.

Thus, the duty of an employer vis-à-vis the protection of health and safety not only applies to persons who are lawfully in the employer's premises, for example, students in an educational establishment, but also to persons who are outside those premises, but who may be affected by the activities of the employer.

All employers in their different capacities as manufacturers, suppliers and providers of a service are obliged to ensure the health and safety at all times of all persons who may be affected by the work of that employer.

The emphasis of the Act is on criminal sanctions and the enforcement of the law by officers of the Authority, for the Act itself does not give rise to civil liability.

Breach of the general duties of any employer or employee, contravention of any order of an officer of the authority and breach of any regulation issued under the Act shall constitute a criminal offence with the offender being liable to prosecution in the court of magistrates sitting as a Court of Criminal Judicature.

If convicted, the offender would be liable to a fine ranging from a minimum of Lm200 to a maximum of Lm5,000 and/or imprisonment up to a maximum of two years. Moreover, the authority has a 'special term' of six years within which to prosecute.

The officers of the authority are responsible for the enforcement of the Act. They are empowered to carry out investigations without prior notice and to issue orders, possibly resulting in the 'barring of a workplace or part thereof if a non-observance of any of the principles laid down in the Act or in the regulations issued under the Act.

The officers are empowered to enter freely and without any previous notice into any workplace and may take possession of any object required for testing or as evidence of any alleged violation of the Act or regulations issued thereunder.

Such orders may be given verbally (to be confirmed in writing within three working days) or in writing and such orders "shall be obeyed forthwith".

If an order is issued, is the employer lumped with it? An appeal against an order issued by an officer can be lodged in the Occupational Health and Safety Appeals Board within five working days from the day of service thereof in writing.

Decisions of this appeals board are final and are not subject to review by the ordinary courts except on points of law or of natural justice.

Appeals to the appeals board may be lodged for various reasons. English jurisprudence has shown that the most common ground of appeal is that the order issued by the officer is ultra vires his powers.

It is very probable but not mandatory that the officers of the authority will not enter a workplace lock, stock and barrel creating havoc and barring entire sections of a workplace without giving an employer at least one chance to rectify his position in compliance with the law.

It is, however, the responsibility of the employer to show that the health and safety of his employees is given all due effective consideration and that regular supervision is being carried out so as to ensure that the current laws and regulations are observed.

English experience has shown that, in matters of occupational health and safety, it is of no use to an employer to argue that his machinery is adequate since his employees have worked on it for a number of years without an accident.

The requirements of the law are absolute. Likewise, it will be no use to an employer to argue that the breach in question is trivial and that there are many other employers in the same sector who are similarly in breach and who have not been served with improvement orders by officers of the authority.

It goes without saying that an appeal to the appeals board based on the financial inability of the employer to comply with the orders given is doomed to failure from the very outset.

Have regulations already been issued? The Work Place (First Aid) Regulations, the Minimum Health and Safety Requirements for Work with Display Screen Equipment Regulations, the Work Place (Minimum Health and Safety Requirements) Regulations and the Work Place (Provision of Health and, or Safety Signs) Regulations have recently been issued under the Act.

The Work Place (Minimum Health and Safety Requirements) Regulations, for example, provide for a number of health and safety standards which have to be observed at every workplace.

The regulations temporarily apply only to new workplaces or those undergoing structural changes but these regulations will apply to all existing workplaces as from January 1 of this year. Only temporary or mobile work sites, the extractive industries, fishing boats and means of transport are momentarily excluded.

These regulations provide for a number of health and safety measures to be complied with, including requirements concerning emergency routes and exits, first aid, fire detection and fire fighting, ventilation of workplaces, workplace temperature, room lighting, and the structure of rooms, doors and gates.

The enactment of the Occupational Health and Safety Authority Act is bound to instill a greater sense of responsibility at the workplace.

There are the employers who have been taking effective health and safety measures long before the enactment of this Act.

This may have been either for fear of foreign competition or imposition or as a result of a genuine interest in the welfare of their employees and visitors.

However, those establishments based on a "live and let die" policy, at least on paper, will be forced to change their ways.

(Dr Brincat forms part of the labour law department at Ganado & Associates, Advocates, Valletta. He may be contacted via e-mail at mbrincat@jmganado.com.)