Douglas Mendes
Whether you think he is a dangerous, misguided rabble-rouser, as the Minister of Labour seems to think, or a man whose defence of his members' rights to safe and healthy workplaces has led to numerous proposals of marriage, as he claims, what the president of the Public Services Association has managed to do is to focus attention on the right of workers to refuse to work where their health or safety is in danger.
Workplaces in T&T are notoriously unsafe. Workers are exposed on a daily basis to toxic substances which they only discover years later to have taken a toll on their health. Workplace accidents regularly maim and kill our brothers and sisters, fathers and mothers. The existence of "sick" buildings where workers inhale spores which affect their respiratory systems is now commonplace.
Taking the measures necessary to ensure safety in the workplace is an expensive venture. Providing safety equipment costs money. Guarding dangerous machinery is inconvenient and expensive.
Reducing the level of emissions of carcinogens and airborne bacteria sometimes requires major adjustments to manufacturing processes and to the structure and architecture of buildings. All this affects the almighty bottom line and the drive to maximise profits forces employers to try to get away with unsafe workplaces and practices for as long as they are allowed to.
The law has always accepted that a worker is not bound to continue to work where her life or health is in danger. A worker who is dismissed for refusing to work in such circumstances could always claim compensation for wrongful dismissal or reinstatement from the Industrial Court.
But the law did not prohibit employers from dismissing a worker for refusing to work in dangerous conditions. It merely provided a remedy to a worker who was unjustly dismissed. A worker whose life or health was endangered was therefore caught between the Scylla of endangering her own life or health by continuing to work, and the Charybdis of plunging herself and her family into years of unemployment while her challenge to her unfair dismissal wended its way through the court system.
The Occupational Safety and Health Act provides quite a radical solution. It creates a right to refuse to work in unsafe or unhealthy conditions, buttressed by a prohibition against dismissal or any other form of discipline while the right is being exercised.
There are many important safeguards. The right is only exercisable where a worker has sufficient reason to believe there is a serious and imminent danger, or unusual circumstances which are hazardous or injurious to health or life, or that any machine, device or plant or the physical condition of the workplace is likely to endanger him.
A report must immediately be made to the employer and the Safety and Health Committee, if there is one. This triggers an investigation by the committee into the worker's complaints. Where the committee finds the worker has reasonable grounds to refuse to work, the worker may continue his protest. The matter is then escalated to an inspector appointed by the Occupational Safety and Health Agency.
The inspector is required to commence an investigation within 24 hours and make a decision on whether the worker's fears are well-founded within 24 hours after that. An appeal can be made to the chief inspector and then to the Industrial Court, but the inspector or chief inspector's decision must be complied with in the meantime.
The potential for the system to foster safe and healthy workplaces, if properly utilised, cannot be overestimated. It provides a quick and fair mechanism for resolution of health and safety disputes. If a worker's assessment of the threat to his health and safety is well founded, an employer will be forced to take immediate remedial measures, or face a possible shutdown.
If not, the worker will be required to return to work relatively confident in the knowledge that it has been determined by an independent authority. He also knows that he faces no backlash for exercising his right, even if it is later shown that his concerns were less real than imagined.
But for the system to work it is fairly obvious that a full complement of well-trained and highly-skilled inspectors must be provided by the agency to respond in a timely fashion to the myriad complaints which will be lodged, once workers become better educated about the right which the legislation gives them. Inspectorates too often suffer from underfunding and understaffing.
Inspectors must also be sensitised to the hazards that workers face on a daily basis. Too often health and safety regulatory agencies develop employer-friendly policies, preferring co-operation with employers than using the full brunt of the powers vested in them under the law. Sometimes regulators share a common background with employers, or are swayed by the attraction of eventual private-sector employment, with the result that the regulator is ultimately captured by the regulated.
As well, for the system to work as intended, it must not be abused by those it was designed to protect. The right to refuse unsafe work must not be used as a ploy to further non-health and safety-related workplace demands, or as a mechanism to channel extraneous grievances. It must only be used to further genuine health and safety complaints of a sufficiently serious nature and only in strict compliance with statutory procedures.
A right which is abused will soon become the subject of close scrutiny by lawmakers and could be curtailed or taken away. That will not well serve the mass of workers who grapple with health and safety issues on a daily basis.And it might just lead to a reduction in marriage proposals for Mr Duke. Or worse. A word to the wise.
