THE WORKPLACE SAFETY AND HEALTH ACT: AN OVERVIEW

Citation(2007) 19 SAcLJ 15
Published date01 December 2007
Date01 December 2007

The Workplace Safety and Health Act1 came into effect on 1 March 2006 and with its coming into force, the former Factories Act2 was repealed. While there are a few similarities between the two statutes, more notable are the differences. For instance, unlike in the case of the former Factories Act, a breach of the Workplace Safety and Health Act does not give rise to civil liabilities.3 It only gives rise to criminal liabilities. On the other hand, the Workplace Safety and Health Act extends the categories of persons who owe health and safety duties at the workplace. It also extends the categories of persons who receive statutory protection. The aim of this article is to, at a broad level, examine the framework and at a more specific level, address the various possible uncertainties and issues that can arise under the Workplace Safety and Health Act. Unless otherwise stated all sections and acts referred to in this article are with reference to the Workplace Safety and Health Act.

I. The workplaces covered

1 Section 2(1) of the Act provides that except as otherwise expressly provided,4 the provisions of the Act apply to workplaces within

the class or description of workplaces specified in the First Schedule. The workplaces specified in the First Schedule are:

(a) any premises which is a factory;

(b) any premises within an airport where any checking, inspecting, cleaning, loading, unloading or refuelling of an aircraft is carried out by persons other than by the crew of the aircraft;

(c) any ship in a harbour where any scaling, scurfing or cleaning of boilers (including combustion chambers and smoke boxes) in the ship; any cleaning of any tank, bilges or holds in the ship; or any construction, re-construction, repair, fitting, furnishing or breaking up, is carried out;

(d) any dock, wharf or quay where loading, unloading or bunkering of a ship is carried out by persons other than by the crew of the ship;

(e) any premises delineated as a railway area under the Rapid Transit Systems Act and where any inspection, testing or maintenance of any railway is carried out;

(f) any premises (other than domestic premises) in which a steam boiler, steam receiver or air receiver is used; and

(g) any laboratory or other premises where the testing, examination or analysis of any article is carried out.

2 In relation to (a) above, the former Factories Act, s 6(2) deemed a total of 21 types of premises as amounting to “factories”. Under the Act, there are only 19 categories. The two categories that are missing are the former s 6(2)(s) and s 6(2)(u). However, these can now be found in the First Schedule to the Act (paras 75 and 5 respectively). So in actual effect, there is not much of a difference in this regard. Further, in relation to the existing 19 categories, the definition is similar other than in three instances, in respect of which there has been a slight extension.6 However,

it is noteworthy that the First Schedule does cover some totally new premises such as airports. Initially it was thought that the Act would be far more encompassing in nature and would cover other places such as restaurants and hotels. But this has not materialised as yet. This is in sharp contrast to the position in the UK upon which the present Act has been based. The relevant legislation in the UK is the Health and Safety at Work etc Act,7 under which all premises are covered.8 However, it has been said that categories of premises included would eventually be extended to cover other premises,9 such as hotels and restaurants. While it is understandable that the coverage should be increased gradually, it is hoped that eventually all premises would indeed be included10 as it is difficult to see why a person working in other types of premises should not be protected from health and safety risks or injuries.

3 Coming back to the definition of the term “factories”, under the former Factories Act, s 6(1) gave a general definition of what amounted to a factory and s 6(2), as already described, gave a list of specific premises which were deemed to be factories. In relation to the definition of the term “factories” under the Act the same basic structure has been adopted. Further in relation to the general definition, there has not been much of a change11 and it provides:12

Factory means any premises within which

(a) persons are employed in any process for or incidental to any of the following purposes:

(i) the making of any article or part of any article;

(ii) the altering, repairing, ornamenting, finishing, cleaning or washing, or the breaking up or demolition of any article; or

(iii) the adapting for sale of any article; and

(b) any work referred to in para (a) is carried out by way of trade or purposes of gain13 and to or over which the employer of the persons employed therein has the right of access or control.

4 The term “employed” in the definition of the term “factory” was not restricted to direct employment under the former Factories Act in some circumstances.14 The position is even wider now under the Act s 5(4) of which provides that where any person carries on any work referred to in s 5(2) or 5(3) in a workplace with the express or implied permission of, or under any agreement with, the occupier of the workplace, then, notwithstanding that the person is not an employee of the occupier of the workplace —

(a) the workplace shall be treated as a factory for the purposes of this Act; and

(b) the provisions of this Act relating to the duty of an occupier shall apply to the occupier of the workplace as if he were the occupier of a factory.

5 Thus for instance, if a developer is the occupier of the workplace and he contracts with a contractor to carry out the building works, then though the contractor’s employees are not the occupier’s employees, the workplace will be treated as a factory and the duties of an occupier in relation to a workplace would be applicable to the developer.15

6 However, under the former Factories Act, the term “employ” was not defined. The term has now been defined in the Act.16 More importantly, s 6(2)17 extends the definition of employees to include volunteers. In common law, a volunteer may or may not be an employee.18 But this definition makes the position clearer, though there may not be that many volunteers who are used by persons carrying on work, by way of a trade or for purposes of gain.19 Nonetheless, this could prove to be important20 when the categories of premises are eventually extended. Section 6(3)21 also extends the definition of employees to include persons who are in the workplace for the purpose of receiving job training or gaining work experience including under a rehabilitation scheme. This provision could cover apprentices and in common law an apprentice is not an employee,22 but s 6(3) effectively reverses this. Further, s 6(4)23 provides that where an employer places an employee (referred to in this subsection as the loaned employee) at the disposal of another person to do work for that other person and there is no contractual relationship between the employer and that other person regarding the work to be performed by the loaned employee, the loaned employee shall be regarded as if he were an employee of that other person (instead of his employer) while the loaned employee is at work for that other person. Thus for instance, if A works for B and is lent to work for C which is B’s

subsidiary, assuming there is no contractual relationship between B and C pertaining to the work, A would be considered to the employee of C for the duration of the work, though this is only for the purposes of this Act. It may also be pointed out that unlike the former Factories Act which was silent on the matter, by virtue of s 4(3) of the Act liability is not affected by the fact that the employee concerned is unlawfully working in the workplace.24

7 It may be noted that s 6(5) provides that where a person carries on any work in a factory, the occupier of the factory shall be deemed to be the employer of that person and the provisions of this Act shall apply as if the occupier of the factory were the employer of the person, unless the occupier of the factory proves that he is not the employer of the person. In common law, it has been suggested that in a case involving an industrial incident, where there are several defendants, the onus is not on the employee to prove precisely in whose employment he was at the time of the accident.25 Nonetheless, this section makes the position clearer by placing the burden of proof on the occupier.

II. General principles relating to the duties

8 Unlike the former Factories Act, as will be discussed later, the Act imposes duties on many more persons besides occupiers. In this regard, s 10(a) provides that the Act may impose duties or liabilities on a person at any one time under two or more capacities. For instance, a person may incur liability as an employer and also as an occupier of a workplace. This is important as the duties vary according to the capacity of the person. If not for this section, if a person has committed a wrong in two different capacities, the question may arise whether both sections can be applicable or whether one section should take precedence over the other. But this makes it clear that both sections can indeed apply. Under the former Factories Act, as stated since the obligations were generally only imposed on the occupiers of the factories and not others, it was not necessary to deal with this issue. However, the question may also arise: What if a person has committed an offence under two different capacities, but arising out of the same set of facts, can he be subject to two sets of penalties as a result of s 10(a)? It is suggested that the section deals with “duties or liabilities” and not the “extent of duties or liabilities” as such. It is also suggested that given this is a penal statute...

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