General Historical Background
Health and safety legislation is a complement of labor legislation. It started with the industrial revolution in Europe between the 18th and 19th centuries. Workers had tough times during those days. They were subjected to long hours of work and exposed to hazardous working environment with the advent of machines. Accidents and injuries were commonplace and workers had to make their own effort to learn how to avoid them.
Measures to preserve the health and morals of workers started to take shape in the UK in 1802, followed by other European countries, namely Germany in 1839 and France in 1841. This idea relating to the health and morals of workers was later translated into what later became known as occupational safety, health and welfare.
Labor Legislation in Mauritius
Until 1988 occupational safety and health was governed by sparse pieces of legislation which became inadequate with time, and inconsistent with the evolution of the world of work with the rapid industrialization process.
Legislation relating to conditions of work dates as far back as 1878 when the Labor Ordinance was introduced. As time went on other legislations followed as listed hereunder:
(i) Aloe Fiber Factories Ordinance 1927;
(ii) Boilers Act 1934;
(iii) Factories (Safety of Workers) Ordinance 1939;
(iv) Factories (General Health Provisions) Regulations 1946;
(v) Workmen’s Compensation Act 1959;
(vi) Pesticides Control Act 1972;
(vii) Labor Act 1975;
(viii) Labor Regulations 1976;
(ix) Health, Safety & Welfare Regulations 1980;
(x) The Occupational Safety, Health & Welfare Act 1988.
(xi) The Occupational Safety and Health Act 2005
Being mainly industry specific most of them had restricted application and did not cater adequately for the protection of all workers wherever they were. For instance, the Pesticides Control Act was pertinent only to the agricultural sector. The Workmen’s Compensation Act was meant rather for the “consequence” of the conditions of work than the “prevention” aspect. It provides for an automatic remedy to a worker who has sustained injury “out of” and “in the course of” employment. The compensation is triggered by the mere accident at work itself, independent of whether the injured is at fault or not. It is thus often referred to as the “no fault compensation regime”.
Health, Safety & Welfare Regulations 1980
At the beginning enforcement of some laws was fraught with difficulties and was somewhat doubtful due to lack of proper framework to that effect. The late seventies, however, witnessed a very decisive step towards the protection of workers’ health and safety.
The need was felt for a new legislation with the arrival of a British Factory Inspector and the employment of a Mauritian Engineer in 1977. The Occupational Safety, Health and Welfare Regulations were made in 1980 under section 57 of the Labor Act 1975.
These regulations too had some limitations. They were applicable only to workplaces in the private sector and only to workers drawing monthly wages not exceeding Rs 2500 per month. Public sector workers were not covered. The onus was on the employer alone. Such inadequacies led to the introduction of another law, the Occupational Safety, Health & Welfare Act (OSHWA) in 1988.
OSHWA 1988 is another milestone. Enacted on 29 November 1988, it was proclaimed on 1 May 1989 after some regulations were made under section 80 (1) of the Act on 26 April 1989. These regulations are the:
(i) Fees and Registrations Regulations, GN 64 of 1989;
(ii) First Aid Regulations, GN 65 of 1989; and
(iii) Woodworking Machines Regulations, GN 66 of 1989.
In an endeavor to provide further protective measures with regard to specific hazards, there were attempts to make other regulations, namely, “electricity at work” and “noise at work”, with no avail.
Main purpose and objects of OSHWA 1988
The Act was made to “consolidate, harmonize and update the law relating to safety, health and welfare”. It lifted the restrictions of previous laws (which became outdated in the light of current development in the working environment) and brought about fundamental shift of responsibility.
The employer was no longer solely responsible for all the acts of the employee. The latter also has a duty of care for self and others who may be affected by his acts or omissions at work. The Act made occupational safety, health and welfare the concern of both employers and employees at all levels, not only those at factory level but also those at top management level.
It applies wherever work is performed under a contract of employment. It extended coverage to both private and public sectors; outworkers; independent workers; contractors; designers; manufacturers; importers; and self-employed so that they could take appropriate measures such that their activities do not become a source of danger to others.
It also established the framework for a more effective safety and health organization, promotion and performance with such provisions as relating to information, instruction, communication, training, supervision, monitoring and consultation.
However, OSHWA 1988 (in spite of its wide scope of action) made certain reservations as to its applicability to the public sector. Some sections, namely section 9 (Posting of Abstracts or notices), section 10 (Keeping of Documents), section 11 (employment of Safety & Health Officers), section 13 (Safety & Health committees); and Part III (Administration) and Part VIII (Registration of Factories) do not bind the State.
Notwithstanding these, the Government took appropriate administrative measures in 1999 with the setting up an Occupational Safety and Health Unit within the Ministry of Civil Service Affairs & Administrative Reforms to cater for the safety and health needs of public sector employees.
One should not forget that some provisions of the Health, Safety & Welfare Regulations 1980 are still applicable. Part XIII (Electricity), Part XVIII (Foundries) and Part IXX (Regulations for Building and Excavation work) have not been repealed as stated at section 82 (h) of OSHWA 1988.
The Occupational Safety and Health Act 2005 (OSHA 2005)
The dynamism of the world of work necessitates a constant scrutiny of the law. Hence in October 2005 a new law was enacted. The OSHA 2005 aims at “consolidating and widening the scope of legislation on safety, health and welfare of employees at work”. This Act unreservedly binds the State, meaning it is applicable invariably in the public sector.
However this Act is not yet in force; it is awaiting proclamation. If it were to be enforced now, the government itself, as employer, would be in contravention due to the scarcity of Safety and Health Professionals at the moment.
OSHA 2005 is not much different from OSHWA 1988, except that it contains more elaborate provisions with regard to duty holders’ responsibilities. Also some implicit provisions in the previous law have been rendered more explicit. For instance there are specific provisions with regard to risk assessment, safety and health policy, vehicle lifts, escalators, manual handling operations and health surveillance of employees. The penalties for offences have been reinforced.