Legal Implications of Occupational Health and Safety Legislation For Workplace Managers

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Workplace safety and health laws establish regulations designed to eliminate personal injuries and illnesses from occurring in the workplace. Generally laws consist primarily of Acts and subordinate legislation such as regulations.  In addition to this a number of other legislative instruments are available to the legislator to provide appropriate statutory instruments.

Safety and the law are being dealt with in a number of excellent available publications.  It is not the purpose of this article to address the complexities of the law, however, persons in a supervisory position should ensure that they are at least aware of the specific statutory requirements placed upon the position held.  It is the responsibility of each individual to establish the specific statutory duties placed upon the incumbent of any specific supervisory position.  In this article it is the aim to at least explain some of the more important legal terms in a language that a person who received very little legal training, can understand and interpret to prevent legal liabilities being incurred without even knowing about it.

Legal liability can be explained as an obligation of one party to another that is enforceable through a court. This type of liability is a fundamental aspect of law, it should be understood that a legal liability may arise for a number of different reasons.  These include but are not limited to duties arising from the entering into special agreements such as contracts, in the carrying out of a fiduciary duty or placed on a person or group of persons by an act of Government.  The manager, supervisor and employee should also note that an employment contract can place specific legal liabilities on him or her by explicit or implicit clauses in their employment contract, as well as by the relevant occupational health and safety legislation, applicable to the particular industry.

A legal liability does not always arise as a result of an intentional harmful act or of some proven oversight like negligence.  The allocating of a liability as a result of injury may historically merely have been a peace-conserving substitute for the custom of an injured party taking revenge on the party believed to have caused the injury.  It is a historic fact that the focus of the law has changed to ensure that the one who was negligent should compensate the one who has lost something as a result of the action of the negligent party, even if that action is otherwise blameless under the law.

It is worthwhile to remember that an act or omission of a supervisor can cause a legal liability for the company besides the legal liability incurred by the individual, resulting from the said act or omission.  It is further significant that supervisors could, in some cases be held personally liable for both civil and criminal prosecution pertaining to their statutory duties and responsibilities that may be contained in laws and regulations.

The practical application of the laws and regulations pertaining to health and safety are normally converted into a complex structure of rules and guidelines by companies.

Any employee not following these rules could find themselves tied up in a civil and/or a criminal liability claim.  For this reason it is imperative that laws are identified, analyzed, recorded and kept up to date and appropriately followed.  It should be noted that laws are not static and are subject to constant changes and amendments.  An important aspect of the law is that generally, ignorance of the law cannot be used as a defense against a transgression.  This implies that it is the responsibility of each individual to ensure that they have a sufficient level of knowledge and understanding of applicable laws and regulations.

Even to the uninformed it must be clear that the law have many facets.  Most countries have various tiers of legislation. At the highest level there are normally a constitution and at the next level numerous statutes on topics ranging from occupational health and safety to environmental management. Many of the statutes enable the various political representatives to make subordinate legislation like regulations.  These regulations may or may not incorporate the use of codes of practice. 

There is no finite list of rules applicable to particular businesses or even categories of companies or industries nor is there a definite classification of laws that businesses should focus on. A possible way of classifying the rules would be to list the broad areas of liability exposures with sub categories relating to specific areas of concern.

Legislation applicable to organizations is continuously increasing.  The days that employers could only comply with one or two safety laws are gone forever.  Safety legislation is constantly growing in terms of volume, scope and complexity.  Often these legal requirements have to be implemented by people who do not have the inclination or resources to wade through literally thousands of pages of legal text to determine the applicability and meaning of specific legislation. 

Apart from the obvious requirement that legal compliance is compulsory, it is also a specific requirement of most safety management systems that the organization must be legally compliant to receive the top accolades of the recognition system.

Scoring and recognition systems can therefore be severely affected by legal non-compliance.  In the sampling and verification phase of an audit, the auditor will decide which legal requirements are going to be verified.  This means that the company being audited must ensure legal compliance on all the elements of the management system as it is not known which section the auditor will verify.  In addition, world class management systems all requires that the company identify, has access to and ensures compliance to all applicable legal requirements relating to occupational health, safety and environmental issues.

Legal compliance can only be achieved and sustained once the applicable legal requirements have been identified, and integrated into a formal management system.  To facilitate this, a specific legal register should be compiled. Normally this is achieved with the assistance of a team of legal professionals with industry specific experience.

The purpose of a legal register is both to identify applicable legislation and to dispense with irrelevant information.  The legal requirements are normally presented in a user-friendly manner in a document that has various sections.  These sections include a summary of the applicable laws, an interpretation of applicable clauses and a cross reference to relevant legal text.  A properly drafted legal register can also forms the basis for legal compliance audits.

Most countries have a legal requirement that places a statutory responsibility on managers to identify the hazards to health or safety to which employees may be exposed while they are at work, to assess the risks to health or safety to which employees may be exposed to and to develop suitable and sufficient control for significant risks. 

The best intentions for compliance can come to nothing if the manager is not aware of the various statutory requirements.  In order to comply with the wide ranging legislative requirements is not an easy task and requires the support of a legal professional. 

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Dr. Carl Marx has 1 articles online

(c) 2009 Carl Marx

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Legal Implications of Occupational Health and Safety Legislation For Workplace Managers

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This article was published on 2010/04/02