Operationalization of the Worker's right to work in a safe and Healthy environment in Uganda


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Operationalization of the Worker's right to work in a safe and Healthy environment in Uganda

  1. 1. MAKERERE UNIVERSITY SCHOOL OF LAW COURSE: HEALTH AND THE LAW NAME: MUHUMUZA SAMUEL © MUHUMUZA SAMUEL, 2014. QN.The 1995 constitution guarantees every worker a right to a safe and healthy environment. Parliament has operationalised this right. With reference to relevant constitution provisions and other legislative provisions discuss the above statement not more than 8 page
  2. 2. “Beyond the economic issues we have a moral obligation: The human costs are far beyond unac ceptable.”  Sameera Al-Tuwaijri, ILO SafeWork Director Introduction: Life is precious. A good quality of life is priceless. This good quality of life is more than just the mere absence of death. It can only be achieved with good physical and mental health and social well-being1 . An employer has a fundamental duty to provide a safe and healthy workplace and it’s also a worker’s fundamental right to work under a safe and healthy environment. The constitution2 is the supreme law of Uganda; it has a comprehensive and one of the best provisions regarding human rights3 under which the different rights for workers to work in a safe and healthy environment are enshrined. It provides for the protection of a right to life4 . For one to have a good life, and their right protected, safety and good health must therefore be promoted. The worker’s right to life must therefore be protected by providing safe and healthy conditions under which they work. The workplace should not be a place prone to accidents, polluted, and contaminated which thus pose a risk to the life and health of the workers5 . And those that work in hazardous factories (environment) should be accorded with sufficient protective gear. The constitution goes on to further provide for protection from slavery, servitude and forced labour6 . These forms of labour, infringe on the worker’s right to enjoy a safe and healthy working environment. Therefore one has a right to work or choose not to work. The constitution further goes on to provide for a right to a clean and healthy environment for every Ugandan7 . This was upheld in the case of TEAN vs Attorney General8 in which case court was of the view that a clean and healthy environment is one that is free from any kind of pollution. Environment here is not expressly defined but I believe it shall include the work environment. On top of that, the most important provision of the constitution is that empowering parliament to enact laws to provide for the right of persons to 1 Health and Life at work: A basic Human Right, publication of the International Labour office, Geneva commemorating Word Day for Safety and Health at Work, 28 April 2009. 2 Constitution of the Republic of Uganda, 1995. 3 Chapter 4, ibid 4 Article 22 5 TEAN v AG, Supra 6 Article 25 7 Article 39 8 HC. MISC. APPLIC. NO. 39 OF 2001
  3. 3. work under satisfactory, safe and healthy conditions9 . In relation with the question given, this is probably one of the most fundamental provisions because it is from this article that parliament has enacted various laws in relation to workers right to a healthy and safe environment at work. With this power, a number of laws were enacted for the safety and health of workers, and they shall feature in the discussion below. The Factories Act10 was the principle law for occupational safety and health in Uganda. It was an Act to make provision for the health and safety and welfare of persons employed in factories and other places11 . The Act defined bodily injury to mean injury to health12 and gives a very wide definition of factory13 . Part IV of the Act generally provided for health with section 10 providing for cleanliness of every factory. It also provided for overcrowding, lighting, drainage and ventilation. Part V of the Act had provisions on safety especially in relation to factory machines. One ought to note that this law was very inadequate in protecting workers in general from harm and keep them safe. It was a colonial law which was industrious nature thus neglecting other occupational works such as agriculture, civil service workers among others. For instance, it did not address the plight of agricultural workers since it was only confined to factories. It was meant to further colonial interests by promoting industrialization in annexed areas, thereby neglecting workers in other sectors. The Laws: Owing to Article 40 (1) (a) of the Constitution, and parliament faced with a need to ensure the safety and protection of health of the workers, the parliament enacted various laws to provide for the same. Notably, the Occupational Safety and Health Act14 (here in after the OSHA) was probably the most important of all laws enacted by the parliament of Uganda to conform to the constitutional provisions regarding the right of workers to work in a safe and healthy environment. There are other laws like the Control of Agricultural Chemicals Act15 (CACA), 9 Article 40 (1) (a) 10 Cap 220, Laws of Uganda, 2000. 11 Preamble to the Act, ibid 12 Section 5 (c) ibid 13 Section 4 (1) ibid 14 No. 9 of 2006, Laws of Uganda 15 Cap 29, Laws of Uganda
  4. 4. Workers Compensation Act16 (WCA), The Employment Act17 (E.A), and The Labour Unions Act18 (LUA) among others. Uganda has also ratified various international legislations and conventions aimed at safeguarding and promoting safety and the health of workers. In this paper, I would like to concern myself with the OSHA because of its profound significance to Uganda’s labour laws regarding health and safety of workers. The Occupational Safety and Health Act , 2006 (OSHA): The OSHA, passed in 2006 effectively repealed the Factories Act, cap 220 thus making it the principle law for occupational safety and health in Uganda. Under common law, workers were entitled to work under safe premises, a safe system of work, safe appliances, implements and plant. This was seen as an employer’s duty of care to the employee which included taking reasonable precautions for the workman’s safety19 The OSHA under Sec. 2 defines working environment and workplace to envisage all places of work and sites and all areas where work is carried out whether permanent or temporary. This definitely widens the coverage of protection and promotion of worker’s health and safety as opposed to the repealed Factories Act which only confined working environment and workplace to only factories. These definitions are progressive in nature in that all workers whether in agricultural, constructional/engineering sites, casual labourers, office workers are well covered under the OSHA. Section 10 of the OSHA establishes the Occupational Safety and Health board which is mandated to give expert advice to the Minister on matters concerning occupational safety and health, welfare and the working. Another measure under the Act aimed at protecting workers rights to a safe and healthy work environment, provides for the formation of Advisory panels20 which may be appointed by the minster from time to time as he or she may deem necessary whose duty is to give advice or assistance on any workplace process, chemical hazard, injury of disease. Both the occupational Safety and Health and the Advisory panels are aimed at keeping the minister informed of the worker’s plight and there is need for a statutory instrument 16 Cap 225, Laws of Uganda 17 2006, Laws of Uganda 18 2006, Laws of Uganda 19 Juma Asile v NYTIL[1975]HCB 292, See also, Freedom of Association and Uganda’s New Labour Laws: A critical Analysis of Workers’ Organisational rights, John-Jean Barya, HURIPEC Working Paper No.4, April 2007 pg 14. 20 Sec 11, OSHA
  5. 5. on workers safety and health rights, the minister can be advised to issue one. As it is said, rights come with duties and responsibilities. Both workers and employers have a responsibility and duty respectively. The OSHA under Part III lays down a general duty for the employer to take reasonably practicable measure to protect workers, he or she is required and bound to provide adequate information, instructions, train the workers and supervise them21 . An employer has to provide protective/safety gear22 to his or her workers for safety at work, and also labour correct information of the real and potential dangers of substances used. Most importantly, it should be noted with a lot of keenness that these laws are not only laid down but also provide institutional mechanisms for their enforcement and also go an extra mile to cover the use and storage of pesticides in the Agricultural sector something which was ignored by the defunct Factories Act. The Act also obliges the employer to monitor and control the release of dangerous substances into the environment23 . To me, I believe that this safety measure is not only intended to protect people outside, but also the employees who may be affected by the careless disposal of such substances. This to me implies that the employer has the duty to safeguard the health and safety of his employees in and outside the vicinity of their workplace. Sections 15 and 16 oblige the employer to involve representatives of workers in making and sustaining arrangements for promoting measures to ensure safety and health at work. Accordingly, the representatives represent the workers on the safety committee and this undoubtedly gives them a platform to get their concerns on safety and health addressed. Further, the Act provides for fire preparedness under Part X, the safety of machinery, plant and equipment under Part XI, precautions in handling chemicals under Part XIII among others. However, like I earlier noted, the employee equally has a duty and responsibility to take, which is enshrined under Part VI of the OSHA. The Act imposes a duty on the workers to take care while at work, and also to take reasonable care for the health and safety of himself or herself and of any other person who may be affected by his or her acts or omissions24 . Section 36 further requires a worker to immediately report to the supervisor any situation which he or she reasonably believes presents imminent danger to his or her life or life or health of other persons. This means that the duty is not only cast upon the employer but also in this case, the worker has 21 Sec 13 (2), ibid 22 Sec 19, ibid 23 Sec 18, ibid 24 Sec 35, ibid
  6. 6. a duty and responsibility to get involved in safeguarding himself or herself against health problems at work or anything dangerous that may compromise their safety. Also, workers have a right to move away from dangerous situations25 and also not to be punished for complying with the Act26 . Enforcement of the Law: The OSHA provides for the appointment of inspectors27 who are empowered under the Act to enter any premises, inspect and examine during the day or at night any workplace and every part in which he or she reasonably has belief that any person is employed therein28 . He is further empowered to cause to be dismantled or subject to any process or test any article or chemical substance to which the Act applies which in his or her opinion, appears to have caused or is likely to cause danger to the safety or health of workers29 . The inspector is also given powers to prosecute those who violate the provisions contained in the Act and where he appears to give evidence as a witness, it shall be sustained30 . Finally the Act provides for the establishment of the Occupational Safety and Health Board and advisory panels by the minister as has been earlier discussed. All these are aimed at ensuring the right of workers to a safe and healthy work environment. The Employment Act (E.A), 2006: It is the principle law that governs employment relations in Uganda. It’s under this Act that a contractual relationship is created between the employee and employee under which rights and responsibilities arise this is premised on the fact that the Act seeks to consolidate individual employment relationships31 . Notably under such contract of employment, the worker has a right to a healthy and safety working environment. For instance, among the new rights introduced by the Act which are inclusive of protection from forced labour32 , non discrimination on the basis of 25 Sec 37, ibid 26 Sec 38, ibid 27 Sec 3, ibid 28 Sec 6 (a), ibid 29 Sec 6 (k), ibid. 30 Sec 9, ibid 31 Short Title to the Act 32 Sec. 5
  7. 7. race, color, sex religion among other aspects33 , protection from sexual harassment34 . These are key factors in ensuring that the employee enjoys his/her place of work. The Control of Agricultural Chemicals Act (CACA) 1989: The agricultural sector is by far the largest employer, employing though only contributing with 7 5% of the workforce35 . Earlier seen in the OSHA, it defines a workplace and working environment to envisage all places of work and all sites and areas where work is carried out including not only the permanent, indoor, stationary places of work among others. This effectively extends to workers in the agricultural sector. The CACA is in operation and adopted under Article 274 (1) and (2) of the Constitution. Therefore, this makes it an applicable law currently. It is an Act to control and regulate the manufacture, storage, distribution and trade in, use, importation and exportation of, agricultural chemicals and for other purposes connected therewith36 . Agricultural chemicals according to the Act includes a pesticide, chemical fungicide, insecticide, nematoide, herbicide, acaricide, bactericide, rodenticide, molluscide, avicide, fertiliser, growth regulator or any other chemical or material used for agricultural purposes37 . These are dangerous chemicals which pose a high risk to the safety and health of agricultural workers. Uganda in recent times has been rocked with stories of casual labourers whose health has been affected by agricultural chemicals used in my floriculture farms, notably Rosebud Uganda Ltd38 . Section 9 of the CACA is reminiscent of Section 6 of the OSHA and it also gives Inspectors powers to enter any place, premises, vehicle or vessel, for the purpose of performing any of his or her functions under this Act or regulations made under this Act in which he or she reasonably believes an agricultural chemical to which this Act applies is stored, sold or used39 . This implies that an Inspector can enter on any farm where agricultural chemicals are used to verify If they conform to the standards set by the CACA. This section concerns enforceability of the Act/law which is aimed at protecting the right to health and safety of Agricultural workers. Whereas this Act has its shortfalls like not providing for use of safety and protective fear by 33 Sec.6 34 Sec.7 35 Uganda – Labour Market Profile 2012. 36 Preamble to the CACA, 1989 37 Sec 1, ibid 38 Rosy Future Eludes Casual Laborers At Rosebud Flower Farm, (http://ugandaradionetwork.com/a/story.php?s=15956) 39 Sec, 9 (1) (a), CACA
  8. 8. agricultural laboures, it was provided for by the OSHA and was sufficiently discussed in the preceding discussion. Enforcement of the CACA: The Act provides for the appointment of inspectors and analysts of agricultural chemicals40 which inspectors are given powers as prescribed under Section 6, earlier discussed. The CACA further creates offences and penalties41 for any person (employer) who contravenes the provisions of this Act. The Workers’ Compensation Act 2000: It is an Act to provide for compensation to workers for injuries suffered and scheduled diseases incurred in the course of their employment42 . The Act stipulates that Act shall employ to all employ with in Uganda43 . This therefore covers workers in both casual and official work, private and public sectors. The employer is liable for personal injuries by accident arising out of and in the course of employment; compensation shall be given in accordance with the Act44 . With such a provision, it compels workers to conform to the demands of the Occupational Health and Safety Act in a bid to protect and preserve the right to a safe and healthy environment. The proceeding subsections under section three further discuss situations where the worker may be liable and situations when the employer is liable to compensate the worker. Persuasive International Instruments: It should not be forgotten that Uganda is a signatory and a state party to various international instruments which inter alia provide for the protection and promotion of this right. For instance, the International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to work, the right of everyone to enjoyment of just and favorable conditions of work which ensure in particular, safe and healthy working conditions, the right to the highest attainable standards of physical and mental health, in particular, the improvement of all aspects 40 Sec 8, ibid 41 Sec 12 42 Preamble to the Act, 2000. 43 Sec 2, ibid 44 Sec 3, ibid
  9. 9. of environmental and industrial hygiene, the prevention, treatment and control of epidemic, endemic, occupational and other diseases, the creation of conditions which would assure to all medical service and medical attention in the event of sickness 45 . The International Labour Oorganisation establishes international labour standards, in the form of Conventions and Recommendations. About 80 of these deal with occupational safety and health, including, in particular, The Occupational Safety and Health Convention, 1981 (No. 155) which under Article 16(1) provides that employers shall be required to ensure that, so far as reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health, Occupational Safety and Health Convention, 2006 (No. 187) which also under Article 3 provides that each Member shall promote and advance, at all relevant levels, the right of workers to a safe and healthy working environment. There many more instruments which I cannot exhaustively discuss here but all providing for safety and health at work. In conclusion, the Constitution provides a skeleton for the right of workers to a safe and healthy environment which skeleton is clothed by parliament through the legislation of the different laws that have been discussed above, whose aim is ensuring that this right is safeguarded. Right now, it is up to the government through the Ministry of Gender, Labour and Social Development and concerned stakeholders to ensure that this right is upheld by the employers, both in the private and public sector. Note that, there is a tendency of laxity when it comes to the implementation of the different laws a reason why we keep seeing this right being abused day in day out. 45 Article 7(2), of the covenant