Robyn Miller | Occupational safety law long overdue
The discussions around the Occupational Safety and Health Act (OSHA) have dragged on for nearly two decades, and Jamaica AIDS Support for Life continues to ask: Why has it taken so long to pass legislation that all the stakeholders agree is important to our economic and workforce development?
On February 1, JASL hosted a multi-stakeholder forum to examine the status of the proposed OSHA legislation and its impact on the National Workplace Policy on HIV & AIDS. The main address delivered by Robert Chung, on behalf of Labour and Social Security Minister Shahine Robinson, saw Chung reiterate the importance of the piece of legislation and his ministry's desire to have it enacted.
A mere 12 days after JASL held its OSHA forum, Minister Robinson, on February 13, opened the debate in Parliament on the bill. The minister signalled the benefits of OSHA to both the employer and the employee and endorsed the International Labour Organisation's (ILO) Decent Work Agenda. The minister also acknowledged that the bill was long in coming and reaffirmed strongly her administration's commitment to see it through. That debate was eventually suspended for the 2018-2019 legislative year.
OSHA has its foundation in three principles: protection of the workforce, productivity and efficiency and accident prevention. All three are important and in the best interest of the worker, employer, the Government and the development of Jamaica. But let us focus here on the protection of the workforce and exactly what that means.
The workforce refers to not just those engaged in work but those available for work; hence any protection available to the former must be afforded the latter. Among the contentious issues JASL continues to grapple with the absence of OSHA is the practice by companies that insist on mandatory testing of its employees and pre-employment screening of prospective employees, despite the National HIV Workplace Policy prohibiting the same.
JASL argues that such practices are unacceptable. Other unacceptable practices that continue include the dismissal or demotion of employees found to be HIV-infected, as well as cases of discrimination regarding employment benefits such as group life and medical insurance.
One can always argue, and quite rightly so, that the policy is not legislation and that there is nothing in law to stop an employer who wishes to go that route, especially if they are not a signatory to the voluntary compliance programme. Currently, some 300 institutions have signed the commitment form for the voluntary compliance programme under the auspices of the National HIV/AIDS Workplace Policy.
Despite these provisions, unless and until the Occupational Safety and Health Act is passed, there are no legal protections and sanctions against discrimination of people living with HIV by way of regulations to be appended to the OSHA legislation. It is, therefore, incumbent that the State takes steps to ensure employers desist from this practice. It is in this regard that we welcome the OSHA as a piece of legislation to complement the Workplace Policy on HIV and AIDS and emphasise the need to ensure the act does not fall short of existing provisions in the policy.
The OSHA bill, in its current state, does not explicitly prohibit testing, but the policy does. The Government must, therefore, find a way to incorporate this important provision into the act so that people living with and affected by HIV do not continue to face discrimination within the workplace or upon seeking employment.
JASL uses this opportunity to remind employers and the wider public that HIV is not transmitted through casual contact; and as such, the sharing of workspaces does not put other employees at risk for contracting the virus. Importantly, HIV does not prevent people from working, performing their duties or being productive citizens.
Minister Robinson, in her presentation to Parliament, emphasised the widespread consultation that has already taken place to inform what is now being presented. Our concern, however, is that this bill, like so many others, does not get shelved for another decade. We are all too aware of the practice of successive administrations to put off debates on legislation, most of which end up falling off the calendar.
The Government has made a commitment to fast-track key pieces of legislation that have been lagging for years, and for that we commend them on actually starting the debate and hope that what started on February 13 will quickly receive the assent of the governor general. In the same breath, we are asking: What is happening with the Sexual Harassment Bill and the long-awaited review of the sexual offences and other related acts?