DOES FACTORIES OCCUPATIONAL HEALTH AND SAFETY LAW FULLY PROTECT WORKERS?

Since the establishment of National Social Security Authority (NSSA) establishment of  new occupational health and safety laws was  eminent as Zimbabwe was and is still one of the countries  that has not updated its legislation in Southern Africa Development Committee(SADC) (NSSA 2012). There is a need to create a more comprehensive empowering mechanism in line with ratified ILO conventions 155, 161, 162, 170, 174 and 176. This was proved by NSSA 2010 in a study where they evaluated how Zimbabwe comply with C174 and concluded that there is need to develop and promulgate a regulation for the prevention of major industrial accidents and all other conventions as well (Unpublished project by Polite Nhokovedzo). There is a need to overcome the widely noted fragmentation in legal laws. Thus regardless of endorsement of key Occupational Safety and Health (OSH) conventions the nation failed to deliver a new OSH legislative dispensation (NSSA 2012).

The human, social and economic costs of occupational accidents, injuries and diseases and major industrial disasters have long been cause for concern at all levels from the individual workplace to the national and international level (Alli 2008). Measures and schemes developed to prevent, control, reduce, eliminate occupational hazards and risks have been established and applied continuously over the years to keep pace with technological and economic changes (Alli 2008). Despite these continuous improvements, occupational accidents and diseases are still too frequent and their cost in terms of human suffering and economic burden continues to be significant (ILO 2012), especially in developing countries such as Zimbabwe. 

Although there might be a strong enforcement of Occupational Safety and Health laws, increase in the accidents can still be noticed if there are loopholes in the laws in force since most companies are committed to comply with minimum requirements of the law in order to avoid costs.  However the main objective of OSH legislation is to prevent accidents and occupational related diseases in the workplace, there should be efficiency and responsibility in the enforcement of OSH rules and regulations (Liu & Liu 2016). There is need to strengthen laws so as to fully protect the workers so as to enhance economic productivity as human remains the most precious resource in building economies. Appropriate legislation and regulations, together with adequate means of enforcement, are key policy instruments for the protection of workers. They form a basis for efforts to improve working conditions and the working environment.

Legislation is the very foundation of social order and justice; without it, or where it is not enforced, the door is wide open to all forms of abuse (Alli 2008). There is need therefore take such measures as may be necessary to protect workers’ safety and health. The law directly regulates certain components of working conditions and the work environment and occupational safety and health. Therefore the aim of this paper is to discuss weakness of Zimbabwean occupational health and safety laws governing factories, which needs to be addressed so as to protect the workers.

Occupational health and safety laws are fragmented. There is Factories and Works Act 14:08 of 1976 with 8 regulations namely Registration and control (RGN 262), General Regulations (RGN 263), Building, Structural and Excavation Work Regulations(RGN 264), Escalators and Excavation Regulations (RGN 278) Boiler Regulations (RGN 279) Machinery Regulations (RGN 302), Pressure vessel Regulations (RGN 303)and Electrical Regulations (RGN 304). In addition to that there is NSSA Act 17:04, NSSA (Accident prevention and workers’ compensation scheme) Regulations SI 68 of 1990, Pneumoconiosis Act (Cap 15:08), Radiation Protection SI 62 of 2011 and Labour Relations Act 28:01 of 1996. There is need for consolidation Factories and works, NSSA, Pneumoconiosis and Radiation protection Acts in order to reduce fragmentation of law. This problem usually lead unclear jurisdiction of authority on the administration of laws. More so it also causes same issues to be addressed different Acts which creates confusion for example Factories and Works Act 14; 08 of 1976 section 14 requires accidents reporting to NSSA to be done if the worker is has not reported to work for 3 days, however NSSA (Accident Prevention and Compensation Scheme) SI 68 of 1990 requires such accidents to be reported after a day.

 Due to fragmentation of law there is no clear jurisdiction of powers in given by Acts for administration of laws.This can be solved by having one national institute having structural board that govern occupational health and safety in Zimbabwe. Currently we have NSSA board which is given power by NSSA Act 17:04 from section 3-12 which mainly deals with occupational health and safety issues from factories and partially mining industry. There is a Pnuemoconiosis board which is given power by Pnuemoconiosis act 15:08 from section 4-14. This board sit for dust related issues in Zimbabwe, including factories. There is replication of powers which can lead to lapses in enforcement of law hence can be a cause of increasing accident levels in Zimbabwe.

The trend in major developed countries is to limit the number of statutory instruments and to promote the publication by government agencies or specialized professional bodies of directives, codes of practice and voluntary standards, which are more flexible and can be updated more easily(Alli 2008). This approach fosters prevention but does not in any way prevent the enactment of specific regulations where strict measures are required to control serious occupational hazards. Standards, specifications and codes of practice issued by national standards organizations or professional or specialized institutions are generally not binding, but in some cases they have been given the force of law by the competent authority (Alli 2008). This lightens the lawmaker’s assignment however it may increase administration load for enforcement of such standards but protection of workers can be achieved.

More so, National Social Security board mainly constitute individuals from administrative background. There is need to have a qualification regulation, which tell the employer who you are professionally not employee to tell us who he/she is professionally. This will help tertiary education institutes to coin up programs in such a way that students will qualify in relevant fields especially in occupational health and safety.This proposed regulation can be governed ministry of labor. There is need to have a competency board within NSSA which certifies every occupational health and safety practitioner in Zimbabwe. This will reduce accidents as competent personnel will be in industry dealing with occupational health and safety at source. This institute should have a system which allows 2 years of renewing their membership through writing an exam to check level of progressing in knowledge of occupational health and safety practitioners. The national Board on Occupational Health and Safety should mainly constitute members who are chartered practitioner from various fields of occupational health and safety. This means that board members should have at least 10 years of experience in a specific field of occupational health and safety. This include individuals from various industries including consultancy, where administrative professionals should take less of the seats in the composition of the National Social Security Board.

Chief inspector shall be the chairman of the board at national level, not to give the powers to the minister to appoint the chairman of the board. This can lead to lack of competency in the board as the minister can appoint anyone based on political interest. Although taking of names to be board members can come from employees and employers organisations, qualification and competency should be considered. This will give a push to the organisation to employ occupational health and safety practioner who will deal with the issues even in Labour unions. Chartered practioner are the only ones to be appointed as technical committee members. Although we have a technical committee named ZIOSHC it is difficult to trace where it originated in the parent act of NSSA Act 17; 04 of 1990. This leads to inefficiency in the execution of duties prescribed to the committee as it is lacking a clear legal backing. Issues of its competence and relevance being questioned even though its present is crucial in the management of Occupational Health and Safety at National level.

Parent act and its regulations should have a relationship where one can trace from the parent act were the regulation is emanating from. This can be increase coherence and cohesion of laws avoiding conflicting issues for example Environmental Management Act 20:27 have clear relationships with its statutory instruments. However most of occupational health and safety laws in such NSSA Act 17:04 does not have such a relationship with NSSA (Accident Prevention and Workers Compensation Scheme) SI 68 of 1990.

There is need to call upon Standard Association of Zimbabwe (SAZ) in our occupational health and safety laws for formulation of standards which enforceable. SAZ will therefore be a board which prepares legally binding procedures and standards which will be used in Occupational health and safety monitoring especially in Industrial Hygiene. This standards should be referenced in the laws so as to avoid confusion and updated regularly. In the process of formulation of standards a tripartite approach will be used to ensure that the standards are considering current issues in the country which are economic and professionally sound to avoid adopting other nation’s standards without scrutinizing them.

Consultant companies in occupational health and safety should be registered with NSSA. Registration process should take into consideration of qualifications of the members of the consultant which are given a proof of expertise to be allowed to consult in that given area which is different from the competence certificate obtained initially. There is need for issuing of identification number to all consultant so that they might be responsible for their work for a client by the national authorities.

Appointment of safety representatives are covered in the 3rd schedule of SI 68 (Accident prevention and compensation scheme) of 1990. This is done to encourage social dialogue in the country so as to foster a hazard free environment at workplaces. However according to the survey conducted by NSSA 2012, conclusion were drawn requesting the establishment of a law which shows the establishment of ZIOCSH, safety representatives, safety committees at workplace. Appointment of these social dialogue systems should be legally binding (NSSA 2012).This will enable development of strong social dialogue pertaining occupational health and safety in safety (Alli 2008).

It has been recognized, in countries with good safety records, that it is more effective to stipulate the duties of those with primary responsibility for OSH measures in general terms, rather than to attempt to regulate a multitude of hazards in minute detail (Alli 2008).This approach is important because technology is developing at an increasingly rapid pace, and it often proves difficult for the legislation to keep abreast of progress. More recent legislation has therefore avoided setting out detailed requirements, but rather has defined general objectives in broad terms.