TOPIC 7
LAW RELATING TO HEALTH AND SAFETY AT WORK
Introduction
Under the statutes such as the Factories Act (cap 514),the occupational safety and health Act,2007,the Employment Act(cap 226) and the Regulation of wages and conditions of employment Act(Cap 229) employers have a duty to provide safe working conditions and to take reasonable care to ensure the health and safety of employees. In the course of their employment, employees can be subject to various dangers that can cause injury, disease or death. These include factory or workplace accidents which can arise from tools, equipment or machinery that can injure, explosions and fires, occupational diseases and motor vehicle accidents.
Most of the legal provisions regarding health and safety at work are covered in the Factories Act(cap 514) of 1951 which is an act of parliament to make provision for the health, safety and welfare of persons employed in factories and welfare of persons employed in factories and other places and for matters incidental thereto and connection therewith. The act was repealed by the occupational safety and Health (OSHA) 2007 which is defined as an act of parliament to provide for the safety, health and welfare of workers and all persons lawfully present at workplace, to provide for the establishment of the national council for occupational safety and health and for connected purposes.
Meaning of factory
Factory means any premises in which persons are employed in manual labour.
6.1 Duties of employers and employees in a workplace Part 11
Duties of employers /occupiers (Section6)
(1) Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace.
(2) Without prejudice to the generality of an occupier’s duty under subsection (1), the duty of the occupier includes—
(a) the provision and maintenance of plant and systems and procedures of work that are safe and without risks to health;
(b) arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure the safety and health at work of every person employed
(d) the maintenance of any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks to health;
(e) the provision and maintenance of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employees welfare at work;
(f) informing all persons employed of——
(i) any risks from new technologies; and
(ii) imminent danger;
(g) ensuring that every person employed participates in the application and review of safety and health measures.
(3) Every occupier shall carry out appropriate risk assessments in relation to the safety and health of persons employed and, on the basis of these results, adopt preventive and protective measures to ensure that under all conditions of their intended use, all chemicals, machinery, equipment, tools and process under the control of the occupier are safe and without risk to health and comply with the requirements of safety and health provisions in this Act.
(4) Every occupier shall send a copy of a report of risk assessment carried out under this section to the area occupational safety and health officer;
(5) Every occupier shall take immediate steps to stop any operation or activity where there is an imminent and serious danger to safety and health and to evacuate all persons employed as appropriate.
(6) It is the duty of every occupier to register his workplace unless such workplace is excepted from registration under this Act.
(7) An occupier who fails to comply with a duty imposed on him under this section commits an offence and shall on conviction be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding six months or to both
Duties of employee (Section 13)
(1) Every employee shall, while at the workplace—
(a) ensure his own safety and health and that of other persons who may be affected by his acts or omissions at the workplace;
(b) co-operate with his employer or any other person in the discharge of any duty or requirement imposed on the employer or that other person by this Act or any regulation made hereunder;
(c) at all times wear or use any protective equipment or clothing provided by the employer for the purpose of preventing risks to his safety and health;
(d) comply with the safety and health procedures, requirements and instructions given by a person having authority over him for his own or any other person‘s safety;
(e) report to the supervisor, any situation which he has reason to believe would present a hazard and which he cannot correct;
(f) report to his supervisor any accident or injury that arises in the course of or in connection with his work;
(g) with regard to any duty or requirement imposed on his employer or any other person by or under any other relevant statutory provision, co-operate with the employer or other person to enable that duty or requirement to be performed or complied with.
(2) A employee who contravenes the provisions of this section commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding three months or to both.
Notice of accidents and dangerous occurrences (Section 21)
(1) An employer or self-employed person shall notify the area occupational safety and health officer of any accident, dangerous occurrence, or occupational poisoning which has occurred at the workplace.
(2) Where an accident in a workplace, causes the death of a person therein, the employer or self employed person shall—
(a) Inform the area occupational safety and health officer within twenty-four hours of the occurrence of the accident;
(b) Send a written notice of the accident in the prescribed form to the area occupational safety and health officer within seven days of the occurrence of the accident.
(3) Where an accident in a workplace causes non-fatal injuries to a person therein, the employer shall send to the area occupational safety and health officer, a written notice of the accident in the prescribed form within seven days of the occurrence of the accident.
(4) In the case of death due to a workplace accident, non- fatal injuries arising from a workplace accident, an occupational disease or a dangerous occurrence at the workplace, involving a self-employed person incapable of submitting notification, such notification shall be submitted to the area occupational safety and health officer by the occupier.
(5) An employer shall cause all workplace injuries to be entered in the general register specified in section 122.
(6) Where a person injured in an accident dies after the accident is notified under this section, the employer shall send a notice of the death in writing, to the area occupational safety and health officer as soon as he is informed of the death.
(7) Where an accident to which this section applies occurs to an employee and the occupier of the workplace is not the employer of the person injured or killed, the employer of that employee, shall, immediately report the accident to the occupier or, the Director and the area occupational safety and health officer.
(8) The provisions of this section shall extend and apply to the dangerous occurrences specified in the First Schedule
(9) The Minister may, on the advice of the Council, by notice in the Gazette amend the First Schedule.
(10) A person who fails to notify an accident or a dangerous occurrence as required under this section commits an offence and shall on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding six months or to both.
Notification of occupational diseases (Section 22)
(1) A medical practitioner attending a patient who he believes to be suffering from any disease specified in the Second Schedule, contracted in any workplace, shall within seven days of attending the patient unless such a notice has been previously sent, send to the Director, a notice stating the name and full postal address of the patient, the disease from which, in the opinion of the medical practitioner, the patient is suffering, and the name and address of the workplace in which the patient was last employed.
(2) A medical practitioner who fails to send a notice in as required by subsection (1), commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand shillings.
(3) An occupier shall send a written notice of any disease, specified in the Second Schedule, occurring in a workplace to the Director and the provisions of section 21 with respect to the notification of accidents shall mutatis mutandis apply to any notification of diseases.
(4) The Minister may, by rules apply the provisions of this section to all workplaces or any class or description of workplace to any disease other not specified in the Second Schedule.
6.2 Powers of the occupational safety and health officer Part III Section 32
(1) An occupational safety and health officer shall, for the purpose of the execution of this Act, have power to do all or any of the following things—
(a) to enter, inspect and examine, by day or by night, a workplace, and every part thereof, when he has reasonable cause to believe that any person is employed therein, and to enter, inspect and examine, by day, any place which he has reasonable cause to believe to be a workplace and any part of any building of which a workplace forms part and in which he has reasonable cause to believe that explosive, highly inflammable or any other hazardous materials are stored or used:
Provided that—
(i) an occupational safety and health officer shall, whenever it is practicable so to do and will not in his opinion defeat the object of his inspection, notify the occupier or some other person in authority at a workplace of his arrival at the workplace for the purpose of inspecting it;
(ii) when an occupational safety and health officer has inspected a workplace without having first given the notification referred to in paragraph (i) of this proviso, he shall, within a reasonable time after such inspection, inform the occupier and the Director in writing of the reason why no notification was given;
(b) with regard to any place of work which he has power to enter, to direct that those premises or any part of them or anything therein, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purposes of any examination or investigation;
(c) to take such measurements and photographs and making such recordings as he may consider necessary for the purposes of any examinations or investigation under this Act;
d) to develop and print photographs of scenes of occupational accidents;
(e) take and remove samples of any articles or substances found at any place of work which he has power to enter and of the atmosphere in or in the vicinity of such a place of work subject to the employer being notified of any sample so taken;
(f) to take with him a police officer if he has reasonable cause to apprehend any serious obstruction in the execution of his duty;
(g) to require the production of the registers, certificates notices and documents kept in pursuance of this Act and to inspect, examine and copy any of them;
(h) to make such examination and inquiry as may be necessary to ascertain whether the provisions of this Act, and of the enactments for the time being is force relating to public health, are complied with, so far as respects a workplace and any persons employed in a workplace;
(i) to require any person whom he finds in a workplace to give such information as it is in his power to give as to who is the occupier of the workplace;
(j) to examine, either alone or in the presence of any other person, as he thinks fit, with respect to matters under this Act, every person whom he finds in a workplace, or whom he has reasonable cause to believe to be or to have been within the preceding six months employed in a workplace, and to require every such person to be so examined and to sign a declaration of the truth of the matters respecting which he is so examined; so, however, that no one shall be required under this provision to answer any question or to give any evidence tending to incriminate himself;
(k) in the case of an occupational safety and health officer who is a medical practitioner, to carry out such medical examinations as may be necessary for the purposes of his duties under this Act; and
(l) to exercise such other powers as may be necessary for the purposes of this Act.
(2) The occupier of every workplace, and his agents and servants, shall furnish the means required by an occupational safety and health officer as necessary for an entry, inspection, examination or inquiry, or the taking of samples, or otherwise for the exercise of his powers, under
(3) An occupational safety and health officer shall in the case of any article found in any premises which he has power to enter, being an article or substance which appears to him to have caused or is likely to cause danger to safety or health, cause it to be dismantled or subjected to any process or test but not to damage or destroy it unless this is in the circumstances necessary. (4) In the case of any article or substance specified in subsection (3) an occupational safety and health officer may take possession of it and detain it for so long as is necessary for any of the following purposes —
(a) to examine it and do to it anything which he has power to do under this Act;
(b) to ensure that it is not tampered with before his examination of it is completed;
(c) to ensure that it is available for evidence in any proceedings for an offence under this Act;
(d) to summon in writing any person whom he has reasonable cause to believe to be able to give any information relevant to any inspection, examination or investigation, to attend at a time and place specified and to give such information or to produce any relevant document. this Act in relation to that workplace.
6.3 Health General Provisions Part VI
Cleanliness (Section 47)
(1) Every workplace shall be kept in a clean state, and free from effluvia arising from any drain, sanitary convenience or nuisance, and, without prejudice to the generality of subsection (1)—
(a) accumulations of dirt and refuse shall be removed daily by a suitable method from the floors and benches of workrooms, and from the staircases and passages;
(b) the floor of every workroom shall be cleaned at least once in every week by washing or, if it is effective and suitable, by sweeping or by any other method;
(c) all inside walls and partitions, and all ceilings or tops of rooms, and all walls, sides and tops of passages and staircase, shall——
(i) where they have a smooth impervious surface, at least once in every period of twelve months, be washed with hot water and soap or cleaned by other suitable method;
(ii) where they are kept painted with oil paint or varnished, be repainted or varnished at least once in every period of five years.
Overcrowding (Section48.)
(1) An occupier shall ensure that his workplace shall not, while work is carried on, be so overcrowded as to cause risk of injury to the health of the persons employed therein.
(2) Without prejudice to the generality of subsection (1) a workplace shall be of sufficient size for work to be carried out with ease and shall further have the necessary free space and , having regard to the nature of the work ,an adequate amount of air for each
Ventilation (Section 49)
(1) An occupier shall ensure that effective and suitable provision is made for securing and maintaining, by the circulation of fresh air in each workroom, the adequate ventilation of the room.
Lighting (Section 50)
(1) An occupier shall ensure that effective provision is made for securing and maintaining sufficient and suitable lighting, whether natural or artificial, in every part of his workplace in which persons are working or passing.
(2) All glazed windows and skylights used for the lighting of workrooms shall, so far as practicable be kept clean on both the inner and outer surface and free from obstruction
Drainage of floors (Section 51)
Where any process is carried on which renders the floor liable to be wet to such an extent that the wet is capable of being removed by drainage, effective means shall be provided and maintained for draining off the wet.
Sanitary conveniences (Section 51)
(1) Sufficient and suitable sanitary conveniences for the persons employed in the workplace shall be provided, maintained and kept clean, and effective provision shall be made for lighting the conveniences; and, where persons of both sexes are or are intended to be employed (except in the case of workplaces where the only persons employed are members of the same family dwelling there), such conveniences shall afford proper separate accommodation for persons of each sex.
6.4 Safety general provisions
Vessels containing dangerous liquids
(1) Every fixed vessel, structure, sump or pit containing corrosive or poisonous liquid, either be securely covered or be securely fenced to at least that height to prevent any person from falling into the vessel, structure, sump or pit.
(2) A plant referred to in subsection (1) shall have a warning notice, indicating the nature of the danger, in a form readily understood by the persons in the workplace and shall be marked on or attached to the plant or, if this is not practicable, be posted in a conspicuous location near the plant.
Storage
(1) All goods, articles and substances stored in a workplace shall be stored or stacked—
(a) in such manner as will ensure their stability and prevent any fall or collapse of the stack;
(b) in such manner as not to interfere with the adequate distribution of natural or artificial light, the natural ventilation systems, the proper operation of machines or other equipment, the unobstructed use of passageways, gangways or traffic lanes, and the efficient functioning of sprinkler systems, the unobstructed access to other fire extinguishing equipment within the workplace;
(c) on firm foundations not liable to overload any floor.
(2) No goods, articles or substances shall be stored or stacked against a wall or partition unless the wall or partition is of sufficient strength to withstand any pressure caused thereby.
Ladders
(1) Every ladder to be issued in workplace shall be of good construction, sound material adequate strength and suitable for the purpose for which it is used and shall be properly maintained.
(2) No ladder shall be used unless—
(a) it is securely fixed in a position to prevent it from slipping or falling, except that when this is impracticable, a person shall be stationed at the base of the ladder to prevent it from slipping or falling;
(b) it stands on a firm and level footing except in the case of suspended ladder;
(c) it is secured where necessary to prevent sagging;
Ergonomics at the workplace (Section76)
(1) Machinery, equipment, personal protective equipment, appliances and hand tools used in all workplaces shall comply with the prescribed safety and health standards and be appropriately installed, maintained and safe guarded.
(2) Every employer shall take necessary steps to ensure that workstations, equipment and work tasks are adapted to fit the employee and the employee‘s ability including protection against mental strain.
(3) Every manufacturer, importer and supplier or an agent of a manufacturer, importer and supplier of the machinery and equipment referred to in paragraph (1) shall ensure that the equipment complies with the safety and health standards prescribed under this Act and shall provide adequate and appropriate information including hazard warning signs.
(4) An employer shall not require or permit any of his employees to engage in the manual handling or transportation of a load which by reason of its weight is likely to cause the employee to suffer bodily injury.
Fire prevention
(1)All stocks of highly inflammable substances shall be kept either in a fire-resisting store or in a safe place outside any occupied building.
(2)Where highly flammable liquids are to be conveyed within a workplace they shall, where it is practicable so to do, be conveyed through a totally enclosed system incorporating pipe-lines and pumps or similar appliances but where conveyance of highly flammable liquids within a workplace through such a totally enclosed system is not practicable, they shall be conveyed in vessels which are so designed and constructed as to avoid so far as practicable, the risk of spilling.
(3)Where in any process or operation any highly flammable liquid is liable to be spilled or to leak, all reasonably practicable steps shall be taken to ensure that any highly flammable liquid, which is spilt, or leaks shall be contained or immediately drained off to a suitable container or to a safe place, or otherwise treated to make it safe.
(4) No means likely to ignite vapours from highly flammable liquids shall be present where a dangerous concentration of vapours from flammable liquids may reasonably be expected to be present.
(5) No person shall smoke, light or carry matches, lighters or other flame producing articles, or smoking materials, in any place in which explosive, highly flammable or highly combustible substances, are manufactured, used, handled or stored. at or as near as possible to every place in
Safety provisions in case of fire (Section 81)
(1) In every workplace or workroom there shall be——
(a) provided and maintained, and conspicuously displayed and free from any obstruction so as to be readily accessible, means for extinguishing fire, which shall be adequate and suitable having regard to the circumstances of each case; and
(b) present, persons trained in the correct use of such means of extinguishing fire during all working hours.
(2) Every workplace shall be provided with adequate means of escape, in case of fire, for the persons employed therein, having regard to the circumstances of each case.
(3) All the means of escape referred to in subsection (2) shall be properly maintained and kept free from obstruction.
(4) The contents of any room in which persons are employed shall be so arranged that there is a free passageway for all persons working in the room to a means of escape in case of fire.
(5)All doors affording a means of exit from the workplace for the persons employed therein shall, except in the case of sliding doors, be constructed to open outwards.
(6)While any person is within a workplace for the purpose of employment or meals, the doors of the workplace, and of any room therein in which the person is, and any doors which afford a means of exit for persons employed in the workplace from any building or from any enclosure in which the workplace is situated, shall not be locked or fastened in such manner that they cannot be easily and immediately opened from the inside.
(7) Every, window, door or other exit affording means of escape in case of fire or giving access thereto, other than the means of exit in ordinary use, shall be distinctively and conspicuously marked by a notice printed in red letters of an adequate size.
(8)There shall be marked on the floor of every workroom gangways to facilitate proper arrangement of the contents of the workroom with a view to keeping all fire extinguisher points and fire exits free from obstruction and for ensuring proper housekeeping.
(9) Every occupier of a workplace shall take effective steps to ensure that all the persons employed therein are familiar with the means of escape in case of fire, and with the routine to be followed in case of fire.
6.5 Welfare general provisions
Supply of drinking water (Section 91)
(1) Every occupier shall provide and maintain an adequate supply of wholesome drinking water at suitable points conveniently accessible to all persons employed.
Washing facilities (Section 92)
(1) Every occupier shall provide and maintain for the use of persons employed, adequate and suitable facilities for washing, which shall be conveniently accessible and shall be kept in a clean and orderly condition.
Accommodation for clothing (Section 93)
Every occupier shall provide and maintain for the use of a person employed, adequate and suitable accommodation for clothing not worn during working hours.
Facilities for sitting (Section 94)
Every occupier shall provide and maintain, for the use of a person employed whose work is done standing, suitable facilities for sitting, sufficient to enable the person employed to take advantage of any opportunities for resting which may occur in the course of his employment.
First-aid (Section 95)
Every occupier shall be provide and maintain so as to be readily accessible, a first-aid box or cupboard of the prescribed standard.
