GUIDANCE NOTES ON THE OCCUPATIONAL SAFETY AND HEALTH ACT, 2006

Overview

The Occupational Safety and Health Act, 2006 (OSHA) is the most important legislation
on the safety and health of workers in Uganda. The Act was passed in 2006 and was part
and parcel of several labour law reforms. It was enacted as per the long title to
“consolidate, harmonize and update the law relating to occupational safety and health
and to repeal the Factories Act, Cap 220…” The OSHA applies to employment
generally, and not to specific categories of employment.

OHSA imposes broad general duties on persons at the workplace (Part III), general
obligations of suppliers, manufacturers and transporters (Part V), general duties of
workers (Part VI) and Part IX provides generally for safety requirements.

It set up a system for administration and law enforcement (Part II).

Overall responsibility for achieving the purposes of the Act is given to Commissioner for
Occupational Safety and Health (Section 4).

Under the Act, the inspectors have powers to enforce the law, but most importantly, is
the power to prosecute under s.9.7

This power has to be read together with A.120 of the Constitution which establishes the
office of the DPP therefore his/her powers to prosecute is subject to A.120.

S.10 establishes the Occupational Safety and Health Board constituted by the Minister
responsible for Safety and Health, the Minister of Labour. The role of the Board is to
advise the Minister i.e. to give expert advice on matters concerning occupational safety
and health, welfare and the working environment.

Under S.11, the Minister may appoint advisory panels to render advice on matters to do
with workplace processes, chemicals, injury or disease.

General duties under the OSHA

The OSHA, 2006 imposes general duties on the employers and others and in particular

 On employers in relation to their employees (S. 13 (1) (a) provides that it is the
responsibility of an employer to take, as far as is reasonably practicable, all
measures for the protection of his or her workers…from the dangerous aspects of
the employer‟s undertaking at his or her cost and S.13 (1) (b) provides that it is
the responsibility of an employer to ensure, as as far as is reasonably practicable,
that the working environment is kept free from any hazard due to pollution…)
 On the employer in relation to the general public (S.13 (1) (a) provides that it is
the responsibility of the employer to take, as far as is reasonably practicable, for
the protection of….the general public from the dangerous aspects of the
employer‟s undertaking at his or her cost)
 On the employer in relation to persons other than the employees (S.23 provides
that it is the duty of the employer to conduct his or her undertaking [business] in
a way that ensures, as far as is reasonably practicable, that any person who is in
his or her employment but who may be affected by the undertaking, is not
exposed to risk to his or her health and safety)
 On the self-employed person in relation to himself or herself and third parties
(s.24 provides that a self-employed person shall conduct his or her undertaking in
a way that ensures, as far as is reasonably practicable, that he or she and any
other person who may be affected by the undertaking is not exposed to risks to
his or her health and safety)
 On persons concerned with premises in relation to persons other than their
employees (s.26 provides that it shall be the duty of a person, who has to any
extent, control of premises to which this Act applies, to provide the means of
access to and exit from the premises or any plan or substances in the premises and
to take any measures that are reasonable for a person in his or her position to
ensure, as far as is reasonably practicable, that the premises remain safe and
without risk to health).
S.13 of the Act imposes a duty on the employer for the protection of employees. The
employer must take all practical and reasonable measures to ensure that safety of
workers and the general public from dangerous aspects of the employer‟s undertakings.

Subsection 2 spells out the duty in detail.

The duty also extends to control of release of dangerous substances into the environment
(s.18). The duty extends to provisions of safety gears (s.19) and adequate supervision
under s.21.

Read: Nsubuga Tonny vs Spencon Services Company Ltd, HCCS No.13 of 2014

S.23 concerned with the obligations imposed on the employer (and the self-employed
persons) to ensure the safety of persons not in their employment.

Section 13 reflects the concern which the law has always had for the safety of persons
while in employment; s 23 and s.18 reflects the novel, but important, purpose of the Act
of protecting the whole workforce and the public from the risks created by the activities
of an organization. The difference between this duty and that of common law is that this
duty includes the general public.

The breach of the duties gives rise to an offence (see s.103).

Discussion Question: Is the extent of the general duty in section 13 similar to that
imposed in section 23?

In other jurisdictions, for example the UK, which has identical provisions to Uganda‟s
OSHA s.13 & 23, it has been established that the the duty of the employer in relation to
his or her employees is the same kind of duty as that imposed on the employer in
relation to in relation to persons not in his employment because the basic duty is upon
the defendant company to make sure that their business (undertaking) is operated
(conducted) in such a way that employees and other people are not exposed to risk.
The general duty is owed by the employer and is connected to the undertaking of the
employer (section 13 of the Act). The general duties create creates an absolute (strict)
duty subject only to the qualification by reference to what is reasonably practicable.
Read:
 R v Gateway Foodmarkets Ltd [1997] IRLR 189.
 R v British Steel [1995] IRLR 310.
The phrase “so far as is reasonably practicable” qualifies the word “take” or “ensure” in
section 13 and other relevant sections and relates to the actual duty. It is the breach of
this qualified duty which gives rise to the offence in cases where the phrase is used.

Read:
 R v HTM Ltd [2006] EWCA Crim 1156, [2006] ICR 1383.
 R v Davies [2002] EWCA Crim 2949, [2003] ICR 586

In order to appreciate the extent of liability under the OSHA, it is important to

understand what the phrase „so far as is reasonably practicable‟ means in practice. This
phrase is not defined under the OSHA. However, it has been a subject to interpretation
by courts elsewhere (UK), which have established a formula to determine whether all
that was reasonably practicable had been done by the employer to discharge his duty.

Read: Edwards V National Coal Board [1949] 1 KB 704 (UK)

This was an action by the widow of a coal miner who was killed while underground by a
fall of a considerable portion of the side of the roadway, along which he was walking.
The Court of Appeal had to consider whether the defendants had discharged their
obligations under the following sections of the Coal Mines Act 1911 which required the
miner to secure the roof and sides of every travelling road and working place, and the
miner would be exempted from liability if it is shown that it was not reasonably
practicable to avoid or prevent the breach. The Court of Appeal found for the widow,
considering that the defendants had failed to establish their defence under s 102. Asquith
LJ at pp 712–13 stated that:
 „Reasonably practicable‟ is a narrower term than „physically possible‟ and seems
to me to imply that a computation must be made by the owner, in which the
quantum of risk is placed on one scale and the sacrifice involved in the measures
necessary for averting the risk (whether in money, time or trouble) is placed in
the other; and that, if it be shown that there is a gross disproportion between
them – the risk being insignificant in relation to the sacrifice – the defendants
discharge the onus on them. Moreover, this computation falls to be made by the
owner at a point of time anterior to the accident. The questions he has to
answer are: (a) What measures are necessary and sufficient to prevent any breach
of s 49?; (b) Are these measures reasonably practicable?

Based on the above judgment, we see that the core of the phrase „reasonably practicable‟
is based on notions of risk and risk assessment. What is important, however, is that the
risk that the prosecution must prove should be real as opposed to a fanciful or
hypothetical one and this depends on the facts of any particular case.
Read: R v Porter [2008] EWCA Crim 1271, [2008] ICR 1259 (UK)

The general duty of the employer is to assess the risk and put in place measures to
eliminate or minimize them.

Liability to Employees versus Liability to Non-Employees

It is possible for employers to discharge their duties to employees and at the same time
to be liable to non-employees.

Read: R v B&Q plc [2005] EWCA Crim 2297, WL 2452765 (UK).

In this case, Pamela Hinchliffe, a visitor to a store operated by B&Q plc, was crushed by a
forklift truck driven by an employee of the store when she was talking to another
employee who was struck a glancing blow by the truck. The visitor died of her injuries
shortly after the accident. The jury found the company guilty under s 3(1) but not guilty
under s 2(1). The question for the Court of Appeal was to establish whether it was logical
for the jury to have returned verdicts of guilty and not guilty in respect of the same fatal
accident. Court observed:
  There were a number of factors that applied to the appellants‟ employees but that
did not apply to members of the public. Employees were familiar with forklift
truck operations and would be on the lookout. Employees were trained in health
and safety.
 None of the above applied to members of the public; they would be unaware of
forklift truck movements and the need to take care in respect of them.
 More importantly, members of the public might well include children. Special
precautions would be essential when, as is often the case, a family goes with
children to shop at a store such as that operated by the appellants. Moving a
forklift truck around in such circumstances, without supervision and with children
unable to look after themselves as easily as adults, would be an obvious danger.
The Court stated that it could, therefore, be quite logical for the jury to conclude that a
much higher standard was applicable in respect of the public.

However, as earlier observed, the company, the employer, is liable when the necessary
conditions for liability are fulfilled, namely there was a failure to ensure the health and
safety of an employee or a non-employee. It is the same kind of duty to ensure safety of
employees and non-employees.

Individual and corporate criminal liability

The OSHA safety and health includes provisions which deal with individual liability of
directors of a company. Section 103(4) provides that where an offence under this Act is
committed by a company, cooperative society or other body and it is proved to have
been committed with the consent or connivance of or to have been facilitated by any
neglect on the part of a chairperson, director, manager, secretary or other officer of the
company, cooperative society or other body of persons, that person as well as the
company, cooperative society or other body of persons shall be deemed to have
committed the offence.
From the reading of the above section, the prosecution has to prove the consent,
connivance or neglect and its link to the company‟s, cooperative society‟s or other body
of persons‟ commission of the offence. For consent and connivance, the chairperson,
director, manager, secretary or other officer knows about the risk, but ignores it.

In some jurisdictions, courts have discussed the meaning of “negligent”. The prosecution
has to prove that there are circumstances that ought to have put the the chairperson,
director, manager, secretary or other officer on inquiry as to a particular practice and
dangers associated with it.

Read: R v E [2008] ICR 96

Additional duties and responsibilities

In addition to the overall general duty, there are other duties that are imposed on the
employer under the Act.

 Section 14: the safety policy- The absolute requirement that organizations prepare
a safety policy and publish it to their employees is one of the duties imposed by
the Act.
 SS 15& 18, there is a duty to consult safety representatives and workers
organisations
 S.16 there is a duty to establish safety committees for a workplace of at least 20
workers upon request by the safety representatives
 The Act requires accurate medical records of workers to be kept. S.22
 Ss 25-27-Employers should display guide safety precautions, provide restrooms
and keep the air in the premises free from pollutants.
 Health and welfare provisions ss.45-54 OSHA
 General safety provisions ss 56
 Safety provisions related to fire preparedness ss.57-60
  Provision and maintenance of safe machinery, plant and equipment ss. 61-82 See
the case of Groves v. Lord Wibourne [ 1898] 2 QB 402
 Part V- General Duties of manufacturers, suppliers and transporters. There is a
specific requirement on the part of manufacturer‟s to pre-test articles. In case of
highly toxic chemicals there should be prior authorization s. 34.

Part VI provides for rights and responsibilities of workers:-

i) To take reasonable care and therefore the defense of contributory negligence is

available to an employee.
ii) To cooperate with the employer
iii) There is a duty to report dangerous situations to immediate supervisor and he
has an absolute right to out of the place if he senses a dangerous situation.

There is an obligation on the employers to register all places of work and is supposed
to be issues certificate of registration. In regards to buildings, employers are supposed
to get approval and in construction they are to ensure that the buildings are in a
sound state. This means good aeration, lighting, escape routes, first aid and such items
which would make human life uncomfortable.

Employers under the Act are supposed to provide adequate training to the workers.
The employer has a duty of disposal of waste; treatment of waste should not be
harmful to the environment.

Mechanical installations should be fit for purpose.

Part XIII for chemical handling and disposal

S.99 to 118 relate to penal sanctions.

OSHA is a continuation of Workers Compensation Act, it sets standards and certain

categories of employers have a higher duty of responsibility to ensure safety of work
premises.