Labour Law II Coursework Paper

MAKERERE UNIVERSITY
FACULTY OF LAW

Name: NTEGYEREIZE ALAUTERIO
Reg.no: 05/U/1129

Student number: 205000106

Course Unit: LABOUR LAW II

Lecturer: Mrs. Fiona Muhwezi Mpanga

Question:
“The Occupational Safety and Health Act, 2006 sets out to, inter alia, ‘update the law relating to occupational safety and health’. Indeed, a quick scan of our legal framework as against the apparent occupational related illnesses arising from exposure to pesticide poisoning in a country where 80% of our population is involved in the agricultural sector, reflects that these realities have been addressed.” Per LLB. IV student. Discuss.

Background

Worldwide, Agriculture employs the biggest percentage of the labour force.[1] At the same time, it is reported to be one of the hazardous sectors with millions of workers suffering a lot occupational accidents. These are strongly attributed to exposure and direct contact with pesticides and other Agricultural chemicals which are highly used in agriculture.[2] Unfortunately, in Uganda, the Factories Act did not address the plight of Agricultural workers since it was only confined to factories. It did not differ much from English law that was received by Uganda by the virtue of s.15 of the 1902 in-Council which made it applicable to Uganda. This law was meant to further colonial interests by promoting industrialization in annexed areas, thereby neglecting the agricultural sector. However, the current legal framework seems to have addressed problems especially illnesses caused by exposure to pesticide poisoning.

Uganda’s legal framework for Agriculture
The law governing workers’ rights in Agriculture is embedded in the Control of Agricultural Chemicals Act (herein after called CAC)[3], the occupational Safety and Health Act (herein after called OSHA)[4] and the Workers Compensation Act (herein after called WCA)[5]. The CAC specifically provides for control and regulation of manufacture, storage, distribution, use, importation and exportation of chemicals in Uganda.[6]
The OSHA provides extended protection to workers in the Agriculture which was initially neglected by the Factories Act.[7] S.2 thereof, defines ‘working environment’ and ‘workplace’ to envisage “all places of work and sites and areas where work is carried out….” Definitely, this widens the coverage of protection as opposed to the Factories Act, which restricted it to Factories[8].
This and other provisions provide expanded protection to the workers in the Agricultural sector. S.13 (2) of the OSHA lays down a general duty for the employer to take reasonably practicable measures to protect workers. He or she is duty bound to provide adequate information, instructions, train the workers and supervise[9] them.[10] An employer has to provide protective gear (s.13 (2) (g))[11] and correct information of the real and potential dangers of substances used (s.13 (2) (f)). In all, these laws provide institutional mechanisms for their enforcement and specifically cover the use and storage of pesticides in the Agricultural sector.

Enforcement mechanism
Firstly, the OSHA provides for the appointment of inspectors whose work is to enter any premises, inspect and examine any workplace and every part in which he or she reasonably believes that any person is employed.[12] Under s.6 (k) that inspector is empowered to cause to be dismantled or subjected 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 safety or health.[13]

The OSHA further gives inspectors powers to prosecute those who violate the Act as is read from s.9 therein. In fact, his or her competence is unquestionable.[14]
However, looking at the realities in Agriculture, the Acts seem to be mere scarecrows. In the first instance, the inspectors are not enough to provide inspection of all areas where Agricultural activities are carried out, are not well trained and facilitated. Suffice to note that inspection only targets large scale Agricultural plantations thereby neglecting small scale farms including peasants who are constantly in use of chemicals to spray their crops and animals, in total ignorance of the likely effects. As a result, they continuously suffer illnesses which the law is meant to protect them against.
Besides, the powers of inspection and prosecution given to inspectors are so wide a discretion that it violates the doctrine of separation of powers, and are subject to abuse. Professor J.Barya[15] for instance talks of inspectors who were compromised by the management of Nytil in 1989 to give a favourable inspection report that the most of the provisions of the Factories Act (then in force) were being complied with when in reality safety and health conditions were pathetic there. These problems still cling on especially with entrenched corruption.
Otherwise, the law is applauded for putting in place the Advisory panels (s.11), the board (s.10), provisions for safety representatives (s.15) and safety committees (s.16). In particular, ss.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.
Duties of employers in relation to chemicals
These are provided for in part XIII of the OSHA –ss.95-98.
Under s.95 (1), the employer is obliged to take general preventive measures to prevent or reduce contamination of a work environment. However, this section seems to be impractical in Agricultural sector. Specifically, subsection 4 requiring that significantly hazardous chemicals be used in enclosed systems is impractical in a sense that by the very nature of Agriculture, processes like spraying is done in open air. Even then, avoidance of direct contact by use of automatic remote control systems under (s.95 (5)) is equally impractical. It is my considered opinion that this subsection only takes into account the interests of workers employed in large scale plantations and neglects the peasants who are poor and cannot afford installing such systems. In essence, it does not make sense when compared with the Factories Act Cap 220 which was confined to Factories. Looked at as a whole s.95 does not demand mandatory compliance of the employer when it talks of “whenever possible… (s.95 (2)” and “reasonably practicable (s.95 (4) and (5)”. After all, it only provides partial protection to workers because under s.95 (3) the employer is only obliged to reduce the number of workers exposed to hazardous chemicals but not to fully eliminate such risk of exposure. This is premised on the fact that the use of chemicals in Agriculture is indispensable.

S.97 requires the employer to label all hazardous chemicals and readily avail an appropriate chemical data sheet regarding the same at the workplace. This is meant to help employees safeguard themselves by avoiding touching dangerous chemicals. This no doubt is a good provision generally, but not for Agricultural sector because most of the workers employed are illiterate. There is also poor reading culture to the effect that even the literates do not take the initiative to read the labels.[16]
The compensation Act provides for compensation in respect of scheduled diseases as listed under the 3rd schedule to the Act.[17] Section 2 is very clear by making the Act applicable to all employment in Uganda, which by necessary implication includes agricultural sector. However, the Act may not help workers in agriculture, for instance s.10 is impractical in that the type of illnesses that occur in Agriculture are mostly non-fatal and in most cases not recorded for them to be reported to the labour officer. Thus, it becomes difficult for such injured worker to claim compensation where the accident has not been notified to the labour officer and the details of the cause of death will not be available in the Certificate of Death as required by s.27 of the Act.[18]
It should be noted that the duty to ensure safety and health of workers is not only cast on the employer, rather, workers must also take an initiative to promote their safety and health. For instance, s. 36[19] of the OSHA obliges a work to immediately report any situation reasonably believed to cause imminent danger to his or her life or to the life or health of others. Further, s.37 gives a worker a right to move a way from such danger provided that danger is confirmed by the commissioner[20]. This is a good provision although it does not take into account the fact that due to poverty, the workers in agriculture cannot easily withdraw their labour for fear of loosing their jobs. Even then, the s.37 is impractical because most agricultural workers are ignorant about the law and their rights due to illiteracy.
Recommendations
There is need to have mass sensitization of the public especially peasants about the danger involved with handling and use of Agricultural chemicals and how to avoid it; the number of inspectors should be increased to match the population currently engaged in agriculture.
Conclusion
The foregoing discussion clearly shows that the OSHA provides an extensive protection to workers generally, for it even prescribes penalties under s.104 as one way of enforcing compliance with its provisions. However, it fails to address the realities of Agricultural sector. Such failure is mainly reflected in section 95. It is impractical to expect spraying of chemicals to take place indoors because by the very nature of agriculture, it has got to be done in open air and this means that contamination with pesticides is inevitable.
[1] http://www.ilo.org/public/english/protection/safework/agriculture/brochure/english/agricult_e.pdf (Brochure published by Safe Work, June 2000.)
[2] According to the International labour organization estimates, more than 170,000 agricultural workers are killed annually. See ILO brochure on agriculture (supra note 1).
[3] Cap. 29
[4] Act No.9 of 2006 which repealed the Factories Act Cap.220.
[5] Cap.225
[6] This is the wording of its long title.
[7] The factories Act initially applied to workers in Factories only and did not cover other sectors. This can be traced from the colonial policy which was mainly geared at promoting industrial production by processing agricultural products.
[8] Ss.1 and 4 of the Factories Act, Cap 220. Barya agrees to this expanded protection. See Barya B. John-Jean (Apr. 2007), Freedom of Association and Uganda’s New Labour Laws: A Critical Analysis of Workers’ Organisational Rights, HURIPEC Working Paper No. 4.
[9] However, under s. 36 of the OSHA a worker must 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 other persons. This means that the duty is not only cast upon the employer but the worker also must get involved in safeguarding himself or herself against health problems.
[10] S.35 of the OSHA also imposes the same duty.
[11] The same obligation is emphasized by ss.19 and 91 of the same Act, namely the OSHA.
[12] S.6(a)
[13] These are reproduced in s.9 of The Control of Agricultural Chemicals Act, cap 29 which gives the inspector power to enter, inspect, examine, confiscate any chemicals he or she believes has caused or is likely to cause injury to the workers owing to the manner of its storage, handling or use.
[14] S.9 (2) of the OSHA.
[15] Barya, B. John-Jean (1991), Workers and the Law in Uganda, CBR Working Paper Number 17.
[16] Barya (supra) asserts that even where the workers are aware of the requirement to wear protective gear they do not actually wear it even where provided. He attributes this to their limited capacity to appreciate the long-term affects of exposure to chemicals due to illiteracy.
[17] Specifically scheduled diseases No. 19 on poisoning due to pesticides and No. 24 on poisoning due to any other chemical occupationally handled and affecting any part of or system of the body.
[18] Under s.27 (1) (a) a medical practitioner must grant a certificate stating that the worker is suffering from a scheduled disease or that the death of the worker was caused by a scheduled disease.
[19] S.24 of the OSHA also requires the self-employed to conduct their undertakings in a manner that is practically possible in order to ensure that they or any other person is not exposed to life or health threatening dangers. Other duties are imposed on manufacturers, suppliers, importers and transporters of chemicals to take safety and health of people into account for instance through labeling to warn the users of the danger associated with the chemicals (s.28 and 98 of the OSHA).
[20] Under s.38 of the OSHA, a worker who moves away from danger under s.37 shall not be punished for doing so.