HEALTH AND SAFETY AT WORK AMENDMENT ACT 2004 BERMUDA 2004 : 21 HEALTH AND SAFETY AT WORK AMENDMENT ACT 2004

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1 BERMUDA 2004 : 21 HEALTH AND SAFETY AT WORK AMENDMENT ACT 2004 [Date of Assent: 20 July 2004] [Operative Date: 20 July 2004] ARRANGEMENT OF SECTIONS 1 Short title 2 Amendment of section 1 3 Amendment of section 2 4 Amendment of section 3 5 Insertion of sections 3A, 3B, 3C and 3D 6 Amendment of section 7 7 Insertion of sections 7A, 7B and 7C 8 Amendment of section 8 9 Amendment of section 9 10 Amendment of section Amendment of section Insertion of section 14A 13 Amendment of section 15A 14 Substitution of section Amendment of section Insertion of sections 20A and 20B 17 Amendment of section Amendment of section Amendment of principal Act WHEREAS it is expedient to amend the Health and Safety at Work Act Be it enacted by The Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and the House of Assembly of Bermuda, and by the authority of the same, as follows: 1

2 Short title 1 This Act may be cited as the Health and Safety at Work Amendment Act Amendment of section 1 2 Section 1 of the Health and Safety at Work Act 1982 (in this Act referred to as "the principal Act") is amended by deleting the words "Health and Safety at Work" and substituting the following words "Occupational Safety and Health". Amendment of section 2 3 Section 2 of the principal Act is amended in subsection (1) by deleting the definition of "inspector" and substituting the following definition "Safety and Health " means a Safety and Health for the purposes of the administration of this Act;". Amendment of section 3 4 Section 3(2) of the principal Act is amended in paragraph (f) by deleting " committee" and substituting " committee or the representative". Insertion of sections 3A, 3B, 3C and 3D 5 The principal Act is amended by inserting the following sections next after section 3 "Investigation and report of accidents and dangerous occurrences 3A Every employer shall investigate the cause of every accident or dangerous occurrence at the work place and furnish a report to the Minister, in such form as the Minister may direct, on the cause of the accident or the dangerous occurrence and the remedial action taken to prevent a recurrence of the accident or dangerous occurrence, within one week of the accident or dangerous occurrence. Duty of employer to display Act and Regulations 3B An employer shall (a) post a copy of this Act and any Regulations made under this Act at a conspicuous place at the place of employment; or 2

3 (b) place a copy of this Act and any Regulations made under this Act at a place that is easily, readily and conveniently accessible for use by the employer and all employees. Duty of employer to keep documents and data 3C Every employer shall keep documents and data on work processes, material, equipment, working conditions and any other documents or data that affect the of persons at work as the Minister may specify and in such form as the Minister may direct. Duty of medical officers 3D (1) A medical officer who is of the opinion that a patient is suffering from an occupational disease or illness shall furnish the employer of that patient or the Minister, where the person is self-employed, with a report on the occupational disease or illness. (2) An employer who receives a report under subsection (1) that an employee of his has been diagnosed as suffering from an occupational illness or disease shall report the matter to the Minister. Duty of persons providing workers compensation coverage 3E A person in the business of providing workers compensation coverage to persons to whom this Act applies shall, on or before the last day of January in any year, provide the Minister with data pertaining to accidents, injuries and illnesses of the previous year, in such form and in such detail as the Minister may direct.". Amendment of section 7 6 Section 7(5) of the principal Act is amended in paragraph (a) by inserting the word "from" next after the word "goods". Insertion of sections 7A, 7B and 7C 7 The principal Act is amended by inserting the following sections next after section 7 "Right of employee to refuse dangerous work 7A (1) Subject to subsection (2) an employee who has reasonable cause to believe that the condition of an article or a place of employment presents an imminent and serious danger to his health or life shall have the right to refuse to work. 3

4 (2) An employee shall not be entitled to refuse to work where the imminent and serious danger referred to in subsection (1) is a danger inherent in the employee's work or constitutes a normal condition of employment, or the withdrawal of the services of the employee could endanger the safety or life of another person. Procedure to follow 7B (1) Where an employee has reasonable cause to believe that the condition of an article or a place of employment presents an imminent and serious danger to his health or life he shall report the matter to his employer and remain available for work until his claim has been investigated. (2) An employer who receives a report about a claim to an imminent and serious danger under subsection (1) shall conduct an investigation into the claim, in the presence of the employee and a member of the committee or the safety and health representative, to ascertain the authenticity of the claim. (3) Where an employer and an employee cannot reach an agreement on a claim to the existence of an imminent and serious danger, a Safety and Health shall be called in to investigate the claim. (4) Where a Safety and Health, called in to investigate a claim to the existence of an imminent and serious danger, determines that no imminent and serious danger exists, the employee shall no longer be entitled to the right of an employee to refuse to work under section 7A(1). Protection from unjust disciplinary measures 7C No employer shall dismiss, suspend, lay-off, demote or impose any penalty, financial or otherwise or institute any disciplinary measures against an employee for (a) testifying in any proceedings under this Act; (b) providing information to a person who has a duty under this Act; (c) seeking compliance with or acting in accordance with this Act; or (d) exercising his rights under this Act.". 4

5 Amendment of section 8 8 Section 8(2) of the principal Act is amended in paragraph (a) by deleting "lie" and substituting "he". Amendment of section 9 9 Section 9(1) of the principal Act is amended in paragraph (n) by deleting "o" and substituting "of". Amendment of section Section 13 of the principal Act is amended in subsection (4) by deleting "fixed" and substituting "fix". Amendment of section Section 14 of the principal Act is amended by repealing subsections (4) and (5) and substituting the following "(4) Where there is a committee or a safety and health representative at a place of employment and a notice of contravention which relates to a contravention at that place has been served upon any person, the Safety and Health shall provide the committee or the representative with a copy of that notice and, where there is no such committee or representative, the Safety and Health shall post a copy of the notice in a prominent place at the place of employment. (5) The person on whom a notice has been served shall within seven days of the end of the period specified in the notice provide the committee or representative with, or where no committee or representative exists shall post in a prominent place at the place of employment, a written report of the progress that has been made towards remedying the contravention and, in the case of a notice relating to risk of serious personal injury, he shall, within seven days of the end of the period specified in the notice, send a copy of the report to the Safety and Health who issued the notice.". Insertion of section 14A 12 The principal Act is amended by inserting the following section next after section 14 "Oral direction to eliminate or contain imminent danger 14A (1) Notwithstanding section 14, where a Safety and Health is of the opinion that a person is about to contravene, is contravening or has contravened any provision of this Act or any 5

6 Regulations made under this Act and the contravention may involve serious personal injury or is dangerous to public safety and health and requires immediate attention to ensure the remedying, containment or elimination of an imminent personal injury or imminent danger to he may give an oral direction to the person causing, about to cause or who has caused the contravention, stating the reason for that opinion and requiring the immediate remedying or cessation of the activity. (2) A Safety and Health who gives an oral direction under subsection (1) shall confirm the oral direction, in writing as soon as reasonably practicable and have it served on the person causing, about to cause or who has caused the contravention. (3) The confirmation of the oral direction in writing referred to under subsection (2) shall specify (a) (b) the reason for the oral direction; and the time within which the person causing, about to cause or has caused the contravention, is required to remedy, contain or eliminate the contravention. (4) Where a person is given an oral direction under subsection (1), and the person does not comply with the direction within the time he is required to comply with the direction, he commits an offence.". Amendment of section 15A 13 Section 15A of the principal Act is amended by repealing subsection (3). Substitution of section Section 16 of the principal Act is repealed and the following section is substituted "Appeal against notice or oral direction of contravention 16 (1) Any person on whom a notice of contravention is served under section 14 or an oral direction of a contravention is given under section 14A may, within seven days from the date of the giving of the notice or the giving of the oral direction, appeal to the Safety and Health Appeals, who may affirm, amend or cancel the notice. 6

7 (2) An appeal to the Safety and Health Appeals under subsection (1) shall not have the effect of suspending the operation of the notice of contravention or the oral direction of a contravention, but the Safety and Health Appeals may suspend the operation of the notice or the oral direction, until the appeal is disposed of. (3) Any person aggrieved by a decision of the Safety and Health Appeals under subsection (1) may, within seven days from the date of the decision, appeal to the Minister against that decision. (4) An appeal to the Minister under subsection (3) shall not have the effect of suspending the operation of the notice of contravention or the oral direction of a contravention, but the Minister may suspend the operation of the notice or the oral direction of a contravention until the appeal is disposed of.". Amendment of section Section 20 of the principal Act is amended (a) in subsection (1) by deleting "five" and substituting "ten"; and (b) by repealing subsection (4). Insertion of sections 20A and 20B 16 The principal Act is amended by inserting the following sections next after section 20 "Safety and health representative 20A(1) At every place of employment where less than ten persons are employed and a committee has not been established, the employer shall appoint an employee to be a representative. (2) The representative appointed under subsection (1) shall be an employee not involved in the management of the place of employment and either elected by the employees he represents or appointed in accordance with the constitution of the trade union of which the employees are members. (3) The functions of the representative shall be the same as the functions of the committee specified under section 20(5). 7

8 8 Limitation of liability for certain persons 20B No Safety and Health, committee member or representative having a duty under this Act shall be held personally liable for anything done or omitted to be done by him in good faith in pursuance of his purported authority under this Act or any Regulations made under this Act.". Amendment of section Section 21 of the principal Act is amended (a) in subsection (2)(a) (i) (ii) by deleting "$5,000" and substituting "twenty thousand dollars"; and by deleting "$500" and substituting "two thousand dollars"; (b) in subsection (2)(b) (i) (ii) by deleting "$1,000" where it first occurs and substituting "forty thousand dollars"; and by deleting "$1,000" where it second occurs and substituting (c) in subsection (3) (i) (ii) "four thousand dollars"; by deleting "6 months" and substituting "one year"; and by deleting "$500" and substituting "two thousand dollars"; and (d) by inserting the following subsections next after subsection (3) "(3A) Any person who knows that a closing notice has become operative and uses the place of employment or part of the place of employment, in contravention of the notice or permits the place or part of the place of employment, to be so used, commits an offence and is liable, on conviction summarily, to imprisonment for six months or to a fine of ten thousand dollars and a further

9 fine of one thousand dollars for every day on which he so uses the place or part of the place of employment or permits the place or part of the place of employment to be so used, after the closing notice becomes operative. (3B) Where a person contravenes a provision of this Act, knowing that the contravention is likely to cause serious injury or result in the death of an employee, he commits an offence and is liable (3C) (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment; and (b) on conviction on indictment, to a fine not exceeding one million dollars or imprisonment for a term not exceeding two years or to both such fine and imprisonment. Without prejudice to (a) subsections (2), (3), (3A) and (3B); and (b) the procedure set out in the Summary Jurisdiction Act 1930 for laying an information and for issuing summons, an information may be laid and a summons issued by a Safety and Health for an offence under section 21 by means of a Notice in accordance with Regulations made under this Act.". Amendment of section Section 23 of the principal Act is amended (a) by designating the existing provision as subsection (1); and (b) by inserting the following subsection next after subsection (1) "(2) Where a person who has a duty to fulfill an obligation under this Act has exercised due care, diligence, and attention and done his utmost best towards fulfilling that obligation, he shall not be liable for failure to fulfill that obligation.". 9

10 Amendment of principal Act 19 The principal Act is amended as set out in the First Schedule. 10

11 FIRST SCHEDULE Provision amended Repeal Insert Section 2(1) Section 3 Section 5(a) Section 8(1) Health and Safety Safety and Health Section 8(2)(c) an inspector a Safety and Health Section 8(3) inspector Safety and Health Section 8(4) Section 9(1) Section 11 Section 12(1) an inspector a Safety and Health Section 12(2) Section 13 inspector wherever it occurs an inspector Safety and Health a Safety and Health 11

12 Section 14(1) an inspector a Safety and Health Section 14(2) an inspector a Safety and Health Section 14(3) inspector Safety and Health Section 15(2) Section 15A Section 20 Section 21(1) inspector wherever it occurs inspectors an inspector Safety and Health Safety and Health s a Safety and Health Section 21A an inspector a Safety and Health Section 25 12

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