Occupational Health and Safety - Assignment Example

Question One Prior to the 1880s the common law doctrine of risks in the work place was characterised by three basic concepts. These concepts were; the fellow/servant doctrine, contributory negligence and assumption of risk. Each of these concepts placed some form of liability or blame on the employee for any harm arising out of workplace incidents. The presumption was therefore that the employee shared some responsibility to safeguarding this or her safety in the workplace. This is evidence by the three common law doctrines, each of which are calculated to shift some of the blame for work place injures away the employer. The fellow/servant doctrine served to provide a common law defence for the employer whose employed sustained injury in the workplace as a result of a fellow-employee’s conduct. The doctrine compelled the injured employee to seek compensation from the co-employee rather than the employer. The doctrine of contributory negligence also created a barrier to satisfactory compensation for the employee injured in the workplace. All that an employer had to do to shift or share compensatory damages was to prove that the employee’s own negligence contributed to the incident bringing about the injuries. Likewise the doctrine of assumption of risk presupposes that the employee had advance knowledge of the inherent risks associated with on the job operations and willingly subscribed to them. The general impact of these common law doctrines placed effective bastions between the employer and the employee making it virtually impossible for the employee to successfully claim compensation for damages and injuries sustained in the workplace. Statistics gathered in the US prior to 1911 demonstrates the difficulties that employees had collecting compensation for workplace injuries. Prior to this period one third of family of workers who had sustained fatal injuries in the workplace did not receive any compensation. Moreover, less that 10% received compensatory damages of US$1,000 or less. These common law principles reflect an attitude in the period prior to the 1880s that viewed workplace safety as a shared responsibility between employee and employer. In fact, it can be argued that the prevailing view dictated that if an employee was injured at work, he was at the very least partially at fault. The employer’s primary responsibility toward the employee was to ensure that he or she was compensated for work hours and production. The employee was responsible for ensuring, for the most part, that he safeguarded against the risk of injury while on duty. Industrialization in the late 1880s gave way to mass production with a system of mechanization. These technological changes in workplace organization increased the health and safety risks in the workplace making it entirely unfair to share responsibility between employee and employer. Rather than increase the burden for maintaining a safe and healthy workplace on the employer, several jurisdictions implemented a system which adopted a compulsory insurance compensation regime. This insurance framework only reflected the prevalent pro-employer compensatory climate. It recognized that employees were unlikely to recover damages for injuries sustained in the workplace. Therefore, an insurance scheme would secure some measure of compensation for workers who became disabled as a result of workplace injuries. The current view that injuries sustained at work forms a part of the employer’s overhead did not exist in the period prior to the 1880s. So, while the insurance scheme offered some relief to employees who sustained injuries in the workplace, it also served as evidence of the employer’s ability to escape liability for workplace injuries. Question Two Although there is some merit to the contention that employers voluntary assume the risk associated with workplace health and safety risk, this is not entirely true. The dynamics of a employee-employer relationship puts that assumption to rest. The traditional contract between two equally empowered parties is a misnomer in the employer-employee collateral bargaining process. The fact is, there is an obvious inequity between the parties. The employee is seeking employment and his or her goal is to convince the perspective employer to hire him or her. Ultimately, the perspective employer can and often does make a “take or leave it” offer. The result is, the employee’s desire to obtain employment compromises his desire to bargain on specific terms and will typically subscribe to whatever terms and conditions the employer offers. The only other alternative is typically to refuse the job offer. It therefore follows that all terms and conditions of the employment contract are not voluntarily assumed by the employee. The employee typically enters in the employment contract on whatever terms and conditions are necessary to secure the job in the first place. In other words, the choice for the unemployed is basically between “hazardous work or not work at all.” (22) It is also argued that workers are not altogether aware of the residual risks of harm that they are exposed to in the workplace. In fact there is a body of literature and empirical research that indicates that employers are not entirely honest about the risks of harm in the workplace. It therefore follows that if an employee is unaware of workplace health and safety risks he or she cannot be said to have voluntarily subscribed to them. Logic dictates that an individual cannot assume a risk if the individual is not aware that the risk exists or to what degree that risk exists. The fact is, if employees are aware of the extent to which they are exposed to risks of harm in the work place it is conceivable that they might demand higher wages. Aware of this possibility, employers have an interest in keeping this information from perspective employees or even downplaying the risks of damages and harm. To this end, the employer rather than employee voluntarily assumes the risk of workplace health and safety hazards. It therefore follows that the employee is not voluntarily assuming the risk and it is only fair that the employer be held accountable for any harm or injuries arising out of workplace incidents. It has also been argued that even if all things were equal between the employee and the employer in terms of bargaining prowess and risk factors associated with workplace hazards, the employer still remains in a dominate position. This is so because, the employer has the resources and the knowledge necessary for circumventing, if not providing protection against the risks of harm. The employer has control over the workplace. It is the employer that organizes the work place, and funds its operations. The employee is confined to those parameters set by the employer and does not have control over operations and expenditure in that regard. It therefore follows that employers do not voluntarily assume the risks associated with workplace health and safety hazards. The distinction between employee and employer in terms of bargaining power and “capital and labour” (23) provide the greatest support for the contention that employees do not voluntary assume the risks associated with workplace health and safety hazards. If an employer lacks the capital or the authority to organize a workplace, his or her contribution to health and safety management on the workplace is purely involuntary. He or she places safety management entirely in the hands of the employer with the result that exposure to health and safety hazards is entirely involuntary. The author’s neighbour has a job as a roofer and the terms of his employment provide that he provides his own safety belt. If he does not have a safety belt, he is not permitted on the job. In this particular case, the employee is involuntarily forced to secure his own safety at work. The employer has shifted responsibility to the employee. He either takes care of his own safety or he does not report to work. In another scenario, an acquaintance works for a relatively larger firm and the employer shares responsibility for some measure of safety. This employer offers the employees a US$50 increment for the purchase of waterproof boots. The workplace exposes the employees to underground excavations where the risk of sewer spillage and water overflows are an everyday occurrence. Waterproof boots are essential for safeguarding against the health risks associated with exposure to water and sewer wastes. However, the employer does not assume full responsibility for these risks. The employer is required to furnish his own waterproof boots, with the proviso that the employer will reimburse him with the sum of US$50.00. While this is shared responsibility, it is entirely involuntary on the part of the employee who cannot afford to purchase the boots in the first place. In both examples provided the involuntary nature of the employees’ assumption of risk is obvious. The employee who cannot afford the safety belt has no job. If permitted, he would go to work and expose himself to the hazards of working on a roof top without a safety belt. This is entirely involuntary, but necessary if he wishes to have a job. The employer who is not required to purchase safety boots is similarly involuntarily exposed to the hazards associated with water and sewage wastes if he cannot afford the price of boots. To this end, protection from hazards at works invariably comes at a cost. Employees generally cannot afford the cost of protection and when they are forced by financial constraints to forego the costs of protection they involuntarily submit to the health and safety hazards in the workplace. Read More