By Eleanor Joye Donaldson-Honeywell J                        

Judiciary of Trinidad and Tobago

High Court, Civil Division

In this article for the UN World Day for Safety and Health at Work (April 28), Hon. Judge Donaldson-Honeywell highlights certain evolving workplace issues of concern to women and proposes solutions.

Introduction

Globally, there is general acceptance of the need for the law to protect the health and safety interests of all persons at work. In exponentially increasing numbers, this includes women in all fields of work, from the factory floor level to senior management. For decades, countries have addressed the need to protect the health and safety of employees by legislation and in court cases determined by judicial officers. 

However, the frontiers of workplace norms are continually evolving, giving rise to new considerations for workplace health and safety policies governed and enforceable under legislation and case law. In that context, the IAWJ’s UN World Day for Safety and Health at Work campaign on women’s safety at work and the limit of the law is timely. I am thankful for the opportunity to contribute.  

Firstly, this article draws historical context from the Trinidad and Tobago[1] experience. Secondly, it highlights certain evolving workplace issues of concern to women. Finally, the article proposes solutions that may propel the limits of the law to cover the new frontiers of workplace protection needs for women.

History of Health and Safety Protection in Trinidad and Tobago

Prior to 2007, the governing legislation for workplace health and safety in Trinidad and Tobago was the Factories Ordinance of 1948. However, with evolving technology, industrial expansion and diversification, the Factories Ordinance became inadequate to address the many new hazards, which arose. In addition, the Factories Ordinance only had jurisdiction over persons employed in factories. As a result, new legislation was introduced.  

The main legislative framework is now in the Occupational Safety and Health Act, Chap 88:08 proclaimed in 2007. The legislation provides protection in three main ways, namely:

·        Setting of minimum standards for managing health and safety which include responsibilities for both management and workers;

·        Establishment of the Occupational Safety and Health Authority and Agency [“OSHA”] to monitor and encourage enforcement of the standards; and

·        Vesting of added jurisdiction to the Industrial Court of Trinidad and Tobago to adjudicate, impose criminal penalties and award redress for the aggrieved person in instances of breaches of the Act[2].

On a review of cases decided from the enactment of the OSH Act up to 2017 published online[3], an estimated 39 percent of the approximately 84 cases determined by the Industrial Court involved harm suffered by women at the workplace.  However, it is clear from OSHA statistics that many complaints do not escalate to determination by the Industrial Court as in each year studied there were more than 84 complaints.

These statistics provide insight into sectors of the economy from which complaints emanate but not of the gender distribution. 

In addition to the OSH statutory framework for protection, employees have recourse to the common law on employer’s liability in the tort of negligence. They may also seek remedies under the anachronistically titled Workmen’s Compensation Act, Chapter 88:05. Judges of the Supreme Court of Trinidad and Tobago have determined those cases for decades guided by prior precedents from the Caribbean and other jurisdictions such as the United Kingdom. The number of such cases is not readily ascertainable. However, in many instances the aggrieved employees were women. In some cases, the injuries sustained connect not only with the workplace but also with the family responsibilities of the affected women. For instance, Andrea Smith,[4] a woman police officer successfully brought an action in negligence after she fell and was injured at her workplace partly due to a lack of familiarity with a risk at the workplace on returning from maternity leave.  

Evolving Frontiers for the Protection of Women’s Health and Safety at the Workplace

Numerous global developments call for law reforms that enhance health and safety at work. These include the following emerging factors increasing occupational risks:

·        Technical innovations such as nanotechnology[5] and biotechnology production processes,[6] online technology for work meetings and the use of artificial intelligence,  

·        New work practices including work from home[7], hybrid work, outsourcing and increased migration for work with associated poor work conditions,

·        Increased awareness of diverse women’s welfare issues in the workplace including the psychosocial impacts of maternity, pregnancy loss, dysmenorrhea, menopause[8] and the increasingly heavier dual roles undertaken in balancing work with family responsibilities on work-related stress. Notably, during the Covid-19 pandemic due to legislation closing workplaces, schools, day-care centres and restaurants many women had to work from home in their substantive jobs whilst at the same time facilitating home school and/or babysitting their children and performing domestic duties.

The impact of these and other factors have led to changes in perceptions of what counts as health and safety risk factors. The President of the Industrial Court of Trinidad and Tobago, Deborah Thomas-Felix, underscores[9] that ILO Conventions, which relate to maternity protection include the Convention on Family Responsibility (No. 156 of 1981) and the Occupational Health and Safety at Work Convention (No. 155 of 1981). The primary concern remains the same today as in 1919 when the Maternity Protection Convention was introduced to enable women to successfully combine their reproductive and productive roles and to prevent unequal treatment due to their reproductive role. Of primary importance is the fact that women are not to be denied continued employment due to pregnancy. Employers must ensure a work environment, which is safe[10] for them and their babies[11].  

More and more, the recognised workplace health risk factors include the effects of psychosocial factors on work-related stress[12]. Writing a Trinidad and Tobago Newsday article[13], Kanisa George, an Attorney-at-Law, observed that:

“Besides the obvious health and safety concerns in the workplace, employees now identify mental health as a serious concern. Fast-paced jobs frequently require employees to work beyond designated work hours and weekends, forcing them to sacrifice family time. Not only does this have devastating effects on one's personal life, but it can contribute to increased rates of depression and anxiety. …

Mentally unsafe and toxic work environments leave some employees feeling burnt out, distressed and disenfranchised. In a 2019 piece titled, Mental Health in the Workplace, The WHO identified bullying and psychological harassment as well-known causes of work-related stress and mental health problems. In addition to poor communication and management practices, limited participation in decision-making, long or inflexible working hours and lack of team cohesion, this is a huge part of workplace culture.”

This area of protection against psychosocial risk factors is perhaps the most fertile new frontier for improvements in the legal framework to manage health and safety at work.[14] However, to inform the process, reform of the law must take into consideration data on the extent to which these factors affect women and other employees. This is the foremost concern in charting the way forward. 

The Way Forward

In determining whether any disproportionate risk of health affects women in the workplace requires legislative redress, care must be taken not to engage in unequal treatment. Other employees may be susceptible to similar risk. Empirical studies are necessary to produce data on the magnitude of the problems to be addressed. 

“Valuable occupational safety and health data goes beyond the simple collection of the number of injuries and examines who was injured, the type of work they were doing, and why – and uses this to set priorities, to measure progress, as well as, to prevent further injuries from occurring.”[15]

It would be useful for institutions to undertake studies to identify the nature of health issues of concern at the workplace, the extent to which they include psychosocial factors and the gender distribution of persons affected. 

Even without such data, the anecdotal evidence and observation of trends highlighted above point to the need for continued reform of the law on health and safety at work, particularly as it relates to women employees. There is scope for pre-emptive steps in law reform to include inter alia:

·        The addition of mental health plans, online toolkits on safety in virtual workplace communications and employee assistance programmes to the legislated minimum standards to be adhered to by employers for managing health and safety[16],

·        Regulations on ‘digital presenteeism’ governing workers' entitlements to shut off from email and other communications after specified work hours, whether in the context of work from home, hybrid or in-person work arrangements.

·        Update and reform of legislation such as the Workmen’s Compensation Act,[17] which still focuses on protecting men involved in manual labour. The definition was appropriate when only men were involved in certain types of manual labour. However, women are now a large part of the labour market, even if they are not performing manual labour.

·        Redefinition of maternity benefits, for example, in Trinidad and Tobago under the Maternity Protection Act Chapter 45:57 an employee is still only entitled to 14 weeks maternity leave with the first month on full pay and the second and third month at ½ pay.[18] The employee has to depend on the National Insurance Scheme to make up the difference in salary for the second and third months of maternity leave.

Increased training and employer/employee awareness campaign activities by stakeholder institutions on newly recognised factors affecting the health and safety of women in the workplace may pave the way to such reforms.  Biases in the context of outdated norms, such as toxic masculinity that impact how laws are created and interpreted, must also be re-examined so that policymakers, legislators and adjudicators can address health and safety at the workplace through lenses alive to issues of concern to women such as mental wellbeing.

Bibliography

Occupational Safety and Health Authority and Agency. Retrieved from https://labour.gov.tt/services/osha

Occupational Health and Safety Act Chap 88:8 (Trinidad and Tobago), sections 6, 12, 83 and 83A. Retrieved from

https://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/88.08.pdf

United Nations Work Safety Day. Retrieved from

https://www.un.org/en/observances/work-safety-day

Andrea Smith v The Attorney General of Trinidad and Tobago CV 2015-02491. Retrieved from

http://webopac.ttlawcourts.org/LibraryJud/Judgments/HC/honeywell/2015/cv_15_02491DD2Feb2023.pdf

Nanotechnology: Health Effects and Workplace Assessments and Controls. Retrieved from United States Department of Labor

https://www.osha.gov/nanotechnology/health-effects

Air Canada et Gentile-Patti, 2021 QCTAT 5829 (CanLII). Retrieved from https://canliiconnects.org/en/commentaries/86446

Women's Welfare in the Workforce. (2023, March 20). Retrieved from https://shepwedd.com/knowledge/womens-welfare-workplace

Thomas-Felix, D. (2022). Labour Law and Good Industrial Relations - Progressive Discipline and Maternity Protection in the Workplace. Port of Spain: NALIS.

Diane Sooker-Akaloo v Republic Bank Limited CV2016-01918. Retrieved from http://webopac.ttlawcourts.org/LibraryJud/Judgments/HC/mohammed_r/2016/cv_16_01918DD19jan2021.pdf

George, K. (2021, September 1). Mental Health and The Workplace Policy. Retrieved from https://newsday.co.tt/2021/09/01/mental-health-and-the-workplace-policy/

United Nations Permanent Missions – World Day of Safety and Health at Work. Retrieved from

 https://www.un.int/news/world-day-safety-and-health-work

Chmielewski, M. (2023, March 29). Workplace Wellbeing: is your employee offer still fulfilling the brief? Retrieved from

https://blog.burges-salmon.com/post/102ibn1/workplace-wellbeing-is-your-employee-offer-still-fulfilling-the-brief

Workmen’s Compensation Act, Chap 88:05 (Trinidad and Tobago), section 3. Retrieved from

https://agla.gov.tt/downloads/laws/88.05.pdf

Maternity Protection Act, Chap 45:57 (Trinidad and Tobago), section 9. Retrieved from

           https://agla.gov.tt/downloads/laws/45.57.pdf

[1]     (Occupational Safety and Health Authority and Agency, n.d.)

[2]  (Sections 83 and 83A of the OSH Act)

[3] vLex Justis 

[4] Andrea Smith v The Attorney General of Trinidad and Tobago CV 2015-02491

[5]  (United States Department of Labor, n.d.)

[6]  (United Nations Work Safety Day, n.d.)

[7] Air Canada et Gentile-Patti, 2021 QCTAT 5829 (CanLII)

[8]  (Women's Welfare in the Workforce, 2023)

[9]  (Thomas-Felix, 2022)

[10]  (Sections 6(9) to 12 of OSH Act)

[11] Women's Welfare in the Workplace

^[12] (United Nations Work Safety Day, n.d.)

[13]  (George, 2021)

[14] Diane Sooker-Akaloo v Republic Bank Limited CV2016-01918

[15]  (World Day for Safety and Health at Work, n.d.)

[16]  (Chmielewski, Workplace Wellbeing: is your employee offer still fulfilling the brief?, 2023)

[17]  (Section 3 Workmen's Compensation Act)

[18]  (Section 9 Maternity Protection Act)