Occupational Safety and Health Bill Needs to be Passed – Appiatse Explosion

The “Occupational Safety and Health Bill to be passed this year” Ghana Business News, April 27, 2019. This publication stated the exact words of the Minister of Employment and Labour Relations, Mr Ignatius Baffour-Awuah during the “World Day for Safety and Health at Work” in Accra, in 2019.

Fast forward to 2022, we are still at the same spot – Parliament hasn’t passed the bill, the most important step to kickstart the reform we need on the national system for safety and health in Ghana. The words of the Minister has appeared to be just a lip service paid to the call for passing the OSH Bill on the global safety day. Well, Hon Minister, 2022 global safety day fast approaches and we need this bill passed in full swing, especially following this devastating Appiatse explosion that has claimed 14 lives, gotten over 50 injured, destroyed an entire rural community and displaced over 300 persons.

Sadly, in the wake of this Appiatse explosion, there has been no mention about the passage of the OSH Bill, a bill that has been lying in parliament for decades. Instead, there is a lot of talk about reforming the mining legal framework and an unusual focus on Appiatse and the mining sector. This comes to show the neglect of equally important sectors that have also seen very devastating accidents that have claimed lots of lives. We can recall the Achimota Building Collapse in 2012 that claimed 14 lives; the Goil Fuel Explosion on June 3, 2015, that claimed about 150 lives; the Church Building Collapse in the Eastern Region on October 20, 2020, that killed 22 persons, just to mention a few. All these high fatality incidents point to the weak safety and health regulatory regime Ghana has been bedeviled with over the past decades.

Ghana needs a wholistic reform on the national OHS legal framework, not a scattered approach that only focuses on the mining sector and other few sectors. It is important to note that, Ghana, since becoming a member of the ILO on 20th May 1957, has ratified 31 out of the 51 conventions. But shockingly, Ghana has not ratified the two most important conventions; Occupational Safety and Health Convention, 1981 (No. 155) and Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) which provide the protocols for establishing a national policy, national system and national programs on Occupational Safety and Health. Refer to the list of countries for the Ratifications of C155 – Occupational Safety and Health Convention, 1981 (No. 155) and Ratifications of C187 – Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187).

As safety professionals, we find this situation very worrying. We see a lack of political will from the government, past and present to pass the bill, reform OSH national system, ratify and comply with these important conventions and recommendations, notwithstanding the many past fatal incidents that could be leveraged to correct the regulatory failures and the characteristic problems which make it very difficult for us to improve the health and safety standard in Ghana, following proper investigations.

Why do we safety professionals believe there are characteristic lapses in the current legal regime?

First, let’s look at the scattered list of OSH legislations, which can be grouped into two broad categories, i.e. those that have overarching application and legislations that are driven by industries, all of which lack adequate enforcement due to lack of a single enforcement body adequately resourced and charged to monitor, enforce, support, inspect and penalize wrong doing.

OSH legislations with overarching application:

1. The Labour Act, 2003 (Act 651) established the National Labour Commission to address issues of labour, employment, trade unions and industrial relations with a specific Labour Regulation (2007), LI 1833, both of which, touch briefly on general health and safety conditions that must be met by the employer, with strict penal actions for negligence; the protection of workers right to stop work given exposure to imminent danger and the need for employers to report to the Chief Labour Inspector or the Inspector of Factories of any workplace accident or disease in the LI 1833. The failure here is that the enforcement responsibility of the OSH is shared with other enforcement agencies and the role and power of labour inspectors are defused and not fully in force. We can all tell when last we saw a labour inspector on any premises of a company that is noted to have no regard for health and safety.
2. Factories, Offices and Shops Act 1970, Act 328 established the Department of Factories Inspectorate and set out the requirements for occupational health and safety for factories, offices and shops. We have found that the legal text is very prescriptive with no mention of the need to exercise duty of care, conduct risk assessment or apply the principle of prevention or hierarchy of controls. The regulation remains outmoded and never been adapted to any technical progress. The Department of Factories Inspectorate has also been under-resourced with no requisite OSH inspectors with the needed logistics to deliver on their mandate. As a result, compliance with this legislation has reduced to just having a Factories Inspectorate Certificate.
3. Workmen’s Compensation Act (No. 187 of 1987) is very elaborate and spells out the liability an employer owes to an employee who sustains personal injury by accident arising out of, and in the course of employment. This ensures that the injured party does not suffer a diminution in earnings while undergoing treatment for injuries sustained through an accident arising out of, and in the course employment. The Act also specifies a compensation commensurate with any incapacity suffered and so assessed by an attending medical officer, as well as a hefty sum equal to sixty month’s earnings, if the accident led to a fatality with dependents left bereaved. This Act is enforced by the Court, only in civil claims. As a result, often not applied due to lack of resources by the injured parties and lack of employment tribunals financed by the state to pursue legal suit against defaulting employers.
4. Environmental Protection Agency Act 1994 (Act 490) established the EPA to have an oversight role on work environment and the built environment with specific Environmental Assessment Regulation, 1999 to mandate all organizations to assess the environmental aspects of their operations and commit to the appropriate mitigations to reduce the environment, health and safety impact of their undertaking in order to obtain an environmental permit before commencement and during the operational phase of the project. The role of the EPA as it were, focuses largely on the environment but has major health and safety implications when there are failings such as failure to do due diligence before or after granting environmental permit, following the occurrence of major accidents fire and explosion which often result in multiple fatalities.
5. Fire Precaution (Premises) Regulations, 2003 (L.I 1724) is applied under the auspices of the Ghana National Fire Service and mandates all commercial buildings and organizations to put in place fire arrangements in order to obtain a fire permit before putting up a structure and fire certificate after meeting acceptable fire safety standard during operation, yet we continue to see poorly designed building and workplaces with no adequate arrangements for fire safety, which continue to result in the incessant fires in our market centers and commercial buildings. And to make it worse, we always hear investigations will be carried out, but yet findings are never shared.

Due to globalization of certain industries, Ghana has seen industries driving good health and safety standard with robust OSH Legislations.

For example, the upstream oil and gas industry has the Petroleum (Exploration and Production) (Health, Safety and Environment Regulation) 2017 L.I 2258 driving safety compliance among the upstream service providers with requirements such as duty to develop, maintain and implement a management system to ensure compliance with duty of care; the need to develop a health and safety plan that is adapted to the scope of the petroleum activity; take steps to eliminate or reduce risks or hazards to people, the environment or assets and the need to submit a Safety Case for any petroleum facility to the Petroleum Commission before commencement of petroleum activity. These robust requirements continue to drive the health and safety standard of the upstream sector to meet the global standard. The mother law of the L.I 2258 is the Petroleum (Exploration and Production) Act 2016, which aims to provide for and ensure safe, secure, sustainable and efficient petroleum activities for the benefit and welfare of the people of Ghana. These regulations are strictly enforced by the Petroleum Commission.

The reverse can be said of the downstream sector, since the establishment of the National Petroleum Authority in 2005 by the NPA Act 2005, Act 691, no single regulation has been enacted on health and safety, yet the worse culprit of major accident hazards the country has recorded. In the NPA Act 2005, Act 691, the keyword “Safety” is only mentioned twice, with the context only touching on the decision to issue, renew, revoke, suspend or refusal of license, if undertaking is found to breach public safety. Given the nature of downstream petroleum activities which is highly deregulated, hence has influx of many OMCs, fuel stations and transporters, it is only critical that more regulations are passed from the Act to address specific health and safety issues. As it stands now the downstream sector is relying on the guidance note published by the Ministry of Energy captioned HSSE Manual for Energy Sector Organizations. And, for the love of God, you will be amazed at the content of the Manual. It is woefully based on 4 sections;

• The HSE Management System
• Standard Operating Procedures
• Incident Notification and Investigation and
• Record Retention Standard.

The content of the manual represent that of an entity trying to window dress a manual to pass an audit; there is clearly lack of standard requirements for HSSE Management System and the SOPs lack performance standards, to say the least, although, it’s just a guidance note.

Perhaps, the NPA can only be commended on the Oil Loss Control Manual, which focuses on loading, transportation, unloading and loss control, and seeks to provide the minimum requirement of standard procedures and methods to be used to determine quantity of products in storage tank to calculate taxes, margins, fees and transit losses. This clearly tells the priority of the downstream enforcement authority.

The Mining industry has the Minerals And Mining (Health, Safety and Technical) Regulations, 2012 (L.I. 2182) enacted from the Minerals and Mining Act, 2006 (Act 703) which establishes the Minerals Commission as the enforcement authority for health and safety in the mining industry. The health and safety regime of the mining industry has been shaken by multiple fatalities from the past and the most recent Appiatse explosion. This has shown the dwindling safety standard pointing to complacency, given the fact that it is one of the oldest industry that had established a legal system for safety for decades.

The construction industry on the other is the least regulated. There is a high percentage of informal economy of local artisans who are only trained through apprenticeship programs, hence lack the requisite knowledge about occupational health and safety with no support system from any government body. These regulations seeks to fulfill subtly some level of safety responsibilities.

1. Local Governance Act, 2016 (Act 936) recognizes the role of the Metropolitans, Municipal and Districts Assemblies (MMDAs) as the planning authority with planning functions for the approval of development and building plans, inspections, prohibitions, abatements, alteration, removal or demolishing of physical structures which are unsafe for human occupancy. They act as enforcement authorities for health and safety but never clear on their mandate. They then get blamed when buildings collapse leading to injuries and deaths.
2. Land Use and Spatial Planning Act 2016, Act 925 (sections 96, 97,98,99) enhances the planning function of the District Assemblies in terms zoning of land use and making sure development of land, conforms to what the land has been zoned for, to ensure proper siting of hazardous activities away from vulnerable locations. This law has seen the establishment of LUSPA to take over the role of town and country planning department of the MMDAs to ensure safe siting/zoning of hazardous activities.

Now, the important fact about the above legislations is that, they are all under various ministries, department and government agencies. For example, the role of Ghana National Fire Service is under the jurisdiction of Ministry of Interior; the roles of the EPA and LUPSA are under the Ministry of Environment Science, Technology and Innovation; the National Labour Commission, Department of Inspectorate and Department of Labour are under the Ministry of Employment and Labour Relations; the role of MMDAs is under the Ministry of Works and Housing. Not to talk of the other industries such as the Ministry of Energy and Ministry of Land and Natural Resources.

So what exactly is wrong with our legal framework?

Looking at the case of the UK, there’s the department of works and pension, being the highest government body like the ministries in our case, overseeing issues of workers right, below the chain of command is the Health and Safety Executive that acts as the sole enforcement authority in charge of addressing all health and safety issues across all industries. The Health and Safety Executive has been established by the HASAWA 1974, the mother law, from which many specific regulations are enacted to address specific health and safety issue that arises.  Similarly, in the case of the US, the department of labour handles all matters of occupational health and safety as the highest government arm and has the Occupational Safety and Health Administration established by the Occupational Safety and Health Act 1970 as the sole enforcement authority in charge of health and safety.

Unfortunately, in our unique situation, we have the following.

1. There are dispersed legal texts where legislations are issued by different department, agencies and bodies resulting in gaps, overlaps, contradictions and legal uncertainties.
2. The current regulations are prescriptive in nature which result in noncompliance, hence the strong focus on just licenses and permits as proof of compliance with the regulations.
3. The regulations are also outmoded and fail to take into account all OSH risks including new and emerging risks.
4. We also have an issue of lack of regulatory control, given that, a lot of agencies are responsible for safety but nobody can really be held accountable, which often leads to blame game, which affects learning from incidents.
5. Our current legal system does not promote “duty of care” and the “principles of prevention” to achieve the goal of preventing occupational accident and diseases by adapting to current knowledge and trends.
6. There is no clear regulatory focus and unity of command due to the lack of single basic regulatory framework, given that regulations are issued by different government departments. This brings a lot of “Legal uncertainties” and lack of accurate amendment process.
7. Mention can also be made of the lack of logistical and technical support or resources for all the departments, agencies and bodies with scattered responsibilities to execute their mandate.
8. Also, there is lack of adequate system for reporting occupational accidents and diseases in order to build adequate reliable data for analysis and to establish trends. The most recent statistics on workplace accidents in Ghana was published in 2015 Labour Force Report by the Ghana Statistical Service, where it indicated that, out of a workforce of 9,269,889 persons who are 15 years and older, 1,341,890 constituting 14.5 percent have had a workplace accident sometime in the past (pg. 133). Such outmoded statistics are no more relevant in today’s discourse.

It is for the above reasons, that the ILO has developed the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) as the benchmark of a national system for member states to ratify and implement, which are as follows:

• National OSH Laws and regulations
• Enforcement authority or body or authorities or bodies
• Mechanisms for ensuring compliance, including system of inspection
• Arrangements for promoting safety at all levels
• National Tripartite Advisory Body
• Information and advisory service
• Occupational health and safety training
• Occupational health Services
• Research on occupational health and safety
• Mechanism for data collection and analysis on occupational injuries and disease
• Insurance Scheme for occupation injury and disease
• Support mechanism for micro and medium scale enterprise

The way forward for Ghana is a Single Basic Legal Framework

The ILO’s Training Package on Development of a National Programme of Occupational Safety and Health acknowledges the structural problem in most country’s regulatory framework.  Instead of a full and hierarchical ‘regulatory system with a unity of command, there are dispersed and overlapping regulatory responsibilities and accountability which create “legal confusion”. This is the exact problem we face as a country.

To avoid this problem, there should be a single basic regulatory framework implemented at the highest level so that it can serve as the context for the establishing remaining regulations.

The concept of a Single Basic Legal Framework requires a single ACT on OSH like HASWA 1974 or Occupational Safety and Health Act 1970 by following this approach.

A single Act to set the general OSH principles and responsibilities for occupational health and safety for approval by parliament. This is where the call for passing the OSH Bill comes in. Acts are primary laws and therefore carry much potential power, but that power is only effective with adequate national system for enforcement

Once the is passed, regulations that address current and emerging health and safety risk can be enacted by the Minister of Employment and Labour Relations in consultation with the tripartite body of government, employers and employees. The regulations must set out the mandatory minimum standards and objectives for addressing the hazards and risks to “safe levels”.

A single enforcement authority must also be established to oversee the enforcement of the regulations and must establish Approved Code of Practices (ACoPs) to provide general guidance to employers (and workers) on how to comply with the minimum standards and objectives that are detailed in the regulations.

So the advantages of a single basic framework are as follows:

• It provides a clear regulatory focus
• It is easy to comply with
• There is one focus for allocating national resources
• It is easy to add on specific regulations to address specific health and safety risk
• It is easy to enforce by Inspectors

In conclusion, we, safety professionals in Ghana strongly call on the Minister of Employment and Labour Relations, and the current government to pass the OSH Bill and see to the establishment of the national system OSH in Ghana, based on the Single Basic Legal Framework, which has proven to be the best option for improving health and safety standard in the advanced world such as the UK and US, rather than to adopt a blanket approach that creates legal confusion, lack of regulatory focus, lack of technical progress, lack of enforcement by dedicated safety inspectors, and unequal allocation of resources to all sectors in Ghana to promote safety.

Selorm Ametewee IDipNEBOSH👨🏻‍💻
Safety Consultant.
sel@sheqxel.com

Selorm Ametewee is a QHSE Practitioner and a serial online digipreneur with passion for problem solving in the health and safety niche. He is the founder of SHEQXEL, HSE Retail Shop, HSE Market Ghana, SHEQPGHOnline and Trusjetreviews. He’s also a seller on Etsy (SHEQXEL) and an author on Eloquens (SHEQXEL).