by Sandra Tiah

The European Commission launched a public consultation on September 22, 2016, on the evaluation of the Machinery Directive (Directive 2006/42/EC), which aims to promote the free movement of machinery within the EU, and to ensure a high level of protection for workers and other exposed individuals. This Directive, which covers the use of small hand-held power tools, construction machinery, industrial robots, etc., lays out mandatory health and safety requirements for machinery placed on the market or put into service within the EU, as well as requirements for conformity assessment, monitoring, and enforcement procedures. The purpose of this consultation is to obtain feedback on the general application of this Directive, as well as its implementation into Member State legislation.
 
The consultation period ends on December 16, 2016.

by Brittany Tofinchio Palmer and Marina Stinely

Stakeholders in Nigeria’s health and judiciary sectors have requested that the National Assembly pass the Occupational Safety Health Bill into law. It is estimated that, in Nigeria, over 25,000 people die from work-related injuries each year. This bill would help prevent occupational hazards in the country.
 
At the Second Annual Scientific Conference, which was themed “Occupational Injuries,” stakeholders organized by the National Orthopedic Hospital, Igbobi, Lagos (“NOHIL”), expressed their concern for the safety and health of Nigerian workers. The stakeholders came to the consensus that the passage of the Occupational Safety Health Bill, in line with International Labour Organization standards, and the enforcement of existing occupational health laws, would improve the health of the Nigerian workforce and would ensure that victims are adequately compensated for their injuries.
 
Speakers at the Conference stressed the importance of improving the productivity of the Nigerian workforce through decreasing occupational injuries. Such improvements would have a positive impact on the economy and thousands of workers and their families in Nigeria.

by Brittany Tofinchio Palmer and Marina Stinely

The South Korean Ministry of Employment and Labor (“MOEL”) made a preliminary announcement to amend the Enforcement Regulations of the Occupational Safety and Health Act and the Rules on Occupational Safety and Health Standards. The purpose of these amendments will be to prevent industrial accidents in the workplace. The amendments to the Occupational Safety and Health Act will include:

• Adding to the list of places at risk for industrial accidents;
• Prohibiting employers from arbitrarily changing the name of a chemical;
• Requiring the use of generic chemical names to be cross-checked by the Ministry of Environment; and
• Requiring chemical brand names and CAS numbers to be publicly announced after the expiration of the information protection period.

 
The amendments to the Rules on Occupational Safety and Health Standards will include:
 

• Obligating employers to provide and enforce safety helmet requirements;
• Enhancing safety procedures during work in confined spaces;
• Requiring employers to assign a fire watcher;
• Increasing control of highly hazardous substances to reduce occupational diseases; and
• Lowering the wind-speed threshold for tower crane operation.

 
All of these amendments were in the pre-announcement period, which ran from August 31, 2016 to October 10, 2016. The government hopes that these amendments will prevent industrial accidents and increase occupational safety and health throughout the country.

by Brittany Tofinchio Palmer and Marina Stinely

The New Zealand Government adopted an Imports and Exports Prohibition Order for 2016 on Asbestos-containing products. The Order was made pursuant to section 3 of the Imports and Exports (Restrictions) Act of 1988. The New Zealand Ministry for the Environment created a regulatory impact statement to help the Government in making a decision on issuing the Order.
 
The Order prohibits the importation of goods that contain asbestos into New Zealand. There are exceptions to the prohibition if the importation is authorized by a permit from the Environmental Protection Agency (“EPA”) or if the products are being transshipped through New Zealand and remain under the control of Customs. The Order allows the EPA to grant permits on condition and require application and assessment fees. The Order came into force on October 1, 2016.

by Ellen Pinkos Cobb

A Dallas County jury recently found a doctor liable for his workplace bullying, returning a $1.08 million verdict against the doctor and the clinic for sexual harassment, intentional infliction of emotional distress, and retaliation. The plaintiff, a Licensed Vocational Nurse, described a hostile and threatening work environment, testifying that on three occasions, the doctor had screamed at her with his hands raised and fists clenched, "Just shut up. Just shut up, I'm sick of you."  On one occasion, he threw punches at her in the air, although he never touched her. Following company policy, the plaintiff reported the behavior to the practice's human resources department. Shortly after filing her complaint, the doctor called her into an office after business hours and gave her what he described in trial testimony as a "demonstration" of what screaming was to prove that he had not screamed at the nurse.

The plaintiff’s attorney stated: "The jury verdict included $348,889 against the doctor individually for bullying. A verdict such as this should serve as a warning and wake up call to bosses everywhere that they cannot scream, demean or otherwise bully their employees. This is one of the few verdicts I'm aware of in the country awarding an employee damages against their boss individually for bullying."

The plaintiff attorney’s statements are correct, as there is no law at this time against workplace bullying in the US. She is also correct that employers should maintain an awareness that employers should not engage in workplace bullying. Research has shown the detrimental effects of bullying in the workplace on both employers and employees. Further, legislation resulting in employer liability for workplace bullying is in force in numerous countries.

For more information on workplace bullying, please contact Ellen P Cobb, Senior Regulatory & Legal Analyst at The Isosceles Group and a Founding Fellow of the Workplace Bullying Academy.  Her forthcoming book, Workplace Bullying and Harassment: New Developments in International Law, published by Routledge, will be issued in 2017.

(Note: Shortly before the verdict was read, the two sides reached a $440,000 settlement, which cannot be appealed, according to the plaintiff’s attorney. The case is Patricia Hahn v Scott Davidson, MD, et al, in the Dallas County Court at Law No. 5)

by Brittany Tofinchio Palmer

The State Administration of Work Safety is currently working with the Ministry of Environment to draft a new chemical safety law in response to the Tianjin explosion. The law, currently referred to as the Toxic and Hazardous Substances Control Law is expected to do the following:
 

• Further define chemical management-related terms;
• Provide additional requirements on new and existing hazardous substances;
• Provide provisions for an emergency response process;
• Address licensing and registration requirements; and
• Provide supply chain safety control measures.

 
The plan is to either repeal and replace Decree 591 on the Safe Management of Hazardous Chemicals, or recast the Decree as an implementing regulation under the new law after it is issued. While no public draft is available at this time, the first formal draft is expected by the end of the year.

by Ellen Pinkos Cobb

A recent Ontario Labour Arbitration award found that the employer’s failure to protect its employees from harassment with regard to online posts on its Twitter account violated its responsibility to provide a workplace free of harassment. Here, the employer had a Twitter account to provide service updates, reminders, and information about service issues, as well as one used to receive and respond to customer service questions and concerns. This account was monitored and responded to by six senior service representatives employed in the Customer Service Centre (CSS). Bargaining unit members contacted the CSC to raise concerns about the employer allowing customers to use the account to make comments which made them feel intimidated, bullied, harassed, and threatened.

The Arbitrator found that as the public transit provider for the City of Toronto, the employer has a right to establish a social media presence through a Twitter account for the purpose of communicating with the public and with its users. However, it further found that the employer was also providing a forum for haters and abusers to abuse bargaining unit members, and had not dealt effectively with that abuse.

The Arbitrator ruled that it was clear from the totality of the evidence that the employer failed to take all reasonable and practical measures to protect bargaining unit employees from online harassment by members of the public, as required in Ontario by the Human Rights Code, the Union Agreement, and the employer’s Workplace Harassment Policy. Under these, the employer is required to provide a workplace free of harassment. The Arbitrator concluded that not only was the employer’s conduct contrary to its obligation to provide a workplace which is safe and free of harassment, it was also a breach of the privacy rights of bargaining unit members, and destructive to the concept of dignity.

Toronto Transit Commission and Amalgamated Transit Union, Local 113, 2016 CarswellOnt 10550

by Ellen Pinkos Cobb

In a recent Quebec case, Sikh plaintiffs sought to be exempt from the requirement to wear a helmet when, in the exercise of their truck driver trade, they left their truck in terminals operated by the defendants in the Port of Montreal to deliver or receive containers. The plaintiffs, required by the Sikh religion to wear turbans, argued they needed to be exempted for religious reasons from wearing a helmet.

For close to three years, the defendant set up an accommodation for the Sikh truck drivers who refused to wear a helmet, changing the container loading procedures on their trailers to ensure that they remained at all times within the cab of their truck. This measure was rejected by the plaintiffs. The defendant asserted concern about the risk of accidents to the head in circumstances when drivers must descend from their vehicles, identify the midst of container stacks that they must recover, and also when guided by signs the operator of the gantry crane filing the container on the trailer of the truck.

Although the Court recognized that the policy requiring the use of helmets contravened the right of applicants to freedom of religion and discriminated, it concluded that, here, the beneficial effects of the policy, or ensuring the safety of people working at defendants’ terminals, outweighed the harmful effects suffered by the plaintiffs or the use of helmets for five to ten minutes where they travel on foot at the port during transport or, alternatively, their decision not to carry out transport containers at terminals operated by the defendants.

Singh v. Montreal Gateway Terminals Partnership (CP Ships Ltd. Ltd./Navigation CP), 2016 QCCS 4521