Primer: OSH Law (2018)

1. Summary

▪ Republic Act No. 11058, a.k.a. OSH Law, was passed in 2018.

▪ The OSH Law applies to all establishments, projects, and sites.

2. Concept

Republic Act No. 11058, a.k.a. the “OSH Law”, shall apply to all establishments, projects, sites, including Philippine Economic Zone Authority (PEZA) establishments, and all other places where work is being undertaken in all other places where work is being undertaken in all branches of economic activity, except in public sector. (Section 2, R.A. 11058)

The Secretary of Labor and Employment shall issue the number of employees, and nature of operations, and the risk or hazard involved. (Paragraph 2, Section 2, Ibid.)

a. Key terms

Certified first-aider – refers to any person trained and duly certified to administer first aid by the Philippine Red Cross or any organization authorized by the Secretary of Labor and Employment. (Section 3[a], Ibid.)

Competency standards – refers to industry-determined specification of proficiency required for effective work performance. These are expressed as outcomes with focus on workplace activity rather than training or personal attributes, and the ability to apply new skills in new situations or changing work organization. (Section 3[b], Ibid.)

Covered workplaces – refer to establishments, projects, sites and all other places where work is being undertaken wherein the number of employee, nature of operations, and risk or hazard involved in the business, as determined by the Secretary of Labor and Employment, require compliance with the provisions of this OSH Law. (Section 3[c], Ibid.)

Employer – refers to any person, natural or juridical, including the principal employer, contractor or subcontractor, if any, who directly or indirectly benefits from the services of the employee. (Section 3[d], Ibid.)

Equipment – refers to any machine with engine or electric motor as prime mover. (Section 3[e], Ibid.)

General safety and health inspection – refers to an examination pf the work environment including the location and operation of machinery other than those covered by technical safety audits, adequacy of work space, ventilation, lighting, conditions of work environment, handling, storage of work procedures, protection facilities and other possible sources of safety and health hazards in the workplace. (Section 3[f], Ibid.)

Imminent danger – refers to a situation caused by a condition or practice in any place of employment that could reasonably be expected to lead to death or serious physical harm. (Section 3[g], Ibid.)

Micro and Small Enterprises (MSEs) – refer to establishments employing less than ten (10) employees, and establishments employing less than one hundred (100) employees, respectively. (Section 3[h], Ibid.)

Occupational health personnel – refers to a qualified first aider, nurse, dentist or physician engaged by the employer to provide occupational health services in the establishment, project, site or workplace. (Section 3[i], Ibid.)

Occupational Safety and Health (OSH) – standards refer to the Occupational Safety and Health Standards issued by the Secretary of Labor and Employment pursuant to Articles 168 and 171, Chapter 2, Title I of Book Four of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines, and such other standards as may be issued pursuant to this Act. (Section 3[j], Ibid.)

Safety and health audit – refers to a regular and critical examination of project sites, safety programs, records, and management performance on programs, records, and management performance on program standards on safety and health. (Section 3[k], Ibid.)

Safety and health committee – refers to a body created within the workplace tasked with the authority to monitor, inspect and investigate all aspects of the work pertaining to the safety and health of workers. (Section 3[l], Ibid.)

Safety and health program – refers to a set of detailed rules to govern the processs and practices in all economic activities to conform with OSH standards, including the personnel responsible, and penalties for any violation thereof. (Section 3[m], Ibid.)

Safety officer – refers to any employee or officer of the company trained by the Department of Labor and Employment (DOLE) and tasked by the employer to implement an occupational safety and health program, and ensure that it is in accordance with the provisions of OSH standards. (Section 3[n], Ibid.)

Safety signage – refers to any emergency, warning or danger signpost or any safety instruction using the standards colors and sizes, including the standards symbols for safety instructions and warnings ini the workplace, prescribed by the DOLE. (Section 3[o], Ibid.)

Workplace – refers to any site or location where workers need to be or to go to by reason of their work, and which are under the direct or indirect control of the employer. (Section 3[p], Ibid.)

2. Duties and rights

a. Summary

▪ The OSH Law imposes duties on employers, contractors or subcontractors, workers, collaborators in relation to keeping a safe workspace.

▪ Workers have rights to know, to refuse unsafe work, to report accidents, and to personal protective equipment.

▪ Safety signages and devices, safety in the use of equipment, as well as occupational safety and health information, are required.

b. Duties

1) Duties of employers workers and other persons

Every employer, contractor or subcontractor, if any, and any person who manages, controls or supervises the work being undertaken shall:

1) Furnish the workers a place of employment free from hazardous conditions that are causing or are likely to cause death, illness or physical harm to the workers;

2) Give complete job safety instructions or orientation to all the workers especially to those entering the job for the first time, including those relating to familiarization with their work environment;

3) Inform the workers of the hazards associated with their work health risks involved ot to which they are exposed to, preventive measures to eliminate or minimize the risks, and steps to be taken in cases of emergency;

4) Use only approved devices and equipment for the workplace;

5) Comply with OSH standards including training medical examination and where necessary, provision of protective and safety devices such as personal protective equipment (PPE) and machine guards;

6) Allow workers and their safety and health representatives to participate actively in the process of organizing, planning, implementing and evaluating the safety and health program to improve safety and health in the workplace; and

7) Provide, where necessary, for measures to deal with emergencies and accidents including first-aid arrangements. (Section 4[a], R.A. 11058)

2) Duties of workers

1) Every worker shall participate in ensuring compliance with OSH standards in the workplace. (Section 4[b], R.A. 11058)

2) The worker shall make proper use of all safeguards and safety devices furnished for the worker’s protection and that of others, and shall observe instructions to prevent accidents or imminent danger situation in workplace. (Ibid.)

3) The worker shall observe the prescribed steps to be taken in cases of emergency. (Ibid.)

4) The worker shall report to the supervisor any work hazard that may be discovered in the workplace. (Paragraph 2, Section 4[b], Ibid.)

3) Duty of any person

It shall be the duty of any person, including the builder or contractor who visits, builds, renovates or installs devices or conducts business in any establishment or workplace, to comply with the provisions of this Act and all other regulations issued by the Secretary of Labor and Employment. (Section 4[c], Ibid.)

4) Duty of collaborators

Whenever two (2) or more undertakings are engaged in activities simultaneously in one (1) workplace, it shall be the duty of all engaged to collaborate in the application of OSH standards and regulations. (Section 4[d], Ibid.)

c. Workers’ rights

1) Workers’ right to know

The right to safety and health at work shall be guaranteed. All workers shall be appropriately informed by the employer about all types of hazards in the workplace, provided access to training and education on chemical safety, electrical safety mechanical safety, and ergonomical safety. (Section 5, Ibid.)

2) Workers’ right to refuse unsafe work

The worker has the right of refusal to work without threat or reprisal from the employer if, as determined by the DOLE, an imminent danger situation exists in the workplace that may result in illness, injury or death, and corrective actions to eliminate the danger have not been undertaken by the employer. (Section 6, Ibid.)

3) Workers’ right to report accidents

Workers and their representatives shall have the right to report accidents, dangerous occurrences, and hazards to the employer, to the DOLE and other concerned government agencies exercising jurisdiction as the competent authority in the specific industry or economic activity. (Section 7, Ibid.)

4) Workers’ right to personal protective equipment (PPE)

Every employer, contractor or subcontractor, if any, shall provide his workers, free of charge, protective equipment for their eyes, face, hands and feet, and free, and lifeline, safety belt or harness, gas or dust respirators or masks, protective shields whenever necessary by reason of the hazardous work process or environment, chemical, radiological, mechanical and other irritants or hazards capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. The cost of the PPE shall be part of the safety and health program which is a separate pay item pursuant to Section 20 of this Act. (Section 8, Ibid.)

All PPE shall be of the appropriate type as tested and approved by the DOLE based on its standards. The usage of PPE in all establishments, projects, sites and all other places where work is being undertaken shall be based on the evaluation and recommendation of the safety officer. (Paragraph 2, Section 8, Ibid.)

d. Safety signage and devices

All establishments, projects, sites and all other places where work is being undertaken shall have safety signage and devices to warn the workers and the public of the hazards in the workplace. Safety signage and devices shall be posted in prominent positions and strategic locations in a language understandable to all, and in accordance with the standard set by the DOLE. (Section 9, Ibid.)

e. Safety in the use of equipment

In relation to the use of equipment, the employer, contractor or subcontractor, if any, must comply with the DOLE requirements in the different phases of the company or project operation including the transport to and from the establishment, project, site or place where work is being undertaken. (Section 10, Ibid.)

f. Occupational safety and health information

Workers in all establishments, projects, sites and all other places where work is being undertaken shall be provided adequate and suitable information by the employer, contractor or subcontractor, if any, on safety and health hazards, and the appropriate measures, including the probable location of workers, for the prevention, control and protection against those hazards. (Section 11, Ibid.)

3. Compliance and enforcement

a. Summary

▪ Joint and solidary liability is imposed on the employer, project owner, general contractor, contractor or subcontractor, if any, and any person who manages, controls or supervises the work being undertaken.

▪ The DOLE Secretary has visitorial powers and standards setting power.

▪ Violations of prohibited acts results in penalties.

b. Joint and solidary liability of employers

The employer, project owner, general contractor, contractor or subcontractor, if any, and any person who manages, controls or supervises the work being undertaken shall be jointly and solidarily liable for compliance with this Act. (Section 21, R.A. 11058)

c. Enforcement of occupational safety and health standards

1) DOLE Secretary’s visitorial power

Pursuant to Article 128 of the Labor Code of the Philippines and other applicable laws, the Secretary of Labor and Employment or the Secretary’s authorized representatives shall have the authority to enforce the mandatory occupational safety and health standards in all establishments and conduct, together with representatives from the the labor and the employer sectors, an annual spot audit on compliance with OSH standards. The Secretary or the Secretary’s duly authorized representatives can enter workplaces at anytime of the day or night where work is being performed to examine records and investigate facts, conditions or matters necessary to determine compliance with the provisions of this Act. (Section 22, Ibid.)

No person or entity shall obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or the Secretary’s duly authorized representatives issued pursuant to the authority granted under Article 128 of the Labor Code of the Philippines, and no lower court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involveing the enforcement orders. (Paragraph 2, Section 22, Ibid.)

The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when noncompliance with law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. (Paragraph 3, Section 22, Ibid.)

The procedure for inspecting work premises, notifying employers of violations, and issuing compliance or stoppage orders shall be pursuant to the procedure laid down in Article 128 of the Labor Code of the Philippines as implemented through relevant regulations issued by the DOLE on administration and enforcement of labor laws. The inspector or person authorized by the DOLE to enforce compliance with OSH standards shall present proper identification upon request, and such inspector or person shall only act within the authority or direction given by the Secretary of Labor and Employment. (Paragraph 4, Section 22, Ibid.)

The Secretary of Labor and Employment or the Secretary duly authorized representatives shall inspect establishments and workplaces regardless of the size and nature of operation. Any kind of self-assessment shall not take the place of labor inspection conducted by the DOLE. However, chartered cities may be allowed to conduct industrial safety inspections of establishments within their jurisdiction in coordination with the DOLE: Provided, That they have adequate facilities and competent personnel for purpose as determines by the DOLE, and subject to national standards established by the latter. (Paragraph 5, Section 22, Ibid.)

2) Payment of workers during work stoppage due to imminent danger

If stoppage of work due to imminent danger occurs as a result of the employer’s violation or fault, the employer shall pay the workers concerned their wages during the period of such stoppage of work or suspension of operation. For purposes of payment of wages and any other liabilities arising from a work stoppage order is issued secondary to an imminent danger situation which would imperil the lives of the workers. (Section 23, Ibid.)

3) Delegation of authority

The authority to enforce mandatory OSH standards may be delegated by the Secretary of Labor and Employment to a competent government authority. (Section 24, Ibid.)

4) DOLE Secretary’s standards setting power

The Secretary of Labor and Employment shall, in consultation with the other concerned government agencies and relevant stakeholders, by appropriate orders, set and enforce mandatory OSH standards to eliminate or reduce occupational safety and health hazards depending on the number of employees of the establishment, the nature of its business operations, and the risk or hazard involved. (Section 25, Ibid.)

The Secretary shall also institute new, and update existing programs to ensure safe and healthy working conditions in all workplaces especially in hazardous industries such as a mining, fishing, construction, and the maritime industry. (Paragraph 2, Section 25, Ibid.)

5) Employee’s compensation claim

A worker may file claims for compensation benefit arising out of work-related disability or death. Such claims shall be processed independently of the finding of fault, gross negligence or bad faith of the employer in a proceeding instituted for the purpose. (Section 26, Ibid.)

6) Incentives to employers

There shall be an established package of incentives under such riles and regulations as may be promulgated by the DOLE to qualified employers to recognize their efforts toward ensuring compliance with OSH and general labor standards such as OSH training packages, additional protective equipment, technical guidance, recognition awards and other similar incentives. (Section 27, Ibid.)

d. Prohibited Acts

The following are considered as prohibited acts:

1) Willful failure or refusal of an employer, contractor or subcontractor to comply with the required OSH standards or with a compliance order issued by the Secretary of Labor and Employment or by the Secretary’s authorized representative shall make such employer, contractor or subcontractor liable for an administrative fine not exceeding One hundred thousand pesos (₱100,000.00) per day until the violation is corrected, counted from the date the employer or contractor is notified of the violation or the date the compliance order is duly served on the employer. The amount of fine imposed shall depend on the frequency or gravity of the violation committed or the damage caused: Provide, however, That the maximum amount shall be imposed only when the violation exposes the workers to a risk of death, serious injury or serious illness.

2) An employer, contractor or subcontractor who willfully fails or refuses to comply with the required OSH standards or with a duly issued compliance order, and engages in any of the following acts to aid, conceal or facilitate such noncompliance shall be liable for a maximum of One hundred thousand pesos (₱100,000.00) administrative fine separate from the daily fine imposed above:

a) Repeated obstruction, delay or refusal to provide the Secretary of Labor and Employment or any of its authorized representatives access to the covered workplace or refusal to provide or allow access to relevant records and documents or obstruct the conduct of investigation of any fact necessary in determining compliance with OSH standards;

b) Misrepresentation in relation to adherence to OSH standards, knowing such statement, report or record submitted to the DOLE to be false in any material aspect;

c) Making retaliatory measures such as termination of employment, refusal to pay, reducing wages and benefits or in any manner discriminates against any workers who has given information relative to the inspection being conducted. (Section 28, Ibid.)

For the purpose, the Secretary of Labor and Employment, in consultation with relevant stakeholders, shall issue a list of offenses with corresponding reasonable administrative fines depending on the severity, frequency and damage caused without prejudice to the filing of a criminal or a civil casein the regular courts, as the case may be. (Paragraph 2, Section 28, Ibid.)

The fine collected shall be used for the operation of occupational safety and health initiatives, including occupational safety and health training and education and other occupational safety and health programs. (Paragraph 3, Section 28, Ibid.)

4. Covered workplaces

a. Summary

▪ Covered workplaces are requires to have a safety and health program.

▪ A safety and health committee is required to be organized in covered workplaces.

▪ Workplaces are required to have safety officers.

b. Occupational safety health (OSH) program

Covered workplaces shall have a safety and health program including the following policies, guidelines or information:

1) Statement of commitment to comply with OSH requirements;

2) General safety and health, including a drug-free workplace;

3) Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS)/tuberculosis/hepatitis prevention control;

4) Company or project details;

5) Composition and duties of the safety and health committee;

6) Occupational Safety and health personnel and facilities;

7) Safety and health promotion, training and education;

8) Conduct of toolbox meetings;

9) Accident/incident/illness investigation, recording and reporting;

10) Provision and use of PPE;

11) Provision of safety signage;

12) Dust control and management, and regulations on activities such as building of temporary structures, and lifting and operation of electrical, mechanical, communications systems and other equipment;

13) Provision of workers’ welfare facilities;

14) Emergency preparedness and response plan;

15) Waste management system; and,

16) Prohibited acts and penalties for violations. (Section 14, R.A. 11058)

The safety and health program shall be prepared and executed by the employer, contractor or subcontractor, if any, in consultation with the workers and their representatives and shall be submitted to the DOLE which shall approved disapproved or modify the same according to existing laws rules and regulations, and other issuances. (Paragraph 2, Section 14, Ibid.)

The approved safety and health program shall be communicated and be made readily available to all persons in the workplace. (Paragraph 3, Section 14, Ibid.)

c. Occupational Safety and Health (OSH) Committee

To ensure that the safety and health program observed and enforced, a safety and health committee shall be organized in covered workplaces composed of the following:

1) Employer or representative as the chairperson ex officio;

2) Safety officer of the company or project as the secretary;

3) Safety officer representing the contractor or subcontractor, as the case may be, as members;

4) Physicians, nurses, certified first-aiders, and dentists as members, ex officio,if applicable; and,

5) Workers representatives who shall come from the union if the workers are organized or elected by the workers through a simple majority vote if they are unorganized, as members. (Section 13, Ibid.)

The committee shall effectively plan develop, oversee and monitor the implementation of the safety and health program. (Paragraph 2, Section 13, Ibid.)

d. Safety officer

To ensure that a safety and health program is duly followed and enforced, covered workplaces shall have safety officers who shall:

1) Oversee the overall management of the safety and health program;

2) Frequently monitor and inspect any health or safety aspect of the operation being undertaken;

3) Assist government inspectors in the conduct of safety and health inspection at any time whenever work is being performed or during the conduct of an accident investigation; and,

4) Issue work stoppage orders when necessary. (Section 14, Ibid.)

The number and qualification of the safety officers shall be proportionate to the total number of workers and equipment, the size of the work area and such other criteria as may be prescribed by the DOLE. (Paragraph 2, Section 14, Ibid.)

In the case of a contractor or subcontractor, a safety officer must be deployed at each specific area of operations to oversee the management of the safety and health programs of its own workforce. (Paragraph 3, Section 14, Ibid.)

e. Occupational health personnel and facilities

Covered workplaces shall have qualified occupational health personnel such as physicians, nurses, certified first-aiders, and dentists duly complemented with the required medical supplies, equipment and facilities. The number of health personnel, equipment and facilities. The number of health personnel, equipment and facilities, and the amount of supplies shall be proportionate to the total number of workers and the risk of hazard involved, the ideal ratio of which shall be prescribed by the DOLE. (Section 15, Ibid.)

f. Safety and health training

1) All safety and health personnel shall undergo the mandatory training on basic occupational safety and health for safety officers as prescribed by DOLE. (Section 16[1], Ibid.)

2) All workers shall undergo the mandatory eight (8) hours safety and health seminar as required by the DOLE which shall include a portion on joint employer-employee orientation. (Section 16[2], Ibid.)

3) All personnel engaged in the operation, erection and dismantling of equipment and scaffolds, structural erections, excavations, blasting operations, demolition, confined spaces hazardous chemicals, welding, and flame cutting shall undergo specialized instruction and training on the said activities. (Section 16[3], Ibid.)

g. Occupational safety and health reports

All employers, contractors or subcontractors, if any, shall submit all safety health reports, and notifications prescribed by the DOLE. (Section 17, Ibid.)

h. Workers’ competency certification

In order to professionalize, upgrade and update the level of competence of workers, the Technical Education and Skills Development Authority (TESDA) or the Professional Regulation Commission (PRC), as the case may be, shall establish national compentency standards and prepare guidelines on competence assessment and certification for critical occupations. In this regard, all critical occupations shall undergo the mandatory competence assessment and certification by the TESDA. (Section 18, Ibid.)

An occupation shall be considered critical when:

1) The performance of a job affects the people’s lives and safety;

2) The job involves the handling of tools, equipment and supplies;

3) The job requires a relatively long period of education and training; and,

4) The performance of the job may compromise the safety, health and environmental concerns within the immediate vicinity of the establishment. (Paragraph 2, Section 18, Ibid.)

i. Workers’ welfare facilities

All establishments, projects, sites and all other places where work is being undertaken shall have the following welfare facilities in order to ensure humane working conditions:

1) Adequate supply of safe drinking water;

2) Adequate sanitary and washing facilities;

3) Suitable living accommodation for workers, as may be applicable; and,

4) Separate sanitary, washing and sleeping facilities for men and women workers as may be applicable. (Section 19, Ibid.)

j. Cost of safety and health program

The total cost of implementing a duly approved safety and health program shall be an integral part of the operations cost. It shall be a separate pay item in construction and in all contracting or subcontracting arrangements. (Section 20, Ibid.)

References

Republic Act No. 11058, a.k.a. OSH Law

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