Employers Obligations to the Employees under the Occupational Safety, Health and Environment Act

Employers Obligations to the Employees under the Occupational Safety, Health and Environment Act

In this month’s article, we shall examine employer’s legal obligations to their staff under the Occupational Safety, Health and Environment Act (2011) (The ‘Act’ or the ‘OSHEA’). To begin with we shall look at who this act applies to and who is excluded, thereafter we shall review the main legal obligations that this Act places on employers in relation to the occupational health and safety of their employees. In concluding we shall study the various legal penalties which employers face if they fail to comply with this law.

Who does the Act apply to?

The definition of ‘Employer’ under the Act is quite broad as it defines it to be an Employer under the Labour Protection Act (1998) which defines this as a person who agrees to accept an employee for work by paying wage and includes a person entrusted to act on behalf of the Employer, and if the Employer is a juristic person, the term also includes a person authorized to act on behalf of the juristic person as well as a person entrusted by the authorized person to act on their behalf. The Act also defines an employer to be an entrepreneur who allows any person to work for or to provide benefit for/or in an establishment, whether the working or providing of some benefit in part or as a whole or a part of the production process or business sis under the responsibility of the entrepreneur.

Similar to the above definition, the Act defines an employee as being an employee under the Labour Protection Act which provides that this means a person who agrees to work for an Employer in return for wages regardless of their work title. Moreover, the OSHEA definition for employee also includes a person who is allowed to work or to provide a benefit for or in an establishment of an Employer, regardless of the work title.

Hence, given the above, it would appear that this legislation has a broad application in Thailand however, readers should be mindful that this Act does not apply to Government employees of Central, Provincial or Local Administration, as these bodies are required to provide standards for administration and management on occupational health and safety by themselves but such standards are linked with this law as they must at a minimum meet those standards as specified in this Act.

Main Legal Obligations on Employers Under the Act:

Duty to Keep Workplace Safe and Hygienic:

One of the most significant requirements imposed on employers is that they are required to provide and keep the workplace of their employees safe and hygienic so that their employee’s working conditions promote an outcome whereby their employees are safe from harm to their physique, health (including mental health) and safe from workplace fatalities. According to this law, employees are required to cooperate with their employer in operating and promoting workplace health and safety to ensure a safe and healthy work environment. Giving a practical example on the above obligations, if an employer operates a business which requires staff to utilize dangerous machinery or materials (such as toxic chemicals) then the law would require them to provide safety training on correct usage and what to do in the case of misuse and harm occurring, likewise the law requires that the staff attend such training so that they can safely work and know how to handle situations which may arise if a workplace accident occurs. It is also worth noting that if expenses arise in the course complying with the above obligation (such as those for training seminars or safety equipment), then the law provides that the employer must pay rather than the staff.

Duty to Inform Employees or Risks/ Dangers:

Under the Act, if an employer assigns an employee to work in a workplace or working environment that could risk their life or their health (including mental health) or their physique then the employer is legally bound to inform the employee about such risks and dangers that could occur in the workplace and provide them with a workplace safety manual before such employee commences their work in the new workplace. A practical example of the application of this requirement would be a mine operator providing its new mining employees with a detailed presentation on the risks associated with working in the mine including those posed by gas explosions, cave-ins, risks of using drilling equipment and explosives. Moreover the mine operator would need to provide a detailed safety manual (covering all relevant occupational health and safety matters) to all new mine personnel and ensure they fully understand its details before allowing them to commence work in the mine.

Duty to Provide Training to Staff:

In addition to informing staff of potential workplace dangers/risks an Employer must also provide their staff with occupational health safety and environment training. The Act stipulates that such training must be attended by a member of management, a supervisor (this is defined as an employee whose role includes controlling supervising or ordering other employees) and an employee. The objective of such training is to safely manage, administer and operate Occupational Health Safety & Environment (OHSE) issues such as evacuation of the workplace or training in safe usage of dangerous machinery or materials/substances. Furthermore, the Act further provides that if an employer engages a new staff member, or has an existing staff member change their workplace or change their machinery or equipment that could potentially be harmful to their life, physique, health (including mental wellbeing) then the Employer is legally required to provide training to such employees before allowing them to commence their new work/ role. If an employer fails to comply with this duty they could be subject to serious penalties including imprisonment of not more than six months or a fine not exceeding two hundred thousand Baht, or both.

Duty to Provide Warnings:

Employers are required to post warning notices and OHSE signs in a highly visible location in their workplace, such notices must include a statement on the rights and duties of both employees and the employer. Failure to comply with this duty could result in an employer being subject to a term imprisonment of not more than three months or a fine not exceeding one hundred thousand Baht, or both.

Workplace Environment, Occupational Health & Safety Standards:

Arguably one of the main obligations under the Act is the requirement for employers to administer, manage and operate OHSE in strict compliance with the standards stipulated in the Ministerial Regulations. Some of the standards under the Regulations are as follows:

• Hazardous Chemicals – If an employer utilizes hazardous chemicals in their workplace then they are required to provide lists and details of such chemicals to the Director-General of the Department of Labour Protection and Welfare. An employer must also provide their employees with a safe work place and relevant knowledge concerning how to safely work and handle such dangerous chemicals. Finally, an employer must keep, control, manage, dispose, and control such hazardous chemicals to ensure the safety & welfare of their employees.
• Fire Safety & Prevention – An employer must do the following: provide a fire prevention and control system in the workplace, provide fire prevention and evacuation training to staff, provide fire evacuation signage in the workplace, provide a fire escape routes for each building (workplace) (2 routes per floor) and provide adequate firefighting equipment to control fires in the workplace (such as fire extinguishers or fire hoses etc).

If an Employer fails to comply with the abovementioned standards they could be subject to imprisonment of not more than one year or a fine not exceeding four hundred thousand Baht or both.

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