Key changes in relation to health, safety and welfare issues

The Code does not impose many new legal obligations upon employers and others in relation to health, safety and welfare – with most of the obligations contained in the old legislation being simply transposed almost word for word into the new code. However, the old obligations do apply to a wider range of premises, there are new offences and sentencing provisions and changes in prosecutions processes.

Application of the new Code: The health, safety and welfare duties and obligations that were contained in the old Factories Act – and which have now been transposed to chapters 5 (health and hygiene), 6 (safety), 7 (special provisions with regard to health and safety, and 8 (Welfare measures) - only applied to ‘factories’. The new code however applies to ‘establishments’ which not only includes ‘factories’ but also shops, hotels, restaurants, cinema and certain kinds of offices (see 2(31), 2(41) and 2(61).

In addition, there is no minimum threshold or number of workers that establishments have to employ before the code's obligations apply to an establishment. In contrast the old Factories Act only applied to factories which employed over ten workers.

The Code does not apply to most government bodies, nor certain kinds of non-for profit organisations or educational and research institutions (see section 1(4)) – and perhaps most significantly does not apply to the construction sector.

Courts. In the past criminal prosecutions for offences contained in the Factories Act took place in the magistrates court. Section 107(2) of the Factories Act had stated, "No court inferior to that of a Magistrate of the First Class shall try an offence under this Act or any rules or order made thereunder". Now all prosecutions for offences must take place in the Labour Court using the Code of Criminal Procedure.

Prosecutor: In the past only factory inspectors could prosecute criminal cases: section 107 (1) of the Factories Act had stated that "no court shall take cognisance of an offence under this Act except upon complaints made by or under the authority of or with the previous permission in writing of, an inspector" Now this right of prosecution has been given to a wider category of people, in particular an 'aggrieved person or trade union”. Aggrieved person is likely only to apply to the actual worker injured or members of the bereaved family)

Criminal Offences and sentences: there are new criminal offences relating to violations of the code that cause, death or injury (section 309) with significantly higher sentences available to the courts.

To read more about the criminal offences in the Labour Code and their prosecution click here