Firstly I would like to use this opportunity to wish you and your employer a prosperous New Year.
For a variety of reasons I did not write as many newsletters as I would have hoped to last year but will be re-instating my monthly newsletters this year. Last year was a rather static year as regards developments from the OHS Act perspective with the exception of the draft construction regulations which seem to have been redrafted once again. I haven’t seen the final redraft but I hear it radically departs from the published draft. I personally had quite a few concerns about the draft in particular the powerful role afforded to agents. I will reserve comment, however, until I receive and study the latest draft.
You may not know that a new OHS Act is being prepared. The combined OHS & MHS Acts National OHS Act has been abandoned and I hope and think the new OHS Act will not depart radically from the current Act. Penalties will rocket of course. I also hope to see the boring debate surrounding section 16 and Delegatus non Potest Delegare laid to rest in the new OHS Act. I still maintain that this Administrative Law restriction does not apply and that employers are free to structure this in-house appointment as they deem fit. (Yes I believe a section 16(2) Assigned Person may be authorised to assign another person in terms of section 16(2) and that the CEO need not be burdened with all assignments).
You can access my argument at http://www.klasslooch.com/6201/24701.html . This issue continues to haunt us and I notice many employers who adhere to the restrictive approach have adopted some very contrived ways of by-passing it. Many of my clients who correctly adhere to my interpretation continue to be penalised for their approach despite this issue never being tested in court. If you could google the Delegatus principle it reads; “It is one of the pivotal principles of administrative law that a delegate cannot delegate. A person to whom an authority or decision-making power has been delegated to from a higher source, cannot, in turn, delegate again to another, unless the original delegation explicitly authorized it. Show me where the word ‘delegate’ appears in section 16(2). It did actually appear in the draft of the current OHS Act but was abandoned specifically to avoid this restriction. But alas I am in the minority it seems. It baffles me as to why the legislator opted to give the CEO the prerogative to assign as opposed to making it obligatory and then once the CEO exercises the option then suddenly everyone including DoL decides to become prescriptive regarding its interpretation?
The section 37(2) Written Agreement has also evolved into a monster but I will regurgitate my view of that next time.
My time is currently being consumed by ‘The Stellenbosch Collapse Case’ in which four workers died after a concrete slab collapse onto them in 2008. The Formal Inquiry has been concluded and the matter postponed for Heads of Argument. It’s a very technical matter and I am convinced that it will result in section 10 being tested in court. (The General Duties of Manufacturers and others regarding Articles and Substances). This extract from the Cape Times will help me not transgress the Sub Judice Rule:
Probe puts spotlight on suppliers after fatal collapse. Cape Times 27 August 2009.
‘New evidence in the labour Department probe into a fatal construction accident collapse in Stellenbosch last year has put the spotlight firmly on suppliers. The department released a statement after its meeting in Cape Town yesterday with Hire All, Hire Solutions, Hire Mac and Velvet Products, saying it was seeking clarity on whether the props used in the construction were of acceptable standard. A prop is an object placed beneath or against a structure to keep it from falling or shaking. It serves as a mean of support. In this instance, these props were used to support the concrete slab that collapsed on the workers who were toiling under the concrete slab. The collapse occurred on 9 June 2008, during the renovation of a derelict building in Distillery street. It left three workers dead and four others with serious injuries. Presiding officer Phumi Maphaha said the meeting sought to establish whether the props used in the building were of an acceptable standard as per the specifications of the Engineering Council of South Africa and whether they complied with SABS standards. He was also examining whether the manufacturers and suppliers adhered to section 10 of the Construction regulations of the Occupational Health and safety Act, where it is stated that suppliers needed to ensure that they told the end-user about how to use their product safely. However, after establishing that the suppliers imported the props from Italy, Maphaha instructed them to present product specifications from the Italian company by no later than 9 September 2009. Maphaha said : ‘The purpose of this exercise is to establish whether there are below-standard props coming into the country without being SABS approved and thereby claiming people’s lives and if so, we will have to deal with those suppliers decisively.’ The original Labour Department hearing into the collapse was held earlier this month and was concluded within three days. The witnesses in that hearing would receive a manuscript with details of the inquiry, according to the Department of Labour. The witnesses, among them the site supervisor, gave their versions of what happened on the afternoon of the accident, the department said. Provincial labour spokesperson Temba Gubula said heads of argument still had to be presented. After this the presiding officer would present a report to the Director of Public Prosecutions. The area in which the collapse occurred is now being developed into flats and offices’.
In what may be a first in SA OHS criminal trial history, an owner of a cable swing company and two employees have been charged with murder after a woman died of her injuries during a tandem jump in Graskop on 3 October 2009. The accused have pleaded not guilty to murder, maintaining that they had no intention to kill Mrs Jo-Ann Samuels. The trial commenced last week at the Graskop magistrates court and was postponed after hearing the evidence of her husband who miraculously survived when the cable swing smashed into the rocks at the bottom of the valley.
According to media reports it is suspected that one of the winches or a gear feeding the rope had broken. Forensic evidence pertaining to the integrity of the equipment used will be presented later either by the SAPS or Department of Labour but it must have been potent enough for the Occupational Safety Court Prosecutor to initiate the charges of murder with additional or alternative charges under the OHS Act. The charges under the OHS Act are not reported but they could include charges under the Driven Machinery Regulations, section 9 of the Act in that the activities of the accused caused harm to both the deceased and her husband. Other charges could be wilful or reckless endangerment, misusing safety equipment and causing injuring negligently. The latter is a unique crime limited to the OHS and MHS Acts since it is not a crime outside these statutes to negligently injure persons.
It is highly unlikely that the accused had a direct intention to kill Mrs Samuels and the question must be asked why the accused are being charged with murder as opposed to culpable homicide, the usual common law crime which may follow a fatal workplace accident. There are various forms of intention (dolus) in law. In instances where an accused does not have a direct intention to kill, the prosecution can rely on a foreseeability test known as dolus eventualis where it is argued that accused should have foreseen the possibility of death. It differs from the test for culpable homicide, the negligent killing of a person, in that it is not a objective test. (The reasonable Person Test).
The state is also relying on dolus eventualis in the Jub Jub drag race trail where the accused are also charged with murder of a number of school children died after being hits by their vehicles. It is not the easiest of charges to prove since the prosecution cannot rely on the objective Reasonable Person Test and essentially must prove a state of mind. Failure to prove murder could anyway result in a culpable homicide conviction since the latter in a competent verdict in any murder case.
The trial continues.
Dear Subscribers
Firstly compliments of the season to you all. I hope 2011 will be a great year for you personally and for your employer.
The public hearings on the Labour Relations Amendment Bill, 2010 are about to commence and I am sure that you are curious to know what the implications, if any, are from the Occupational Health and Safety Act perspective. If the Bill is passed as published, and there is much speculation in the media about this, it would de facto mean the end of labour brokering as we know it. I won’t pursue the Labour Relations Act implications as it is not my forte.
The Supreme Court of Appeal (SCA) ruled in Crown Chickens v Rieck that a labour broker assignee was indeed the employee of the labour broker and not the client paving the way for a potential flood of civil suits for damages against clients where assignees are negligently injured or killed at the workplace. Mrs Rieck succeeded in her claim for this very reason since section 35 of the COID Act prohibits employees or their dependants from suing employers for workplace injuries, illnesses or fatalities. Clients will only in certain limited circumstances be allowed to make use of fixed term contracts and the vast majority of workers supplied by labour brokers will become employees of the client / employer. The client / employer will be obliged to contribute to, inter alia, the compensation commissioner and UIF. The irony of this proposed amendment is that most workers supplied by labour brokers and who thus currently enjoy the right to sue the client will be deprived of this right in exchange for more rights in terms of the LRA. The SCA essentially ruled that the entity that pays the compensation premium is regarded as the employer.
So from a civil liability perspective the proposed amendments could be construed as positive. From the criminal law perspective, the OHS Act and common law (when a fatality occurs) nothing will change. I have always preached that employers who try to differentiate between genuine employees and labour supplied by labour brokers as regards workplace safety and health are in for a rude shock! It would make nonsense of the OHS Act if employers provided their genuine employees with a safer and healthier work environment to the detriment of labour supplied via a labour broker. In any case such labour would resort within the definition of an employee as per section 1 of the OHS Act.
"employee" means, subject to the provisions of subsection (2), any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person”.
Oddly enough the proposed amendment to the LRA has opted for the OHS Act definition of an employee yet the version published is not identical and could open up a can of interpretational worms down the line.
“ employee means any person employed by or working for an employer, who receives or is entitled to receive any remuneration, reward or benefit and works under the direction or supervision of an employer’.
So section 8 of the OHS Act (The General Duties of Employers to their Employee) applies to all workers albeit temporary, permanent, fixed term or supplied via a labour broker. Even if someone could evolve a contrived argument against the applicability of section 8 in cases of labour broker assignees, section 9 (The General Duties of Employers to Persons other than their Employees) would apply which, although very broad and requires employers to ensure that their activities do not harm non-employees, essentially encompasses all of the requirements of section 8.
You will recall that in a previous newsletter I touched on Monjane v RAF 2007 T which, via a Road Accident Fund (RAF) matter, reinforced the prohibition on civil suits for damages by employees against employers as contained in section 35 of the COID Act. And by now you are all familiar with the celebrity Constitutional Court challenge to that provision as contained in Jooste v Score Supermarket Trading (Pty) Ltd. You will, however, be surprised how many people are still unaware of the fact that an employee, as defined in the COID Act, cannot sue their employers for damages if they are harmed due to the employer’s negligence. I routinely pose this question at OHS Legislation Workshops and am surprised at the response. Even more so when I ask whether procured labour, via a labour broker, have the right to sue for damages should their client / employer cause them harm in a negligent fashion. Naturally you know the answers since you read my newsletter where, in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck [2007] (SCA), the Supreme Court of Appeal ruled that such procured labour indeed enjoy the right to sue.
Well the ink is scarcely dry on another Law Report where section 35 of the COID Act was, inter alia, discussed. In Van Wyk obo Van Wyk v Daytona Stud Farm (Pty) Ltd & others [2007] (C) the plaintiff's minor daughter was seriously injured in an incident which occurred while she was being conveyed on a trailer drawn by a tractor driven by a driver on the employer’s farm. The child was at the time, working in the orchard with other children who lived on the farm.
The employer contended that the child was an employee at the time and that the injury sustained by her was an occupational injury as defined in section 1 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and that by virtue of the provisions of section 35(1) of the Act, the plaintiff (guardian of the injured child) was precluded from suing the employer. The court ruled that the employer and the driver of the tractor were both negligent in allowing the children to be conveyed on the tractor in a manner which was dangerous. The court declined to attribute any contributory negligence to the child as she lacked the maturity to know any better. On the question of whether the plaintiff's claim against the employer was excluded by the provisions of section 35(1), the court questioned whether the child was capable of and did conclude a valid contract of service and, secondly whether, if she did conclude a contract of service, such contract was void ab initio by reason of the statutory prohibition against the employment of a child under the age of 15 years or school-leaving age. The employer and driver were thus declared liable for the plaintiff's damages. Naturally if the injured child was ‘legally’ an employee, she would not have been able to sue. I recall reading an article emanating from DoL about this incident and wonder if an investigation or inquiry was held? The Cape High Court did find negligence but in civil matters such negligence only need be proved on a balance of probabilities as opposed to the stronger onus of proof, placed upon the State in a criminal matter, to prove negligence beyond a reasonable doubt. Let’s look how, in theory at least, the matter could have or may even have been handled from a criminal or OHS Act perspective. Since she was not an employee, section 8 would not apply. It contains the duties of employers to their employees although I could argue that it is broad enough to cover non employees such as persons over whom employers exercise supervision. Section 9, on the otherhand, which prohibits employers from causing harm to persons through their activities, would be an ideal charge. And then there is that unique, often misunderstood OHS and MHS Act crime, namely the crime of negligently injuring persons. Section 38(2) states that any employer who does or omits to do an act, thereby causing any person to be injured at a workplace, or, in the case of a person employed by him, to be injured at any place in the course of his employment, or any user of plant or machinery who does or omits to do an act in connection with the use of plant or machinery, thereby causing any person to be injured, shall be guilty of an offence if that employer or user of plant or machinery, as the case may be, would in respect of that act or omission have been guilty of the offence of culpable homicide had that act or omission caused the death of the said person, irrespective of whether the injury could have led to the death of such person, and on conviction be liable to a fine not exceeding R100 000 or to imprisonment not exceeding 2 years or to both such fine and such imprisonment. I say misunderstood because many believe, because the elements of the crime are the same as those for culpable homicide, that one can actually be guilty of culpable homicide without killing a person! (Every crime has elements and, if my fading memory serves me right, they are an act or omission, fault, in the form of intention (mens rea) or negligence (culpa), causality and result. The result in this crime is injury as opposed to death). Consciousness of illegality is required for intentional crimes). As recently as 24 September 2007 a senior DoL official said ‘In terms of the Occupational Health and Safety Act, non-compliance and prosecution could incur a fine of up to R50 000 or a year in jail. In certain cases, common law can also be enacted. “One of the interesting areas of our legislation is that sometimes you can have the possibility of death, but not a death, that is, the potential severity of an injury could have led to a death and, in such instances, an inspector could still charge the company with culpable homicide.” Now he is (dead) wrong because you need a (very dead) body, killed negligently, to activate such a charge! He is also wrong because an inspector cannot make a recommendation for a culpable homicide charge. Inspectors are limited to the statutes (OHS Act) and cannot make common law crime recommendations. Once the draft NOH&S Bill is enacted inspectors will, for the first time, be able to recommend homicide charges but limited to the envisaged new crime of Corporate Homicide. Anyway back to the case in hand. Depending on the state of the tractor (machinery), I could also throw in a few General Machinery Regulation contraventions. Naturally there were also contraventions of the Basic Conditions of Employment Act.
What happened in that case is that Monjane (Monjane v RAF 2007 T) was injured by a vehicle negligently driven by his own employer while walking on a public road. He sustained injuries and a claim was lodged against the Road Accident Fund (RAF). The driver was insured by the RAF who then became the plaintiff in the matter. It was also an occupational injury which is compensable in terms of the COID Act. In terms of section 35 of the COID Act it is accepted that the injured party is prohibited from lodging a civil claim for damages against his employer and must turn to the Compensation Fund for relief. This prohibition was challenged as unconstitutional and the challenge rejected in Jooste v Score Supermarket Trading (Pty) Ltd.
Like the COID Act, the RAF contains provisions which limit the liability of owners and drivers of vehicles and prejudiced parties are limited to claiming from the RAF. You claim from the RAF and not the individual. The idea being to limit the amount of civil suits.
Claim for compensation lies against Fund or agent only. When a third party is entitled to claim from the Fund any compensation in respect of any loss or damage resulting from any bodily injury to or death of any person caused by or arising from the driving of a motor vehicle by the owner thereof or by any other person with the consent of the owner, that third party may not claim compensation in respect of that loss or damage from the owner or from the person who so drove the vehicle, or if that person drove the vehicle as an employee in the performance of his or her duties, from his or her employer, unless the Fund or such agent is unable to pay the compensation.
So it would appear as if the RAF must compensate Mr Monjane? Not so argued the RAF. There is a provision which states that the RAF shall not be obliged to compensate any person for any loss or damage which neither the driver nor the owner of the motor vehicle concerned would have been liable and we know that section 35 of the COID Act makes the owner / driver not liable. The learned Judge, however, disagreed and ruled that this was surely not the intention of the law. He ruled that the injured could claim against either the Compensation Fund or the RAF. He stated ‘In my view, the plaintiff is entitled to claim against the defendant (RAF) and also claim against the Compensation Commission provided that he cannot be compensated for more than he is entitled to. If he claims from the Fund and is adequately compensated he cannot be heard to wish to claim against the Commissioner as well’
So the RAF took the case of appeal to the SCA. It upheld the appeal and ruled, inter alia, that ultimately a line must be drawn where it is essentially a question of policy for the legislature to decide. Section 19(a) of the Road Accident Fund Act 56 of 1996, read with section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993, indicates where that line has been drawn: an employee who sustains an "occupational injury" in the context of a motor accident will have no claim under the Road Accident Fund Act 56 of 1996 if the wrongdoer is his or her employer. It is a well-established rule of construction that the legislature is presumed to know the law, including the authoritative interpretation placed on its previous enactments by the courts. Monjane can therefore only claim from the Compensation Fund.
I recently stumbled upon a US Supreme court decision which limits the powers of their OHS Inspectorate. The Supreme Court has effectively limited any inspections and searches of business premises without a warrant. The rationale being that such searches and inspections were in violation of the US Fourth Amendment in the Bill of Rights which prohibits unreasonable searches and seizures without a warrant. Essentially an inspector would only be able to inspect a workplace or seize an item if armed with an administrative warrant or the employers allows it.
It makes one wonder what the situation would be in South Africa considering that the OHS Act was promulgated before the Bill on Rights in the Constitution was enacted? The US Fourth Amendment to their Constitution is almost identical to our constitutional Right to Privacy as well as their OHS Inspectors functions’ and powers . This limitation even applies where there is probable cause, in other words, an inspector has a reasonable belief that an OHS crime has been committed. Although silent on the powers of the inspectorate post an incident, a warrant would not be required since the workplace would constitute a potential crime scene. Employers would obviously be obliged to allow to allow emergency teams and investigators to enter the workplace.
Section 36 of the Bill of Rights to the SA Constitution entitled ‘Privacy’stipulates thateveryone, including a juristic person or company, has the right to privacy, which includes the right not to have-
· their person or home searched;
· their property searched;
· their possessions seized;
· or the privacy of their communications infringed.
The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.
Section of the OHS Act 29. Functions of inspectors stipulates that an inspector may -
(a) without previous notice, at all reasonable times, enter any workplace or premises which are occupied or used by an employee or on or in which an employee performs any work or any plant or machinery is used, or which he believes to be such workplace or premises;
(b) question any person who is or was on or in such premises, either alone or in the presence of any other person on any matter to which this Act relates;
(c) require from any person who has control over or custody of a book, record or other document on or in those premises, to produce to him forthwith, or at such time and place as may be determined by him, such book, record or other document;
(d) examine any such a book, record or other document or make a copy thereof or an extract therefrom.
(e) require from such a person an explanation of any entry in such a book, record or other document;
(f) inspect any article, substance, plant or machinery which is or was on or in those premises, or any work in or on those premises or any condition prevalent on or in those premises, or remove for examination or analysis any article or substance or a part or sample thereof;
(g) seize any such book, record or other document or any article or substance or a part or sample thereof which in his opinion may serve as evidence at the trial of any person charged with an offence under this Act or the common law: Provided that the employer or user of the article, substance, plant or machinery concerned, as the case may be, may make copies of such book, record or document before such seizure;
(h) direct any employer, employee or user of plant or machinery (including any former employer, employee or user of plant or machinery) to appear before him at such time and place as may be determined by him and question such employer, employee or user either alone or in the presence of any other person on any matter to which this Act relates;
(i) perform any such other functions as may be prescribed.
(2)
(a) An interpreter, a member of the South African Police or any other assistant may, when required by an inspector, accompany him when he performs his functions under this Act.
(b) For the purposes of this Act an inspector's assistant shall, while he acts under the instructions of an inspector, be deemed to be an inspector.
(3) When an inspector enters any premises under subsection (1) the employer occupying or using those premises and each employee performing any work thereon or therein and any user using plant or machinery thereon or therein, shall at all times provide such facilities as are reasonably required by the inspector to enable him and his assistant (if any) to perform effectively and safely his or their functions under this Act.
(4) When an inspector removes or seizes any article, substance, book, record or other document as contemplated in subsection (1)(f) or (1)(g), he shall issue a receipt to the owner or person in control thereof.
On the other hand, the Mine Health & Safety Act was promulgated after the (interim) Constitution was in force and reads:
MHS Act. Section 50. Inspectors' powers.
(1) An inspector may for the purposes of monitoring or enforcing compliance with this Act -
(a) enter any mine at any time without warrant or notice;
(b) enter any other place after obtaining the necessary warrant in terms of subsection (7); and
(c) bring into and use at any mine, or at any place referred to in paragraph (b), vehicles, equipment and material as necessary to perform any function in terms of this Act.
(2) While the inspector is at any mine or place referred to in subsection (1), the inspector may, for the purposes of monitoring or enforcing compliance with this Act -
(a) question any person on any matter to which this Act relates;
(b) require any person who has control over, or custody of, any document, including but not limited to, a plan, book or record to produce that document to the inspector immediately or at any other time and place that the inspector requires;
(c) require from any person referred to in paragraph (b) an explanation of any entry or non-entry in any document over which that person has custody or control;
(d) examine any document produced in terms of paragraph (b), and make a copy of it or take an extract from it;
(e) inspect -
(i) any article, substance or machinery;
(ii) any work performed; or
(iii) any condition;
(f) inspect arrangements made by the employer for medical surveillance of employees;
(g) seize any document, article, substance or machinery or any part or sample of it; and
(h) perform any other prescribed function.
(3) A n inspector may instruct any employer, manager, employee or any other person who performs an activity regulated by this Act or any former employer, manager or employee or person who formerly performed an activity regulated by this Act, to appear before the inspector to be questioned on any matter to which this Act relates.
(4) before an inspector may seize any document under subsection (2)(g), the employer or manager of the mine may copy it.
(5) An inspector may remove any article, substance or machinery or any part or sample of it from any mine or place referred to in subsection (1) for examination or analysis.
(6) When an inspector seizes or removes any item under this section, the inspector must issue a receipt for that item to the employer or manager of the mine or place involved.
(7) A magistrate may issue a warrant contemplated in subsection (1)(b) only on written application by an inspector setting out under oath or affirmation the need to enter a place other than a mine to monitor or enforce compliance with this Act.
(8) For the purpose of this section, 'mine' does not include any home, or residential quarters, situated at the mine.
The legislator obviously took cognizance of the Right to Privacy which already existed in the Interim Constitution when describing the powers of mining inspectors in the MHS Act and must have felt that there was not constitutional conflict. A warrant, issued by a magistrate, would therefore only be required for entry into a place not defined as a mine. It is not quite clear if the warrant would allow for seizure of articles or other information which could be construed as confidential or private. I know that the right of seizure has been curtailed in other instances and perhaps a test case could settle this. I doubt whether an employer would be able to challenge the seizing of articles for evidential or forensic purpose and, in the event of fatal workplace accident, the SAPS will also be involved and nothing could prevent them seizing articles for evidence or forensic testing.
The situation should thus be similar for the OHS Act. An inspector can enter the workplace at any reasonable time and inspect the premises with or without reasonable cause. Prior notification is not required but the time of inspection must be reasonable. An after hour inspection could be ruled to be unreasonable. You are obliged to co-operate with the inspector but always retain the constitutional right to remain silent if you feel the response may incriminate you. I would argue that you have the right to remain silent even if the response could incriminate your corporate body employer. I would even venture to say that you could refuse to answer a question that incriminates a co-worker and through that individual the corporate body is incriminated. Once again a test case would be required. A warrant would most probably also be required to enter a place other than the workplace. This could be in the case where documents required by the inspector are stored at someone’s home or any other storage facility.
In the next newsletter I will look at the powers of the inspector and the their right to close down dangerous workplaces or sections of the workplaces. This right has become very controversial since it is open to abuse. It is often used more as a punitive measure in stead of its real objective of prohibiting work in an area until it has been rendered safe. Click here for an article on this practice.
I attach the US article on inspections and searches as well as an interesting article on what an employer can expect during US inspections. It is quite relevant to our situation save for the required Administrative warrant.
My workshops are coming along. Cape Town leads the way with Port Elizabeth and Johannesburg (nogal) lagging. Remember GOLD Subscribers enjoy a 25% discount plus a 30% ‘Loyalty’ Discount. Another 10% for Early Bird for Johannesburg only.
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Regards
The Bill of Rights of the Constitution of South Africa.
Privacy. Everyone has the right to privacy, which includes the right not to have-
their person or home searched;
their property searched;
their possessions seized; or the privacy of their communications infringed.
Application. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court — in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)
Subscribers may wish to use the new facility 'Subscriber Blog' but must request a Password. Passwords will also be mailed to you shortly. This facility will be available to Subscribers only who can share OHS concerns. Note that blogs will be seen by other bloggers.
Dear Subscribers
After undertaking a numbers of OHS legislation roadshows, it is still apparent that employers are not taking full advantage of those provisions in the OHS Act which create vital employer rights. As you all know, liability is created when a statutory or common law duty is infringed coupled with negligence. The broad duties of employers to their employees is found in section 8 of the OHS Act – in my view the most important section in the Act – while employers duties to non employees or persons is found in section 9 of the OHS Act. Conversely, the duties of employers are the rights of employees and persons. If, for example, employers have a duty of providing employees with a safe and healthy working environment, then employees have the right to a safe and healthy working environment.
Infringement of a statutory duty or even common law duty such as the duty of care required to prevent a charge of culpable homicide if an employee dies at the workplace, does not necessarily mean that a criminal offence has been committed. Although section 8 of the OHS Act requires employers to do various things in order to protect employees, every duty is tempered with ‘reasonability’ and ‘practicability’. In other words an employer may fail in a duty as listed in section 8 of the OHS Act but still escape prosecution if it could be shown that in was reasonably impracticable to discharge that duty. In fact the OHS Act gives an indication of what would be considered to be reasonable practicable when an inspector or court decides whether an employer has contravened either sections 8 or 9 of the OHS Act.
(xliv) "reasonably practicable" means practicable having regard to -
(a) the severity and scope of the hazard or risk concerned;
(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;
(c) the availability and suitability of means to remove or mitigate that hazard or risk; and
(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom;
But the real point I want to make is that employers have rights too. Unlike employees however, employers need to earn these rights by training their employees into their statutory duties. And the point of departure is section 14 of the OHS Act. It contains five simple duties but, once employees are conversant with them, they provide employers with five very important rights! Employers should copy section 14 verbatim out of the Act, translate it if necessary into other applicable languages, have each employee sign acknowledgment and place it in their personal files. But don’t stop with section 14. There are other person (employee) duties that can be added including the applicable person (employee) duties as contained in the regulations.
Section 14. General duties of employees at work
Every employee shall at work -
(a) take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;
(b) as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;
(c) carry out any lawful order given to him and obey the health and safety rules and procedures laid down by his employer or by anyone authorised thereto by his employer, in the interest of health or safety;
(d) if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer; and
(e) if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.
Other duties that should be included are:
Section 15. Duty not to interfere with or misuse things
No person shall intentionally or recklessly interfere with, damage or misuse anything which is provided in the interest of health or safety.
Section 38.
(1) Any person who -
(l) tampers with or discourages, threatens, deceives or in any way unduly influences any person with regard to evidence to be given or with regard to a book, document or thing to be produced by such a person before an inspector under section 32 ;
(m) prejudices, influences or anticipates the proceedings or findings of an inquiry under section 32 or 33;
(n) tampers with or misuses any safety equipment installed or provided to any person by an employer or user of plant or machinery;
(o) fails to use any safety equipment at a workplace or in the course of his employment or in connection with the use of a plant or machinery, which was provided to him by an employer or such a user;
(p willfully or recklessly does anything at a workplace or in connection with the use of plant or machinery which threatens the safety or health of any person, shall be guilty of an offence and on conviction be liable to a fine not exceeding R50 000 or to imprisonment not exceeding one year or to both such fine and such imprisonment.
Once employers have been trained employees into their broad based (section) duties, they should then focus on duties placed on persons (employees) conducting specific (regulation) duties. For example, if an employee is working with hazardous chemical substances, they should be trained into their duties as listed in HCS regulation 4. As with the broad based section duties, I recommend they be given a copy of their specific regulation duties and, after they have signed it, place it in their files.
Hazardous Chemical Substance Regulation 4. Duties of persons who may be exposed to hazardous chemical substances.
(c) the wearing of monitoring equipment to measure personal exposure;
(d) he reporting for health evaluations and biological tests as required by these Regulations;
(e) the cleaning up and disposal of materials containing HCS;
(f) housekeeping at the workplace, personal hygiene and environmental and health practices; and
(g) information and training as contemplated in regulation 3 .
Naturally employers will only be able to exercise these rights vis-à-vis hazardous chemical substances once it has discharged its duties as contained in HCS regulation 3 below.
Hazardous Chemical Substance Regulation 3. Information and training.
(1) An employer shall, before any employee is exposed or may be exposed, after consultation with the health and safety committee established for that section of the workplace, ensure that the employee is adequately and comprehensively informed and trained, as well as thereafter informed and trained at intervals as may be recommended by that health and safety committee, with regard to -
(a) the contents and scope of these Regulations;
(b) the potential source of exposure;
(c) the potential risks to health caused by exposure;
(d) the potential detrimental effect of exposure on his or her reproductive ability;
(e) the measures to be taken by the employers to protect an employee against any risk from exposure;
(f) the precautions to be taken by an employee to protect himself or herself against the health risks associated with the exposure, including the wearing and use of protective clothing and respiratory protective equipment;
(g) the necessity, correct use, maintenance and potential of safety equipment, facilities and engineering control measures provided;
(h) the necessity of personal air sampling and medical surveillance;
(i) the importance of good housekeeping at the workplace and personal hygiene;
(j) the safe working procedures regarding the use, handling, storage and labelling of the HCS at the workplace; and
(k) procedures to be followed in the event of spillages, leakages or any similar emergency situation which could take place by accident;
(2) An employer or self-employed person shall give written instructions of the procedures contemplated in paragraph (k) of subregulation (1) to the drivers of vehicles carrying the HCS.
(3) An employer or a self-employed person shall ensure that he himself or she herself or any person who in any manner assists him or her in the carrying out or the conducting of his or her business, have the necessary information and has undergone sufficient training in order for him or her to identify the potential risks and the precautions which should be taken.
