Section 16(1) of the OHS Act  requires the CEO of a corporate body employer to ensure, as far as is reasonably practicable, that the duties of the employer are properly discharged. In broad terms these employer duties are contained in sections 8 to 13 of the Act and in the myriad of regulations promulgated in terms of the Act.  The CEO need not be appointed as was previously the case but there is no prejudice in going this route. It is, however, important to note that the Act does contain a definition of a CEO – linking him / her to a corporate body. “A CEO in relation to a corporate body means the person who is responsible for the overall management and control of the business of such corporate body.”  Since a CEO is linked by this definition to a corporate body, one need not, for example, look for the CEO in holding companies. Similarly a CEO would not be found in a business unit of division of a company.

The CEO should initiate the assignment of duties down as per section 16(2) of the Act which reads ”Without derogating from his responsibility or liability in terms of subsection (1),  a CEO may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and  directions of the CEO.” I have bolded the word assign since this is the “controversial” word resulting in the various interpretations and advice given to employers regarding these assignments! 

It was initially the intention of the legislator initially to use the word “delegate” instead of “assign” but this would have prevented a CEO from empowering further delegation or a devolving approach in view of the maxim delegatus delegare non potest!  (A delegator cannot delegate further down). To try and circumvent this established legal principle, the initial draft of the OHS Act specifically empowered a CEO to allow for further delegation after his initial delegation but the word “delegate” was ultimately abandoned in the final Act in favour of a more casual word “assign”. (Which does not carry all that rigid legal baggage)! The original wording of the draft OHS Act read…’The CEO may delegate, including the power of further delegation, any duty to any person, which person shall act subject to the control and directions of the CEO’.

The idea is that employers be allowed to create a structure which satisfies their own peculiar needs, initiated by the CEO and cascading down to all persons in a managerial or even supervisory capacity. It may be a blanket assignment of duties or it may be tailored. A CEO may assign persons in terms of section 16(2) and these assignees may in turn assign down in terms of section 16(2). In fact the legislator had a devolution approach in mind as can be seen by he wording of the draft OHS Act. Although the Act does not require written assignments, it is vital that they be regarded a formal written appointments for tangible proof purposes, to demarcate areas of responsibly, to buffer the upper echelons of management from vicarious liability in its most obscene form and naturally to create a formal Employer Health & Safety Structure headed by the CEO and co-existing with mandatory OHS structures such as health & safety representatives / committees.

I do not belong to that school of thought who believes that the CEO must personally  “appoint” all persons in terms of section 16(2) as this makes nonsense of the legislator’s intention as determined by using an accepted principle when interpreting the intention of the legislator, namely, by examining the draft of a statute. Ideally the person to whom one normally reports should be the Assignor. Persons or organisations that believe the CEO must personally appoint / assign persons in terms of section 16(2) because the provision requires assignees to act subject to the control and directions of the CEO are also interpreting the provision too literally or rigidly as this would be too cumbersome for CEO’s in larger corporate bodies. All assignees ultimately act, in any case, subject to the control and directions of the CEO. (In fact every employee does in any corporate body!) My interpretation is also based on the views of a former Chief Inspector who presided when this section was first promulgated as section 10A in the Machinery and Occupational Safety (MOS) Act of 1983.

Appointments made in terms of section 8 of the Act are not technically legally correct as this section merely contains the duties of employers to their employees and does not provide for an appointments. Many employers are told by various OHS organisations to appoint persons, particularly supervisors, in terms of section 8(2)(i). Technically legally these appointments should be made in terms of section 16(2) read with section 8(2)(i). That subsection requires employers to have properly trained supervisors in place in order to bring about a safe and healthy working environment for employees. I personally don’t have a problem if such section 8 appointments are made as employers are following the spirit of the OHS Act but not entirely the letter of the law.

The Department of Labour can also not prescribe how these appointments be made. Firstly they are not obligatory (the CEO may not shall assign…..) and secondly it is an in-house arrangement that is not their business. If they do try and prescribe how an employer structures what is essentially an tacit section 16 Employer Health & Safety Structure headed by the CEO, tell them to go away! If you cannot produce a written section 16(2) ‘Appointment’ it is not a crime in terms of the OHS Act. These assignments can even be made verbally although, for reasons stated above, they should be regarded as written appointments. Needless to say you can also include this ‘appointment’ in a person’s job description and not go a separate appointment route. For example, you can stipulate that a certain job description is tantamount to an ‘appointment’ as envisaged by section 16(2) of the OHS Act and that acceptance of the job would be construed as accepting the ‘appointment’.  Person’s who refuse to accept appointments while enjoying the perks of the job should also be cautioned that they cannot divorce OHS from their job description. If you are, for example, a plant manager, you are the equivalent of a de facto section 16(2) Assignee and signing an ‘appointment’ merely formalises reality. A plant manager would be naïve to think that merely because he hasn’t signed some form he or she is relieved of any OHS duties. Perhaps, in the new OHS Act, this particular section can be better written. The MHS Act uses the term ‘entrust any function to any person under his or her control’ which pretty much should kill the whole debate around section 16(2).