What Is the Future of The Occupational Health and Safety Act (OHSA)?

May 28, 2024

News about the loss of lives due to the collapse of buildings in George and in Ballito left unanswered questions, some which may never be answered.  It can be expected that National Government may implement stringent measures to curb the re-occurrence of such incidents.  The accepted norm is that employees have the right to a healthy and safe workplace free of hazards and risks that may harm them during their employment.  This necessitated the Occupational Health and Safety Act 85 of 1993 and its Regulations.  The aim of this Act includes to provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery.  The Act is implemented and enforced by the Department of Labour.

It can be argued that the Act centers around section 8(1) – Every employer shall provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of his employees.  Section 8 establishes a wide net and set onerous obligations on employers.  It is in the interest of employers and managers to know, understand and mitigate these obligations.

Sub-section 8(2) provides examples of the obligations on employers.  These include:

  • Safe systems of work
  • Ensure safety and absence of risk from production, processing, use, handling, storage or transport of articles or substances
  • Safe plant and machinery
  • Eliminate or mitigate hazard and potential hazard
  • Identify the risks associated with the above and the required precautionary measures
  • Ensure employees are aware of risks and hazards and the required precautions and safety measures – by the wording of section 13(1)(a) – as far as is reasonably practicable, cause every employee to be made conversant with the hazards to his health and safety attached to any work which he has to perform, any article or substance which he has to produce, process, use, handle, store or transport and any plant or machinery which he is required or permitted to use, as well as with the precautionary measures which should be taken and observed with respect to those hazards.
  • Ensure that work is performed, and plant and machinery used under the supervision of a person trained to understand the hazards associated with it and who has the authority to ensure that precautionary measures taken by the employer are implemented.

 

Identifying risks and hazards is one aspect, the other is communicating it and the required precautionary and safety measures to all in a manner that they understand.  Both employers and managers should be able to rely on Workplace Heath and Safety Representatives for this.  Reality is that these representatives need to be knowledgeable and of the caliber to ensure health and safety is addressed.  These suitable individuals must be familiar with the circumstances and conditions of the section of the workplace they have been designated to oversee.  According to Section 18(3) of the Act, it is the employer’s duty to ensure that representatives are provided with the necessary facilities, assistance, and training to perform their duties as health and safety representatives. The training of representatives must take place during ordinary working hours.

Critical is the appointment of Health and Safety Officers.  A Safety Officer is responsible for planning, implementing, and overseeing an organization’s health and safety strategy and assist in ensuring that all employees, visitors, and contractors are safe, and that the organization achieves compliance with the Occupational Health and Safety by:

  • Being responsible for supporting the development of OHS policies and programs
  • Advising and instructing on various safety-related topics
  • Conducting risk assessments, and enforcing preventative measures
  • Identifying hazards
  • Review existing policies and measures
  • Organize OHS training
  • Promoting a culture of health and safety in the workplace
  • Inspect premises and work activities
  • Investigate incidents, and prepare reports on occurrences

 

To perform their function, Safety Officers need to be independent from control that may influence the ability to which they are able to perform their responsibilities.

The above indicates that the employer must do all possible to mitigate the risk and expert labour advise is required.  Apart from the independent function performed by the Safety Officer the following should be considered:

  1. Inform all employees and ensure that they acknowledge receipt of the notice that every employee:
    1. Must take reasonable care for the health and safety of himself and of others.
    2. Must carry out any lawful order given to him, and obey the health and safety rules and procedures Iaid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety.
    3. Must report any situation which is unsafe or unhealthy and which may come to his attention.

 

  1. Amend the Disciplinary Code to provide for and propose stringent sanctions for:
    1. Intentionally or recklessly interfere with or misuse anything which is provided in the interest of health or safety – section 15 of the Act.
    2. Not following instructions, standard operating procedures or protocols concerning health and safety – section 16(2).
    3. Giving instructions which may result in a transgression of a standard operating procedures or protocols concerning health and safety.
    4. Not ensuring that all requirements of the Occupational Health and Safety Act and the Regulations in terms thereof, is complied with in your area of responsibility.

 

By example, reference is made to Consolidated Power Projects (Pty) Ltd v Schoeman and Others (JR2456/17) [2020] ZALCJHB 112 (15 July 2020).

The facts were that the employer found Shoeman guilty and dismissed him for “Deliberate violation of a safety rule endangering fellow workers in that on 5 May 2016 you abused your power and authority of your position as a Site Manager in that you unlawfully bullied your subordinate Abednego Malakoane to work at Tower 105 and 106 without a permit to work so as to ensure that the 22KV line is dead before work can be carried out and has the potential to cause serious injury or death”.

Schoeman disputed that he gave the instruction to Abednego Malakoane (Malakoane). It was common cause in the arbitration that if Schoeman instructed Malakoane, as alleged in the charge, the instruction was unlawful, and that dismissal would be a fair sanction. The matter therefore turned on the determination of a factual dispute.  The court found no reason to prefer the version of Schoeman and confirmed that the dismissal of Schoeman was fair.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.

Author:

Thys Giliomee

Thys Giliomee is a Labour Consultant at LabourMan Consultants.

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