Clause three (3) of Section 16 of the OHS-act states very clearly that the employer is responsible and liable. The client is the contractor’s employer and is therefore responsible and liable. This basically places all the OHS responsibilities of the project entirely on the Main-contractor when he employs a sub-contractor.
16. Chief executive officer charged with certain duties.
(1) Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.
(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer 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 chief executive officer.
(3) The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or liability under this Act.
(4) For the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.
Clause two (2) of Section 37 of the OHS-act states a written agreement between the mandatary and the employer. The client’s contractor will, when employing the sub-contractor, be deemed as the sub-contractor’s employer, and therefore need to comply to this clause of the OHS-act:
37. Acts or omissions by employees or mandataries.
(1) Whenever an employee does or omits to do any act which it would be an offence in terms of this Act for the employer of such employee or a user to do or omit to do, then, unless it is proved that-
(a) in doing or omitting to do that act the employee was acting without the connivance or permission of the employer or any such user;
(b) it was not under any condition or in any circumstance within the scope of the authority of the employee to do or omit to do an act, whether lawful or unlawful, of the character of the act or omission charged; and
(c) all reasonable steps were taken by the employer or any such user to prevent any act or omission of the kind in question, the employer or any such user himself shall be presumed to have done or omitted to do that act, and shall be liable to be convicted and sentenced in respect hereof; and the fact that he issued instructions forbidding any act or omission of the kind in question shall not, in itself, be accepted as sufficient proof that he took all reasonable steps to prevent the act or omission.
(2) The provisions of subsection (1) shall mutatis mutandis apply in the case of a mandatary of any employer or user, except if the parties have agreed in writing to the arrangements and procedures between them to ensure compliance by the mandatary with the provisions of this Act.
(3) Whenever any employee or mandatary of any employer or user does or omits to do an act which it would be an offence in terms of this Act for the employer or any such user to do or omit to do, he shall be liable to be convicted and sentenced in respect thereof as if he were the employer or user.
(4) Whenever any employee or mandatary of the State commits or omits to do an act which would be an offence in terms of this Act, had he been the employee or mandatary of an employer other than the State and had such employer committed or omitted to do that act, he shall be liable to be convicted and sentenced in respect thereof as if he were such an employer.
(5) Any employee or mandatary referred to in subsection (3) may be so convicted and sentenced in addition to the employer or user.
(6) Whenever the employee or mandatary of an employer is convicted of an offence consisting of a contravention of section 23, the court shall, when making an order under section 38 (4), make such an order against the employer and not against such employee or mandatary.
The Client (Employer or Main-contractor) must make sure that the Contractor / Sub-contractor complies with the OHS-act. The Contractor (now the sub-contractor’s employer) in turn, must make sure that the sub-contractor (the mandatary) complies. Each party need to, in writing, assign duties and in the case of the contractor and sub-contractor a mandatary agreement need to be signed. I have attached and example of such a Mandatary Agreement.