HTE | STATUTORY AND ORGANISATIONAL REQUIREMENTS

11 Aug STATUTORY AND ORGANISATIONAL REQUIREMENTS

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SAFETY REPRESENTATIVE – Level 1 STATUTORY AND ORGANISATIONAL REQUIREMENTS

1.1 PURPOSE OF OHSACT

The Occupational Health and Safety Act (OHSACT) (85 of 1993) provides for the:-

Health and Safety of persons at work,
Health and Safety of persons working with plant and machinery;
Health and Safety and Protection of persons other than persons at work against hazards arising out of or in connection with the activities of persons at work; and
The establishment of an advisory council for occupational health and safety;
and to provide for matters connected therewith.

1.2 GENERAL DUTIES OF EMPLOYERS TO THEIR EMPLOYEES

It is the duty of the Employer to provide a safe and healthy work environment for his employees and others by:

identifying hazards in the workplace and seeking to eliminate them,
clearly informing employees of hazards in the workplace that cannot be eliminated
providing training for his employees to enable them to handle their work under the prevailing circumstance and in addition, equipping them free of charge with the necessary protective clothing and equipment
managing his employees properly, including adequate supervision, discipline where required and by keeping them fully informed as to the scope of their authority
ensure that work is performed and that plant or machinery is used under the general supervision of a person:

– trained to understand the hazards associated with it and

– who have the authority to ensure that precautionary measures taken by the employer are

implemented.

1.3 GENERAL DUTIES OF THE EMPLOYER TOWARDS NON-EMPLOYEES

The OHSACT also requires from the Employer to conduct his work in such a manner as to ensure that non-employees (it is persons other then his employees) are not directly affected and exposed to any health and safety hazards through his/her activities.

In a construction context these include:-

visitors involved in the work site,
those who visit in their professional capacity or
any other casual visitor including
a passer-by who passes through or past the work site.

An employer or a user, as the case may be, shall, if he deems it necessary in the interests of health and safety, post up a notice at every entrance to a workplace prohibiting the entry of unauthorised persons to such workplace and no person shall enter or remain at such workplace without the permission of the employer or user, as the case may be.” Provided that such express or implied permission shall not apply in respect of a person entitled by law to enter such workplace or premises.

1.4 RESPONSIBILITIES OF THE CHIEF EXECUTIVE OFFICER (CEO)

His responsibilities is clearly stated in the Act.

He is the person finally responsible to ensure that his firm is complying with the terms of the Act.
He is entitled to assign responsibilities and authority to his subordinates but they are still to work under his direction and control
He is thus the person who will be held finally responsible and is not relieved of any liability due to his having delegated such authority.

In the case of a serious infringement he would need to prove beyond any doubt that he:

had taken all reasonable steps to ensure compliance and
1. that the problem occurred due to the negligence or irresponsible behaviour of one of his staff without his knowledge.

1.5 DUTY TO INFORM

Without derogating from any specific duty imposed on an employer by this Act, every employer shall-

(a) identify hazards in the work place, seek to eliminate them, cause every employee to be made conversant with the hazards to his health and safety attached to any work which he has to perform, as well as with the precautionary measures which should be taken and observed with respect to those hazards;

(b) inform the health and safety representatives concerned beforehand of inspections, investigations or formal inquiries of which he has been notified by an inspector, and

(c) inform a health and safety representative as soon as reasonably practicable of the occurrence of an incident in the workplace or section of the workplace for which such representative has been designated.

1.6 GENERAL PROHIBITIONS

No employer shall require or permit any employee to carry out any activity which threatens or is likely to threaten his/her health or safety.

1.7 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 co-operate with the employer, supervisor, and manager or other person to whom authority was delegated to enable duties or requirements 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 authorized 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 authorised 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.

1.8 ACTS OR OMISSIONS ON THE PART OF EMPLOYEES OR MANDATORIES

The OHSACT clearly places the responsibility for acts or omissions in contravention of the requirements of the Act upon the Employer.

He is deemed to have committed the transgression himself unless he can prove to the contrary.

He would have to prove:

that the employee was acting without the permission or connivance of the Employer
that the act or omission in question was outside of the scope of the employees authority
that all reasonable steps had been taken by the Employer to prevent the act being transgressed.

The Act also includes an agent, contractor or sub-contractor in the above. They may not be directly in the employment of the firm, but they are mandated to act on it’s behalf. The Employer is therefore as equally responsible and answerable for their acts and omissions as he is for those of his own workers.

Any employee or mandatory referred to in subsection (3) of this Act may be so convicted and sentenced in addition to the employer or user.

1.9 DUTY NOT TO INTERFERE WITH, DAMAGE 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.

1.10 DESIGNATION OF HEALTH AND SAFETY REPRESENTATIVE

Every employer who has more than 20 employees in his employment at any workplace, shall, within four months after commencing business, or from such time as the number of employees exceeds 20, as the case may be, designate in writing for a specified period health and safety representatives for such workplace, or for different sections thereof.

More then 20 employees require at least one Health and Safety representative, one additional Health and Safety representative for each 50 employees or part thereof.

Where there are no such representatives, the employer and employees shall consult in good faith regarding the nomination or election, period of health and safety representatives.

Only those employees employed in a full-time capacity at a specific workplace and who are acquainted with conditions and activities at that workplace or section thereof, as the case may be, shall be eligible for designation as health and safety representatives for that workplace or section.

All activities in connection with the designation, functions and training of health and safety representatives shall be performed during ordinary working hours, and any time reasonably spent by any employee in this regard shall for all purposes be deemed to be time spent by him in the carrying out of his duties as an employee.

The Safety Representative and the Employer must come to an agreement regarding the date and time for the performance of his health and safety duties.

1.11 FUNCTIONS OF HEALTH AND SAFETY REPRESENTATIVES

(1) A health and safety representative may perform the following functions in respect of the workplace

or section of the workplace for which he has been designated, namely-

(a) review the effectiveness of health and safety measures;

(b) identify potential hazards and potential major incidents at the workplace;

(d) investigate complaints by any employee relating to that employee’s health or safety at work;

(e) make representations to the employer or a health and safety committee on matters arising from paragraphs (a), (b), (c) or (d), or where such representations are unsuccessful, to an inspector;

(f) make representations to the employer on general matters affecting the health or safety of the employees at the workplace;

(g) inspect the workplace, including any article, substance, plant, machinery or health and safety equipment at that workplace with a view to, the health and safety of employees, at such intervals as may be agreed upon with the employer: Provided that the health and safety representative shall give reasonable notice of his intention to carry out such an inspection to the employer, who may be present during the inspection;

(h) participate in consultations with inspectors at the workplace and accompany inspectors on inspections of the workplace;

(i) receive information from inspectors as contemplated in section 36 of the OHSACT; and

(j) in his capacity as a health and safety representative attend meetings of the health and safety committee of which he is a member, in connection with any of the above functions.

(2) A health and safety representative shall, in respect of the workplace or section of the workplace for which he has been designated be entitled to-

(a) visit the site of an incident at all reasonable times and attend any inspection in loco;

(b) attend any investigation or formal inquiry held in terms of this Act;

(c) in so far as it is reasonably necessary for performing his functions, inspect any document which the employer is required to keep in terms of this Act;

(d) accompany an inspector on any inspection;

(e) with the approval of the employer (which approval shall not be unreasonably withheld), be accompanied by a technical adviser, on any inspection; and

(f) participate in any internal health or safety audit.

(3) An employer shall provide such facilities, assistance and training as a health and safety representative may reasonably require and as have been agreed upon for the carrying out of his functions.

(4) A health and safety representative shall not incur any civil liability by reason of the fact only that he failed to do anything which he may do or is required to do in terms of this Act.

1.12 HEALTH AND SAFETY COMMITTEES

Section 19 and 20 of the OHSACT deals with the establishment of health and safety committees and their functions.

a health and safety committee must be established where more than one health and safety representatives are designated
the employer must consult with the health and safety committee at its meetings
all safety representatives are to be included on the health and safety committee
the employer may co-opt additional persons to be on the committee but these persons may not exceed the number of health and safety representatives
health and safety meetings must be held at least once every three months. In the industry where the environment changes rapidly it is recommended at least every month or as often as necessary.
a committee may make recommendations to the employer
the committee must discuss where a person was injured or became ill
records must be kept of all recommendations made by the committee
the employer shall ensure that a safety committee carries out its duties
records must be kept for at least 3 years.

The procedure at meetings is of a formal nature.

An Agenda should proceed the meetings.

An acting Chairman (usually the employer or management team member) and acting secretary will be present to record comments and discussion points.

The Agenda will be focused on health and safety matters to ensure compliance with the Act thereby ensuring the safety of all workers.

A safety committee enables valuable communication between workers and the employer regarding safety matters.

1.13 OFFENCES, PENALTIES AND SPECIAL ORDERS OF COURT

Any person who contravenes or fails to comply with certain provisions of some regulations shall be guilty of an offence and liable on conviction to a fine or to imprisonment or both a fine and imprisonment.

1.14 POSTERS

There are various wall charts available like the Basic Conditions of Employment Act, Employment Equity, The Occupational Health and Safety Act, Skills Development Act, Tobacco Products Control Act, Compensation for Occupational Injuries and Diseases Act etc.

These posters are normally displayed at the entrance of the building.

Although it would be good practice to display most of these posters or wall charts it is not a legal requirement to display all of them. According to legal prescription most businesses would be obligated to only display two summaries, it is;