Dear OHS Practitioners

While I guess I’m being a little naughty by commenting on legislation that officially I have not seen since it has not been published for comment, the temptation is too great. I believe in any case that the Constitution entitles us to any information (Bills) which is held by the State and the fact that certain government departments are too lax to publish them timeously is not my concern. (Why is it dated 2005?). I also can’t see the prejudice in going public now with the National Occupational Health & Safety Bill of 2005 even though it may look slightly different in final form. I don’t anticipate any major changes to it once it is published for comment and I am generally impressed by its content. It is an interesting mix of the OHS and MHS Acts and is definitely not more prejudicial to employers. I would venture to say that it has more beneficial elements, particularly the mechanisms that have been put into place to chastise delinquent employers while keeping them out of the criminal courts. The intent is definitely not to ‘nail’ employers. But if you do end up convicted in the criminal courts you could face a maximum fine of R1 million or, as an individual 10 years in jail. You could also be fined administratively outside the courts along the lines of the MHS Act based on an inspector’s recommendation. If you pay the fine it will not be regarded as a criminal conviction and you will not be charged with a criminal offence based on the same facts.

While this first attempt at analysis will be broad, I will select various items over the next few months particularly those which I feel are of special importance to OHS practitioners.

Let’s start with appointments. A provision virtually identical to section 16(2) of the OHS Act has been retained save that it specifies that assignments emanating from the CEO must be in writing. It remains an optional appointment as is currently the case. Naturally a CEO would be foolish not to utilise this provision. An interesting innovation from the OHS Act perspective – it exists in section 2A of the MHS Act - is the provision for any member of the board of directors to perform the responsibilities of the CEO. The board designates such a person. I don’t think that I have ever seen this happen in practice with mines and cannot see the rational if it is a blanket ‘appointment’. I guess that board member would then be the CEO for OHS purposes only? Be that as it may, non-mining employers will not have to rearrange their current section 16 tacit Employer Health & Safety Structure – that is afterall what it is – and mining employers can also carry on as before despite the legislator using the words ‘entrust any function’ in section 2A of the MHS Act as opposed to ‘assign any responsibility’. What could be disturbing is the fact that the debate assign vs. delegate (delegare delegatus non potest) may be perpetuated instead of being laid to rest. Perhaps the legislator missed an opportunity here to help us out.

Public companies will have to appoint one of its directors as a health and safety director who will be tasked, inter alia, with monitoring, on a regular basis, the company’s OHS performance. This person cannot be the CEO and could face prosecution if he or she fails in their prescribed statutory duties.

A very useful optional appointment provision has been introduced along the lines of section 4 of the MHS Act. Under the heading ‘Appointment of persons’ section 28 of the Bill states that an employer may appoint any person with qualifications as may be prescribed to perform any function of the employer in terms of this Act and must provide persons appointed with the means to comply with the requirements of this Act and with any instruction given by an inspector. I’m not sure who prescribes the qualifications. I assume it’s the National Occupational Health & Safety Authority. What is interesting is that fact that supervision is mentioned here and I believe that supervisors will be appointed in terms of this section. (Section 28(1)©. The qualifications of supervisors are in any case prescribed in that employers must ensure that work is performed under the general supervision of a person trained to understand the hazards associated with the work and who has the authority to ensure that the necessary precautionary measures are implemented. This will kill the debate as to what provision is required to appoint supervisors. Although the MHS Act has a separate provision requiring the obligatory appointment of mine managers and which has been omitted in the Bill, this provision can be used for these appointments. The MHS Act regulations, which will be absorbed into the new Act, also contain various appointments such as Principal Safety Officers, Safety Officers, Competent Persons etc. So too will other OHS Act appointments which are required in terms of the various regulations. My guess is that Safety Officers will become a universal statutory appointment via regulation and, if the MHS Act is anything to go by, employers with more than 300 employees will be required to appoint Safety Officers who will have prescribed statutory duties and potential liabilities. Many of you will be prime candidates for such appointments.

In the following newsletters I will examine the concept of worker versus employee, the duties placed on persons in control of workplaces and machinery versus employers, corporate homicide which is not (corporate) culpable homicide, changes to internal investigations, investigations and formal inquiries, the new formula for determining health & safety representatives and committees and their rights, Health & Safety Plans, negligent occupational injury and much more.

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Regards

Raynard