Dear OHS Practitioners

I continue to look at aspects of the National Occupational Health & Safety Draft Bill. After the prolonged debate surrounding section 16 of the OHS Act, in particular the assignment of duties emanating from the CEO in terms of section 16(2), I’m sure many of you will be curious as to the future scenario. Will the proposed new Act place more onerous duties on the CEO, clarify the manner in which the CEO creates a team to assist in his or her duty of ensuring compliance with the Act and finally lay the delegation vs. assign debate to rest. Will it oblige an entirely new system resulting in a massive OHS organisational restructure?

The good news is that no real major changes are proposed. The CEO will still be the person ultimately responsible to ensure compliance as it currently is the case with both the OHS and MHS Acts. However, via an almost innocuous subsection, CEOs may find themselves more easily in trouble than before. That is to say if a CEO does not decide to transfer all his or her OHS obligations to another member of the Board, something which the current MHS Act does allow in section 2A(3). That Act as well as the Bill essentially provides for two CEOs. One, the CEO in the traditional sense or overall CEO, and, the other, the CEO for OHS purposes only! Section 11(4) of the Bill reads ‘If the employer or person conducting a business or undertaking is a corporate body, the responsibilities of the chief executive officer in terms of sub-sections (1) and (2) may be performed by a member of the board of the body corporate, designated by the board’. The innocuous provision I mentioned requires explicit overseeing and monitoring by the CEO something which neither of the existing OHS statutes (explicitly) requires. Most CEOs would, however, find it condescending to be told how to properly assign or delegate duties but it is something that SHE advisors and auditors may need to take into consideration when providing advice or auditing. Monitoring and overseeing are the foundations of a proper delegation or assignment but some CEOs may fall foul of the Act if they, particularly after an incident, could not provide any tangible proof of such monitoring or overseeing. As with any delegation or assignment of duties, the further removed the CEO is from the workface, the less monitoring would be appropriate to demonstrate reasonable monitoring. The Bill has omitted the requirement of both the OHS and MHS Acts that the assignee act subject to the control and directions of the CEO but, in my view, the monitoring requirements includes the control element and even goes further.

Like the OHS and MHS Acts the Bill does not oblige a CEO to assign any responsibilities but unlike the current situation, if a CEO opts to assign, then it must be done in writing, a practice which in an case has become the norm. Naturally a CEO would grasp the opportunity of utilising this provision, not only to cushion his or her potential criminal liability but also to establish a functioning Employer Health and Safety Structure which ultimately is headed by the CEO.

Perhaps equally condescending is the provision in section 11(2)(b) which provides that the CEO must ensure that any person who is assigned any responsibility has the means and capacity to comply with that responsibility. As with any delegation or assign of duties, it would ‘upfire’ if, for example, post an incident, it appears that a CEO assigned duties to an incompetent person or failed to provide them with sufficient resources to discharge the duties.

The bottom-line is that you can still adopt the cascading or devolution approach whereby the CEO assigns his or her duties to an individual who in turn assigns down the line. It remains an in house arrangement and is no one else’s business except yours. SHE practitioners and auditors should avoid recommending rigid or impracticable structures, particularly those who belong to the delegatus delegare non potest school which contains an Administrative Law restrictive requirement preventing a delegator from providing for further delegation. I stick to my assessment of section 16(2) which may be accessed by clicking here.

Public companies should take cognisance of the introduction of a new appointment namely that of the Health & Safety Director in section 12 of the Bill. This individual will have far more onerous health and safety duties than the CEO including reporting functions to the Board on health and safety matters. Failure to perform these more prescriptive health and safety functions may cause the Health & Safety Director to end up in court. This individual may not be the CEO and his or her appointment will not necessarily relieve the CEO of any potential criminal liability in terms of the new proposed Act.

Below are the sections which I have used in this newsletter although I have hyperlinked references to them above via my website at www.klasslooch.com

Subscriber Newsletter to follow where we will analyse the elevated status of the Health & Safety Management System in the Bill.

Click here to access my latest OHS Chat & Skinner Newsletter.

Click here for my previous OHS Practitioner Newsletter.

NOH&S Draft Bill. Section 11. Responsibilities of chief executive officer

(1) The chief executive officer of every employer or person conducting a business or undertaking is responsible for ensuring that the employer, business or undertaking complies with its obligations in terms of this Act.

(2) The chief executive officer –

(a) may assign in writing any responsibility of the chief executive officer in terms of sub-section (1);

(b) must ensure that any person who is assigned any responsibility has the means and capacity to comply with that responsibility;

(3) An assignment in terms of sub-section (2) does not derogate from the responsibility of a chief executive officer in terms of sub-section (1).

(4) If the employer or person conducting a business or undertaking is a corporate body, the responsibilities of the chief executive officer in terms of sub-sections (1) and (2) may be performed by a member of the board of the body corporate, designated by the board.

(5) This section does not relieve an employer or person conducting a business or undertaking of any of responsibilities imposed upon it by this Act.

OHS Act Section 16. Chief executive officer charged with certain duties

(1) Every chief executive officer shall as far as 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 any 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.

MHS Act Section 2A. Chief executive officer charged with certain functions

(1) Every chief executive officer must take reasonable steps to ensure that the functions of the employer as contemplated in this Act, are properly performed.

(2) Without derogating from any responsibility or liability of the chief executive officer in terms of subsection (1), the chief executive officer may entrust any function contemplated in the said subsection to any person under the control of the chief executive officer, which person must act subject to the control and directions of the chief executive officer.

(3) If the employer is a body corporate, the functions of the chief executive officer contemplated in subsections (1) and (2) may be performed by a member of the board of the body corporate designated by the board.

(4) Subsections (1), (2) and (3) do not relieve an employer of any duty imposed on employers by this Act.

(5) Every person appointed in terms of section 3 or 4(1) must perform their functions subject to the control and direction of the chief executive officer or the person contemplated in subsection (3).

NOH&S Draft Bill. Section 12. Appointment of health and safety director

(1) Every company, excluding a private company, must appoint one of its directors as a health and safety director.

(2) The health and safety director appointed in terms of sub-section (1) must –

(a) monitor on a regular basis –

(i) the implementation and effectiveness of the company’s health and safety management systems;

(ii) the health and safety performance of the company;

(b) ensure that the company’s management systems provide for effective reporting and monitoring of the company’s health and safety performance;

(i) any significant health and safety failure and on recommendations for changes to the company’s health and safety management systems;

(ii) the health and safety implications of any decisions of the board.

(3) The person performing the functions of the health and safety director may not be the chief executive officer or any person to whom a function of the chief executive officer in terms of section 11 has been assigned.

(4) The appointment of a health and safety director does not affect any duty or liability in respect of health and safety imposed on any director in respect of health and safety in terms of this Act or any other law.