From: "Raynard Looch" Subject: KLASS LOOCH ASSOCIATES : OHS CHAT & SKINNER : "MY ENTOURAGE IS BIGGER THAN YOURS." Date: 11 July 2002 02:32 PM Hi Folks I hope those of you who took some leave during the schools holidays are firmly back in the saddle and ready to work in accordance with the provisions of section 14 of the OHS Act! Remember it? Go look it up. It contains your legal duties at work. Being the masochist that I am, amongst other certifiable characteristics, I never took leave, preferring to subject myself/home/office to Construction Work as defined, with its accompanying joyful sounds of pounding, hacking, drilling and sawing. Not to mention the dreaded hidden costs and dust involved! And speaking of Construction Work, the Department of Labour's new offices are Pretoria are also being subjected to Construction Work as defined. Rumour has it that the electrical connections are quite scary. I wonder if they can produce the dreaded Certificate of Compliance as required by the Electrical Installation Regulations? I doubt it. I was amused to read that recently the Director-general of that department, Adv. Ramashia, proudly trumpeted the fact that his department had served a Prohibition Notice in terms of section 30 of the OHS Act (Special Powers of Inspectors) on the delinquent contractor involved in the construction work, "prohibiting" the construction company on 12 June 2002 from working (unsafely) until it complied with certain requirements regarding safety equipment to protect the lives of its workers. Only to allow them to continue working unsafely until 14 June 2002 when another Prohibition Notice was served because they failed to comply with the first one! What is the meaning of the word "prohibit"! And then to crown it all, the new draft Constructions Regulations, emanating from that department itself, will compel the client (Department of Labour) to stop the contractor from working unsafely and they, the client, would also be the criminals by allowing it to continue, had these regulations been law. See www.labour.gov.za/docs/pr/2002/Jun/18_Ramashia.htm The OHS Act clearly stipulates that the failure to comply with a Prohibition Notice is a crime......first time round! Is it a case of ag well shame, we can't be too strict on our contractor of choice. After all we accepted their tender having fully studied their OHS credentials and we are mos the OHS Inspection & Enforcement Service! Please don't give out my physical address. I don't want a spiteful inspection! A quick overview of what happened since we last chatted. (My excuse to engage in a little politics and ruffle more feathers....and I'm not referring to Gaddaffi's dress...I mean outfit. See below). Johannesburg, cheapest city in the world, according to an international survey of 100 cities recently undertaken, lived up to its cheap (behaviour) reputation by being trashed .....again. First we the annual trashing ritual by COSAS (Congress of SA Students which is run by delinquent/criminal adult non-learners) and then the other by certain criminal elements within SAMWU. (SA Municipal Workers Union for readers abroad). No wonder Jo'burg is cheap. Reminds me of an old non-politically-correct joke. What's yellow and goes "cheap, cheap, cheap"?.............................................a Chinese.....um....... sex worker! (See I can be PC)! The African Union was established with much fanfare and inconvenience to everyone - including myself - who happened to be in Durban when Big Brother Gaddafi's forward entourage arrived. What did it entail again? I think 60 vehicles, two buses, firearms etc. Oh, and my pet hate (person) was in Durbs too. Mad Bob. I wonder how big his was? Entourage I mean. I'm sure dictators with small....................................constituencies, always have big entourages. See www.iol.co.za/index.php?click_id=68&art_id=ct20020710205936755G312905&set_id=1 Freud would have had a ball analysing BB Gaddaffi and Mad Bob I'm sure. (By the way BB Gaddaffi, I loved your outfit doll. And Mad Bob, I just adore that little Hitler moustache you're sporting. Sooooooo you! Fact of the matter is that the African Union is starting out with quite a few vrot eggs in its midst's. But it's a start. After all, it's Africa's time. Or is that African time? Back to OHS matters. Been few nasty accidents around the world since my last newsletter. Another (second) mining accident in China - more than 140 miners dead in total and the last accident was, according to BBC World , due "mine management disregarding safety warnings and an order to shutdown". Apparently there are more than 7000 "illegal" mines in that particular province alone! Well I foresee a few executions by firing squad which is what they do to criminals in China . Also a nasty mine accident in the Ukraine and that terrible mid-air collision over Germany in which so many young lives were lost. Seems blame is increasingly being directed towards the Swiss air controllers. Like our Ellis Park tragedy there appears to be a "litany of mistakes". I wonder if they will also escape prosecution like the "mistakers" at Ellis Park? How many workplace accidents, where employers are prosecuted, can also be attributed to a "litany of mistakes'? See my website at www.klasslooch.com for more comments on, what I believe, is a selective approach to employer criminal liability. The publicity surrounding (corporate) accounting sleaze continues unabated. But it appears as if sleaze if not confined to that profession. I stumbled across an UK article entitled "Rail staff accused of false checks on line safety" which can be found at www.news.independent.co.uk/uk/transport/story.jsp?story=312937. The equivalent of a section 38(1(p) of the OHS Act, wilfully or recklessly doing something at the workplace which threatens the health and safety of any person. (One of the few intentional - as opposed to negligent - crimes in the OHS Act). If someone dies as a result, as was allegedly the case in the UK after a train accident, the charges here could be culpable homicide or even murder. (Dolus eventualis,.....for those who studied law). Now I hear you all say that's rich coming from The Devil's Advocate who allegedly thrives on sleaze, so I thought I'd add this article, also emanating from the UK, "Nine out of 10 solicitors (lawyers) overcharge", just to balance things. Click on www.news.independent.co.uk/uk/legal/story.jsp?story=311433 . As many of you know, we have no reporting structure (law reports) in place for criminal cases such as OHS trials which are heard in the lower courts. As a result there is a huge vacuum in this country as regards OHS case studies and for this reason we have to look beyond our borders - not Zimbabwe which has no rule of law and that is also not an issue for the new African Union - but other real democracies with similar OHS legislation, for relief. I also stumbled across this case in the UK which is the equivalent of a section 9 contravention of our OHS Act. (Although I don't know of any section 9 conviction or even charge here). Section 9 contains the General Duties of Employers to Persons other than their Employees. Two school girls drowned after being swept down a fast-flowing stream on a school walking trip and the UK Health & Safety Executive (HSE) has recommended that the local authority be prosecuted "for failing to prevent, as far as is reasonably practicable, people outside its employment from being exposed to health and safety risks during the river walk." Click on www.independent.co.uk/uk/uk/legal/story.jsp?story=311149 . Here, in SA, we could charge the local authority and certain individuals personally with 2 counts of culpable homicide and alternatively contravening section 9 of the OHS Act. If you are interested, visit my website at www.klasslooch.com and hit the appropriate buttons to your left for case studies in the UK, USA and Australia. I was shocked to read that 76 people have died as a result of theft related electrocutions in the Engineering News as well as the Star of 6 July 2002. Many of them innocent persons. I really sympathise with ESKOM in their strive to prevent illegal connections and vandalism but feel that the State is not pulling its weight in this regard. The State has a duty in terms of section 24 of the Bill of Rights of the Constitution to guarantee everyone a safe environment and must become more pro-active! Perhaps when the 63% skilled staff shortage at the OHS inspectorate is finally addressed, the OHS Inspectorate along with the municipal and SAPS will lend a helping hand. Shame on the Soweto Electricity Crisis Committee for encouraging illegal connections. You should all be locked up! Some sales pitching. Remember I'm hitting the road again folks towards the end of the year with a final round of lap dancing...I mean....letchering....I mean ...lecturing on the OHS Act, related legislation, the common and civil law and there are HUGE discounts in the offing. Early bird discounts of 10% (expiring end September) and that added to Subscriber discounts can amount to a whopping 60% discount per delegate for Gold Subscribers. Log onto www.klasslooch.com and scroll down for the seminar information. You can even download all the necessary seminar information from the site and book on-line. Folks in Gauteng, I'm giving an extra show on 1 August in Johannesburg. You can also contact Juliette @ juliette@klasslooch.com or telephone her at 011 726-7839 or fax her at 011 7266463 08h00 to 13h00 for additional information. Many thanks to those who have subscribed to one of our Cyber Products since my last newsletter. You won't regret it. I hope all you SHE, H & S practitioners, safety officers etc. will twist your employer's arm and induce them to go for Gold (Subscription). Finally I must thank Larry Kloppenborg of the Department of Labour (HQ) for responding to my e-mail in which I expressed some concerns over certain OHS issues, in particular the Department of Labour's approach to section 31 Investigations and made a few proposals to provide for easier access to information. Larry has forwarded it to the relevant officials for a response. It was copied to most of you and you can access that letter off my website as well. Since Klass Looch Associates is in the throes of Construction Work as defined and naturally fully complying with all the provisions of the OHS Act, particularly section 37(2) relating to contractors, we will be experiencing periodic power cuts. If you cannot reach us please e-mail us and we will respond once the power is restored. What does section 37(2) relate to again folks? Was anyone listening at my seminars? Anyone? Hear what the Honorable Minister of Labour had to say on 10 July 2002 during the OHS Imbizo week. Click on www.labour.gov.za/docs/sp/2002/Jul/11_mdladlana.htm. What is "skop, skiet en donor" in paragragh 12? (Kick, shoot and donate)! Until next time. The Devil's Advocate Please note that the Devil's Advocate has more than one personality and that the views expressed above are not always remembered by the other personality. Neither do they necessarily reflect the views of Klass Looch Associates or any of its clients. __________________________________________________________________________________________________________ This electronic communication may contain privileged and confidential information and is destined solely for the addressee(s). If it inadvertently reaches you, kindly forward to the addressee(s) or delete the mail. The author accepts no responsibility or liability for such an occurrence. raynard@klasslooch.com KLASS LOOCH ASSOCIATES PO Box 40 Melville 2109 Visit www.klasslooch.com & subscribe! Tel 0117267839 Fax 0117266463 Cell 0825749882