OHS Chat

There hasn’t been much spectacular developments on the OHS front since we last chatted. March and April are traditionally very slow months, at least for me. But that can serve as a barometer of sorts. I depend to a large degree on the performance of the inspectorates and, if they are lethargic, I stare at the ceiling waiting anxiously for the phone to ring. It’s a phenomenon that I don’t really understand but there definitely is a pattern. Then there is a frantic burst of energy in June, August through to November and lethargy kicks in once more. DoL in particular seems to have gone into OHS slumber mode again after showing some promise last year. If only we could just reboot them. Perhaps the Turnaround Strategy 2001 to 2004 means that they can kick back and relax in 2005? Or are they too busy suspending or firing officials for a variety of reasons. In this regard one obscene case of abuse of our taxpayers’ money jumps to mind. The two-day Skills for Sustainable Growth, Development and Equity Conference which recently took place in Midrand set us back R44 million with the cost of videotaping costing us R9 million alone! The cost per delegate was calculated at R20 000 so you see how cheap my workshops are! Someone’s nest was feathered. The organising DoL official was suspended but surely she was accountable to someone? Can one official have access to such huge amounts of our money without top management (read VERY senior DoL officials) be blissfully unaware / unaccountable? Alas folks I think we need another OHS Turnaround Strategy 2005 onwards. You may be interested in the recommendations of various Commissions of Inquiry into troubled OHS matters over the years and decide for yourself whether these recommendations have been met. Click here for more. The Benjamin and Greef Report which triggered all the hot air within DoL and culminated in the Turnaround Strategy 2001 to 2004 was inexplicably never made public but I guess we could use the Promotion of Access to Information Act to extract it from the reluctant Withholders.

And while I have DoL in my sights and my itchy fingers on the trigger, why can’t they organise a State (DoL) funded OHS Indaba open to all free of charge? The Minister and his team can then take questions from us and afterwards we can all stuff our faces and drown our sorrows in a boozy banquet which naturally is the highlight of all these conferences. Click here for more. NOSHCON excluded of course. I read with interest the Minister’s 2005 Budget Vote Speech and afterwards wondered whether OHS was indeed within his portfolio? Did he even mention the OHS Act? He did bemoan the state of the Compensation Fund but then don’t we all? ‘The Compensation Fund is one of the areas where we need to improve in order to meet the expectations of the public. What we have uncovered is that the Fund’s systems are obsolete and need revamping. Among the key interventions planned for the current financial year is a business process re-engineering intervention aimed at making the Fund’s systems and processes equal to the expectations of our clients. It is anticipated that it will address many of the operational problems that the fund has experienced’. I wonder what progress has been made in the High Court in the class action civil suit brought by the Legal Resources Centre against the Compensation Commissioner for tardiness in paying compensation? But then again the Compensation Commissioner has been fired or suspended too. UIF is doing fabulously and so it should since self-employed persons like myself must contribute to the UIF Fund which will surely bring me no relief if I suddenly become self-unemployed? The Road Accident Fund (RAF) got a blasting from the Supreme Court of Appeals recently for tardiness. Perhaps we should re-introduce the practice of publicly tarring and feathering lazy or incompetent public servants. While referring to the Employment Equity Act the Minister also mentioned the creation of a National Roving Inspectorate but its mandate appears blurry. ‘In an effort to strengthen monitoring and enforcement of the implementation of this (Employment Equity) Act and other legislation, a National Roving Inspectorate Unit will be introduced this year’. I assume the ‘other legislation’ includes the OHS Act. Click here for the Minister’s Budget Vote Speech.

Enough skinner. The date for comment on the proposed amendments to the Construction Regulations has come and gone. At a DoL briefing on the draft Pressure Equipment Regulations, Noise Induced Hearing Loss Regulations and Lead Regulations in Durban last month we were told not to expect a relaxation of the requirements of the Construction Regulations but rather a more stringent approach. Also not to expect the new OHS Bill soon. One of areas I intend giving special attention to in my forthcoming workshops is the OHS contractual relationship between employers (clients) and mandataries (contractors) in general and in the construction industry in particular. I wrote a newsletter on this topic for the benefit of Subscribers and hope it went down okay. I got some very interesting feedback which I always encourage. I maintain, as far as clients are concerned (persons for whom construction work is being performed), their greatest exposure to prosecution will be an incomplete Health and Safety File, particularly if can be linked to an incident. Section 37, like section 16(2) remains a mystery to some and a concern to others. Here is an extract from my latest Subscriber Newsletter which also appears on my homepage at www.klassloooch.com . 'The term mandatary (originally mandatory) has its origins in the old Machinery and Occupational Safety (MOS) Act of 1983 as amended. It was never defined in that piece of legislation and that in itself created a host of interpretational guess work. With the promulgation of the OHS Act in 1994, a mandatary was defined as including an agent, a contractor or a subcontractor for work, but without derogating from their status as employers or users in their own right. In an identical provision to the current section 37 of the OHS Act, the MOS Act also potentially punished employers or users of plant and machinery for the wrongdoings of their employees and mandataries. In what is called a presumption-in-law, a legal mechanism essentially invented to make life easier for the prosecution in criminal matters, the Legislator decided that it is wise to presume employers to have committed the wrongdoings of their employees and mandataries. As with all presumptions-in-law, they create a reversal of onus of proof, away from the State or prosecution and onto the accused. The accused must then rebut the presumption-in-law on a balance of probabilities. This, as opposed to the State’s obligation of normally proving a criminal matter beyond a reasonable doubt. Although section 37 of the OHS Act applies equally to employees as well as mandataries, I’m confining myself to mandataries since section 37(2) specifically, and for obvious reasons, excludes employees. To include employees in that subsection would entail potentially concluding individual OHS contracts with every employee, regulating their OHS relationship with the employer, which is, in any case superfluous since employers and employees and persons in general, have their OHS relationships (duties) spelt out in the OHS Act. On the otherhand the OHS Act is vague as to the OHS relationship between various individual employers and users. (Clarity only really exists as regards construction work)'. Believe me it does get more exciting. I decided on this topic based on the number of On-Line queries I received recently. Some of us have been debating the whether the section 37(2) Written Agreement has become superfluous in the Construction Industry. We are now debating the required competency of agents whom a client may appoint.

Now if you think I’m too serious try downloading this mpeg on health and safety by clicking here. If you are bored / stressed and need some comic relief go to my website at www.klasslooch.com and click on the bottom left-hand button entitled ‘Frivolous’. (Not always for the faint-hearted). Also I don’t want to encourage you to loaf during office hours! Remember I can determine via my Website Administrator which pages are accessed the most!

Bookings to my workshops are coming along nicely. I still offer Early Bird and On-Line Discounts.

Click here to Register On-Line.

Remember you can even book for the November Workshops. If you don’t have access to the Internet just phone me and we’ll regard it as being On-Line Registration.

Click here for the Agenda which will be adapted periodically.

My thanks to ESKOM and SEDIBENG Municipality for keeping me out of trouble. I also think I should warn you upfront that I expect many power outages this winter in Johannesburg…………..if summer was anything to go by. Sorry Johannesburg City Power I know that you are embarking on a huge upgrade. Please tackle that Hursthill substation first. You know the one that burnt down last year and left me in the dark for 4 days. I mention this only as my switchboard goes wonky and, on your side, it will just ring and ring and I’ll be blissfully unaware that you are phoning. Let’s be pro-active or is that pre-emptive? My cellphone number is 082-574-9882. Contrary to popular belief ESKOM is not the Undertaker as regards the supply of electricity in Johannesburg. (Undertaker means supplier of electricity in terms of the Electricity Act). In Johannesburg sometimes I confuse the term ‘Undertaker’ as defined with the term ‘Culprit’ as defined.

This newsletter literally has more than a thousand recipients. Many recipients have changed e-mail addresses and I receive a notification thereof. (About 200). Naturally it would reach not those folks but you are encouraged to forward it readily. I intend publishing the undeliverable e-mail addresses on a page on my website and persons, who for some reason were and are not anymore receiving this newsletter (and still want to), can check whether they are on the list and they can rectify the situation by e-mailing me their new addresses.

As always

Your trusted Devil’s Advocate

Ps. Accept that some days you're the pigeon, and some days you're the statue.

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