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Dear
Folks
Firstly a
belated safe, healthy and prosperous New Year to you all. What a preposterous
end to 2004 in Asia! Things can only improve. I guess the word tsunami is now
firmly embedded in everyone’s vocabulary. Here at home forecasts seem rosy. And
for this very reason I thought I’d devote this first newsletter to some
(speculative) forecasting of OHS things to expect in 2005 coupled with a
fleeting review of OHS matters of last year.
Some of
you may have seen this newsletter which I posted on my website about 3 weeks
ago. Unfortunately I couldn’t send it out as my Distribution List is on my
laptop which has been in the repair shop until now. (Perhaps if they called it a
‘Fatherboard’ it wouldn’t conk in so often)?
Last year
saw some interesting developments in the OHS arena. The Department of Labour
(DoL) lived up to its undertaking to outsource various investigations to private
enterprises in a bold endeavour to whittle down their backlogs in uninvestigated
matters and, in Gauteng at least, it appears to be going smoothly. It also came
to light that a new OHS Act will be promulgated in the near future although
timeframes remain sketchy. It will comprise an amalgamation of the OHS and MHS
Acts and new policing body will also be created. DoL constructed a new website
and (broken) promises were made to the effect that it would keep us updated on
all developments. I say broken promises as the website remains silent on the
draft Pressure Equipment Regulations which were promulgated as far back as
September 2004 and which are designed to replace the Vessels Under Pressure
Regulations of 1996. I only recently discovered these draft regulations on
another government website and have published on my own website at
www.klasslooch.com . The much
published Guideline to the Construction Regulations has also not materialised.
We are also led to believe that the current Construction Regulation will be
amended. The new website largely rearranges its former content and from that
perspective is disappointing. That is naturally from an OHS perspective only
since most of the website is dedicated to other labour legislation.
The
Minister of DoL has placed the blame on the courts (Department of Justice) for
the delay in finalising OHS cases and is quoted as saying ‘that 486 cases
regarding employment equity compliance and 198 cases regarding Occupational
Health Safety had been referred to the labour court this year. "The unfortunate
thing is that there is very little we can do to push the courts to speed up
these cases. We hope that the courts will look at these cases favourably’. I
don’t know about Employment Equity cases but OHS criminal cases are not heard in
the Labour Court but in the regular magistrates courts. As a former OHS
specialist prosecutor and, having often spoken to the (only) specialised OHS
prosecutors in Gauteng, I know that the problem does not lie solely with them
and that, at least as regards non-mining matters, they have sat idly for years
awaiting cases to be sent to them from DoL. As a result, the Johannesburg OHS
Specialised Court in particular, has diluted its speciality by transferring
prosecutors elsewhere. (Years ago when Faiza Salie, the former chief Inspector
blamed the Department of Justice for DoL’s malaise it almost started a
departmental war)! I do, however, fear that, with the outsourcing of
investigations to the private sector, a new backlog situation may arise at the
Department of Justice and that the time is ripe to expand the existing
specialised OHS courts to all provinces. (I should mention that the specialised
OHS prosecutors in Pretoria do have jurisdiction for North West, Limpopo, parts
of Gauteng and Mpumalanga provinces). 2004 also saw the departure of Ram
Ramashia, DG of DoL and Snuki Zikhalala, Media Liaison Officer. The latter was
renowned for his (almost) daily media statements which invariable contained
premature and dramatic threats of prosecution against employers. The year also
saw the final nail in the coffin of OHS specialised inspectors and the rise of
the generalised ‘Labour Law Inspectors’ who between 2002 and 2003 conducted 87
815 inspections and recommended that 914 employers be prosecuted for OHS Act
contraventions. 12 “Technical’ Investigations were also conducted during that
period – whatever that means. Are they section 32 Formal Inquiries?
The New
Year should herald the publication of the draft OHS Act with the prescribed
period open for comment. Since we know that it will follow the mould of the MHS
Act, we know what to expect. As I have always maintained, OHS law is OHS law is
OHS law. The regulations will remain in force and the general thrust of the
sections of the MHS Act are virtually identical to those of the OHS Act. The MHS
Act is, however, post Constitutional State legislation, is more politically
correct and explicitly states what is generally implied in the OHS Act. So
continue attending my workshops as it is won’t a waste of time and I have
insider information which I can share with you. Like the MHS Act I know it will
compel inspectors to provide employers with their reports post an investigation
or formal inquiry. Currently every Provincial Office of DoL has its own
interpretation. I believe that inspectors will be obliged to complete their
investigations within a prescribed timeframe. I’m also hoping that the
irritating habit of unilaterally determining dates for investigations of formal
inquiries by inspectors will be addressed and closer liaison with legal
representatives will take place. (I don’t expect this to be addressed via
legislation although it is a right afforded to all in the Bill of Rights to the
Constitution). In this regard I must encourage employers who require (OHS) legal
representation to provide DoL or DME immediately with the name and contact
details of the legal representative. I recommend legal representation from the
very outset for all incidents which have caused injury, illness or death as well
as inspections which have resulted in Contravention and especially prohibition
Notices that may aggrieve you and require appellation.
Some
finality should come to the Injaka Bridge case this year and the report on the
marquee collapse case should be made public as promised. The Law Report on the
highly published (successful I’m told) court case by Anglo Platinum against the
Chief Inspector Mines and the Mine Health & Safety Inspectorate regarding the
fines imposed upon mines in cases where workers sustain non-life threatening
injuries but later die of aids related complications should be published. I will
then provide Subscribers with the Law Report.
Click here for original media article. The civil case
against the Compensation Commissioner for tardiness should also be finalised and
more civil action against state departments and other institutions for
negligence should be instituted after various successful decisions in this
regard.
Click here for media article on the civil suit against
the Compensation Commissioner. (Lenasia
factory fire,
marquee victim, Ellis Park victims?).
I also expect government departments to finally realise that the Promotion of
Access to Information Act is a reality that they must comply with. The SASOL
Formal Inquiry into the incident that occurred in September 2004 in Secunda will
continue in March and should lay to rest speculation as to the cause of the
incident.
My wish
for the new year is that a decision be made by the powers-that-be to create
specialised OHS courts countrywide and to devise a system of OHS Law Reports
along the lines of the Labour Court. The resources for the latter are definitely
not available so it’s wishful wishing. The elevation of the Labour Relations Act
above OHS law has its roots in the Constitution and politics but in my view
they should enjoy equal status. Perhaps once
section 24 of the Bill of Rights,
which guarantees us all a non-harmful environment, forms the basis of a legal
challenge, we may see change. And it may be sooner than later!
As
always
Your Devil’s Advocate.
PS. Never
be afraid to try something new. Remember that a lone amateur built the Ark. A
large group of professionals built the Titanic.
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