OHS Chat

Firstly a hearty thanks to all who participated in my June workshops. Also welcome to this newsletter. I hope I got all your e-mail addresses correct as some of you write like doctors or should I say medical practitioners as defined! If you are sent this newsletter via a colleague and wish to receive it directly please click here.

As I said at the workshops one of the difficulties in presenting ‘open’ workshops is that participants have different levels of exposure to OHS legislation and one needs to accommodate persons who have had no exposure whatsoever to such legislation as well as OHS or SHE practitioners whose specialty it is. I think we did great. I was happy that we could focus on mandataries or contractors and even more delighted to explore how one can manipulate the OHS Act using OHS contracts. I think that section 41 of the OHS Act has received far too little attention and its vast ramifications have not be exploited by employers / clients as much as they could. I also hope that you ‘enjoyed’ the articles which I handed out along with the regular handouts. I should have a few more ready for my last round of workshops in November. I must apologise to participants in PE for running out of handouts. PE, incidentally, had the most participants even beating Gauteng!

On the skinner side of things I notice that the Hon. Minister of Labour, whose portfolio includes OHS (although it’s hard to believe since the OHS Act rarely gets mentioned by his department), has received mixed reviews for his overall performance by various ‘labour law’ experts and others. It’s a good thing that I was consulted although I’m sure my response would not be published. Click here for the relevant article. Joseph Maqhekeni, the president of the National Council of Trade Unions (Nactu) felt that ‘the department has to strengthen the enforcement mechanism by appointing more labour inspectors. Unless this happens, employers will continue to flout the labour laws with impunity." I wonder which of the ‘labour laws’ he is referring to? OHS, Employment Equity, UIF, COID etc? And, in my opinion, that’s where the problem lies. DoL has too much on its platter and cannot fulfill its OHS mandate. What was particularly horrifying to me was the comment by Dumisa Ntuli, spokesperson for the National Union of Metalworkers of SA that "His (The Minister’s) department has been very proactive and hands-on in terms of labour inspections. He has also been quick to visit areas affected by accidents such as Lenasia, where over 20 workers died after being locked by the employer overnight, Sasol and other places’. Now if he is referring to the factory fire in Lenasia in 2001 he had better get his facts straight before making public statements. Firstly 11 persons died. Secondly DoL was indicted by the magistrate in the subsequent trial (plea bargain) of the factory owner and manager who, in her verdict commented ‘had labour department inspectors done their duty and inspected the premises of ESS chemicals, the 11 might still be alive’. Click here for more on that particular incident.

More verbal volleyball after Nactu, which recently signed a safety charter with Sasol, strongly criticised the labour inspectorate of the department of labour for being ill-equipped to fulfil its mandate. Nactu president Joseph Maqhekeni said: "What we have been finding in recent accidents at Sasol is indeed they [inspectors] do come but their capacity to look and come up with a finding [is limited]. We find they are very new and don't understand some of these issues." Maqhekeni was also concerned that the inspectorate was not proactive in monitoring compliance with the law. He had raised the issue directly with labour minister Membathisi Mdladlana, who confirmed turnover problems at the inspectorate and said the government was considering (?) integrating the labour department's inspectorate and the department of minerals and energy's mines inspectorate. The mines inspectorate is widely considered to be more capable than its labour department counterpart. (Business Report). I put the question mark after the word ‘considering’ as cabinet has already decided to integrate the two inspectorates based on the Benjamin & Greeff report. So I thought that it was a ‘given’! Well, we have heard this lament for too long now from DoL. Will anything ever be done about it? Is the Minister telling us that the Turnaround Strategy 2001 -2004 has failed? Perhaps another Turnaround Strategy would be in order?

Some interesting High court cases pending. One in particular should give us a feel for the court’s take on compensation. As you know civil suits by employees or their dependants against employers is prohibited if compensation has been forthcoming. This prohibition has been upheld by the Constitutional Court in Jooste v Score Supermarket Trading (Pty) Ltd where the compensation provided by the fund (in this case the COID Act) was the foundation for depriving employees of the right to sue. But what if compensation was never forthcoming as, inter alia, alleged by the legal representative in an imminent class action civil suit for compensation for silicosis against a mining house. Click here for more. I’m also told that the status of labour supplied by ‘Labour Brokers” – now Temporary Employment Services (TEM) – is also being challenged in court to determine whether they are employees or third parties who then enjoy the right to sue. Watch this space.

There is still space at my forthcoming 12 August OHS legislation Workshop and bookings are open for the November Workshops. On-Line Registration generates a 10% discount per delegate and an additional Early Bird 10% for November Workshops if you ‘Book n Pay’ before end September 2005.

As Always

The Devil’s Advocate

PS. Never give me work in the morning. Always wait until 4pm and then
bring it in to me. The challenge of a deadline is refreshing.

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