Dear Colleagues

Since my last newsletter we have experienced a spectacular, preventable and predictable tragic OHS event which resulted in a person being permanently paralysed and our beloved President ducking (once more) for cover as a structure collapses all around him. He even fled to safer shores in Liberia right after the incident! Spectacular because the entire event was filmed, preventable because there is no damn excuse and predictable because a culture has taken root in this country whereby everyone does what they want with impunity. Also predictably recriminations abound as to why the various controls, whereby we ensure our President has a safe working environment, were flouted. As the Star newspaper reported on 16 August 2003 it was ‘an accident waiting to happen’. And what a sorry indictment of the OHS enforcement agencies who are supposed to control these matters. Naturally this incident has galvanised DoL’s damage-control machinery into action and we are promised that those responsible will be publicly tarred and feathered. But who is really to blame for failing to instil an OHS culture in this country? Does ‘SA health, safety stink’ as suggested by the ACDP? Click here for more.

As all this took place against the backdrop of the Construction Regulations which were promulgated, without any fanfare or even mention on DoL’s outdated OHS website, into law on 18 July 2003. Could it be that the very set of new prescriptive regulations, designed to prevent this type of tragedy, were ignored even before the ink was dry? After all the erection of the marquee that collapsed was ‘construction work’ as defined, it was a ‘structure’ as defined and it wasn’t 50% complete on 18 July 2003 so it fell within the scope of application of the new regulations. But what puzzles me is that Construction Regulation 3 provides for the principal contractor involved in construction work to notify the provincial Director, DoL, in the form of Annexure A of certain types of construction work. I may be interpreting this subregulation a wee too narrowly but I cannot understand why our (OHS?)* law enforcement agency, the Inspection & Enforcement Service within DoL, with their ‘experts’ on tap, was not more pro-actively involved – even if not legally compelled to - when they knew the structure would be erected as part of the International Women’s Day celebrations. Even more so when a similar structure had collapsed on Worker’s Day. So who is to blame? I guess the client as defined has a lot of pleeze-explaining to do since Construction Regulation 4 compels clients to prepare a health and safety specification for the construction work and to provide it to the principal contractor. Was it done? The client is most probably the Department of Sport, Recreation, Culture etc. And then there is the principal contractor and contractor who had to ensure the structure was safe and had to prepare, in terms of the construction regulations, a host of new OHS documentation. They are very much in the firing line. Was a Construction Work Supervisor, a full-time competent person, appointed as per subregulation 6? There is even provision in the regulations for a Construction Safety Officer to be appointed in writing to assist the construction Work Supervisor. In this regard I guess we are witnessing the dawn of compulsory Safety Officer appointments as required (and predicted by myself), in certain circumstances, by the MHS Act.

*As many of you may know South Africa is one of the few industrialised nations to dilute the effectiveness of its (non-mining sector) OHS law enforcement agency, previously the OHS Inspectorate, into a broad-based general labour legislation enforcement agency with diluted focus on Employment Equity, UIF, Skills Development Levies and other more popular pieces of social State income-generating legislation. The mines retain a specialised OHS law enforcement agency but this may also be under threat when the various agencies combine. The last ‘integration’ process within DoL, whereby OHS specialised inspectors were compelled to abandon their expertise and become generalists, resulted in a flurry of resignations and one wonders / fears how this broader ‘integration’ will go down. And while on the topic of generalist inspectors, all 'madams' in KZN be warned. DoL has unleashed 160 inspectors to check whether you are paying UIF and a living wage for domestic employees. That’s give factories a breather. See 'Suburban blitz on KZN madams', IOL of 18 August 2003.

Since the Construction Regulations require very specific OHS documentation, one may ask whether the broad section 37(2) Written Agreement has become superfluous as regards construction mandataries. Perhaps. But continue concluding these Written Agreements as they go some distance in combating that nasty presumption-in-law which potentially punishes employers for the wrongdoings of their mandataries.

All this and more in our November workshops. Subscribers can qualify for up to 45% discount per delegate if you book on-line before the end of September. Non-Subscribers can qualify for as much as 20% discount in the same way. Click here if you don’t like paying at all! Rumour has it that we may already have our new draft OHS Act published for comment by the end of the year. You will recall that DoL undertook to review the OHS Act as part of its Turnaround Strategy 2001 – 2004 and 2004 is almost upon us. I assume that this is the promised revamping of the OHS Act before ultimately merging with the MHS Act. Click here for more on the merger.

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The Devil’s Advocate.

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