OHS Chat

Into the second month of the new year and things seem to be hotting up – at least for me. My thanks to Unilever for arranging the in-house OHS workshops which catapulted me out of my December lethargy and straight back into the thick of things! Then Standard Bank has managed to stretch my brain as I explored the OHS criminal legal implications of the repossession process relating to structures and properties. I think it’s all virgin territory and I never thought that I could still mentally masturbate to such heights.

DoL via the its media liaison office has been once again extremely active, punching out almost daily media releases condemning a variety of workplace incidents ranging from uncovered manholes in the Johannesburg area to the feeding habits of lions. Naturally, if true, I also strongly condemn the latter incident which has taken on almost biblical connotations. For more DoL condemnations click here. There may be some on my website home page. I should emphasise the words, ‘if true’, since DoL and sadly many journalists seem to have forgotten about the presumption of innocence. The Sunday Times, and I’m not referring to them, in their Gauteng Metro section, did run an article on the ‘death traps’ which uncovered manholes pose. The DoL Media Liaison Officer is quoted as saying "If nothing is done to fix the problem in three days, the Department of Labour will issue a notice of contravention of the Occupational Health and Safety Act. "The (Johannesburg) city will then be given 60 days to comply, whereafter summons will be issued. We don't care about the subcontractors; the main contractor is Joburg Metro Council," said Zikalala. "If you are working or excavating you must put up signs saying so," he added. "There were no barriers or signs. We had to order them to [put signs up]. Now I would have thought that the city was the client as defined while Johannesburg Water was the Principal contractor as defined but then again everything I read in the media. Either way, as per the construction regulations, all parties have a myriad of duties which, if flouted with a result such as injury or death may catapult them into the realms of the negligent injury offence (section 38(2) of the OHS Act) or even culpable homicide where a fatality occurs. The point must be driven home that if a law requires something to be done in writing such as an appointment or written certification and it’s not done coupled with an incident, then you may be deep in the sludge! This article is copied onto the home page of my website.

And speaking of the construction regulations. There seems to be some confusion as to their status. Some persons have telephoned me and ask if they now superseded the OHS Act itself and I have responded that they are merely one set of regulations along with host of other equally important regulations to the Act . Their elevated position seems to stem from an industry that accounts for the most injuries and fatalities and, in all likelihood, because of the introduction of a myriad of new written appointments and other written requirements. Written requirements do increase of the scope for criminal prosecution in that, if not done, they are per se criminal but more so, if not done and an incident occurs, the prosecution is duty-bound to try and link the failure to put ‘pen to paper’ to establish negligence vis-a- vis the result which could be death.

I have presenting a number of short courses on the construction regulations which I have entitled ‘The criminal liability pitfalls of non-compliance with the construction regulations’ and would welcome entertaining you all on it. Click here for the Agenda. Persons are often surprised to hear that these regulations have, ever since the days of the Mos Act been covered in broad terms by the provisions of (the now) section 37 (Clients being employers and contractors being mandataries) and, to a lesser degree section 10 of the OHS Act. (Duties of installers and designers as regards articles for use at work). Subscribers, especially Gold, with those generous discounts that you enjoy may even get a workshop gratis at the end of the day! In this regard I must thank Megchem of Secunda for the construction regulations workshop.

Otherwise the retail industry is due for a blitz inspection from 16 to 20 February 2004 without the media being invited along while employers in Newcastle and Dundee can have their faces splashed all the news as the media has been invited to ‘assist(?)’ DoL with blitz inspections in the area during the same period. By now you all know my feelings about the media accompanying inspectors. I feel that you do have the right to refuse the media entry as they do not assist inspectors in their performance whatsoever.

Congratulations to Sappi for running the Annual Excellence in Achievement Awards and to the individuals who won awards. I’m proud to have you guys on board as Gold Subscribers. Good coverage on page 3 of the Sunday Independent.

I’m about to set dates and venues for my annual tours and will keep you all abreast.

Naturally I’m not referring to Janet Jackson’s breast or should I say boob which has the entire USA indignant. At least it takes their minds off Iraq! We at home have also been enthralled by that other occupational hazard, namely being far from home in a hotel in Mumbaai without anyone to n….! And you have a surname nogal that raais! Enough.

I greet you all until next time. Subscribers your special Newsletter will arrive in your in boxes soon. You know what I mean…..

As always

Your Devil’s Advocate

Yes, I am an agent of Satan, but my duties are largely ceremonial.

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