Dear Folks

A rather belated March newsletter. As always my working year only kicked off in March and that with a few workplace bangs. And not the type of workplace bangs as envisaged in draft General Safety Regulation 6 which requires employers to take all reasonable steps to promote the use of standard precautions for the prevention of the transmission of the human immunodeficiency virus, hepatitis B and any other blood-borne pathogens in the workplace.

But firstly a note of thanks. To the Institute of Safety Management for inviting me to their OHS Act Update Workshop on March 2006. There we were briefed by the Chief Inspector, amongst others, who mentioned that the draft National Occupational Health & Safety Integration Bill should be submitted to parliament within 3 to 6 months. It would also be submitted to NEDLAC. That Bill will ultimately pave the way for the new National Occupational Health & Safety Act. Some concern was expressed that, despite efforts by government to expeditiously introduce new OHS legislation, it may be held up indefinitely by bickering within NEDLAC. By agreement the new Act would need approval by all partners within NEDLAC namely government, employers and unions as was the case with the Mine Health & Safety (MHS) Act. And, in my view, there lies the answer. The new Act will be broadly moulded along the lines of the MHS Act and, since the latter already passed the NEDLAC test, it should breeze through easily. Another factor dictating against a delay is the fact that all the regulations of both Acts will automatically be absorbed into the new Act with little change if any at all. In fact the general thrust of the new Act will be identical to that of current OHS legislation. The Chief Inspector seems surprised that I had managed to access the National Occupational Health & Safety Policy Document (nogal still with track changes). I used the 9^th wonder of the world. I ‘googled’ it! (I regard ‘copy & paste’ as the 8^th wonder).

And while in thanking mode. Another note of thanks to the Chemical & Allied Industries Association (CAIA) for inviting me to participate in their annual conference.

Following a brief, I have been researching ways of ensuring that certain OHS documentation enjoys protection from discovery. OHS documentation, in the form of internal investigations, or communiqués after an incident, often contain prejudicial information which employers would not wish to be made public or available to parties who may use the information against them. It’s all still virgin territory and I hope to make it the focal point of my next Subscriber Newsletter. It is particularly relevant since many employers make use of Labour Brokers (Agents or Temporary Employment Services) and it now seems certain that workers sourced from Labour Brokers are entitled to sue negligent employers in the event of a workplace incident. Section 35 of the COID Act prohibits employees or their dependants from suing their employers. The prohibition was upheld by the Constitutional Court in Jooste v Score Supermarket Trading (Pty) Ltd. See Rieck v Crown Chickens (Pty) Ltd t/a Rocklands Poultry [2005] SE on my homepage at http://www.klasslooch.com/. A legal representative for a plaintiff will be sorely tempted to use the Promotion of Access to Information Act to discover information which may strengthen a client’s law suit. Legal privilege is most probably the answer. Get a legal representative involved for the purposes of obtaining advice on what should be outwardly presented as the findings of an Internal Investigation.  Equally so obtain legal advice when responding to a DoL or DME instruction for information in order to ensure than unnecessary incriminating evidence is removed.

The Compensation Commissioner’s Office continues to hog the headlines with the Minister stating that ‘in a bold move aimed at putting the Compensation Fund (CF) back on track, he has once again announced a major restructuring of the fund, which will include among other things an appointment of the new Commissioner.  In his last week’s response from the DA’s request that an investigation into the Fund’s inefficiencies should be conducted, the Minister pointed out that DA’s request was outdated in the sense that department had already instituted its own probe more than a year ago. The process resulted in the firing of Commissioner Bongiwe Magojo, and that her matter was still in the hands of the Scorpions for further investigation. “The Compensation Fund acknowledges that it is experiencing operational challenges due to disparate operational systems which should be improved. The fund has so far embarked on numerous strategies to deal with the backlog it currently experiences and this is beginning to bear results,” he said. The fund received almost 1 084 668 claims since 2000’. Click here for the full text.

On while on the topic of the compensation commissioner, a recent Eastern Cape High Court last week made the dramatic ruling that Post Traumatic Stress (PTS) is an occupational injury and need not be linked to a single incident be become compensable. Click here for my translation of the article that appeared in Die Beeld. (My thanks to Joe Tsefu of Jo’burg City Power for sending me the article). The Eastern Cape rocks! All three cases referred to in this newsletter originate in the Eastern Cape. One wonders whether all stress related ailments could become compensable and even the failure to provide employees with a stress free working environment criminal in terms of section 8 of the OHS Act? Section 8 requires employers to provide employees with a safe and healthy working environment.

Bookings for the OHS Legislation Workshops is coming along…… slowly. Durban leads the way and Cape Town lags.

Hope to see you there.

Regards

Raynard

PS. I have been experiencing problems with my fixed line at 011 7267839 for the past 4 months and have tried in vain to get it fixed. Please contact me on 0825749882.

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