Dear Folks

Hopefully you all have enjoyed all these public holidays and am ready to put shoulder to the wheel and get down to some real work as defined….for a change. Section 1(lvi) of the OHS Act defines work as meaning " work as an employee, or as a self-employed person, and an employee is deemed to be at work during the time that he is in the course of his employment and a self-employed person is at work throughout such time as he devotes to work as a self-employed person.”

A simple enough OHS Act definition which, incidentally, contains another of those nasty presumptions-in-law which, in turn, shift the burden of proof away from the State and onto the accused in a criminal matter. The most controversial OHS Act presumption-in-law is contained in section 37 and presumes/deems an employer to have committed the crimes of a mandatary (contractor). It is a rebuttable presumption and, to rebut the presumption, employers must essentially demonstrate that they have acted reasonably vis-à-vis the mandatary (contactor). A section 37(2) Written Agreement with the contractor goes along way to demonstrate reasonable behaviour. Currently the Section 37(2) Written Agreement is optional but once the draft construction regulations are promulgated in to law, they will become compulsory in the construction industry. Subscribers click here for summary of an employers potential criminal liability.

Still on the topic of work, I have recently started some in-depth research into the interpretation of the words “in the course of an employee’s employment”, particularly for compensation purposes and I’m surprised at the number of diverse court decisions in this regard. The latest is Rauff v Standard Bank Properties, a division of Standard Bank Ltd & Another 2002 W, where the court concluded that an injury sustained in a lift at the conclusion of a working day by a employee of the bank, was not a compensationable occupational injury as defined in section 1(1) of the COID Act. The full text of the case appears in the court cases folder on my website at www.klasslooch.com.

If you have been following the press lately you will have noticed that the department of labour (DoL) has unleashed its huge army of highly trained dogs of war……I mean inspectors to raid potentially delinquent employers with a view to checking on their compliance with “labour legislation.” A raid was recently conducted on the media houses. (Media houses the Hon Minister did warn you)! It got quite acrimonious at times I believe. No assaults on inspectors this time. According to reports they were essentially checking Equity Registers and not inspecting the workplace as per section 29 of the OHS Act. I believe that the full force of DoL (1 800 generalised inspectors) will soon be directed at our homes to check whether we have registered our domestic employees for UIF! We are promised R5 000 fines or 5 years in jail for failing to register. Contributions must be made by 7 May but most people are still baffled as the method of payment. They will have to create special Domestic UIF Courts to deal with the demand. Divide 800 000 households by 1 800 inspectors. Good luck. Beware of the dogs! (I mean household dogs)! I assume all these raids are being conducted at the expense of the huge backlog in uninvestigated OHS incidents? Read more.

The attendance figures for our June workshops have exceeded our expectations and we thank all who have registered. Early Bird discounts for the June Workshops have sadly expired but remain valid for the additional August (Johannesburg) Workshop. We also offer a whopping 25% discount to those who register and pay for our November Workshops before July 2003 on-line or off-line. In all other cases On-line discounts of 10% remain . PE is almost full for June. Kaapstad bly maar Slaapstad! Is it because of that mountain? Durban and Jo’burg good as always. Remember lunch is being served and the menus look delicious. I should know because recently I’ve become hooked on the BBCFood. It’s like pornography except that you just get hungry by watching it!

Those of you who manufacture or supply articles or substances for use at work (section 10) of the OHS Act) or in general (section 22), should take heart from a recent civil case where it was decided that strict liability does not apply. A E J Wagener & Another v Pharmcare Ltd March 2003 SCA. In other words the plaintiff must prove that the supplier or manufacturer was at fault, either in the form of culpa (negligence) or dolus (intention) where their product is defective and causes harm. The full text of the case is available to Subscribers in the court case folder.

If you want to become a Subscriber and enjoy the its many benefits click here. We wish to welcome ABI to the folder!

Stay health and safe and see you all soon at the workshops.

June /August Workshop Registration Forms

November Workshop Registration Forms

The Devil’s Advocate

Always politically correct!

There are still free gourmet lunches available for June/August and November

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