Dear Folks

I guess by now that you are all starting to gear down for the December holidays?  At the same time many amongst us, who are not on my Distribution List,  are planning evil and devious ways to embark upon a Christmas spree and we all must be vigilant. Shopping malls which, in terms of section 9 of the OHS Act, have a duty of ensuring that their activities do not do us any harm, have assured us that they have plans in place to ensure public safety. And so far things look good save a few ATMs being blown up and the usual daily mayhem. While I must concede that section 9 is intended to protect persons against harm which does not emanate from common law crimes, it is wide enough to be used against employers who fail to take adequate reasonable steps to protect persons against crime provided it can be linked to an act or omission on the part of the employer.  In all other cases it is the duty of the Ministry of Safety & Security and you all know how I feel about their performance!

But the object of this newsletter is not to (again) whinge about crime, it is to expand on the theme of a newsletter which I recently dispatched to OHS Practitioners and my Subscribers. Many of you are not on those Distribution Lists but all of you did come to my OHS legislation workshops at some stage and thereby demonstrated your interest in OHS matters.  I won’t repeat the newsletter but click here to access it. If you cannot access www.klasslooch.com contact me  at raynard@klasslooch.com and I will e-mail it to you as an attachment.  I’m about to give you some free legal advice that will not only impact upon your employer (management) criminal liability but also give the moral high road should things go wrong at the workplace. It’s all about workers, Health & Safety Representatives  and union members duties and rights to a safe and healthy working environment.

As you all know, since my website is riddled with articles to this effect, the Minister of Labour routinely exhorts workers to refuse to do dangerous work. In section  23 of  the MHS Act workers are given the explicit right to leave a dangerous workplace with impunity should they feel it is justified. Employers (mines) are required to have procedures in place to resolve the matter should workers themselves or their Health & Safety Representatives advise them to exercise this right. But how many of you, who fall within the jurisdiction of the OHS Act which only implies this right, have actually advised workers and Health & Safety Representatives of this right or have a procedure in place to resolve issues surrounding it? Isn’t now the time to do it since we know that the draft NOH&S Bill will definitely contain such a provision.  

Section 34(1) of the draft Bill reads : ‘A worker has the right to leave any working place whenever –

(a) circumstances arise at that working place which, with reasonable justification, appear to that worker to pose a serious danger to the health or safety of that worker;  or

(b) the health and safety representative responsible for that working place directs that workers leave that working place.

(2) Every employer, after consulting the health and safety committee at the workplace, must determine effective procedures for the general exercise of the right granted by sub-section (1), and those procedures must provide for

(a) notification of supervisors and health and safety representatives of dangers which have been perceived and responded to in terms of sub-section (1);

(b) participation by representatives of the employer and representatives of the employees in endeavouring to resolve any issue that may arise from the exercise of the right referred to in sub-section (1);

(c) participation, where necessary, by an inspector or technical adviser to assist in resolving any issue that may arise from the exercise of the right referred to in sub-section (1);

(d) where appropriate, the assignment to suitable alternative work of any worker who left, or refuses to work in, a working place contemplated in sub-section (1);  and

(e) notification to any worker who has to perform work or is requested to perform work in a working place contemplated in sub-section (1) of the fact that another worker has refused to work there and of the reason for that refusal.

(3) If there is no health and safety committee at a workplace, the consultation required in sub-section (2) must be held with –

(a) the health and safety representatives;  or

(b) if there is no health and safety representative at the workplace, with the employees’.

I suggest that you start with section 14 of the OHS Act which contains the duties of employees to their employers.  (The draft Bill has a similar provision). Copy it out of the Act and give it to each worker to sign and place it in their personal file. It’s pretty straight forward but you may wish to translate it into all the relevant languages. Explain to them, Health & Safety Representatives and the unions that the duty to obey a lawful order given in the interests of health and safety implies the right to refuse an unlawful order or the right to refuse to do dangerous work. Develop a procedure to resolve the matter should workers, Health & Safety Representatives and the unions exercise this right.  Go a little further and include section 15 (Duty not to interfere or misuse things),  section 38(1)(n) (Duty not to tamper or misuse safety equipment), section 38(1)(o) (Duty to use safety equipment) and section 38(1)(p) (Duty not to wilfully or recklessly endanger any person). Then look to the regulations. If, for example, a worker is working with a hazardous chemical substance, look to their duties and include them. For example HCS regulation 4. (Duties of persons who may be exposed to hazardous chemical substances) which reads.

‘A person (worker) who is or may be exposed, shall obey a lawful instruction given by or on behalf of the employer or a self-employed person, regarding -

(a)       the prevention of a HCS from being released;

(b)       the wearing of personal protective equipment;

(c)       the wearing of monitoring equipment to measure personal exposure;

(d)       he reporting for health evaluations and biological tests as required by these Regulations;

(e)       the cleaning up and disposal of materials containing HCS;

(f)        housekeeping at the workplace, personal hygiene and environmental and health practices; and

(g)       information and training as contemplated in regulation 3’.

I personally am sick and tired of unions – NUM being my target lately- of apportioning blame on management, usually prematurely and even illegally, every time an accident occurs while doing damn little about safety themselves. And why do I say prematurely and illegally? Section 38(1)(m) makes it a crime for anyone to prejudice, influence or anticipate the proceedings or findings of an inquiry under section 32 or 33 of the OHS Act. Even the Minister may be guilty of this crime!

As the Minister of Labour says…safety is everybody’s responsibility.  And while I have NUM in my sights, it’s charming to see that they are butchering each other at meetings (Beatrix mine- four dead), while moaning that employers do nothing about safety!

‘Mine union clash death toll up. IOL of 15 November 2007. 'The death toll following a clash at a National Union of Mineworkers (NUM)'s meeting at Goldfields' Beatrix mine in the Free State has risen to four, a mine spokesperson said on Thursday. Two people were clubbed to death and died at a meeting of about 750 NUM members on Tuesday night. Goldfields spokesperson Willie Jacobsz said that later a farmer found two bodies in a veld near the mine after the incident, bringing the death toll to four. They are believed to have died as a result of Tuesday night's fight, and not from a separate incident, he said. The fight is initially being linked to an internal union dispute. NUM spokesperson Lesiba Seshoka said: "We are very shocked and we don't know what to say. We are looking into the matter quite seriously and believe the law will follow its course. At the same time, we will conduct our own investigation," said Seshoka. The mine's number four shaft was closed following the incident and would only be reopened if the safety of workers could be assured, said Jacobsz. Urgent discussions between the union and mine management would continue and the matter was expected to be placed on the agenda at a NUM national executive committee meeting on Thursday. Seshoka said that while investigations were still underway to establish the cause of the fight, in the interim it had been decided to recommend that two NUM branches - one at Oryx and one at Beatrix mine - disband to form one branch. This would be discussed and a way forward decided, he said. Police were still investigating’.

I would even suggest that you consider, at this stage, full time Health & Safety Representatives since it’s coming anyway.

A few thoughts.

For more OHS news click here.

Click here for my previous OHS Chat & Skinner Newsletters.

My thanks to ESKOM for allowing me to address their Construction H & S Conference on 24 October 2007, Nampak for the OHS Roadshow and to the Institute of Safety Management (ISM) in Durban on 2 November 2007 – although I’m dikbek because I pranged my rental car! (The reverse gear looked so like the first gear)!

As always

Your Devil’s Advocate.

PS. I just can’t shiak the feeling that the arms deal made a lot of undeserving people rich!