Lesson 1, Topic 1
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1.8. Statutory Requirements

ryanrori July 14, 2020

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1.8. Statutory Requirements

The O.H.S. ACT 85 of 1993 (Occupational Health and Safety) requires the employer to bring about and maintain, as far as reasonable practicable, a workplace that is safe and without risk to the health of the workers. This means the employer must look in to the following:

That the workplace is free of hazardous substances, such as benzene, chlorine, and micro organisms, articles, equipment, processes, etc. that may cause injury, damage or disease. Where this is not possible, the employer must inform workers of these dangers, and how to work safely, and provide personal protective equipment for a safe workplace.

However it is not the sole responsibility of the employer to adhere to the O.H.S. ACT but the worker is also responsible that he/she adheres to the regulations within this legislation.

In short this means that the worker and the employer share responsibility regarding Health and Safety in the workplace.

The Act, known as the Occupation Health and Safety Act (Act 85 of 1993), consists of 50 sections approved by parliament. The purpose of the Act is to provide for the health and safety of persons at work or in connection with the use of plant and machinery. It also provides for the protection of persons other than persons at work from hazards arising out of or in connection with the activities at work.

The Act or regulations can be purchased from the Government printer in Gazette form or bound form from various publishers.

This means that, in terms of South African legislation, each employer must maintain a safe and healthy workplace which is free from all reasonable hazards.

All factories have to be kept clean and free of smells or leakages arising from drains and toilets or any other nuisance.

In addition to a safe and healthy work environment

  • there should also be receptacles for waste;
  • the aisles, roadways and passages should be properly marked;
  • the stockpiling of materials should be prohibited or carefully monitored;
  • there should be proper storage space;
  • notices should be put up for staff; and
  • colour coding should be introduced in the factory.

 

    Occupational Health And Safety Act 85, 1993

Where the Constitution enshrines our rights pertaining to health and safety, the Occupational Health and Safety Act 85, 1993, as amended (OHS Act), and other relevant legislation prescribes the different responsibilities and liabilities of both the employer and the employee.

The OHS Act replaced the old Machinery and Occupational Safety Act in 1993, which in turn replaced the older Factories Act of 1941 in 1983.  As technology develops it is necessary for legislators to regularly revise and adapt legislation to keep abreast of technological developments and related issues.

The Purpose Of The Act

  • To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery.
  • The protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work.
  • To establish an advisory council for occupational health and safety; and to provide for matters connected therewith.

 


General Duties Of Employers To Their Employees

In terms of Section 8 of the Act:

Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

The Matters To Which These Duties Refer Include:

  • The provision and maintenance of systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health.
  • Taking steps to eliminate or minimise any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment.
  • Ensuring the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances.
  • Establishing what hazards to the health or safety of persons exist, what precautionary measures should be taken with respect to such hazard and providing the necessary means to apply such precautionary measures.
  • Providing information, instructions, training and supervision necessary to ensure the health and safety at work of his employees.
  • Not permitting any employee to do any work unless the prescribed precautionary measures have been taken.
  • Taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used.
  • Enforcing such measures in the interest of health and safety.
  • Ensuring that work is performed under supervision of a person who will ensure that precautionary measures taken by the employer are implemented.
  • Inform employees regarding the scope of their authority. (Refer to Section 37 of the Act.)

 

Duty To Inform

In terms of Section 13 of the Act:

Employers must –

  • Inform employees of the hazards to his health and safety attached to any work which he has to perform, as well as the precautionary measures which should be taken and observed with respect to those hazards.
  • Inform the health and safety representatives concerned beforehand of inspections, investigations or formal inquiries of which he has been notified by an inspector.
  • Inform a health and safety representative as soon as reasonably practicable of the occurrence of an incident in the workplace or section of the workplace for which such representative has been designated.

 

General Duties Of Employees At Work

In terms of Section 14 of the Act:

All employees must:

  • Take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions.
  • Cooperate with his employer with regards to any duty or requirement imposed on his employer by this Act, to enable that duty or requirement to be performed or complied with.
  • Carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his in the interest of health or safety.
  • Report any situation which is unsafe or unhealthy to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer.
  • Report any incident which may affect his health or which has caused an injury to himself to his employer or to his health and safety representative, not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.

Duty Not To Interfere With, Damage Or Misuse Things

In terms of Section 15 of the Act:

No person shall intentionally or recklessly interfere with, damage or misuse anything which is provided in the interest of health or safety.


Health And Safety Representatives

In terms of Section 17 of the Act:

  • Employers, who employ more than 20 employees at any workplace, must appoint health and safety representatives in writing for such workplace, or for different sections thereof.
  • An employer and the employee representatives or employees, where there are no such representatives, must consult in good faith regarding the election, period of office and subsequent designation of health and safety representatives. If such consultation fails, the matter shall be referred for arbitration to a person mutually agreed upon, whose decision shall be final.
  • Only full-time employees, who are acquainted with conditions and activities at that workplace, will be eligible for designation as health and safety representatives for that workplace.
  • The number of health and safety representatives for a workplace or section thereof shall in the case of shops and offices be at least one health and safety representative for every 100 employees or part thereof, and in the case of all other workplaces at least one health and safety representative for every 50 employees or part thereof: Employees working another workplace than that where they ordinarily report for duty, shall be deemed to be working at the workplace where they report for duty.
  • Inspectors of the Department of Labour (DoL) may direct employers in writing to increase the number of health and safety representatives if they feel that, under certain circumstances, the prescribed number is not adequate.
  • All activities in connection with the activities and training of health and safety representatives shall be performed during ordinary working hours, and any time reasonably spent by any employee in this regard shall for all purposes be deemed to be time spent by him in the carrying out of his duties as an employee.

Functions Of Health And Safety Representatives

In terms of Section 18 of the Act:

A health and safety representative may perform the following functions in respect of the workplace or section of the workplace for which he has been designated, namely-

  • Review the effectiveness of health and safety measure.
  • Identify potential hazards and major incidents at the workplace.
  • Examine the causes of incidents at the workplace.
  • Investigate complaints by any employee relating to that employee’s health or safety at work.
  • Make representations to the employer or a health and safety committee on matters arising from the above.
  • Make representations to the employer on general matters affecting the health or safety of the employees at the workplace.
  • Inspect the workplace with a view to the health and safety of employees, at times agreed upon with the employer, who may be present during the inspection. The employer must be given reasonable notice of such inspections.
  • Participate in consultations with inspectors at the workplace and accompany inspectors on inspections of the workplace.
  • Receive information from inspectors as contemplated in section 36.
  • Attend meetings of the health and safety committee of which he is a member, in connection with any of the above functions.

 

Health And Safety Committees

In terms of Section 19 of the Act:

  • Employers must establish one or more health and safety committees where two or more health and safety representatives have been designated, and, at every meeting of such a committee, consult with the committee on measures to ensure the health and safety of his employees at work.
  • Nominees on a health and safety committee shall be designated in writing by the employer for a specific period. Health and safety representatives must be members of the committee for the period of their designation.
  • Health and safety committee meetings must be held at least once every three months, at a time and place determined by the committee. Under certain circumstances a DoL inspector may in writing direct a safety committee to hold a meeting.
  • A health and safety committee may appoint advisory members with particular knowledge of health or safety matters. These advisory members will have no voting rights.
  • Inspectors of the DoL may direct employers in writing to increase the number of safety committees if they feel that, under certain circumstances, the prescribed number is not adequate.

Functions Of Health And Safety Committees

In terms of Section 20 of the Act:

  • A health and safety committee may make recommendations to the employer or an inspector regarding any matter affecting the health or safety of persons at the workplace, discuss and report to an inspector on any incident causing injury or death at the workplace.
  • A health and safety committee must keep record of recommendations made to an employer and of any report made to an inspector in terms of the above.

Employers must take the prescribed steps to ensure that a health and safety committee complies with the provisions of the Act.

Company Policy

The company policy will determine the company’s specific objectives regarding safety, health and environmental protection procedures.  In addition to this the company may set its own standards and procedures within the law.  Remember, the Act and regulations prescribe the minimum requirements to conform to the law.

For example, the law prescribes that the minimum depth of the tread on a vehicle’s tyres must be 1mm.  The company may decide that, because of the distances travelled and the general condition of roads used the tyres on company vehicles should be replaced when the tread depth is 2mm, both to promote safety and to avoid the cost of a breakdown due to tyre failure.