The Occupational Health and Safety Act, 1993, requires the employer to bring about and maintain, as far as reasonably practicable, a work environment that is safe and without risk to the health of the workers. This means that the employer must ensure that the workplace is free of hazardous substances/ articles or equipment that may cause injury, damage or disease. Where this is not possible, the employer must inform workers of these dangers, how they may be prevented, and how to work safely, and provide other protective measures for a safe workplace.
Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his/her employer as contemplated in this Act, are properly discharged. However, it is not expected of the employer to take sole responsibility for health and safety. The workers and the employer must share the responsibility for health and safety in the workplace.
Both parties must pro-actively identify dangers and develop control measures to make the workplace safe. In this way, the employer and the workers are involved in a system where health and safety representatives may inspect the workplace regularly and then report to a health and safety committee, who in turn may submit recommendations to the employer. To ensure that system works, every worker must know his or her rights and duties as contained in the Act.
The Act and Regulations
The Act, known as the Occupational Health and Safety Act of 1993 (Act 85 of 1993) consists of 50 sections promulgated 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 further provides for the protection of persons other than persons at work from hazards arising out of or in connection with the activities of persons at work.
General duties of employers towards workers
The employer must provide and maintain all the equipment that is necessary to do the work, and all the systems according to which work must be done, in a condition that will not affect the health and safety of workers.
To ensure that these duties are complied with, the employer must:
- Identify potential hazards which may be present while work is being done, something is being produced, processed, used, stored or transported, and any equipment is being used
- Establish the precautionary measures that are necessary to protect his or her workers against the identified hazards and provide the means to implement these precautionary measures
- Provide the necessary information, instructions, training and supervision while keeping the extent of workers’ competence in mind. In other words, what they may do and may not do
- Not permit anyone to carry on with any task unless the necessary precautionary measures have been taken
- Take steps to ensure that every person under his or her control complies with the requirements of the Act
- Enforce the necessary control measures in the interest of health and safety
- See to it that the work being done and the equipment used, is under the general supervision of a worker who has been trained to understand the hazards associated with the work
- Such a worker must ensure that the precautionary measures are implemented and maintained.
It is the duty of the worker to:
- Take care of his or her own health and safety, as well as that of other persons who may be affected by his or her actions or negligence to act.
- Cooperate with the employer where the Act imposes a duty or requirements on the worker
- give information to an inspector from the Department of Labour if he or she should require it
- carry out any lawful instruction which the employer or authorised person prescribes with regard to health and safety
- comply with the rules and procedures that the employer gives him/her
- wear the prescribed safety clothing or use the prescribed safety equipment where it is required
- report unsafe or unhealthy conditions to the employer or health and safety representative as soon as possible
- If he or she is involved in an incident that may influence his or her health or cause an injury, report that incident to the employer, and authorised person or the health and safety representative as soon as possible, but no later than by the end of the shift.
Rights of the worker
The Occupational Health and Safety Act has extended workers’ rights to include the following:
The right to information
The worker must have access to –
- The Occupational Health and Safety Act and regulations
- Health and safety rules and procedures of the workplace
- Health and safety standards which the employer must keep at the workplace.
The worker may request the employer to inform him or her about –
- Health and safety hazards in the workplace
- The precautionary measures which must be taken
- The procedures that must be followed if a worker is exposed to substances hazardous to health.
Health and safety representatives
Health and Safety representatives are full-time workers nominated or elected and designated in writing by the employer after the employer and workers consulted one another and reached an agreement about who will be health and safety representatives. Further they must at least be familiar with the circumstances and conditions at that part of the workplace for which they are designated. Agreement must also be reached on the period of office and functions of the health and safety representative and must be settled amongst the employer and the workers.
A representative must be designated for every workplace consisting of 20 or more workers.
A representative must be designated within four months after the commencement of the employer’s business. An employer with more than 20 workers, whose business is operative for less than four months, does not have to designate representatives. In the case where, for example, seasonal workers are employed on farms, causing the number of workers to exceed 20 for a period less than four months, the designation of representatives is also not necessary.
All activities regarding the designation, function and training of representatives must be performed during normal working hours.
What may health and safety representatives do?
Health and safety representatives are entitled to do the following:
- Health and safety audits- Representatives may check the effectiveness of health and safety measures by means of health and safety audits.
- Identify potential dangers- Representatives may identify potential dangers in the workplace and report them to the health and safety committee or the employer.
- Investigate incidents-Representatives may together with the employer investigate incidents, investigate complaints from workers regarding health and safety matters, and report about it in writing.
- Make representations-Representatives may make representations regarding the safety of the workplace to the employer or the health and safety committee or, where the representations are unsuccessful, to an inspector.
- Inspections- As far as inspections are concerned, representatives may:
- Inspect the workplace after notifying the employer of the inspection
- Participate in discussions with inspectors at the workplace and accompany inspectors on inspections
- Inspect documents
- With the consent of his/her employer, be accompanied by a technical advisor during an inspection.
- Attend committee meetings- Representatives may attend health and safety committee meetings. The purpose of the health and safety committees are to initiate, promote, maintain and review measures of ensuring the health and safety of workers. At least one committee must be established when two or more representatives are designated.
Health and Safety Committees
The committees only deal with health and safety matters at the workplace or sections thereof for which such committees have been established. Generally, health and safety committees have the following functions:
- Make recommendations- A committee must make recommendations to the employer about the health and safety of workers. Where these recommendations do not lead to solving the matter, the committee may make recommendations to an inspector.
- Discuss incidents- A committee must discuss any incident that leads to the injury, illness, or death of any worker and may report about it in writing to the inspector.
- Recordkeeping- A committee must keep record of every recommendation to the employer and every report to an inspector.
Committee members must perform any other functions required of them by regulation.
Inspections are usually planned on the basis of accident statistics, the presence of hazardous substances, such as the use of benzene in laundries, or the use of dangerous machinery in the workplace. Unplanned inspections, on the other hand, usually arise from requests or complaints by workers, employers, or members of the public. These complaints or requests are treated confidentially.
Powers of inspectors
If an inspector finds dangerous or adverse conditions at the workplace, he or she may set requirements to the employer in the following ways:
- Prohibition notice
In the case of threatening danger, an inspector may prohibit a particular action, process, or the use of a machine or equipment, by means of a prohibition notice. No person may disregard the contents of such a notice and compliance must take place with immediate effect.
- Contravention notice
If a provision of a regulation is contravened, the inspector may serve a contravention notice on the workers or the employer. A contravention of the Act can result in immediate prosecution, but in the case of a contravention of a regulation, the employer may be given the opportunity to correct the contravention within a time limit specified in the notice which is usually 60 days.
- Improvement notice
Where the health and safety measures which the employer has instituted, do not satisfactorily protect the health and safety of the workers, the inspector may require the employer to bring about more effective measures. An improvement notice which prescribes the corrective measures is then served on the employer.
The inspector may request that any documents be submitted to him or her, investigate and make copies of the documents, and demand an explanation about any entries in such documents. The inspector may also inspect any condition or article and take samples of it, and seize any article that may serve as evidence.
The above mentioned powers of inspectors are not absolute. Any person who disagrees with any decision taken by an inspector, may appeal against that decision by writing to the Chief Inspector, Occupational Health and Safety, Department of Labour, Private Bag X117, Pretoria, 0001.
Cooperation with the inspector
Employers and workers must comply with the directions, subpoenas, requests or orders of inspectors. In addition, no one may prevent anyone else from complying.
The inspector’s questions should be answered, but no-one is obliged to answer a question by which he or she might incriminate him or herself. To incriminate oneself means that one is suggesting that one is responsible for a contravention.
When the inspector so requires, he or she must be provided with the necessary means and be given the assistance he or she may need to hold an investigation. The inspector may also request that investigations be attended. No one may insult the inspector or deliberately interrupt the investigation.
When the worker does something which in terms of the Occupational Health and Safety Act is regarded as an offence, the employer is responsible for that offence, and he or she could be found guilty and sentenced for it, unless the employer can prove that:
- he or she did not give his or her consent
- he or she took all reasonable steps to prevent it
- The worker did not act within the scope of his or her competence, in other words, that the worker did something which he or she knew he or she should not have done.
The foregoing also applies to a mandatory of an employer, for example, a subcontractor, unless the parties agree beforehand in writing on how the mandatory will comply with the provisions of the Act.
To determine whether or not your company is complaint, please answer the following questions with regards to sections within the Act:
Do you have a Health and Safety policy in place?
Have you conducted a risk assessment to determine the hazards in your workplace and the precautionary measures that will have to be taken?
- Has the Chief Executive Officer been identified?
- Has the Chief Executive Officer been made conversant of his/ her legal duties?
- Did the Chief Executive Officer assign and delegated the duties contemplated in the said subsection, to persons under his or her control?
- Are all the necessary appointment letters signed by both parties?
Section 17 (1)
- Are the Health and Safety Representatives appointed in writing and has appointment letters been signed by both parties?