Chapter 3 H&S FRAMEWORK IN SOUTH AFRICA
3.2 The South African H&S Regulatory Framework
3.2.2 Acts
The primary Acts that impact on construction H&S in South Africa are the Occupational Health and Safety Act No. 85 of 19932 (OH&S Act) as amended and the complementary Compensation for Occupational Injuries and Diseases Act No. 130 of 19933 (COID Act) as amended. The OH&S Act replaced the previous Machinery and Occupational Safety Act No. 6 of 1983, the Machinery and Occupational Safety Amendment Act No. 40 of 1989, the Machinery and Occupational Safety Amendment Act No. 97 of 1991 and the promulgation thereof reflected the increased emphasis on health (CIDB, 2009).
3.2.2.1. Cost implications of the OHS Act
The OH&S Act stipulates the steps to be taken in order to ensure a safe and healthy work environment for all employees on a construction site (Hermanus, 2001; 2007) and contractors are obliged to comply with the requirements of the Act (Windapo, 2013).
1Available at http://www.acts.co.za/constitution_of_/index.html [Accessed 1 January 2016]
2 Available at http://www.labour.gov.za/DOL/downloads/legislation/acts/occupational-health-and-safety/amendments [Accessed 1 January 2016]
3 Available at http://www.labour.gov.za/DOL/downloads/legislation/acts/compensation-for-occupational-injuries-and-diseases [Accessed 1 January 2016]
The objectives of the OH&S Act are, as stated in the preamble of the OH&S 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”.
Certain aspects of the OH&S Act may have implications on construction costs when implemented. The OH&S Act calls for a H&S policy (OH&S Act clause 7). The development of such a policy could result in the incurring of costs with further possible costs incurred in the dissemination and promotion of the policy. The OH&S Act requires that every employer provides and maintains a working environment that is safe and without risk to the health of their employees (OH&S Act clause 8). To provide such an environment the employer would need to ensure that regular maintenance of systems of work, plant and machinery be carried out, provide information and instruction regarding H&S, provide H&S training and provide proper supervision with regards to H&S aspects. All of these provisions may possibly involve cost.
Not only does the OH&S Act require that employers provide a safe working environment to their employees but also to those other than their employees (OH&S Act clause 9). In the context of the construction industry, this would mean, for example, visitors having to undertake safety inductions before they are allowed on to site, which could have a cost implication.
Further duties of the employer in terms of the OH&S Act is to inform the H&S representative(s) of the occurrence of an incident in the workplace as well as inform the H&S representative(s) of inspections, investigations or formal enquiries as notified by an inspector (OH&S Act clause 13).
The OH&S Act is underpinned by the philosophy of a shared responsibility for H&S and in practice a partnership between employer and employee – the employer providing a working environment that is safe and does not present threats to the health of the employee and employees taking responsibility for their own H&S at work. General H&S duties of employees include taking reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions, co-operating with their employer to ensure compliance with the OH&S Act as imposed on their employer, carrying out any lawful order given to them and obeying the H&S rules and procedures laid down by their employer, reporting any situation which is unsafe or unhealthy, and reporting any incident in which they may be
involved and which may affect their health or which has caused any injury to themselves (OH&S Act clause 14). To ensure that employees adhere to the OH&S Act, the employer may use an incentive scheme which could possibly have cost implications.
Chief executive officers are charged with certain duties namely ensuring that the duties of their employer as contemplated in the OH&S Act, are properly discharged (OH&S Act clause 16(1)).
To be able to carry out their duty, the chief executive officers would need to have a good knowledge of H&S and this would be obtained through training courses focusing on H&S aspects. The chief executive officers may assign their duty to any person under their control who would then act subject to the control and directions of the chief executive officers (OH&S Act clause 16(2)). However, such a person would also require training in H&S, all of which could potentially lead to additional costs.
The OH&S Act further requires that every employer allow for the election of H&S representatives from their existing employees for the workplace (OH&S Act clause 17). These H&S representatives will require training, which, including the activities associated with the designation and functions of the H&S representative is to be performed during ordinary working hours. The implication is that any time spent on executing their functions as H&S representative is additional to their existing duties and could result in lost productive time which may have a cost implication. Functions of H&S representatives include reviewing the effectiveness of H&S measures, identifying potential hazards and potential major incidents at the workplace, examining the causes of incidents at the workplace in collaboration with their employer, compiling of incident reports, investigating complaints by any employee relating to that employee’s health or safety at work, making representations to the employer on matters arising relative to their functions and other general matters affecting the health or safety of the employees at the workplace, inspecting the workplace, participating in consultations with inspectors, accompanying inspectors on inspections of the workplace, participating in internal H&S audits, compiling of H&S reports, and attending meetings of the H&S committees (OH&S Act clause 18). The same cost implication resulting from lost productive time can be implied for H&S committees. The OH&S Act requires that where two or more H&S representatives have been designated within an organisation, one or more H&S committees are to be established (OH&S Act clause 19(1)). The OH&S Act further requires that these committees meet at least once every three months (OH&S Act clause 19(4)) and are to keep record of the meetings held
and the recommendations made emanating from the meetings (OH&S Act clause 20), all of which has an implied cost attached to them either in terms of lost productive time or effort.
Other duties required by the OH&S Act which may result in costs accruing include investigations and formal inquiries which may be required upon the occurrence of incidents and which require the involvement of the H&S representative(s) (OH&S Act clause 31 and 32).
Other possible cost considerations not forming part of this study but form part of the OH&S Act is the appeals process against decisions taken by inspectors (OH&S Act clause 35), and offences, penalties and special orders of court resulting from acts or omissions by employees or mandatories (OH&S Act clause 37 and 38).