LABOUR LAW – ARR224 Lecture 2 The Occupational Health and Safety Act, 85 of 1993

PRESCRIBED MATERIAL Study: PGL (Chapter 7 par ) Read: PGL (Chapter 7 par & ) PLL (Pp )

LEARNING OUTCOMES Discuss the application of the Occupational Health and Safety Act. Discuss the duties of employers and employees in terms of the Act. Provide a discussion on the functions of health and safety representatives, health and safety committees and inspectors.

OHASA (INTRODUCTION) Common law right. Unsafe working in mines. Long title: i)Health and safety of employees; ii)Health and safety of others; iii)Advisory Council; iv)Other matters Improvements of current Act: 1.Consultation with employees before H&SR appointment 2.Common law “reasonable care” is codified 3.State no longer exempted from penal provisions 4.Participation of H&SR in safety matters 5.Duty of employer to inform of dangers 6.Written health and safety policies 7.Protection of public

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OHASA (APPLICATION) Majority of employees (private/ public/agricultural/domestic. Excluded: 1.Mines, mining areas or any works as defined in the Minerals Act 50 of Certain vessels as defined in the Merchant Shipping Act 57 of The Minister may grant exemptions from any or all of the provisions of the Act. 4.Labour brokers are not considered to be employers in terms of this Act.

OHASA (ADVISORY COUNCIL FOR OCCUPATIONAL HEALTH AND SAFETY) 20 members. Chief Inspector is chairman. Also represents employers and employees. Functions: 1.Advise Minister on matters of policy. 2.Advise Minister on matters relating to occupational health and safety. 3.Do research and conduct investigations. 4.Advise DOL on formulation and publication of standards, specifications etc. 5.Advise DOL on promotion of education and training in occupational health and safety. 6.Advise DOL on the collection and dissemination of information. 7.Establish technical committees. 8.Advise DOL on any matter regarding the performance of its functions.

OHASA (DUTIES OF EMPLOYERS I) NB 1.Provide and maintain a safe working environment without risks.- as far as reasonably possible 2.Provide and maintain safe systems of work, plant and machinery. 3.Take reasonable steps to eliminate/mitigate any hazards. 4.Make reasonable arrangements for safety and health in connection with production, processing, use, handling, storage or transport of articles/substances. 5.Establish what hazards exist and to provide precautions. 6.Provide information, instruction, training and supervision. 7.Ensure supervision of a trained person.

OHASA (DUTIES OF EMPLOYERS ( CONTINUED) Conduct business to ensure that other persons are not exposed to hazards. Ensure that employees are conversant with the hazards. Appoint H&SR and to inform them of incidents. Inform H&SR of inspections, investigations, or formal enquiries. Identify and evaluate the hazards associated with listed work. Report to an inspector any incident at work in which a person dies, become unconscious, suffers loss of a limb or becomes ill or where a dangerous substance is spilled or where machinery is out of control. Manufacturers supplying articles/substances to employers have the following duties: Ensure that articles provided by them are safe and without risk. Ensure that persons who erect/install articles must ensure that these are safe and without risk to health when properly used.

OHASA (DUTIES OF EMPLOYEES) NB 1.Take reasonable care for health and safety of himself and other workers. 2.Co-operate with regard to health and safety matters. 3.Obey the health and safety rules and procedures. 4.Report any unsafe/unhealthy situation or incidents. 5.Refrain from interfering with or misuse anything which is provided in the interest of health and safety.

OHASA (H&SR I) More than 20 employees (after consultation with employees) appoint in writing a H&SR. Less than 20 employees, may be ordered by the Inspector to appoint a H&SR. Shops and offices - one H&SR for every 100 employees. Other workplaces - one H&SR for every 50 employees. Appointment within 4 months after commencement of Act, within 4 months after commencing business or within 4 months from time number of employees exceeds 20. Before appointment, consult with employees regarding: oArrangements and procedures for nomination and election; oTerms of office; oSubsequent designation of H&SR. No agreement = matter referred to private arbitration. No agreement on arbitrator within 14 days = notice to the President of the Industrial Court, who will designate an arbitrator. H&SR receive training and perform functions and duties during ordinary working hours. Employer must provide facilities, assistance and training. H&SR = no civil liability for failure in terms of the Act.

OHASA (H&SR II) Functions of the H&SR: see p 170 Review effectiveness of health and safety measures. Identify potential hazards and incidents. Examine the causes of incidents in collaboration with employer. Investigate complaints by employees. Make representations regarding his review. Inspect the workplace, articles, substances, machinery and safety equipment. Consult with and accompany inspectors on inspections. Attend meetings of committees. Attend an inspection of an incident. Attend any investigation/formal enquiry and inspect documents kept by the safety audit.

OHASA (H&SC) HEALTH AND SAFETY COMMITTEES) 2/more H&SR = establish one/more Health and Safety Committees (H&SC). Employer consult with H&SC on initiating, developing, promoting, maintaining and reviewing measures to ensure the health and safety of all employees. Only one committee = all the H&SR must be members. More than one committee = each H&SR must be member of at least one committee. Members appointed in writing by employer. H&SC may also co-opt advisory members. Meet at least once in 3 months. >10% of employees requested meeting, inspector may direct that such a meeting be held. The functions of the H&SC are as follows: 1.Recommendations to the employer/inspector regarding health and safety. 2.Discuss incidents of injury, sickness or death. 3.Record of all recommendations made.

OHASA (INSPECTORS I) Appointed by Minister. General functions: Enter any premises without prior notice. Question any person on the premises. Require the production of books, records or other documents. Examine and make copies of above. Require explanations of any entry in above. Seize above which may serve as evidence at a trial. Inspect any article, substance, plant or machinery. Remove above for examination or analysis. Direct employers, employees or users to appear before him in order to answer his questions. May be accompanied by an interpreter or member of the SAPS when performing his duties.

OHASA (INSPECTORS II) Inspectors have the following special powers: 1.Prohibit employer from commencing/continuing with performance of dangerous acts. 2.Prohibit a user of plant/machinery from using plant/machinery if dangerous. 3.Barricade/fence off abovementioned. 4.Prohibit employer requiring/permitting employee of certain category to be exposed for longer than a specified period to articles, substances, organisms etc. 5.Revoke abovementioned prohibitions if satisfied. 6.Specify steps for health and safety.

OHASA (INSPECTORS III) Inspectors have the following functions with regard to incidents at the workplace- INVESTIGATIONS 1.Investigate incident resulting in injury/illness/death. 2.Conduct formal enquiry into incident. 3.Subpoena person to appear and to give evidence. 4.Designate person to lead evidence and to examine witness. 5.Any interested person may personally, or with legal representation, question any witness at the enquiry. 6.After completion of investigation, must submit report to Director of Public Prosecution and Chief Inspector.