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Presentation on theme: "ACTRAC OVERVIEW OF OHS ACT"— Presentation transcript:


2 Development of H&S Legislation in SA
1941 Factories Act 1941 WC Act 1983 MOS Act & Regs. 1993 OH& S Act & Regs.

3 Structure of the Law OH&S Act 85/93 as amended Regulations & Drafts

4 Regulations Asbestos Regulations Certificate of Competency
Applicable to every employer and self-employed person who carries out work at a workplace that may expose any person to asbestos dust at that workplace. Certificate of Competency Applicable to those applying for and obtaining a Certificate of Competency for mechanical engineering. Construction Regulations Applicable to any persons involved in construction work. Diving Regulations Applicable all involved in professional diving activities. Driven Machinery Regulations Applicable to all aspects concerning driven machinery at the workplace. Electrical Installation Regulations Applicable to users or lessors, approved inspection authorities for electrical installations, registered persons, electrical contractors, suppliers, designers and to suppliers of materials and other electrical articles or parts thereof whether temporary, permanent, or in a stationary or mobile state and installation.

5 Regulations Electrical Machinery Regulations Applicable to all electrical machinery. Environmental Regulation For Workplaces Applicable to the requirements pertaining to noise, lighting, heat within a working environment. Explosives Regulation Applicable to any employer, self-employed person or user who operates an explosives workplace for the purpose of manufacturing, testing, storing or using explosives. Facilities Regulations Applicable to the facilities that must be provided by employers at the workplace for workers, to improve working conditions for all. General Administrative Regulations Applicable to the administrative procedure of the Occupational Health and Safety Act.

6 Regulations General Machinery Regulations General Safety Regulations
Applicable to the safeguarding, use, supervision and reposting of incident relating to machinery. General Safety Regulations Applicable to the general safety of workers at the workplace. Hazardous Biological Agents Applicable to all aspects of working with hazardous biological agents. Hazardous Chemical Substances Applicable to an employer or a self employed person who carries out work at a workplace which may expose any person to the intake of an HCS at the workplace. Lead Regulations Applicable to every employer and self-employed person at a workplace where lead is produced, processed, used, handled or stored in a form in which it can be inhaled, ingested or absorbed by any person in that workplace.

7 Regulations Lead Regulations
Applicable to every employer and self-employed person at a workplace where lead is produced, processed, used, handled or stored in a form in which it can be inhaled, ingested or absorbed by any person in that workplace. Lift Escalator And Passenger Conveyor Regulations Applicable to lift escalators and passenger conveyors. Major Hazard Installation Applicable to major hazard installation. Noise Induced Hearing Loss Applicable to noise induced hearing loss at the workplace. Vessels Under Pressure Regulations Applicable to boilers and vessels under pressure.

8 Principles Self Regulatory legislation
CEO assumes total accountability CEO to ensure compliance with the law Immediate report of incidents compulsory Guilty until proven innocent - vicarious liability Documentary evidence - archived until needed

9 The Reasonable Man (Diligens Pater Familias)
Reasonable Man Test Would the reasonable man placed in the position of the defendant have foreseen the possibility of causing harm or loss? Would the reasonable man have taken steps to guard against the harm or loss? Did the defendant take such steps?

10 Vicarious Liability Section 37
The employer must prove he met points 1 - 3, if his employee or contractor has committed an offence. If he can’t it is presumed the employer committed the offence! THE PROOF: 1 the act was without his connivance or permission 2 the act was not within the scope of authority of the employee 3 all reasonable preventive steps were taken by the employer

11 Principle of Relationships
Non-Employee Mandatary / Contractors Public CEO Employees

12 H&S Management System H&S Committee CEO

13 Organisational Structure
C.E.O. (Sect. 16(1)) RISK MANAGER/ SAFETY OFFICER. Advisory role ASSIGNED SECTION HEAD Sect. 16(2) MANAGER MANAGEMENT NOMINEE (Sect. 19(3)) DUTIES I.E. Inspections, Supervisor of machinery, etc. H&S REPS (Sect. 17(1)) with optional functions SUPERVISOR (Sect. 16(2)) EMPLOYER, USER Company, CC, Partnership, Municipality, etc EMPLOYEES SAFETY COMMITTEE Management Nominees H&S Reps Advisory members Sect. 19(2)

14 Focus On Occupational Safety
Impact Shock Contact Burn Physical, Mechanical, Electrical, Chemical

15 Focus on Occupational Health
Biological, Ergonomical, Chemical, Physiological, Psychological Inhalation Absorption Ingestion Stress / Strains

16 Focus on Training Employer to inform, instruct and train
All “Employees” exposed to dangers, hazards and risks General Supervision Health & Safety Reps

17 Focus on Collective Consultation
Consultation in good faith Negotiation vs. Consultation Between employer and employee Moves H&S squarely into IR world

18 Focus on Administration
Rules, procedures, standards, etc Contracts and agreements Committee constitution Health & safety policy Conditions of service Appointment forms Proof of evidence Etc., etc.

19 Purpose of the Act Provide for the health and safety of: persons at work 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; Establish an advisory council for occupational health and safety; and Provide for matters connected therewith.”

20 Important Sections 1 Definitions 8 Duties: employer to employee 9 Duties: employer to non-employee 10 Duties: manufacturers, etc: things use at work 11 Listed work 12 Duties: employer re: Occupational Health 13 Duty: to inform

21 Important Sections 14 Duties employee 15 Duty not to interfere 16 Duties CEO 17 Health & Safety Reps System 18 Functions H&S Rep 19 H&S Committees System 20 Functions H&S Committee

22 Important Sections 22 Sale of certain articles 23 Certain deductions prohibited 24 Reports: certain incidents 25 Reports: occupational diseases 29 Functions: Inspectors 37 Acts & omissions 38 Offences & penalties 41 This Act not affected by agreements

23 Biological Monitoring
a planned programme of periodic collection and analysis of body fluid, tissues, excreta or exhaled air in order to detect exposure to or absorption of any substance or organism by persons

24 “anything which may cause injury or damage to persons or property”
Danger “anything which may cause injury or damage to persons or property” Acid

25 Employee any person who is employed by or works for an employer and
who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person”.

26 Employer any person who employs or provides work for any person and
remunerates that person or expressly or tacitly undertakes to remunerate him but excludes a labour broker as defined in the Labour Relations Act, 1956

27 “a source of or exposure to danger”
Hazard Acid “a source of or exposure to danger”

28 “free” from illness or injury attributable to occupational causes
Healthy “free” from illness or injury attributable to occupational causes

29 Inspection Authority means any person who with the aid of
specialized knowledge or equipment or after such investigations, tests, sampling or analyses as he may consider necessary, and whether for reward or otherwise, renders a service by making special findings, purporting to be objective findings:

30 Inspection Authority means any person who makes objectives finding re:
(a) the health of any person; (b) the safety or risk to health of any work, article, substance, plant or machinery, or of any condition prevalent on or in any premises; or (c) whether or not any particular standard has been or is being complied with respect to any work, article, substance, plant or machinery, or with respect to work or a condition prevalent on or in any premises or with respect to any other matter, and by issuing a certificate, stating such findings, to the person to whom the service is rendered

31 Machinery means any article or combination of articles
assembled, arranged or connected and which is used or intended to be used for converting any form of energy to performing work, or which is used or intended to be used, whether incidental thereto or not, for developing, receiving, storing, containing, confining, transforming, transmitting, transferring or controlling any form of energy

32 Mandatary includes an agent, a contractor or a subcontractor for work,
without derogating from his status in his own right as an employer or a user. This is someone who has been “mandated” to perform work.

33 Medical Surveillance a planned programme of periodic examination
(which may include clinical examinations, biological monitoring or medical tests) of employees by an occupational health practitioner or, in prescribed cases by an occupational medicine practitioner

34 Occupational Health Includes Occupational hygiene, Occupational medicine and Biological monitoring

35 Occupational Hygiene anticipation, recognition, evaluation and control
the anticipation, recognition, evaluation and control of conditions arising in or from the workplace which may cause illness or adverse health effects to persons

36 Occupational Medicine
the prevention, diagnosis and treatment of illness, injury and adverse health effects associated with a particular type of work

37 “the probability that injury or damage will occur”
Risk “the probability that injury or damage will occur” Acid

38 Safe “free” from any hazard

39 Health & Safety Council Section 2,3,4,5,6
6 x Trade Union Reps 6 x Employer Reps 1 x Safety Expert 1 x Dept Nat. Health & Welfare 1 x Health Expert 1 x Dept Mineral & Energy Affairs 1 x Hygiene Expert 1 x Dept Labour 1 x COID Rep 1 x Chief Inspector

40 Technical Committees Section 6
THE PURPOSE: to advise the Council on technical matters

41 Health & Safety Policy Section 7
the employer must: 1 when directed by the Chief Inspector: prepare a written policy re: health & safety employees at work, the description of his organisation arrangements for carrying out & reviewing the policy 2 guidelines from Chief Inspector 3 sign and display the policy at the workplace

42 Employers Duties Re: Employees Section 8
Every employer shall: provide & maintain safe / health risk free: 1 working environment 2 a systems of work, plant & machinery take steps to: 2 b mitigate hazards & potential then issue PPE make arrangements re: 2 c safety / absence or risks re: produce, process, use, handle, store or transport or articles or substances

43 Employers Duties Re: Employees Section 8
Employer shall: establish: 2 d hazards attached to work performed article or substance produced, processed, used, handled, stored or transported any plant or machinery used precautionary measure to be taken + provide: the necessary means to apply such measure. 2 e information, instruction, training and supervision


45 Employers Duties Re: Employees Section 8
Employer shall: not permit: 2 f any employee to do any work, produce, process, use, handle, store, transport any article or substance unless precautionary measures are taken ensure: 2 g necessary measures are complied with by everyone enforce: 2 h the necessary measures

46 Employers Duties Re: Employees Section 8
Employer shall: ensure: 2 i work is performed, plant and machinery is used under general supervision of a person who has been: trained to understand the hazards and authorised to ensure measures are implemented cause: 2 j all employees to be informed of scope of authority.

47 Analyse your Health Hazards
Chemical Dust Fatigue Fumes Gases Lighting Mist Noise Radiation Smoke Stress Temperature Vapour Vibration

48 Analyse your Safety Hazards
Chemical Electricity Explosions Fires Housekeeping Mechanical devices Pressure vessels Production Machinery Tools Transportation Other?

49 GENERAL DUTIES Employers & Self Employed re: Non-employee Section 9
1 EMPLOYER to ensure: that non-employees 2 SELF-EMPLOYED to ensure: that he & others affected by his activities are not exposed to health & safety hazards

50 2 installers & erectors shall ensure:
GENERAL DUTIES Manufacturers & Others Re: Articles for use at Work Section 10 1 designers, manufactures, importers, sellers & suppliers of any article shall ensure: the article is safe / without risk when properly used that it complies with all prescribed requirements 2 installers & erectors shall ensure: it is free from risk when properly used

51 3 the person/s in 1 shall ensure:
GENERAL DUTIES Manufacturers & Others Re: Articles for use at Work Section 10 3 the person/s in 1 shall ensure: the substance is safe & w/o risks when properly used information is available re risks, conditions and procedures 4 Undertaking by 2nd party relieves 1st party of duty

52 Listed Work Section 11 THE MINISTER: 1 may declare any work to be listed work 2 a shall publish intentions & invite comment 2 b shall allow min. 3 months for comment 3 a 2 b does not apply to amendments 3 b may if in public interest declare w/o delay

53 General Duties Employers Re: Listed Work Section 12
1 If employees undertake or are exposed to hazards from listed work then, after consultation with the committee a IDENTIFY hazards, evaluate the risks, steps to be taken b PREVENT exposure to hazard, if not possible, minimise exposure

54 General Duties Employers Re: Listed Work Section 12
c CARRY OUT where appropriate: occupational hygiene programme biological monitoring subject employees to medical surveillance 2 INFORM H&S Reps of action & results of action taken (Medical results not included, except with written consent)

55 Duty to Inform Employees Section 13
EVERY EMPLOYER SHALL: (a) cause every employee to be made conversant with the hazards to his health & safety attached to any work he has to perform, any article or substance he has to produce, process, use, handle, store, or transport any plant or machinery he is required or permitted to use as well as precautions to be taken or observed

56 Duty to Inform H&S Reps Section 13
EVERY EMPLOYER SHALL: (b) inform H&S Reps concerned beforehand of: inspections, investigations and formal inquiries by an inspector and applications for exemptions made by him (c) inform the H&S Rep ASAP of the occurrence of an incident in his workplace

57 General Duties Employee at Work Section 14
a take care of himself and others who may be affected by his acts or omissions b co-operate with his employer i.r.o. the Act c carry out lawful orders, obey health & safety rules & procedures d report unsafe & unhealthy situations to: his HAS Rep or employer ASAP. e report any incident which: may affect his health caused an injury to himself, within his shift or ASAP

58 Duty not to Interfere with or Misuse Things Section 15
No person shall: intentionally or recklessly interfere with damage or misuse anything provided in the interests of health or safety by order

59 General Duties Chief Executive Officer Section 16
1 to ensure “duties of the employer” are discharged 2 may assign any duty in Sub Sect 1. to any person under his control. (This person to act subject to directions & control of CEO) 3 Sub Sect 1 does not relieve an employer of responsibility or liability 4 Head of State Department is the CEO

60 Health & Safety Reps Section 17
THE EMPLOYER SHALL: 1 Designate H&S Reps in writing, within 4 months, when 21 plus employees at any workplace, for a specific period, section or workplace 2 Consult in good faith with employees recognised by him or where there are no such reps directly with the Employees arrangements, procedures for nomination or election, periods, designation of H&S Reps. (if consultation fails - arbitration by mutually agreed on person. 3 Arbitration not subject to Arbitration Act. Failure to consult is not a dispute in terms of that Act

61 Health & Safety Reps Section 17
4 Only full-time employees acquainted with workplace and work shall be eligible 5 Ratio: Shops & offices: 1 H&S Rep for 100 employees (or part) Other workplaces: 1 H&S Rep for 50 employees (or part) 7 Activities: to be performed during working hours are to be deemed part of his normal duties

62 Profile of a H&S Rep The right attitude Full time employee
Willing to be trained Assertive communicator Committed to the H&S cause Interested in the H&S of others Acquainted with work & workplace

63 Functions of H&S Reps Section 18
1 A H&S Representative may: a REVIEW the effectiveness of the H&S measures b IDENTIFY potential hazards and major incidents c EXAMINE in collaboration with his employer, the causes of incidents d INVESTIGATE employees H&S complaint e MAKE REPRESENTATIONS re: a,b,c & d to employer or committee. Where unsuccessful, to an inspector

64 Functions of H&S Reps Section 18
f MAKE REPRESENTATIONS on general H&S matters g INSPECT the workplace, articles, plant, etc. at agreed upon intervals shall give notice of intentions to employer Employer may be present h PARTICIPATE in consultations with, and accompany inspectors i INFORMATION from inspectors j ATTEND H&S committee meetings

65 Functions of H&S Reps Section 18
2 H&S Reps shall be entitled to i.r.o. their designated workplaces: a VISIT sites of incidents at all reasonable times and attend inspections in loco b ATTEND any investigation or formal inquiry c INSPECT any H&S document d ACCOMPANY an inspector on any inspection e ACCOMPANIED by an approved technical advisor on any inspection (with approval) f PARTICIPATE in any internal H&S audit

66 Functions of H&S Reps Section 18
3 An employer shall provide: assistance, facilities & training as may be required as have been mutually agreed upon for the carrying out of his functions 4 An H&S Rep shall not incur any civil liability by reason only that he failed to do anything which he may do, or is required to do in terms of this Act.

67 Health & Safety Committees Section 19
1 ESTABLISH a committee if 2 or more H&S reps CONSULT with the committee at every meeting re: initiating, developing, promoting, maintaining & reviewing H&S measures 2 DETERMINE the number of members a if 1 Committee then all H&S Reps to serve on it b if 2 Committees then H&S Rep is to serve on 1 c never more employer nominees than H&S Reps

68 Health & Safety Committees Section 19
3 all members to be designated in writing for stipulated period 4 meet as often as needed; at least 3 monthly if 10% of staff request in writing, then inspector may direct that a meeting be held 5 meeting procedures established by committee 6 a Committee may co-opt advisory members b Advisory members may not vote

69 Health & Safety Committees Section 19
 Designated H&S Reps Management  Employer Nominees Advisory member  Designated members Other?

70 Functions of H&S Committees Section 20
1 (a) may make recommendations to employer if this fails, then to inspector (b) shall table and discuss incidents at work where person was injured, became ill or died (c) shall perform prescribed functions 2 shall keep records recommendations made to employer & reports made to inspector 4 employer to ensure H&S committee complies

71 General Prohibitions Section 21
THE MINISTER MAY DECLARE: 1 that no employer shall require or permit: specified employees to work on or in premises , or to work, unless carried out as specified, if it is a a specified activity b specified process c specified article or substance if in his opinion it is likely to threaten their H&S 2 publish a draft notice in the G.G. for comment 5 Notices i.t.o. MOS Act shall remain in force

72 Sale of Certain Articles Prohibited Section 22
subject to provision of Sect 10 (4) if any H&S requirement i.r.o. any article, substance, plant, machinery or H&S equipment. has been prescribed no person may sell it unless it complies

73 Certain Deductions Prohibited Section 23
THE EMPLOYER MAY NOT Deduct or permit any deduction or payment from or by an employee for anything that must be done or provided in the interest of H&S!

74 Report Certain Incidents Section 24
1 in each work related incident in which a any person, (inc. non-employee) dies, becomes unconscious, loses a part or a limb or is injured, becomes ill and is likely to die or suffers permanent disability or unable to work for 14+ days or continue with the activity he was busy with

75 Report Certain Incidents Section 24
b a major incident occurred c the H&S of any person was endangered (i) dangerous substance was spilled, (ii) uncontrolled release of any substance under pressure

76 Report Certain Incidents Section 24
(iii) machinery or part fractured or failed, resulting in a flying, falling or uncontrolled moving object (iv) machinery ran out of control Employer or User shall report: in prescribed manner & period

77 Disturbing Incident Site Section 24 Cont.
2 if a person died, is likely to die or lost a limb then the site is not to be disturbed no article or substance is to be removed without consent of inspector except to: prevent further incident, remove injured or dead or rescue persons from danger 3 n/a to accidents in private house, car or aircraft. (Report to SAP)

78 Report of Occupational Diseases Section 25
any medical practitioner who examines or treats a person for a disease described in the 2nd schedule of the COID Act or any other disease which he believes arose out of that persons employment shall report the case in the prescribed period and manner to the person’s employer and the Chief Inspector and inform that person accordingly

79 Victimisation Forbidden Section 26
NO EMPLOYER SHALL: 1 victimise, etc., an employee for giving info. to the Minister or any other authorised person giving evidence before a court complying with the law refusing to do anything prohibited by the law 2 unfairly dismiss an employee, reduce his rate or position because of a report i.t.o. Sect 12 (2) or 25

80 Designation & Functions of Chief Inspector Section 27

81 Functions of Inspectors Section 29
1 (a) without previous notice, at all reasonable times enter any premises (b) question any person alone or with another (c) require books, documents or records (d) examine / copy books, documents or records (e) require an explanation (f) inspect / remove articles, substances, etc.

82 Functions of Inspectors Section 29
g seize books, articles and evidence (Employer may make copies before the seizure) h direct people to appear and question them 2 interpreters & assistants to be “inspectors” 3 facilities to be provided by employer 4 issue of receipt for items seized

83 Special Powers of Inspectors Section 30
PROHIBIT 1 a employer from permitting or requiring certain act b user from using certain machinery c employer from permitting excessive exposure d prohibition may be revoked in writing 2 Block, bar, barricade or fence off that part no person to interfere with such measures 3 directives if threat exists and steps are not taken 4 direct an employer or user to comply 6 employer to notify H&S Reps and employees of a prohibition, directive or notice.

84 Investigations By Inspectors Section 31

85 Obstruction of Investigation, Inquiry, Presiding Inspector Fail To Render Assistance Section 34
NO PERSON SHALL: a fail to comply with lawful direction, etc. b refuse to answer questions (not incriminating) c advise, incite, etc., others not to comply d refuse or fail to provide assistance e refuse or fail to attend f insult presiding inspector / interrupt proceeding

86 Appeal Against Decisions Section 35
ANY PERSON MAY: 1 appeal to Chief Inspector 2 appeal within 60 days in writing 3 appeal to Industrial court if aggrieved 4 appeal within 60 days in writing 5 appeal shall suspend a prohibition

87 Disclosure of Information Section 36
NO PERSON: functioning i.t.o. this Act shall disclose info except a for proper administration of this Act b for purpose of administration of justice c specific H&S matters at work or at the request of the H&S Reps or committee

88 Acts or Omissions by Employees And Mandataries Section 37
VICARIOUS LIABILITY 1 when an employee does or fails to do something that would be an offence if an employer or user, did or failed to do it, then unless he proves the criteria was complied with, it is presumed he did or failed to the act a the act was without connivance or permission b the act was not within the scope of authority c all reasonable prevention steps were taken

89 Acts or Omissions by Employees and Mandataries Section 37
NOTE: issue of instruction is not enough! 2 This applies to mandataries of the employer or user unless parties have agreed in writing re: mandatary to comply 3 employees and mandataries shall also be liable 4 state employees and mandataries shall also be liable 5 all parties may be liable 6 orders against employees & mandataries i.t.o. Sect 23 to be against employer or user

90 Offences, Penalties & Special Orders of Court Section 38
GENERAL OFFENCES R50,000.00 or 12 months or both OFFENCES WHERE: an employer commits or omits and causes a negligent injury which would have been culpable homicide had the person died R100,000.00 or 24 months or both

91 Proof of Certain Facts Section 39
1 Presumption as employee 2 Proof of age 3 Documentary evidence 4 Wilful falsification 5 a Sale of machinery 5 b Approved authority reports 6 Text of H&S standards 7 H&S Committee records

92 Exemptions Section 40 THE MINISTER MAY EXEMPT: 1 the employer on condition and for period from any or all provisions of the Act 2 back date to date of application 3 a “Certificate of Exemption” b or in the government gazette G.G. 4 certificates can be amended or withdrawn 5 exemptions can lapse 6 MOS Act exemptions are valid

93 Not Affected by Agreements Section 41
10 (4) purchaser relieves designer, etc., of his duties 37 (2) agreement re: compliance by mandatary “This Act, a notice, or a condition of exemption cannot be nullified by any agreement, except as allowed for by the Act itself.”

94 Delegation & Assignment of Functions Section 42
Regulations Section 43

95 Incorporation of H&S Standards Section 44

96 Serving of Notices Section 45
Jurisdiction of Courts Section 46 State Bound Section 47

97 Conflict of Provisions Section 48
Repeal of Laws Section 49 Short title & Commencement Section 50


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