Presentation on theme: "ACTRAC OVERVIEW OF OHS ACT"— Presentation transcript:
1 ACTRAC OVERVIEW OF OHS ACT OCCUPATIONAL HEALTH, SAFETY FIRST-AID & FIRE TRAINER’S KITSWelcome toACTRAC OVERVIEW OF OHS ACT
2 Development of H&S Legislation in SA 1941 Factories Act1941 WC Act1983 MOS Act & Regs.1993 OH& S Act & Regs.
3 Structure of the Law OH&S Act 85/93 as amended Regulations & Drafts Standards
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 CompetencyApplicable to those applying for and obtaining a Certificate of Competency for mechanical engineering.Construction RegulationsApplicable to any persons involved in construction work.Diving RegulationsApplicable all involved in professional diving activities.Driven Machinery RegulationsApplicable to all aspects concerning driven machinery at the workplace.Electrical Installation RegulationsApplicable 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 RegulationsElectrical 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 RegulationsApplicable to the general safety of workers at the workplace.Hazardous Biological AgentsApplicable to all aspects of working with hazardous biological agents.Hazardous Chemical SubstancesApplicable 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 RegulationsApplicable 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 RegulationsApplicable to lift escalators and passenger conveyors.Major Hazard InstallationApplicable to major hazard installation.Noise Induced Hearing LossApplicable to noise induced hearing loss at the workplace.Vessels Under Pressure RegulationsApplicable to boilers and vessels under pressure.
8 Principles Self Regulatory legislation CEO assumes total accountabilityCEO to ensure compliance with the lawImmediate report of incidents compulsoryGuilty until proven innocent - vicarious liabilityDocumentary evidence - archived until needed
9 The Reasonable Man (Diligens Pater Familias) Reasonable Man TestWould 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’tit is presumed the employer committed the offence!THE PROOF:1 the act was without his connivance or permission2 the act was not within the scope of authority of the employee3 all reasonable preventive steps were taken by the employer
11 Principle of Relationships Non-EmployeeMandatary / ContractorsPublicCEOEmployees
14 Focus On Occupational Safety ImpactShockContactBurnPhysical, Mechanical, Electrical, Chemical
15 Focus on Occupational Health Biological, Ergonomical, Chemical, Physiological, PsychologicalInhalationAbsorptionIngestionStress / Strains
16 Focus on Training Employer to inform, instruct and train All “Employees” exposed to dangers, hazards and risksGeneral SupervisionHealth & Safety Reps
17 Focus on Collective Consultation Consultation in good faithNegotiation vs. ConsultationBetween employer and employeeMoves H&S squarely into IR world
18 Focus on Administration Rules, procedures, standards, etcContracts and agreementsCommittee constitutionHealth & safety policyConditions of serviceAppointment formsProof of evidenceEtc., etc.
19 Purpose of the ActProvide 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 Sections1 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 Sections14 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 Sections22 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 orwho 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 orexpressly or tacitly undertakes to remunerate himbut excludes a labour broker as defined in the Labour Relations Act, 1956
27 “a source of or exposure to danger” HazardAcid“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 equipmentor after suchinvestigations, tests, sampling or analysesas he may consider necessary, and whether for reward or otherwise, renders a service bymaking special findings,purporting to beobjective findings:
30 Inspection Authority means any person who makes objectives finding re: (a) the health of any person;(b) the safety or risk to healthof 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 withrespect 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 andwhich is used or intended to be usedfor converting any form of energy to performing work, orwhich 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 ormedical tests) of employees by anoccupational health practitioneror, in prescribed cases byan occupational medicine practitioner
34 Occupational HealthIncludes Occupational hygiene, Occupational medicine and Biological monitoring
35 Occupational Hygiene anticipation, recognition, evaluation and control theanticipation,recognition,evaluation andcontrolof conditions arising in or from the workplacewhich may causeillness or adverse health effects to persons
36 Occupational Medicine theprevention,diagnosis andtreatmentof illness, injury and adverse health effectsassociated 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
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 organisationarrangements for carrying out & reviewing the policy2 guidelines from Chief Inspector3 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 performedarticle or substance produced, processed, used,handled, stored or transportedany plant or machinery usedprecautionary 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, transportany article or substanceunless precautionary measures are takenensure:2 g necessary measures are complied with by everyoneenforce: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 andauthorised to ensure measures are implementedcause:2 j all employees to be informed of scope of authority.
47 Analyse your Health Hazards Chemical DustFatigue FumesGases LightingMist NoiseRadiation SmokeStress TemperatureVapour Vibration
48 Analyse your Safety Hazards Chemical ElectricityExplosions FiresHousekeeping Mechanical devicesPressure vessels Production MachineryTools TransportationOther?
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 101 designers, manufactures, importers, sellers & suppliers of any article shall ensure:the article is safe / without risk when properly usedthat it complies with all prescribed requirements2 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 103 the person/s in 1 shall ensure:the substance is safe & w/o risks when properly usedinformation is available re risks, conditions and procedures4 Undertaking by 2nd party relieves 1st party of duty
52 Listed Work Section 11THE 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 withthe 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 transportany plant or machineryhe is required or permitted to useas 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 inquiriesby an inspector andapplications for exemptions made by him(c) inform the H&S Rep ASAP of theoccurrence 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 omissionsb co-operate with his employer i.r.o. the Actc carry out lawful orders,obey health & safety rules & proceduresd report unsafe & unhealthy situations to:his HAS Rep or employer ASAP.e report any incident which:may affect his healthcaused 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 discharged2 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 liability4 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 workplace2 Consult in good faith with employees recognised by him or where there are no such reps directly with the Employeesarrangements, 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 eligible5 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 hoursare to be deemed part of his normal duties
62 Profile of a H&S Rep The right attitude Full time employee Willing to be trainedAssertive communicatorCommitted to the H&S causeInterested in the H&S of othersAcquainted 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 mattersg INSPECT the workplace, articles, plant, etc.at agreed upon intervalsshall give notice of intentions to employerEmployer may be presenth PARTICIPATE in consultations with, and accompany inspectorsi INFORMATION from inspectorsj 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 requiredas have been mutually agreed uponfor the carrying out of his functions4 An H&S Rep shall not incur any civil liabilityby 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 meetingre: initiating, developing, promoting, maintaining & reviewing H&S measures2 DETERMINE the number of membersa if 1 Committee then all H&S Reps to serve on itb if 2 Committees then H&S Rep is to serve on 1c 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 recommendationsto employer if this fails, then to inspector(b) shall table and discussincidents at work where person was injured, became ill or died(c) shall perform prescribed functions2 shall keep recordsrecommendations made to employer & reports made to inspector4 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 , orto work, unless carried out as specified, if it is aa specified activityb specified processc specified article or substanceif in his opinion it is likely to threaten their H&S2 publish a draft notice in the G.G. for comment5 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 prescribedno person may sell it unless it complies
73 Certain Deductions Prohibited Section 23 THE EMPLOYER MAY NOTDeduct or permit any deduction or paymentfrom or by an employeefor anything that mustbe done or provided in the interest of H&S!
74 Report Certain Incidents Section 24 1 in each work related incident in whicha any person, (inc. non-employee) dies, becomes unconscious, loses a part or a limb oris injured, becomes ill and is likely to die orsuffers permanent disabilityor unable to work for 14+ days orcontinue 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 controlEmployer 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 limbthen the site is not to be disturbedno article or substance is to be removedwithout consent of inspectorexcept to:prevent further incident,remove injured or dead orrescue persons from danger3 n/a to accidents in private house, car or aircraft. (Report to SAP)
78 Report of Occupational Diseases Section 25 any medical practitioner whoexamines or treats a person for a disease described in the2nd schedule of the COID Actor any other diseasewhich he believes arose out of that persons employmentshall report the case in the prescribed period and manner tothe person’s employer andthe Chief Inspectorand inform that person accordingly
79 Victimisation Forbidden Section 26 NO EMPLOYER SHALL:1 victimise, etc., an employee forgiving info. to the Minister or any other authorisedperson giving evidence before a courtcomplying with the lawrefusing to do anything prohibited by the law2 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 PROHIBIT1 a employer from permitting or requiring certain actb user from using certain machineryc employer from permitting excessive exposured prohibition may be revoked in writing2 Block, bar, barricade or fence off that partno person to interfere with such measures3 directives if threat exists and steps are not taken4 direct an employer or user to comply6 employer to notify H&S Reps and employees of a prohibition, directive or notice.
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 LIABILITY1 when an employee does or fails to do somethingthat would be an offenceif an employer or user, did or failed to do it, thenunless he proves the criteria was complied with,it is presumed he did or failed to the acta the act was without connivance or permissionb the act was not within the scope of authorityc 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 userunless parties have agreed in writing re: mandatary to comply3 employees and mandataries shall also be liable4 state employees and mandataries shall also be liable5 all parties may be liable6 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 OFFENCESR50,000.00or 12 months or bothOFFENCES WHERE:an employer commits or omits and causes a negligent injury which would have been culpable homicide had the person diedR100,000.00or 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 40THE 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 RegulationsSection 43