Potential changes to the OHS Act: Things to look out for.
During 2020 Government released the proposed changes to the Occupational Health and Safety Act. Time was given for public comment and the act is now in the final review phase.
In March 2021, Cabinet approved the publication of the Occupational Health and Safety (OHS) Bill 2020 for public consultation. The process of amending the Occupational Health and Safety Act itself (Act 85 of 1993) was first initiated in 2016 with the aim of updating legislation to better meet the challenges of modern working environments.
Several new or revised regulations have been promulgated in terms of the Act in the last two years.
Danger means anything which may cause injury, adverse health effects or damage to persons or property.
Employer means any person, institution, or organisation including the government who employs and provides work to an employee and supervisors, remunerates, or tactically or explicitly undertakes to remunerate such employee for services rendered by such employee.
Risk assessment means the process of evaluating the risk to an employee’s health and safety from workplace hazards and is a systematic assessment of all aspects of work that considers:
complete hazard identification
identification of all who might be affected by the hazard
how the person is affected
analysis and evaluation of the risk
prioritisation of risks
Requirements for a Safety Management System
This Act stipulates that every business which will do listed work or are declared in a government gazette must have a safety management system. This means a coordinated comprehensive set of interrelated or interacting elements to establish an Occupation Health and Safety Policy and objectives to optimally manage health and safety.
The CEO shall develop, implement, and continuously review the Health and Safety Management System as the employer might be directed in terms of the legislation.
Requirements for a Workplace Specific Risk Assessment
Every employer must ensure that the workplace specific risk assessment is conducted by a person or persons who are competent to pronounce all the risks associated with that workplace. Thereafter develop and implement a risk management plan in writing in respect of every risk identified.
The risk management plan must be available at the workplace when requested by an inspector. The employer must ensure that no work is undertaken unless the control measure is contained in the risk management plan is complied with. The employer must ensure communication of the relevant components of the risk management plan to every employee.
The concept of reasonably practicable was taken out of this Act regarding the duties of the employer.
All employers and self-employed persons must supply the Department with a copy of incident statistics annually on the 1st day of March each year. The statistics must include statistics for contractors that are working on the employer’s premises.
If a person commits a breach of this Act the inspector may by way of a written notice to that person impose an administrative fine in accordance with Schedule 2.
You can be criminally prosecuted if you commit an offense by contravening or failing to comply with the provisions of this Act and causing a person’s death, permanent disability, or illness.
Hindering the administration of justice by obstructing an inspector in the performance of the inspector’s functions.
Furnishing false information.
Failure to comply with provisions of this Act.
Section 7 Health and Safety Policy – replaced by Health and Safety Management System
Safety Management System or Health and Safety Management System means a coordinated comprehensive set of interrelated or interacting elements to establish occupational health and safety policies and objectives to optimally manage health and safety.
Section 9 General Duties of Employers and Self-employed
Every employer shall conduct an undertaking in such a manner as to ensure that the risk posed by identified hazards to persons other than those in the direct employment of the organisation who may be directly affected by the organisation’s activities are not thereby exposed to hazards to their health and safety and the risk is managed in line with the risk management plan contemplated in Section 8.
Every self-employed person shall conduct an undertaking in such a manner as to ensure that the risk posed by identified hazards to the self-employed person and any other person who may be affected by the activities of the work performed on that premises or managed in line with the specific risk management plan as contemplated in Section 8(2)(a).
Any person who designs, manufacturers, imports, sells, leases, or supplies any article for use at work shall ensure that:
the article is safe and without risk to occupational health and safety
the article is accompanied by the instructions which include precautionary measures to be adhered to.
Section 12 Listed Work
An employer shall conduct a Risk Assessment in relation to such Listed Work and develop and implement a Risk Management plan in respect of the risks identified for that work.
A Risk Assessment for the workplace shall be conducted by a person or persons who are Competent to pronounce on all the risks associated with that work and where the risk is complex in nature a risk assessment shall be conducted by specialists who are competent to pronounce on all the risks associated with that particular work.
The employer shall ensure that the workplace specific Risk Management Plan is in place and is available at the workplace when requested by an inspector.
An employer may not permit any listed work to be undertaken unless the control measures contained in the Risk Management plan are complied with.
16.1 the chief executive officer shall develop, implement, and continuously review the Health and Safety Management system as the employer may be directed in terms of section 7.1.
16.2 a person so delegated in terms of subsection (2) may not further delegate the duties to any other person.
Section 18 Functions of the Health and Safety Representatives
Attend regular meetings with the employees at the workplace to:
address health and safety in the workplace
provide feedback information to the employees they represent
discuss reports by the relevant safety representatives on the performance of their functions
receive Mandates from employees to be presented when attending to health and safety committee meetings
Attend special meetings with the employees they represent after an incident in order to:
provide information on the incident
inform employees regarding arrangements for undertaking the investigation of the incident
gather information from employees relevant to the incident
Section 24 Report to Inspector regarding Certain Incidents
The employer or user or self-employed person shall provide the department with a copy of Incident Statistics annually, on the first day of March each year.
The incident statistics shall be provided in the prescribed format. The incident statistics shall include statistics for Contractors that occurred while working on the employer’s premises.
Provided that the contractors are required to provide Incident Statistics to the Department as well.
Section 37 Administrative Fines
If a person commits a breach of this Act the inspector may by written notice to that person impose an Administrative Fine in accordance with Schedule 2.
An administrative fine may, instead of a criminal prosecution, be imposed on a person who becomes liable to prosecution for any breach of the act.
An employer, chief executive officer, manager, agent, or employee commits an offense by contravening or failing to comply with a provision of this Act whereby causing a person’s:
permanent disablement; or
Hindering of Administration of Justice
Hindering or obstructing an inspector in the performance of the inspectors’ functions.
Refuse or fail to comply with any requirement or request made by the inspector in the performance of the inspector’s functions.
Persuade an inspector to accept a bribe.
No person may prevent an inspector from entering the premises where work is being performed during normal working hours.
Furnishing False Information
A person who wilfully furnishes a record, information, application, or other document or makes a statement that is false in any material respect, under this Act, commits an offense.
Failure to Attend Meetings, Inspections, Investigations, Inquiries, when Directed or Summoned
A person, who has been directed or summoned to attend a meeting, inspection, investigation, or inquiry given in terms of Section 34.
Failure to Comply with Provisions of this Act
A person commits an offense if that person contravenes or fails to comply with any:
Provisions of the act;
Conditions of an exemption in terms of section 40;
Wilfully furnishes to an inspector information which is false or misleading;
Tamper with or misusers any health and safety equipment installed or provided to any person by the employer or user;
Fails to use any safety equipment at the workplace or in the course of employment or in connection with the use of plant and machinery which was provided by the employer or such user; and
Wilfully or recklessly does anything at the workplace or in connection with the use of plant and machinery which threatens the health and safety of any person.
A person convicted of an offense in terms of the section indicated in schedule one may be sentenced to a Fine or to imprisonment for a period not exceeding the period mentioned in Schedule 1.
Penalties are up to R 5 000 000 or 5 years imprisonment.
How can SWP help you?
The South African Occupational Health and Safety Regulations are changing, and it’s important to stay up to date on the latest news and changes. If you have any questions about how these changes will affect your business, please don’t hesitate to contact us. We offer a range of services that will help you stay compliant, including safety management, consulting, and online courses.
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