Occupational Health and Safety

If you are an acrophobic this does not mean you work in a circus. In fact, rather, the chances are you will not work in or near a circus, because it means you have an extreme fear of heights. So the big-top trapeze is not for you.

Nor is being a steeplejack, or any of the other trades and occupations that involve working at heights. And there are a lot of these – crane operators, building maintenance crew, construction workers, power line maintenance, the list goes on. These workers are not only unafraid of heights, but in terms of the Occupational Health and Safety Act 1993, they also have to have competency training in the equipment used, procedures and methodologies – all designed to minimise risk.

The Act does not address only their lofty position, though. It is concerned with the health and safety of all persons at work, particularly in connection with the use of plant and machinery. It falls under the authority of the Minister of Labour but, on the ground, is administered by an Advisory Council for Occupational Health and Safety which is made up of technical committees, employer and employee representatives, other officers – and inspectors. As to be expected, these inspectors have wide ranging powers of search and entry, investigation, inspection, monitoring, interrogation, and the like.

A. Employer obligations: workplace safety

1. The Act criminalises the failure by an employer to provide a working environment that is, as far as is reasonably practicable, safe and without risk to the health of his employees.¹ The Act mentions the following, in particular, contravention of or failure to comply (mostly, as far as is reasonably practicable) with these obligations is a criminal offence:
   • provide and maintain systems of work, plant and machinery that are safe and without risk to health;²
   • take steps to eliminate or mitigate any hazard or potential hazard, before resorting to personal protective equipment;³
   • make arrangements to ensure the absence of risk to health in the production, processing, use, handling, storage and transport of articles or substances;⁴
   • establish what hazards to health and safety exist in connection with work that is to be performed;⁵
   • establish the precautionary measures to be taken with respect to such work in order to protect the health and safety of persons;⁶
   • provide the necessary means to apply such measures.⁷
2. The Minister can declare, by notice in the Government Gazette,⁸ that certain work is ‘listed work’. Every employer, whose employees undertake listed work must, after consultation with the health and safety committee established for that work place, do the following, and commit an offence if they fail to do so:
   • identify the hazards involved;⁹
   • evaluate the risks associated;¹⁰
   • identify and evaluate the steps that need to be taken in order to comply with the Act;¹¹
   • prevent, or at least minimise, the exposure of employees to the hazards;¹²
   • if applicable, carry out an occupational hygiene programme and biological monitoring;¹³ and
   • subject such employees to medical surveillance.¹⁴

3. The employer must also keep the designated health and safety representatives informed of his actions in regard to these obligations, and it is an offence not to do so.¹⁵

4. If the employer has applied to the Minister for exemption¹⁶ from any provision of the Act, he must inform the health and safety representative concerned. It is an offence not to do so.¹⁷

5. If the CEO (or the person to whom he has delegated the duty) fails to ensure that the employer properly discharges all duties in terms of the Act, he is guilty of an offence.^18 19

B. Employer obligations: employee training and awareness

1. The Chief Inspector²⁰ can direct any employer (including, by Notice in the Government Gazette directed at, categories of employers) to prepare a written policy concerning the protection of the health and safety of his employees. It is a crime if an employer does not display this policy (a) prominently (b) in the workplace (c) where employees normally report for service.²¹

2. It is a criminal offence not to provide such information, training, instructions and supervision to employees as may be necessary to ensure the health and safety at work of his employees.²²

3. Apart from any specific duties as set out above, an employer must cause every employee to become conversant (that is, well acquainted) with the hazards to his health and safety attached to:
   • the work which he has to perform;
   • the articles and substances which he has to produce, process, use, handle, store or transport;
   • any plant or machinery which he is required or permitted to use,

   and the employer commits a criminal offence in failing to do so.²³

4. It is also a criminal offence to fail to cause all employees to be conversant with the precautionary measures which should be taken, and observed with respect to each such hazard.²⁴

5. An inspector can give directions to an employer (or to the user of plant or machinery) as to steps which, in his opinion, are necessary in the interests of a person’s health or safety. Apart from committing an offence by not complying with such directive,²⁵ the employer concerned is obliged to bring the contents of all such prohibitions, directions or notices to the attention of the health and safety representatives, and the employees concerned. He commits a criminal offence if he does not do so.²⁶

C. Employer obligations: employee care

1. It is a crime to permit an employee to do any work unless all such precautionary measures (and others which may be prescribed) have been taken.²⁷

2. It is a crime for an employer not to take all measures necessary to ensure that the requirements of the Act have been complied with:
   • by every person in his employment;²⁸ and
   • by every person on premises under his control where plant or machinery is used.²⁹
3. The employer must also:
   • enforce all such measures as may be necessary in the interests of health and safety;³⁰ and
   • ensure that work is performed, and that plant and machinery is used, under the general supervision of a person who:
     • is trained to understand the particular hazards involved; and
     • has the authority to ensure that precautionary measures are implemented.³¹

4. An employer doesn’t have to look after only his employees, but also anyone directly affected by his activities. It is an offence for the employer not to ensure that his undertaking is conducted in such a way that such people are not exposed to hazards to their health and safety.³²

5. It is forbidden to victimise an employee because he has given information to the Minister (or an inspector, etc.) about the terms, conditions or circumstances of his employment, or of others, or because he has given evidence before a court, and so forth. Victimise, in this sense, means to:
   • dismiss the employee;
   • reduce his rate of remuneration;
   • alter the terms and conditions of his employment, to ones less favourable; or
   • change his position relative to other employees, to his disadvantage.

   It is a criminal offence to contravene this prohibition.³³

6. No employer may deduct anything from an employee’s remuneration in respect of something which the employer is required to provide or do in terms of the Act. Also, he may not require or permit the employee to make any payment, to him or anyone else, in the same regard. It is an offence to contravene these provisions.³⁴

D. Self-employed people

1. Each self-employed person must conduct his undertaking in such a manner so as to ensure that other persons directly affected by his activities are not exposed to hazards to their health or safety.³⁵

2. Strange but true: it is also a criminal offence for a self-employed person to conduct his undertaking in such a manner as to ensure that he himself is not exposed to hazards to his health and safety.³⁶

E. Manufacturers and suppliers of articles and substances

1. Any person who designs, manufactures, imports, sells or supplies any article for use at work shall ensure (as far as is reasonably practicable) that the article is safe and without risks to health when properly used and that it complies with all prescribed requirements. It is an offence not to do so.³⁷

2. Any person who erects, or installs any article for use at work on, or in any premises shall ensure, similarly, that nothing about the manner in which it is erected or installed makes it unsafe or creates a risk to health when properly used. It is an offence not to do so.³⁸

3. Any person who manufactures, imports, sells or supplies any substance for use at work shall ensure, similarly, that the substance is safe and without risk to health when properly used, and it is a criminal offence to contravene this provision.³⁹

4. He must also take such steps as may be necessary to ensure that information is available with regard to:

   • the use of the substance at work;
   • the risks to health and safety associated with such substance;
   • the conditions necessary to ensure that the substance will be safe and without risk to health when properly used; and
   • the procedures to be followed in the case of an accident involving such substance.

   It is an offence to fail to comply with this provision.⁴⁰

F. Duties of employees

1. Employers are not the only ones in the workplace who have obligations. The Act makes it a criminal offence if an employee, at work, fails to do any of the following:
   • take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;⁴¹
   • as regards any duty or requirement imposed by the Act on his employer (or any other person), to cooperate with such employer or person to enable that duty or requirement to be performed or complied with;⁴²
   • carry out any lawful order given to him in the interest of health or safety;⁴³
   • obey the health and safety rules and procedures laid down by his employer or by anyone authorised thereto by his employer;⁴⁴
   • report any situation which is unsafe or unhealthy, either to his employer, or to the health and safety representative for his workplace;⁴⁵
   • if he is involved in any incident which may affect his health or which has caused an injury to himself, not later than the end of the particular shift during which the incident occurred (unless impossible) report such incident to his employer or to anyone authorised thereto by the employer, or to his health and safety representative.⁴⁶
2. If an employee does something (or fails to do something) which would be an offence in terms of the Act, his employer is also guilty of the offence unless:
   • the employee was acting without the permission or connivance of the employer;⁴⁷
   • the conduct was in no way within the scope of the employee’s authority;⁴⁸ and
   • the employer took all reasonable steps to prevent the act or omission in question.⁴⁹
3. By the way, it is an offence for an employer not to cause all his employees to be informed of the scope of their authority.⁵⁰

G. Health and safety representatives

1. Every employer who has more than 20 employees at any workplace must designate, in writing, health and safety representatives as required by the Act. It is an offence not to have done so within four months after commencing business.⁵¹

2. An employer must provide such facilities, assistance and training as a health and safety representative may reasonably require. He commits an offence by not doing so.⁵²

3. If there are two or more health and safety representatives designated, the employer must establish one or more committees and must consult with the committee(s) with a view to initiating, developing, promoting, maintaining and reviewing measures to ensure the health and safety of his employees at work. He commits an offence by failing to do this.⁵³

4. Each health and safety committee must keep a record of:
   • each recommendation made to an employer affecting the health and safety of persons at the workplace; and
   • each report filed with an inspector on any incident at the workplace in which any person was injured, became ill or died,

   and commits an offence if it fails to do so.⁵⁴

5. And guess what? The employer must (take the prescribed steps to) make sure that the health and safety committees:
   • fulfil that record-keeping obligation;⁵⁵
   • make the recommendations and file the reports, in the first place;⁵⁶ and
   • hold meetings at least every quarter,⁵⁷

   and he commits a criminal offence by failing to do so.⁵⁸

6. If an inspector is of the opinion that the number of health and safety representatives and committees, for any workplace is inadequate, he can direct the employer (in writing) to designate such further representatives or committees, as the inspector may determine. It is a crime not to comply with such a directive.⁵⁹

7. The health and safety committee must hold meetings, at least every three months. An inspector can direct the members to hold a meeting at a place and time determined by him, and they commit an offence it they fail to observe and comply with such a notice.⁶⁰

8. As soon as there has been an incident which is reportable,⁶¹ the employer must inform the relevant health and safety representative, and it is an offence not to do so.⁶²

H. Prohibitions

1. It is a criminal offence to sell or market, in any manner, any article, substance, plant, machinery or equipment unless it complies with any requirements (including as to its use or application) that have been prescribed by regulation.⁶³

2. The Minister can, by notice in the Government Gazette, promulgate declarations concerning work in connection with activities, processes, or premises where articles or substances are stored, and the like. It is an offence to contravene any such prohibitions or conditions attached to the performance of such work.⁶⁴

I. Inspectors

1. Any person who:
   • hinders or obstructs an inspector in the performance of his functions;⁶⁵
   • refuses, or fails to comply (to the best of his ability) with any requirement, or request made by an inspector in the performance of his functions;⁶⁶
   • refuses or fails to answer (to the best of his ability) any question which an inspector in the performance of his functions has put to him;⁶⁷
   • furnishes to an inspector information which is false or misleading;⁶⁸
   • pretends (falsely) to be an inspector,⁶⁹

   is guilty of an offence.

2. It is an offence if:
   • having been subpoenaed, you fail to appear before an inspector on the day and at the place specified;⁷⁰
   • you fail to remain in attendance until the inspector has excused you from further attendance;⁷¹
   • you refuse to appear before the inspector;⁷²
   • you refuse to be sworn or to make affirmation as a witness after being directed to do so;⁷³
   • you refuse to answer, or fail to answer to the best of his knowledge and belief, any question put to you;⁷⁴ or
   • you refuse to produce a book, document or thing specified in the subpoena.⁷⁵
3. It is also an offence to:
   • tamper with or discourage, threaten, deceive or in any way unduly influence any person with regard to evidence to be given (or with regard to a book, document or thing to be produced) before an inspector;⁷⁶ and
   • prejudice, influence or anticipate the proceedings or findings of an inquiry.⁷⁷

4. As mentioned, inspectors have a wide range of powers. When an inspector enters premises in order to carry out duties or perform functions in terms of the Act, he can call on the employer (and/or the employees) to provide whatever facilities he reasonably requires to enable him (and/or his assistant) to do so. It is a criminal offence to fail to comply with such request.⁷⁸

5. If an inspector notifies the employer of any intended inspections, investigations or formal inquiries, the employer must inform the health and safety representatives beforehand. It is an offence not to do so.⁷⁹

6. The inspector can prohibit any activity or use of any plant or machinery which, in his opinion, threatens (or is likely to threaten) the health or safety of any person. It is an offence to contravene any such prohibition.⁸⁰

7. In order to enforce such a prohibition, the inspector can (in addition) block, barricade or fence off that part of the workplace to which his prohibition applies. It is a crime to interfere with or remove the barricade, fencing, etc.⁸¹

8. That prohibition will be in writing. The inspector can also give directions to an employer (or user of plant or machinery) as to steps which, in his opinion, are necessary in the interests of a person’s health or safety. It is an offence to fail to comply with such prohibition, notice or directive.⁸²

9. It is an offence if you disclose any information concerning the affairs of any other person which you obtained in carrying out functions under the Act.⁸³

J. Safety equipment

1. If you tamper with, or misuse any safety equipment installed or provided to any person, it is a criminal offence.⁸⁴

2. If you fail to use any safety equipment which has been provided to you, whether:
   • at a workplace;
   • in the course of employment;
   • in connection with the use of plant or machinery,

   it is an offence.⁸⁵

3. If you wilfully or recklessly do anything at a workplace, or in connection with the use of plant or machinery which threatens the health or safety of any person you are guilty of an offence.⁸⁶

4. It is a crime intentionally or recklessly to interfere with, damage or misuse anything which is provided in the interest of health or safety.⁸⁷

K. Incidents and disease

1. The employer (or the user of the plant or machinery concerned) must, within seven days,⁸⁸ report an incident⁸⁹ arising out of, or in connection with, the activities of persons at work, or the use of plant or machinery to an inspector in the Department of Labour. It is an offence to fail in this obligation.⁹⁰

2. If a person dies, becomes unconscious, suffers an amputation, or is otherwise injured to a degree that is likely to cause death or such injury, the employer must also report the incident, forthwith (by telephone, fax, or similar) to the Provincial Director. It is an offence not to do so.⁹¹

3. If the incident causes death, life-threatening injury, or amputation, it is an offence to:
   • disturb the accident site;
   • remove any article or substance involved in the incident,

   without the consent of an inspector.⁹² It is a crime to do so.⁹³

4. Where a medical practitioner examines a person for disease which he believes arose out of that person’s employment,⁹⁴ he must report the case to the person, to his employer, and to the chief inspector. He commits a crime by not doing so.⁹⁵

5. The employer may not, as a result of such report (or as a result of information provided in medical surveillance or biological monitoring):
   • unfairly dismiss the employee;
   • reduce the rate of his remuneration;
   • alter the employee’s terms and conditions of employment, to ones less favourable to him;
   • alter his position relative to other employees, to his disadvantage,

   and commits a criminal offence if he does.⁹⁶

L. Formal inquiries

The Chief Inspector can (and must, when requested by a person producing prima facie evidence of an offence) direct an inspector to conduct a formal inquiry into an incident which has occurred at a workplace. The inquiry is held in public.⁹⁷

It is an offence for any person:

• to fail to comply with any lawful direction, subpoena, request or order issued or given by the presiding inspector;⁹⁸
• to refuse or fail to answer (to the best of his knowledge) any question lawfully put to him by, or with the concurrence of the presiding inspector;⁹⁹
• in any manner whatsoever to advise, encourage or order any person who has been directed, subpoenaed, requested or ordered to do something by the presiding inspector, not to do so, or in any manner to prevent him from doing so;¹⁰⁰
• to refuse, or fail, when required by the presiding inspector, to furnish him with the means for holding such inquiry or to render him the necessary assistance;¹⁰¹
• to refuse, or fail, when required by the presiding inspector, to attend an inquiry;¹⁰²
• to intentionally insult the presiding inspector (or his assistant); or
• to intentionally interrupt the proceedings.¹⁰³

M. General

Any person who furnishes information or makes a statement in any application, record, statement, or other document in terms of the Act, and which is false in any material respect, is guilty of a criminal offence.¹⁰⁴

N. Lastly: He is not dead but is alive and well – although he could be dead

If you, as an employer (or a user of plant or machinery) do something – or fail to do something – which causes any person at a work place to be injured, you are guilty of an offence, if the following applies:

• the injured person was capable (theoretically) of dying as a result of your act or omission; and
• you could have been found guilty of culpable homicide if he did (theoretically) die, even if the actual injury would not have led to his death.

Example: You recklessly kick his ladder. He falls and twists his ankle. He could have landed on his head and been killed. You are guilty of an offence.^105 106