Klass Looch Associates

Employer OHS Champion since 1986 

Dear Folks

As I will be emphasizing a my upcoming OHS legislation workshops, criminal liability in terms of OHS legislation stems from transgressing a duty which could be statutory or unwritten . Statutory duties are placed on both employers and employees in OHS legislation. In the OHS Act the employer duties are to be found in sections 8 , 9, 10and 13while in the MHS Act employers duties are more onerous and are spread over a number of sections. (The MHS Act has made a separate section for each of the OHS Act subsection 8(2) employer duties). The opposite of a duty is a right so if employers have a duty of providing employees with a safe and healthy working environment, employees have a right to such an environment. If an incident occurs involving an employee, employers will be tested against section 8 at DoL investigations, formal inquiries and criminal trials. There are also a myriad of duties in the regulations but these duties will always be broadly covered in section 8(2). For example, if an employer is working with hazardous chemical substances (HCS), HCS Regulation 3entitled ‘Information and training’ require HCS risk assessments, introduction of precautionary measures, the supply of appropriate PPE, the provision of information and employee training . These duties are all duplicated in section 8(2) albeit in broader terms. The point of departure in complying with an OHS duty would be the risk assessment. From that all other duties can follow such as hazard awareness training, information, supervision etc. flow.

Now that brings me to my usual lament. The State has a constitutional duty of providing its inhabitants with security of person. Like employers , it must make a proper assessment of the risks posed to the security of inhabitants by crime and respond appropriately. Factors such as the economic downtown must be considered, proper supervision in the form of policing etc. as well. Surely the latest crime statistics, despite the lame attempt to give it as a positive spin, is indicative of a failure on the part of government to adequately assess and respond to the risk posed by crime! Employers are routinely lambasted by politicians and unions for failing to provide their employees with a safe and healthy environment yet government seems to be the biggest sinner of all. Or is government acting within the bounds of reasonability and practicability - the same test that applies to employers?

"reasonably practicable" means practicable having regard to -

(a) the severity and scope of the hazard or risk concerned;

(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

(c) the availability and suitability of means to remove or mitigate that hazard or risk; and

(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.

While I am on a roll. I am still stewing over that delinquent blue light brigade, in particular that idiot who decided to shoot his way through traffic in KZN. If the OHS Act applied – and it could be used along with the common law charge of attempted murder – he could be charged for contravening section 9 by causing harm to persons through his activities (shooting) and willful endangerment of someone’s safety. Imagine if section 37was applied. His crimes could have been imputed onto the Provincial Government and his boss personally! Surely he was inadequately trained, did not know the scope of his authority and the fact that perhaps there were explicit instructions forbidding shooting at innocent motorists would not be regarded as reasonable steps by his employer to prevent his actions?

I had the privilege of attending a session of the Master Builders Congress yesterday and an issue raised by delegates time and again was the question of OHS competency. One must ask how many municipal and government officials are competent as defined by OHS legislation? While the OHS Act does bind the State and the head of a State department is deemed to be the CEO as envisaged in section 16, sadly the incompetence that we have to endure has more to do with service delivery than OHS. Not that local authorities have such a good OHS track record. At least some try despite unique challenges such as government departments owing them billions of Rands. (News24 of 30 September 2009…The eThekwini Municipality, which includes the City of Durban, is owed R1.6bn by government departments’).

At the Congress Tibor Svana of the Department of Labour indicated that much effort will be placed on training inspectors to become specialized in a particular OHS field. I guess they have finally seen that creating generalist’ labour law’ inspectors was a mistake. He intimated that the department is disappointed in lack of OHS commitment from the top. He mentioned that far too often Prohibition Notices aren’t even brought to the CEO’s attention. My experience lately has also been that CEOs are being called to testify at investigations, sometimes in detail, about a particular incident. I have also noticed that section 16(2) “assignees’ are questioned their ‘appointments’ and grilled about the way they discharge their duties. Tibor also echoed the department’s threat to in future concentrate on the clients’ role in construction