These newsletters are written under the pseudonym 'The Devil's Advocate' and all previous newsletters will eventually be posted here from the old website. Hyperlinks to follow.
The Devil’s Advocate is returning with frequent, often frivolous yet informative OHS news.
His alter ego (Raynard Looch of Klass Looch Associates) will also be touring JHB, PE, DBN and CT later this year to present workshops on OHS legislation criminal liability.
I need your assistance however to migrate to a new computer and update my Distribution List. Feel free to distribute this communication to anyone whom you feel may be interested.
An easy way would be just to send a blank response or you can click on http://www.klasslooch.com/4401.html
To view this year’s newsletters click in http://www.klasslooch.com/6201/6243.htmlor http://www.klasslooch.com/6201/42901.html
Just to wet your appetite you may know that a new OHS Act is being prepared and that I may be intimately involved with its drafting. You can use me potentially to make suggestions. All that I can tell you is that the penalties will increase drastically. The original intention was to combine the OHS and MHS* Acts but that has been abandoned.
The review of the construction regulations is complete and should see the light of day soon. It will see the dawn of a burgeoning profession of OHS agents as clients will be unable to discharge their increased statutory duties. "Agent" means any person who acts as a representative for a client. A client is defined as anyone for whom construction work is being performed and clients will need to apply for a permit to perform construction work. The application to DoL must be accompanied by the client's Health & Safety Specifications and other OHS/COID documentation and, upon approval, a reference number will be generated which must be displayed at all construction sites. Remember if you, as a client, are embarking upon construction work to budget for the costs of external "Safety Agents' as it is improbable that clients will be able to discharge these new onerous OHS duties internally.
The Major Hazard Regulations (MHI) are also under review.
I have also expressed concern to DoL about the manner in which section 31 Investigations are conducted and you can view my open letter in this regards by clicking on http://klasslooch.com/181456.html. I also intend requesting DoL to provide us with a tracking system via their website so that we can trace the movement of OHS matters after an investigation or inquiry has been held into an incident. At the moment it is virtually impossible to trace a matter and employers normally only obtain closure if a summons is generated by the NPA*. That is completely unsatisfactory. We have the technology and it is high time DoL comes on board!
Your Devil’s Advocate
*MHS Act = Mine Health & Safety Act
*NPA = National Prosecuting Authority
Labour brokers treat us like condoms. Click here
OHS Chat & Skinner Newsletter : June 2009 : OHS Lame, Blame & Shame'.
Many of you may have read about the controversial amendment to the Mine Health and Safety (MHS) Act in the form of the MHS Amendment Act 74 of 2008. In particular the proposed, section 86Aentitled ”Criminal Liability”, has generated considerable debate. I myself touched on it in my newsletter “Managerial Danger Pay’. It creates a new quasi homicide statutory crime with penalties of R1 million or 5 years imprisonment. I say proposed, because, despite the Amendment Act having being promulgated, this particular section apparently has not. This has also caused considerable confusing even amongst specialised OHS legal practitioners. Not even the Department of Minerals gives any clarity. Their website has a hyperlink to the Acts-on-Line Websitewhich includes section 86A as if it is already law. Anyway let’s debate it. It isn’t Corporate Homicideas envisaged in the draft National Occupational Health & Safety (NOH&S) Bill nor the common law crime of culpable homicide. The focus of the debate has been mostly on the potential personal criminal liability of chief executive officers, managers, agents and employees for any MHS Act contravention resulting in death, serious injury or illness. Except for introducing a similar provision to section 37of the OHS Act pertaining to employees and mandataries – if indeed ‘agents’ are mandataries – this amendment is really superfluous as regards personal liability and is most probably designed to placate certain labour / political constituencies. To a degree the amendment, in particular Section 86A, is a repetition of existing legal mechanisms in the Criminal Procedure Act which provide for personal criminal liability for directors and servants of corporate bodies. And I doubt whether it will make any real difference .
I hear you say. What has the MHS Act to do with my company’s operation? You will be surprised. I have conducted a survey with OHS Practitioners in preparation for a newsletter to them and the MHS Act does apply to a large percentage of the non mining companies who responded. Click hereto participate.
Do we need these amendments to bring delinquent employers / miners in line? Is the MHS Act or, for that matter OHS legislation in general, toothless? Every single week the media will carry a report where COSATU, government or the ruling party bemoans the selfish exploitation of the health and safety of workers by employers and make repeated calls for employers to be brought to book. The problem is not with existing OHS legislation and they know it. They chose to ignore it so as continue scoring cheap political points. The problem lies, as it has for more than a decade, with the enforcement of the legislation by the law enforcement agencies (Inspectorates), including it appears, the National Prosecuting Authority (NPA). This became crystal clear after the Presidential Mining Auditdisclosed that, since 2004, only 3 out of 223 MHS Act cases referred to the NPA for consideration / prosecution, were concluded. Dare I say it? In the early eighties, when I prosecuted in the Mining Court based in Johannesburg, I concluded more than 3 mining prosecutions every month! The Court had jurisdiction for the entire (former) Transvaal and, using the Mines & Works Act of 1957, the Factories, Machinery & Building Works Act of 1941 (later the Machinery & Occupational Safety Act of 1983) and the common law as it still is today, I spent many a day prosecuting mine management in the Oberholzer, Rustenburg, Westonaria and Germiston Magistrates Courts to mention a few. And I could not have done this without the guidance of the Mining Inspectors who would sat next to me in court. So what has gone wrong?
There is nothing wrong with the current MHS Act, OHS Act or the common law. Everything is there to enable a successful prosecution of delinquent mines / employers /users and their management. The common law in the form of culpable homicide has been successfully utilised for decades. The MHS & OHS Acts are fair and balanced. (The MHS Act seems now to have tipped the scale in favour of workers). They place duties on both management and workers. They provide for workers to leave a dangerous workplace or refuse to do dangerous work without fear of intimidation. The MHS Act even provides for full time health and safety representatives who normally are NUM members to assist employers in providing a safe and healthy working environment. The draft NOH&S Bill also provides for full time health & safety representatives.
I believe that the problem lies with:
1. The steadily decreasing quality and quantity of inspectors. (Lousy pay, lousy working conditions).
2. The historical hysterical hostility of COSATU, towards employers. COSATU sees everything ,including OHS, as confrontational issue as opposed to a co-operative arrangement. It believes that employers must always be driven into a corner no matter what. It should start acting like a genuine trade union federation and stop playing politics. There are numerous mechanisms in both the MHS & OHS Acts which unions could, but fail, to embrace in the interests of their member’s safety and health. (OHS has been reduced to a cheap political slogan designed to polarize and galvanise votes rather than unite). Remember that many, if not most of the ruling cabal, have their roots in the trade union movement and often seem to get confused as to whether they represent government or organised labour.
3. The complete inability of the NPA to decide / prosecute OHS cases. (Remember 3 MHS Act cases out of 223 since 2004)! Are we talking total collapse?
‘Corporate homicide' Bill causes tremors. Mail & Guardian of 12 March 2009. ‘Of the 223 negligence-related cases referred to the NPA since 2004, only three have been concluded. One mining company was found guilty; two have been fined R5 000 and R2 500. The remaining 220 cases are still "awaiting response". Tlali Tlali, spokesperson for the NPA, said he had not seen the presidential report and was unable to explain the backlog of cases. "We cannot say why 200 cases are still awaiting an outcome, because it will take weeks for us to be able to track down these cases and tell you who was responsible," he said’.
4. The skills shortage encountered by employers exacerbated by rigid governmental regulation. Watch this space for more regulations particularly as regards Slave Traders. (Labour Brokers). You will recall Minister Mdladlana, in a clumsy effort to emulate Abraham Lincoln, has promised to personally intervene and write the law that will ban this modern form of slavery. Wonder how far he has got?
Labour brokers “human traffickers”: Mdladlana. The Citizen of 20 March 2009. 'Labour brokers are nothing more than “human traffickers”, Labour Minister Membathisi Mdladlana said on Thursday. Mdladlana said he would do everything in his power to stop the practice of labour brokers when he addressed the national bargaining conference of the Chemical, Energy, Paper, Printing, Wood and Allied Workers Union in Pretoria. “It is selling people, it is inhumane, and it is against the Constitution of South Africa,” he said. Mdladlana said the ANC plans to ban labour brokers after the coming elections. “It is in the manifesto of the ANC and it will not go away. It will be implemented.” Mdladlana said that many labour brokers do not take responsibility for their workers. The brokers did not contribute to the Unemployment Insurance Fund and they confused workers as to whom they work for. “You find workers that have worked for a company for 20 years that only found out that they have not been employed by the company for which they had worked after they have been dismissed,” he said. This creates a problem at the Commission for Conciliation, Mediation and Arbitration, and labour courts, as it was not clear who to lay charges of unfair labour practises against. Mdladlana said he will make it easier for the next labour minister to put this into law. “The issue is in the manifesto. He just needs to get a good lawyer and draft the amendment,” he said. “In fact, I will draft it for him myself.” (By now you know that he has been retained as Minister of Labour).
So the real problem lies with government. What you hear ad nauseam from governmental quarters is nothing more than a deflective tactic designed to conceal their own shortcomings. If government was serious about OHS it would have revamped the entire OHS enforcement system years ago. It would have revived and expand upon the existing specialised OHS Courts instead of letting them deteriorate. The unions would actively agitate for specialised OHS courts countrywide. Government must fast track the promulgation of the draft National Occupational Health & Safety Bill. The silence surrounding the Bill is deafening. Four years have passed since its ‘leaking’! Aren’t we supposed to report our progress towards the adoption of the Bill to the ILO ever so often? Government has chosen rather to neglect and deflect! If you want successful OHS prosecutions look to the obviously weakest link. It is not OHS legislation. It’s the inspectorates and the NPA . The inability of prosecutors to understand or use OHS legislation is perhaps because of the quality of the Inspectors reports. While I can still understand why prosecutors would be hesitant to touch a DoL OHS matter, particularly as they usually emanate from a fuzzy section 31 Investigation, MHS Act fatalities must be formally investigated and a recorded tested transcript generated for the benefit of the prosecutor. Having said that, if I was a prosecutor today, I would be very wary to rely on the ‘expert’ evidence of an inspector – more so DoL – to make a convincing case. There you have it. The quality and quantity of inspectors coupled with a crippled judicial system! The only ‘successful’ OHS prosecutions these days seems to be the result of plea bargains where, because the strong State case where essentially the facts speak for themselves (res ipse loquitur), an accused decides not to risk trial, pleads guilty and no evidence is led.
I don’t think for one moment that employers are more delinquent than before. I also don’t think that we need draconian amendments to the OHS legislation to turn the situation around. It clear that the current system is not working and is most probably deteriorating. We don’t need the constant bleating of the union propaganda machine to realise that safety is not negotiable. We don’t need incendiary divisive rhetoric by cabinet ministers who patently don’t understand the modern labour market, believe it is still rooted in slavery, and the only way to freedom is for the slaves to join COSATU. We don’t need to send DoL inspectors to Cuba for OHS training either. The politicalisation of OHS is divisive and it is time for a new realisation. NEDLAC is a start. Government must commit to resolving the current OHS malaise and refrain from pointing fingers elsewhere. It must commit to a time frame for the eventual adoption of the National Occupational Health & Safety Bill .It must look to raising the standard of inspectors. An inspector must have forensic science abilities, know the law of evidence, be eloquent and firm – not rude and we do have the talent and experience out there. These persons will, however, never be recruited into the current governmental setup. Perhaps the proposed autonomous National Occupational Health & Safety Authority could hold promise? The Mine Health & Safety Inspectorate has gone this route and time will tell what difference, if any, it will make. We need a another Turn-a-round Strategy
The Devil's Advocate
Dear Comrades & Human Traffickers
We do indeed live in interesting times. I can think of no other country where a Cabinet Minister can blatantly and without shame accuse the most reputable companies in South Africa of being involved in human trafficking. This shameful indictment has predictably met with no response by punch drunk employers since they have become accustomed to being used by the ruling cabal as a punching bag to galvanise the worker (unions) vote. This minister in question is none other than the Minister of Labour and he is referring to labour brokers.
Labour brokers “human traffickers”: Mdladlana. The Citizen of 20 March 2009. 'Labour brokers are nothing more than “human traffickers”, Labour Minister Membathisi Mdladlana said on Thursday. Mdladlana said he would do everything in his power to stop the practice of labour brokers when he addressed the national bargaining conference of the Chemical, Energy, Paper, Printing, Wood and Allied Workers Union in Pretoria. “It is selling people, it is inhumane, and it is against the Constitution of South Africa,” he said. Mdladlana said the ANC plans to ban labour brokers after the coming elections. “It is in the manifesto of the ANC and it will not go away. It will be implemented.” Mdladlana said that many labour brokers do not take responsibility for their workers. The brokers did not contribute to the Unemployment Insurance Fund and they confused workers as to whom they work for. “You find workers that have worked for a company for 20 years that only found out that they have not been employed by the company for which they had worked after they have been dismissed,” he said. This creates a problem at the Commission for Conciliation, Mediation and Arbitration, and labour courts, as it was not clear who to lay charges of unfair labour practises against. Mdladlana said he will make it easier for the next labour minister to put this into law. “The issue is in the manifesto. He just needs to get a good lawyer and draft the amendment,” he said. “In fact, I will draft it for him myself.”
The same Minister who presided over the demise of an effective OHS inspectorate while basking in the glory of advances in other more popular labour legislation. The same Minister who routinely accuses employers of murder in his media statements after every incident. Murder? Indeed. If employers are accused of putting profit before the lives of workers – and my website is riddled with his press releases to this effect – they surely do this intentionally as opposed to negligently. How can one negligently place profits before the lives of workers. If you act intentionally and persons die, you should be charged with murder! Not only are these statements reckless but potentially actionable. I did formally object to a media release where a client of mine was accused of placing profits before lives after an incident and I think (hope) the penny dropped as he, or least his media spokesperson, seems to be refraining from using this angle lately. But then again to accuse employers of being involved in human trafficking is just as reckless.
In any case it seems as if labour brokers will be legislated away or become subject to some form of rigid regulation. Apparently it is a multi-billion Rand industry providing jobs for hundreds of thousands of workers. Namibia has banned the practice of labour brokers and, according to informed sources, it has not resulted in more permanent employment. I think the Minister is being disingenuous in his opposition to labour brokers. He claims that employees of labour brokers are deprived of their rights under the Labour Relations Act but the real reason is, in my view, that COSATU , ally to the ruling cabal, resents the fact that these workers are not unionised and the Minister is kowtowing to their pressure. Anyway watch this space and prepare for the inevitability.
The good news is that the grumpy Honourable Minister will finally not be available for reappointment. Perhaps he will be regurgitated and given another portfolio but I suspect that he will go on to become a multi millionaire in the private sector. Perhaps he is one already.
Well that almost covers lies. Except that I had Carl Niehaus in mind when I decided on the title of this newsletter. What a disgrace. One of his many lies was feigning cancer to deceive a travel agent out of R100 000. The same lovely travel agent I met in Zanzibar in January! Sex and videotape. You know who I have in mind! None other than a rugby icon. I can assure you right now that it is not Joost in that videotape. Afterall, which man in his right mind, would go on record and deny that it is him in the video because he actually has a smaller appendage (than his look-a-like in the video)! At least we have no kaal pictures of Karl!
On a more serious note. Employers should take cognizance of the fact that the demerit system has been introduced in some provinces and will roll out nationally soon. Your drivers may lose points while driving your vehicles and you are barred from accessing the National Contraventions Register without their written consent. So how will you know, without their written consent, whether you are not inadvertently allowing employees to drive your vehicles on public roads with a bad safety track record or even (ultimately) suspended drivers licenses? One way would be to obtain a blanket written consent from all employees. Another to amend your Conditions of Employment compelling disclosure. Perhaps the OHS Act could be used. Since a vehicle is also defined as a premises, and employers have a duty to ensure the premises is safely driven or safe, surely it would be acceptable to argue that it is lawful to instruct all drivers to disclose their demerit status? Drivers will then be obliged, in terms of section 14©of the OHS Act, to obey the lawful order given in the interests of safety.
Administrative Adjudication of Road Traffic Offences Act, 1998
Chapter V : General matters
33. Access to information
1) Any person may, in the prescribed manner and upon payment of the prescribed fee, ascertain his or her demerit points position from the national contraventions register at the office of any registering authority or driving licence testing centre.
2) Any person who employs a person for the purposes of driving a motor vehicle may, with the written permission of such employee granted in the prescribed manner, ascertain the demerit points position of such employee in the manner contemplated in subsection (1).
I will be starting a new website soon as my website administrator will no longer support the software I utilise. I will start with a basic website and expand on it over time. I urge you to download anything that you feel may be useful as much of the hyperlinking will be temporarily or perhaps even permanently lost. I will have it all on my hard drive ….no sexual connotation! I am aiming to present open OHS Legislation Workshops in August so clear your calendars for that month.
Your Devil’s Advocate
PS. If you ever get caught with your fingers in the till, beg to have your day in court. It is a great delay tactic. To be absolved completely fake terminal illness, make friends in government or, conversely, claim governmental interference.