Dear Folks
I thought it was perhaps time to rehash the rather tired topic of the so-called written appointments in terms of section 16(2) of the OHS Act. Although there has been no change to the wording of section 16(2), DoL has started enforcing, via audits, their own interpretation. Although I disagree with DoL’s interpretation and have motivated my stance many times – including on my website, suffice to say that employers / CEOs who deviate from their rigid interpretation can readily kowtow to DoL’s interpretation and achieve the same result.
Section 16. Chief executive officer charged with certain duties
(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.
(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.
(3) The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or any liability under this Act.
(4) or the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.
DoL maintains that only the ‘Direct Reports’ of the CEO can be assigned duties in terms of section 16(2) of the OHS Act. These appointments are to be regarded as Statutory Appointments. A statutorily appointed section 16(2) person can then make so-called Non-Statutory appointments further down the line and even a Non-Statutory appointee can make these Non-Statutory appointments.
They argue that the principle of delegare delegatus non potest rule applies meaning that the person to whom duties have been delegated cannot delegate those very same duties further. This advice was presumably obtained from DoL’s legal advisors who were tasked with interpreting the untested section 16(2) of the OHS Act. Decades ago when I studied law –Interpretation of Statutes – I was taught that one way to interpret a statute is to look at the wording of the draft of an Act. In this case the initial wording of the Draft OHS Act. Interestingly enough the draft read as follows:
(1) Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged.
(2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may delegate any duty, including the power of further delegation, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.
So it is quite obvious that the legislator originally encouraged or endorsed a scenario where a CEO statutorily ‘delegates’ duties down to his/her first reports who in turn can make statutory delegations / appointments down the line. The idea was to have devolution of authority. The legal advisors of the (then) Department of Manpower then advised against usage of the word ‘delegate’ because of its rigid legal baggage – obviously with reference to the very same principle of delegare delegatus non potest which DoL relies on today. So the legislator opted for the word ‘assign’ which has no rigid legal baggage. In fact not one dictionary that I consulted defined ‘assign’ as ‘delegate’. “Assign’ means to:
1. to allocate or give;
2. to appoint;
3. to designate.
Knowing the initial intention of the legislator and knowing that ‘assign’ differs from ‘delegate’, one wonders how sound the legal advice is that DoL obtained. In my view the delegare delegatus non potest principle does not apply. Google even goes further and says an exemption to the delegare principle can be made if the delegator specifically authorises further delegation! One must also bear in mind that the CEO is not obliged to make assignments as the word ‘may’ and not ‘shall’ or ‘must’ is used in section 16(2). So section 16(2) appointments – the assignment has evolved into a written appointment although no mention is made in the sub section to written appointments unlike, for example, the GMR2(1) Competent Person –are not compulsory either. Obviously any prudent CEO will appoint persons to assist him/her in the duty of ensuring OHS Act compliance lest there be a vacuum leading directly to the CEO which would impact on criminal liability if the employer contravenes the OHS Act. By assigning/ appointing competent persons to assist the CEO who is charged with ensuring the duties of the employer are properly discharged, the CEO creates buffers and barriers to protect him/her against potential criminal liability. And this is only right as the CEO is usually too far removed from the realities of the workface. There is no hard-and-fast rule as regard CEO criminal liability in terms of the OHS Act or even common law (workplace fatalities) but this is generally the case unless a contravention or incident can directly be linked to an act or omission on the part of the CEO.
While I have in the past be advising clients to follow the devolution route, whereby a (statutory) section 16(2) can appoint another (statutory) section 16(2) person , I now recommend that we kowtow to DoL’s interpretation since inspectors are enforcing their interpretation via audits. As I said at the outset employers, who follow the devolution route, can achieve exactly the same result with hardly any sweat. In fact the route I recommend illustrates how contrived DoL’s interpretation really is. Only the ‘direct reports’ of the CEO can be statutory section 16(2) appointees according to DoL. These are persons who report directly to the CEO. Their appointment s are cross-referenced to section 16(2) of the OHS Act and are thus statutory appointments. Assumingly DoL feels these appointments carry more legal weight and liability implications. I am not so sure. I maintain that any person who is in charge of a situation which has OHS implications is de facto a human employer / section 16(2) person and an appointment in writing merely reflects reality and makes it de jure. It merely formalises reality and creates a structure which is ultimately headed by the CEO. I also believe that ‘acting subject to the control and directions of the CEO’ in section 16(2) must not be narrowly interpreted as the ‘direct reports’ of the CEO. Surely all employees act, directly or indirectly, subject to the control and directions of the CEO?
The solution is for the CEO to utilise section 16(2) for his/her ‘direct reports’. The appointment letter must reflect that it is a statutory appointment. The statutorily appointed section 16(2) person can then make non-statutory appointment s down the line. The appointment letter must reflect that it is a non-statutory appointment but it must be cross-referenced to section 14 of the OHS Act stating that the contents of the appointment letter, for example ensure that the duties of the employer are discharged in an area of jurisdiction, be regarded as a lawful order given to the appointee in the interests of health and safety. This appointment thus has force-of-law. So is there a difference between statutory and non-statutory appointments? Both refer to a statutory provision of the OHS Act. Perhaps we can label it a section 14(c) appointment? After all supervisors are appointed in terms of section 8(2)(i) which does not provide for an appointment . Section 8 requires employers to provide employees with a safe and healthy working environment and sub section 8(2)(i) merely expands on this duty by requiring, inter alia, proper supervision by a person trained to fully understand the hazards.
I think the bottom-line is that DoL should never have become involved with in-house appointments. Why make such appointments optional and then become prescriptive when employers /CEOs exercise the prerogative.
Section 14. General duties of employees at work.
Every employee shall at work -
(a) take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;
(b) as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;
(c) carry out any lawful order given to him and obey the health and safety rules and procedures laid down by his employer or by anyone authorised thereto by his employer, in the interest of health or safety;
(d) if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer; and
(e) if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.
Recently I have been inundated with queries regarding the criminal liability impact of acceding to an appointment in terms of section 16(2) of the OHS Act. Many feel that it creates potential personal criminal liability which did not exist before. I have never been a disciple of the theory that an appointment creates personal OHS liability. I believe that if you accept a certain managerial position within a company, you are de facto a ‘human’ employer with the possibility of personal OHS criminal liability if something goes wrong in your area of jurisdiction. This should ideally be reflected in letters of appointment. An appointment merely formalises this situation or makes it de jure. It creates a structure which is ultimately headed by the CEO or section 16(1) individual. This structure is designed to ensure you have the necessary OHS support from above. Everyone has potential personal OHS criminal liability – albeit it workers (section 14) or the ‘human employers (mostly section 8).
Lastly. I have recently locked horns with a few DoL inspectors who fail to understand that there could be a difference between a CEO (corporate title) and CEO as per definition in the OHS Act. A CEO, in relation to a body corporate or an enterprise conducted by the State, is defined in section 1 of the Act as meaning the person who is responsible for the overall management and control of the business of such body corporate or enterprise. The definition links a CEO to a body corporate ((Pty) LTD / Limited / CC) which means that a CEO / section 16(1) person can be found in subsidiary corporate bodies – not business units that are not (Pty) Ltd / Limited / CCs – and there is no need to look to holding companies for the section 16(1) person. Recently an inspector demanded that the CEO attend a section 31 Investigation for a subsidiary company in Port Elizabeth. The person who was in control of the business of the subsidiary corporate body held the (corporate) title of Operations Manager. He is the CEO as per definition in the Act.
Regards
Raynard Looch
OHS LEGISLATION EMPLOYER LEGAL APPOINTMENTS IN TERMS OF THE OCCUPATIONAL HEALTH AND SAFETY ACT NO 85 OF 1993 AND THE
MINE HEALTH AND SAFETY ACT NO 29 OF 1996.
OCCUPATIONAL HEALTH AND SAFETY ACT
THE CHIEF EXECUTIVE OFFICER
A chief executive officer is defined in section 1 (iv) in relation to a body corporate as meaning the person who is responsible for the overall management and control of the business of such body corporate. The definition is significant in that it links the chief executive officer to a corporate body, namely a limited, propriety limited or close corporation. Where a group of individual corporate bodies form part of one large holding corporate body, the chief executive officer, for purposes of the Occupational Health and Safety Act will be found within each individual corporate body. Conversely where are corporate body has various divisions or business units which are not per se corporate bodies, the chief executive officer will resort within the corporate body and not within the division / business units for purposes of the OHS Act.
SECTION 16 OF THE OCCUPATIONAL HEALTH AND SAFETY ACT
16(1). Chief executive officer charged with certain duties Every chief executive officer shall as far as reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged. Unlike the previous OHS legislation, it does not require a written appointment and, if an individual is responsible for the overall management of the business of the corporate body, that individual is automatically the chief executive officer for purposes of the OHS Act These assignments of duties have evolved into written appointments, initiated by the chief executive officer and devolving down to all managers and even supervisors whose tasks have a health and safety aspect.
Section 16(2) of the Occupational Health and Safety Act.
Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer. As you will notice above, the OHS Act does not compel a chief executive officer to assign, hence the word ‘may’ as opposed to ‘shall’ is used and, there is no mention of the this assignment being done in writing. As mentioned it has evolved into a formal written appointment and, since section 16(2) of the OHS essentially encourages an ‘Employer Health and Safety Structure’, headed by the chief executive officer, I also encourage these assignments to be in writing. (The draft National Occupational Health and Safety Bill proposes to make it a written appointment). For a structure to be effective it should be formal (in writing), the idea being that the ‘Assignee’ periodically reports to the ‘Assignor’ on any OHS issues or seeks assistance from the “assignor’.
All OHS matters ultimately are fed back through the structure to the chief executive officer. (I attach a separate document on the debate / controversy surrounding these assignments of duties which have been unnecessarily complicated by a certain school of thought which believes that the chief executive officer must personally ‘delegate’ all these duties. I need not repeat my argument here). I will, however, state that assignments in terms of section 16(2) of the OHS Act are entirely an in house arrangement and the Department of Labour, to my knowledge, has never interfered with these assignments / written appointments. There are, however, some OHS auditing firms that penalise employers who opt for the devolution approach as opposed to their approach requiring the chief executive officer to personally ‘appoint’ persons in terms of section 16(2) of the OHS Act.
Most corporate bodies, when making these assignments / appointments, stop at middle management level but I encourage employers to appoint right down to supervisory level. Naturally, at that level, it will not be a blanket assignment of duties such as those from chief executive officers of corporate bodies to their managing directors in various divisions / business units but a tailored assignment. Section 8 of the OHS Act requires employers to have supervisors in place who are trained to fully understand the hazards in their respective areas of jurisdiction and also have authority to enforce the required precautionary measures. Section 16(2) of the OHS Act can be used to transfer the authority to these supervisors while formally giving them supervisory duties.
CONCLUSION
Every corporate body has a chief executive officer who is automatically the person as envisaged in section 16(1) of the OHS Act. Usually the managing director. Where a corporate body has a business unit, the section 16(1) Person of the corporate body will assign / appoint the head of the business unit (managing director / general manager) in terms of section 16(2). The section 16(2) head of the business unit is, for all practical purposes, the chief executive of that business unit and, should things go wrong from a OHS perspective, liability will normally not be visited upon the section 16(1) Person of the corporate body. An exception could be where, for example, post an incident, there is a link to an act or omission of the part of the chief executive officer. An example could be where the managing director of a business unit determines that he or she needs resources to counter a OHS problem which he or she cannot authorise, the section 16(1) Person in the holding corporate body refuses or fails to provide it and an incident occurs which could be linked to the failure to provide these resources.
The chief executive officer initiates the assignments / appointments down in terms of section 16(2) of the OHS Act. These persons are often referred to as section 16(2) Persons. They may in turn assign down, ideally to their subordinates who may in turn assign further down the line. Assign as far down as possible to supervisory levels. One can ‘tailor’ these assignments or they can be blanket assignments.
Section 16(1) essentially makes the chief executive officer a human employer with all the duties placed upon employers. A blanket assignment of duties does the same to the section 16(2) Person. Broadly speaking they are the duties contained in section 8 (Duties of employers to their employees), section 9 (Duties of Employers to Persons who are Non Employees), section 10 (Duties of manufacturers and others regarding articles and substances for use at work, section 13 (Duty to inform / make employees conversant with the hazards). These section are often listed on the appointment forms. Naturally the myriad of regulations contain many other employer duties and their applicability depends upon the nature of the operation. It is not criminal to fail to make these assignments. I believe that making these appointments do not create potential OHS Act criminal liability but merely formalises reality. (de facto vs. de jure). If you are the managing director of a business unit and, for example, you are not assigned / appointed in terms of section 16(2) of the OHS Act, you cannot escape potential OHS Act criminal liability by arguing that you were not assigned / appointed. One cannot divorce health and safety from your position as managing director. Section 16(2) does, however, tacitly encourage a structure which promotes OHS. It is also important to note that section 16(2) is not restricted to employees but does allow for assignments to persons outside the corporate body. Often in construction a project manager is assigned / appointed in terms of section 16(2) and is an employee of another corporate body. There are also many other obligatory appointments in terms of the OHS Act. One of the most important being that of the competent person in relation to Machinery. (Often the plant engineer). This appointment requires approval by the Department of Labour as is done in terms of General Machinery regulation 2(1). The construction regulations also require many obligatory appointments. Without knowing the exact nature of the operations of each corporate body or business unit it will be impossible for me to address them. For this reason I am confining myself to employer legal appointment which are universal to all corporate bodies in South Africa that are not a mine or works. In fact there are literally hundreds of legal appointments in terms of the OHS Act and the entities best equipped to advise on them would be OHS auditing companies.
THE MINE HEALTH AND SAFETY ACT NO 29 OF 1996
If any of the corporate bodies or business units fall within the definitions below the Mine Health and Safety Act applies.
"mine" means, when -
(a) used as a noun -
(i) any borehole, or excavation, in any tailings or in the earth, including the portion of the earth that is under the sea or other water, made for the purpose of searching for or winning a mineral, whether it is being worked or not; or
(ii) any other place where a mineral deposit is being exploited, including the mining area and all buildings, structures, machinery, mine dumps, access roads or objects situated on or in that area that are used or intended to be used in connection with searching, winning, exploiting or processing of a mineral, or for health and safety purposes. But, if two or more excavations, boreholes or places are being worked in conjunction with one another, they are deemed to comprise one mine, unless the Chief Inspector of Mines notifies their employer in writing that those excavations, boreholes or places comprise two or more mines;
or
(iii) a works; and
(b) used as a verb, the making of any excavation or borehole referred to in paragraph (a)(i),
or the exploitation of any mineral deposit in any other manner, for the purpose of winning a mineral, including prospecting in connection with the winning of a mineral;
"works" means any place, excluding a mine, where any person carries out -
(a) the transmitting and distributing to another consumer of any form of power from a mine, by the employer thereof, to the terminal point of bulk supply or where the supply is not in bulk, to the power supply meter on any such other consumer’s premises; or
(b) training at any central rescue station; or
(c) the making, repairing, re-opening or closing of any subterranean tunnel; or
(d) any operations necessary or in connection with any of the operations listed in this paragraph.
The Mine Health and Safety Act has a similar provision to section 16(1) of the OHS Act but has generally a more rigid and prescribed legal appointment structure.
SECTION 2A OF THE MINE HEALTH AND SAFETY ACT
Chief executive officer charged with certain functions
(1) Every chief executive officer must take reasonable steps to ensure that the functions of the employer as contemplated in this Act, are properly performed.
(2) Without derogating from any responsibility or liability of the chief executive officer in terms of subsection (1), the chief executive officer may entrust any function contemplated in the said subsection to any person under the control of the chief executive officer, which person must act subject to the control and directions of the chief executive officer.
(3) If the employer is a body corporate, the functions of the chief executive officer contemplated in subsections (1) and
(2) may be performed by a member of the board of the body corporate designated by the board.
(4) Subsections (1), (2) and (3) do not relieve an employer of any duty imposed on employers by this Act.
(5) Every person appointed in terms of section 3 or 4(1) must perform their functions subject to the control and direction of the chief executive officer or the person contemplated in subsection (3).
The chief executive officer of a corporate body that is a mine or works will also, like the section 16(1) OHS Act chief executive officer, automatically be the person who must ensure that all the duties of the employer as listed in the sections and regulations of the MHS Act (including the regulations of the Mines and Works Act). No appointment need be made and the definition of a chief executive officer is virtually the same as the OHS Act. Similarly, in terms of section 2A(2) the chief executive officer may entrust any function to any person under his control and this should be done in writing. Another provision that is seldom utilised does provide for any other board member, designated by the Board, to perform the functions of the chief executive officer. This person essentially becomes the chief executive officer for OHS purposes only.
The chief executive officer may also appoint any other person in terms of section 4(1) to perform any function of the chief executive officer provided the Chief Inspector of Mines is notified of this appointment. This appointment can be more readily equated with that of section 16(2) of the OHS Act and consequently everything mentioned above concerning section 16(2) of the OHS Act will apply. It is routinely used by mining corporate bodies for top to middle managerial positions off a mining site. It is also as flexible as the section 16(2) of the OHS Act assignment / appointment and the letters of appointment usually list the duties of the section 4(1) Appointee. In other words they can be blanket or tailored. Unlike the OHS Act, however, once you are on the mine site, the appointments become compulsory and more prescriptive. The broad based employer duties are to be found in section 5 (Employer to maintain healthy and safe mine environment, section 6 (Employer to ensure adequate supply of health and safety equipment), section 7 (Employer to staff mine with due regard to health and safety), section 8 (Employer must establish health and safety policy), section 9 (Codes of practice, section 10 (Employer to provide health and safety training), section 11 (Employer to assess and respond to risk), section 12 (Employer to conduct occupational hygiene measurements) Section 13 (Employer to establish system of medical surveillance, section 14 (Record of hazardous work), section 15 (Record of medical surveillance), section 16 (Annual medical reports), section 17 (Exit certificates), ands section 21 (Manufacturers and supplier’s duty for health and safety).
In summary the chief executive officer is automatically the section 2A(1) Person. The duties of the chief executive officer may be performed by another board member, the section 2A(3) Person. Seldom used. Any other Person may be appointed to perform any of the duties of the chief executive officer in terms of section 4(1) of the MHS Act. Usually used and almost identical to section 16(2) of the OHS Act although mention is made of ‘appoint’ as opposed to ‘assign’. (As mentioned ‘assign’ has evolved into ‘appoint’ in section 16(2) of the OHS Act). The MHS Act is more complicated than the OHS Act vis-à-vis legal appointments.
Section 4. Employer may entrust functions to another person
(1) An employer may appoint any person except a manager to perform any function entrusted to the employer by sections 2 and 3 of this Act.
(2) An employer who appoints a person under subsection (1) must notify the Chief Inspector of Mines of Mines of that appointment within seven days, and must include in that notice -
(a) the name of the person appointed;
(b) the nature of the person's functions; and
(c) the names of the manager or managers over whom that person has control.
(3) An employer who appoints a person under subsection (1)
must -
(a) supply each person appointed with the means to perform their functions; and
(b) take reasonable steps to ensure that they perform their functions.
(4) The appointment of a person under subsection (1) does not relieve the employer of any duty imposed on employers by this Act or any other law.
Section 3. Employer must appoint manager
(1) The employer of every mine that is being worked must -
(a) appoint one or more managers with the qualifications as may be prescribed to be responsible for the day to day management and operation of the mine, and if more than one manager is appointed, ensure that the managers' functions do not overlap;
(b supply the managers with the means to perform their functions, and
(c) take reasonable steps to ensure that the managers perform their functions.
(2) the appointment of a manager does not relieve the employer of any duty imposed on employers by this Act or any other law.
(3) If no manager is appointed in terms of subsection (1), the employer must perform the functions of a manager in terms of this Act.
The mine manager is the most important appointment at a mine and, if there is an incident on a mine, would be the person primarily called to account. The section 2A(1) chief executive officer or other levels of management above the mine manager, entrusted / appointed in terms of section 2A(2) or section 4(1) of the MHS Act, will normally be asked at investigations or inquiries into an incident merely to state the mine policy and other broader OHS objectives. The mine manager is naturally physically at the mine while the chief executive officer and other echelons of management appointed either in terms of section 2A(3) or section 4(1) will be at the corporate body’s head office. Other important appointments are subordinate mine managers, engineers, shift bosses, mine overseers (underground work only). These are compulsory appointments and should be made in writing.
Raynard Looch
KLASS LOOCH ASSOCIATES