I have a question (more like a problem)on my hands and hope for you to assist me or even give me some advice on what to do as I am still a young and eager HSE Practitioner.
The client has provided us with a Section 37(2) agreement on completion of the job and asked the division Branch Manager to sign the document...
Know my questions are: Can we still be held liable to sign a 37(2) agreement on the completion of the job? Is it not the 16.2 responsibility to read and sign the agreement? There are several sentences that are not worded right, can we refuse to sign? The physical and tele-fax of the contractor is not added in the agreement, and in the case that the 16.2 needs to sign, the division manager's name is added in the agreement and not the 16.2? Under section 37(2) not the OSHA, I do not completely understand the meaning of "Mutandis" and "Mutatis" can you please explain?
Can we reject the 37(2) agreement and refuse to sign when it is handed to us after the completion of a job?
Hope to hear from you soon
The section 37(2) Written Agreement must be the most misunderstood legal instrument in the OHS Act.
It has its origin in section 37 which potentially holds employers vicariously liable for the wrongdoings of their mandataries / contractors. The legislator wants to discourage employers from using incompetent or OHS non-compliant contractors and basically says that employers must utilise some form of due diligence to prevent this. One way – and only one way – to this is to conclude a Written Agreement with contractors at the OUTSET of the contract in order to arrange OHS issues between them. It is not compulsory but encouraged by the legislator. In other words it is not illegal NOT to conclude such a Written Agreement but the conclusion of such an Agreement will be construed as reasonable steps by an employer vis-a –vis a contractor.
It makes no sense to sign one after the conclusion of a contract! Mutatis mutandis merely means ‘amongst other things’.
Since signing the Agreement at the end of a contract is nonsensical I would encourage you to refuse to sign it.
Normally a section 16(2) Person should conclude / sign all OHS Act legal instruments on behalf of the employer / company.
Hope this helps.
On behalf of Eskom, please accept our deep appreciation for your active participation in our SHEQ Leadership Forum. I think it went off well and judging by the many positive and encouraging responses we got from the attendees, it was a truly successful event and I believe we reached our objective, which was to provide an inter-divisional forum for Eskom and service providers to engage and address SHEQ related problems and constraints that affect the organisation and our partnering service providers.
Going forward, Eskom will have follow-up sessions to discuss the feedback as well as comments and key learnings from the forum. The discussion session was especially beneficial as it highlighted areas that we can immediately start addressing and processes that we need to re-evaluate.
Your contributions undeniably contributed to the success of the Forum. Even the controversial issues were being discussed long after your departure.
Eskom, Corporate Services, Sustainability & Innovation, Megawatt Park, Sunninghill.
I am hoping that I can get DoL’s opinion on the interpretation of Construction Regulation 9(4) and 9(5). Who wants to give an opinion?
Construction Regulation 9 (4) Any owner of a structure shall ensure that inspections of that structure upon completion are carried out periodically by competent persons in order to render the structure safe for continued use: Provided that the inspections are carried out at least once every six months for the first two years and thereafter yearly and records of such inspections are kept and made available to an inspector upon request.
Construction Regulation 9(5) Any owner of a structure shall ensure that the structure upon completion is maintained in such a manner that the structure remains safe for continued use and such maintenance records shall be kept and made available to an inspector upon request.
Owners of structures are concerned that a strict interpretation of these sub regulations may have huge cost implications in that outside specialists would have to be contracted to undertake a forensic / structural test of all structures on a yearly basis or additional specialist staff recruited merely for this purpose. I, on the other hand, am of the opinion that, save where regulated elsewhere in the regulations, structures need only be visually or non-forensically as opposed to “forensically” inspected. I have always felt that employers / owners of structures should act within the bounds of reasonability and practicability when conducting such inspections and, inter alia, the cost implication could be considered. In this regard, I am guided by the guidelines in section 1(xliv) of the OHS Act.
"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;
Another concern is the degree of competency required.
"competent person" means any person having the knowledge, training, experience and qualifications specific to the work or task being performed: Provided that where appropriate qualifications and training are registered in terms of the provisions of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995), these qualifications and training shall be deemed to be the required qualifications and training.
Here too, I tend to interpret competency in relation to reasonability and practicability so as to avoid creating a new industry of specialist inspectors which are already preying on the fears of employers / owners. In other words, it should be more appropriate to give a liberal interpretation of competency in the sense that the person inspecting the structure has some reasonable knowledge of the hazards it may pose. This as opposed to falling back on someone with, for example, a structural engineering background. Of course there is no hard-and-fast- rule as factors such as the risk posed by the structure, the state of the structure etc. may dictate but left to the owner’s discretion? To this end, the use of a (comprehensive) checklist developed by the designer for use by inspectors whom the Employer/Client deems competent.
I am also curious as to whether any employers / owners commented on this regulation (and unchanged amendment to this sub regulation ) when promulgated for comment?
These two sub regulations could be taken to imply that the Regulations were not expected to be retroactive since “upon completion” infers that the construction work had not actually taken place when the Regulations were promulgated in 2003. Is this, in fact, the case or do all existing structures require the annual inspection, irrespective of the dictates of reasonableness as indicated above. Is the Union Buildings exempt but not the World Cup stadiums?
Participate in this OHS forum. Have your say.
Thank you once again for a very informative and thought provoking newsletter.
Your comment on the State having to provide adequate protection for its citizens made me think about our own statistics regarding accidents and incidents. We are regularly requested by clients to provide SHE statistics for tender purposes and some clients question these stats and ask why they are a bit high. Well, I say to them, it is due to the Government, other citizens and you, the Client, who are part of the problem and should take some blame. Why they ask? Well, the stats will show that 15% of all our accidents recorded are road accidents caused by other citizens (the accidents occurred in the course of the employees’ duties) , 5% from ‘drive by shootings’ (here I blame the Government for not protecting my workers on their way to work over which the company has no control) and 30 % are caused by site conditions on the Client’s premises (I spit on your 37.2 agreement which you made us sign so smugly Mr. Client). Those ‘blue light imbeciles’ may also negatively impact on my statistics one day! SO ACCIDENTS ARE NOT ALWAYS THE CONTRACTOR’S FAULT, MR CLIENT!!!
30% of the rest of the incidents were caused as a result of workers not wearing their P.P.E, wearing incorrect or defective P.P.E or not wearing their P.P.E as they were trained to do so (generally a problem in our type of industry). If you want a good laugh, imagine a worker trying to fit into a full body safety harness when it is handed to him upside down to try on for the first time – it brought tears to our eyes as he struggled valiantly to change his bodily structure to suit the upside down safety harness (the straps which normally go around the upper legs now blocking his vision). Proper training is the key here!
We have previously worked on a relatively dangerous site where we asked our workers if they wanted to continue working there after the client made no attempt to improve the site conditions - (“If you don’t want the job you can just bugger off and we’ll get somebody else” was the curt reply when we confronted the client). One worker answered, with the rest all nodding in agreement – “we are hungry and there are no other jobs.” I shudder to think of all the legal implications this situation posed if it had all gone wrong – the life of a contractor can be tough to say the least. Quite honestly, my heart breaks for all those workers and for the attitude of the client. What do you factor into the risk assessments in this case? Mitigating factors implemented? Clients perceived risks and contractors perceived risks can sometimes differ quite dramatically.
With your newsletter in mind, what the Government perceives as risk (together with its sadly lacking mitigating controls) to its citizens seems to differ from the citizens’ own perceptions and requirements for better risk control. It seems that they are using the military criteria of ‘acceptable losses’ – are we then at war with crime? I would say that the generals in charge are busy losing this war bit by bit and it remains to be seen at what level of “acceptable losses’ they will eventually galvanize themselves into a strong and united effective front against crime.
Again I ramble. Thank you again and I am looking forward to your workshop.
Our company is a cruching company that provides services to the construction and mining industries. Sometimes we work on mining sites for companies such as De Beers, BHP Billiton, Afrisam etc and on Construction sites for the Gautrain, Eskom etc. Our scope would be crushing of coal, rock, stone etc which is then used for aggregate and such. Our clients on mining sites request that we sign a 37.2 Agreement in terms of the OHS Act. How would it affect us if we were to sign the agreement and to what extent are we liable should we sign and accept the agreement as one of our Executive Directors is reluctant to as he is of the opinion that it is not required on mining sites.
Client Specifications handed to us by our clients-Can the contents of the specification be negotiated to a certain degree provided that we show cause and are able to comply to requirements as set out in OHS Act or MHSA? Response soon.
ABC Limited employees travelling as passengers where the driver is a non-ABC employee (i.e. a contractor or member of the public) are not covered in terms of the COID Act, and this has to be taken into account when accepting a work-related lift. This also applies to cases where a non-ABC employee is in control of an ABC-owned vehicle, for example an employee provided by a labour broker. Is this Policy Directive from ABC Limited correct?
Response. I am convinced that the ABC Limited's Policy Diredctive is based on an incorrect interpretation of the COID Act. In particular section 22(5)
Construction Regulation 10 Formwork & Support Work. I have noted that a large number of the contractors have a problem when it comes to the appointment of a competent person to inspect from/support work. I’m of the opion that this appointment should be made to the Consultant Engineer of the project. We both know that inspections on form/support work should be done, daily, before, during and after placement of a load. What happens is that the consultant engineer will sign off that adequately steel structure is in place before cement is poured. He will then instruct the site management when the support/form can be removed. Now my question is, what happens if the support/from work can't support the load that will be placed on it? Even when drawings have been provided for the support/from work to be build in order to hold the load. Now here I feel that it’s the consultant engineering that has to Inspect and approve the support/from work, which means they have to be appointed as such, but they don’t want to accept the appointment. What will happen should form/support work collapse and a person dies?
Thanks. My response. One is the designer C(consultant Engineer)? and the other is the competent supervisor of the Form/support work. I guess the designer / engineer will be reluctant to be on site every day and act as inspector / supervisor? The competent person appointed to supervise the 'operations' is not the person who did the calculations regarding the load etc.. That is a designer duty. It is tough to say who would be liable if the structure collapses. If the evidence points to the fact that form/support work could not support the load, an inspector of DoL and prosecutor should look to the designer. If it collapses due to improper supervision for example it got damaged and nothing was done about it by the supervisor, then I would have a go at that supervisor. All will depend on the evidence post a collapse. When in doubt charge everyone is also something I used to do as a prosecutor. I am not sure about this SAQA qualification. It seems as if there are no accredited trainers? Perhaps you can tell me? It SAQA does not apply then your supervisor must fit the definition of a competent person i.e. necessary knowledge, training, experience, qualification (if applicable).
Do you have any formal interpretation on the 37(1) responsibilities of an employer and how it can be linked to the 16(1) appointment?
My response. Section 37 is essentially a presumption-in-law that presumes the employer (read section 16(1) & 16(2)s and / or the corporate body) to have committed the offences of employees and mandataries. It must be rebutted by the employer who must then demonstrate, on a balance of probabilities, that the acts /omissions of employees / mandataries took place with its connivance / permission / was within their scope of authority and not authorises and that reasonable steps were taken to prevent these acts / omissions. Click herefor more on Section 16 and here
Section 86Aof the Mine Health and Safety Amendment Act No 74 of 2008 makes it an offence for an employer, CEO, manager, agent or employee to contravene the MHS Act and cause death. This will the first time a statutory homicide crime is created in the MHS Act. Yet it is not culpable homicide which is a common law crime. It is also not really corporate homicide. It has section 37OHS Act overtones. Law & Justice. Mail & Guardian. Not only mines can be charged with this quasi homicide charge! See section 21
1. Does your company supply, design, repair, import or manufacture any articles for use at mines?
2. Does your company design, install or erect any articles on a mine or for use at a mine?
3. Does your company design or construct buildings or structures on a mine or for use at a mine?
4. Does your company supply a hazardous chemical substance for use at a mine?