The SAIOSH Technical Commitee commented on the Draft OHS Amendment Bill. The Committee and I, in particular, regard the Bill as irrational and unconstitutional.
Questions by Tracy Handcock of Engineering News and my response.
Is the OSH Amendment Bill still on track to be gazetted and signed into legislation in the first half of 2023?
What sparked the need to introduce stricter health and safety requirements for South African businesses?
Are there any concerns about the OSH Amendment Bill?
There has been no indication that the draft OHS Amendment Bill 2020 will be promulgated into law during the first half of 2023. I would surmise that it would be improbable as the new Chief Inspector recently gave a presentation on the draft Bill and intimated in his presentation that there were already changes to the draft Bill. It has also become known that the Chief Inspector has instructed that a subcommittee be formed in early 2023 to examine the comments submitted on the draft Bill. The draft Bill is in any case so poorly drafted that it is open to a rationality challenge. It contains a myriad of contradictions, deviates from international norms including the International Labour Organization's (ILO) C155 - Occupational Safety and Health Convention, 1981 (No. 155) which South Africa has ratified and seems to venture into the realms of strict liability which has been rejected by all superior courts. Strict liability suggest that fault in the form of negligence would not be a consideration. The yardstick of 'reasonability and practicability,' to test whether an employer has adequately discharged its duties in terms of the OHS Act, has been deliberately deleted in the draft Bill. This suggests a stricter approach towards employers. The ILO OHS Convention specifically requires member states to adopt legislation 'to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment'. It appears that South African employers will be held to a higher standard than that promoted by the ILO OHS Convention and all member states. As a consequence South African employers will be deprived of arguing that they did everything within the bounds of reasonability and practicability to avoid incidents. The same rigid tendency is to be found in the draft Mine Health and Safety Amendment Bill 2022. The courts have however embraced the concept of 'reasonability and practicability'. In Pikitup (SOC) Limited v South African Municipal Workers' Union obo members and others  (Labour Appeal Court (LAC) the court stated that '‘Sections 8 and 9 (of the OHS Act) therefore place a duty on the employer to act proactively to avoid any harm or injury to its employees and others. There is no standard as to what is reasonably practicable. Each case will have to be determined on its own facts and circumstances. As can be seen from the definition of reasonably practicable it involves weighing different considerations from risk evaluation, means of removing or avoiding the risk, resource availability and a cost-benefit analysis. In Edwards v National Coal Board, Lord Justice Asquith stated: "Reasonably practicable' as traditionally interpreted, is a narrower term than 'physically possible' and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble involved in the measure necessary to avert the risk is placed in the other; and that, if it is shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon who the duty is laid discharges the burden of proving that compliance was not reasonably practicable."
As it is a draft Amendment Bill, the bulk of the current OHS Act remains in place with only certain provisions being amended. Penalties for contraventions are also drastically increased. According to DEL the purpose of the draft Amendment Bill was not originally to create stricter health and safety requirements but to make it more constitutionally palatable - since the current OHS Act was promulgated in 1993 whereas the (interim) Constitution was promulgated in 1996. It fails dismally in this regard and ironically retains the very same provisions which are constitutionally unpalatable and which have been slated by the High Court. One of the controversial provisions that is retained relates to access to an Inspector's Report post an incident investigation. In Industrial Health Resource Group and others v Minister of Labour and others  (GP), a matter which related to the perpetual refusal by DEL to provide interested parties will a copy of the inspector's finding after the tragic Paarl Print Fire which killed 11 employees, the court declared that the interested parties must on request to the presiding inspector be furnished with a copy of the report into any inquiry held in terms of section 32 of OHSA and furthermore declared that the policy of the DEL to refuse access to a section 32 inquiry report in all instances and without regard to the circumstances of each case once the report is referred to the NPA is inconsistent with OHSA, the Promotion of Access to Information Act 2 of 2000, and the Constitution of the RSA and is accordingly unlawful and invalid’.
The draft Bill ignores this finding and fails to cure this matter by making no provision for employers and interested parties to be furnished with a copy of the Inspectors Report. This contrasts with the more constitutionally palatable Mine Health and Safety Act (1996) which obviously took cognisance of section 33 of the Bill of Rights (Just Administrative Action) and the Promotion of Administrative Justice (PAJA) Act. The Constitution and PAJA provides for employers and interested parties, whose rights have been adversely affected by an administrative action (Inquiry / Investigation), access to the Inspector's Report or findings. This is just one example of the draft Bill's failure to address issues of transparency and constitutionality as repeatedly stated by DEL as the reason for an amendment to the current OHS Act. DEL never publicly promoted stricter OHS legislation as the rationale for an amendment although it routinely bemoans compliance levels in South Africa.
nce is the introduction of limited Administrative Fining powers by inspectors of up to R50 000. DEL seems to have already unofficially backtracked on this issue by limiting fining powers to Specialised OHS Inspectors based on a (regular) inspector's recommendations. Currently only the courts may impose fines. This aligns with the Mine Health and Safety Act where inspectors have fining powers of up to R1million.
Another perplexing provision is the introduction of a statutory homicide offence, which hitherto never existed in South African jurisprudence. It would duplicate the common law crime of culpable homicide which applies to both juristic and natural persons. The rationale behind this is unknown and is open to challenge - hopefully by employer organisations.
Another disappointing aspect of the draft Bill is its failure to recognise the safety practitioner profession. Unlike the Mine Health and Safety Act and even the construction regulations to the current OHS Act, the draft Bill is silent on the aspect of statutory appointments of safety personnel. In the Mine Health and Safety Act the appointment of safely officers is obligatory and the construction regulations provide for the obligatory appointment of a Construction Health and Safety Officer who is accredited to the SACPCMP.
With the exception of some regulations such as the General Machinery and Construction Regulations, the current OHS Act contains a vacuum in statutory appointments such as the so-called 'section 16(2) Person who is assigned duties by the CEO. (Even these appointments are not mandatory) The CEO and 16(2) assigned persons are usually too far removed from the realities of the workplace to properly discharge their statutory duties without managerial and supervisory assistance, resulting in employers having to resort to so-called ‘in-house’ appointments - often labelled Section 16(2) Assistants, section 8(2) appointments and section 8(2)(i) (supervisory) appointments. Managers and supervisors are an integral and essential part of an employer’s health and safety management system and deserve statutory recognition. It was hoped the draft Bill would address this issue but here too it fails. The Mine Health and safety Act and even the construction regulations provide for the statutory appointment of managers and supervisors. In others words a statutory structure headed by the CEO and cascading down to supervisors. Why this issue was not addressed in the draft Bill remains a mystery as DEL has been aware of the problems this vacuum poses for decades. SAIOSH has made recommendations to cure this vacuum by proposing the introduction of another statutory appointment for all managerial and supervisory appointments in the form of a section 16(3) appointment. This also aligns with UK OHS legislation.
These are some very broad comments on the draft Bill. It is riddled with inconsistencies, incorporates legal elements in some provisions which are removed in others, has incoherent penalty schedules, vague definitions and controversially also seeks to equate the penalties for regulation contraventions, which are promulgated by the Minister, with those of sections of legislation adopted by Parliament. It could be argued that this is irrational. This could mean that purely administrative contraventions, as opposed to serious injury offences, will carry the same maximum penalty of R5 million.
And finally the draft Bill fails spectacularly to introduce the much trumpeted "Right to Leave a dangerous Workplace'. It is promoted in the ILO OHS Convention, contained in the Mine Health and Safety Act and was even introduced in the multitude of Covid-19 DEL Directions. The only explanation can be is that the draft Bill was simply published in its 2014 'leaked' format without any further thought. In conclusion the draff Bill represents an unimaginative and lazy piece of legislation. A lost opportunity to rectify many of the known shortcomings of the current OHS Act, a failure to align it with the post-constitutional Mine Health and Safety Act while consistently demonstrating a subliminal hostility towards employers.
What should businesses be doing now to ensure that they comply with the legislation once it becomes effective?
Most large and blue chip / multi-national employers in South Africa have long pre-empted many of the provisions in the draft Bill by using the current OHS Act only as a minimum standard. The majority of these employers have embraced internationally recognised Safety Systems (ISO) and allocate large budgets to safety departments which are not obligatory. Bear in mind the draft Bill only amends a small portion of the current Act and is not an entirely new piece of legislation. The problem with compliance often rests with small to medium enterprises, dysfunctional municipalities and even within public works and the public service in general. DEL, in particular the Minister, who is a political deployee, often uses his platform to decry general compliance levels in tandem with the Tripartite Alliance for obvious reasons.
The other problem lies with enforcement of the OHS Act. DEL usually opts to investigate serious / fatal incidents 'informally' without a set of established legal rules. This even though the OHS Act does provide for Formal Inquiries where evidence is led and tested along the lines of any Commission of Inquiry. In terms of the Mine Health and safety Act fatal mining accidents must be subjected to Formal Inquiries and cannot be 'informally' investigated. SAIOSH has proposed changes to the draft Bill to provide for all fatal workplace incidents to be subjected to a Formal Inquiry. The rationale being that it would provide the NPA with a tested record / transcript of tested evidence to consider in deciding whether to institute a prosecution. That is the theory. In practice the NPA has no appetite to prosecute OHS incidents as the OHS Special Courts have either been dissolved or decimated. Spectacular incidents such as the Paarl Print Fire, Tongaat Mall Collapse, Grayston Bridge Collapse never resulted in prosecution despite damning findings and recommendations by experienced DEL inspectors. Another disincentive for holding Formal Inquires is the competency of DEL inspectors. Very few have knowledge of the required Law of Privilege to chair Formal Inquiries although the OHS Act does provide for the outsourcing this function. I believe budgetary constraints dictate against this.
Click below for the OHS Amendment Bill 2020.
Click here to download the Committee's comments.
South Africa has ratified the International Labour Organization's (ILO) C155 - Occupational Safety and Health Convention, 1981 (No. 155) which promotes 'reasonability and practicability' as the basis for the discharge of duties of employers. It is inexplicable that SA now proposes to depart from this International Convention by omitting these vital words. What is the agenda behind this?
By selectively omitting the words ‘reasonably practicable’ which is universally accepted as a yardstick to judge whether an employer has properly discharged his or her duties, the Bill appears to venture into the area of strict liability which, in turn, has been consistently rejected by criminal courts including the Constitutional Court and Supreme Court of Appeal. Strict liability infers that an employer may be convicted of contraventions in the absence of the fault element (culpa or negligence). In 1997 the Constitutional Court ruled that in South Africa the principle of strict liability infringes negatively on the right to a fair trial provided for in section 35(3) of the Constitution, as well as with the right to freedom and security of the person provided for in section 12(1) of the Constitution of the Republic of South Africa, 1996. (See Coetzee 1997 (1) SACR 379 (CC) at 442h–Justice O'Regan; Magagula 2001 (2) SACR 123 (T) at 145–146, 146b).
Repugnance to the notion of criminal liability without fault is evidenced too in the reluctance of courts to interpret statutory provisions which contain no express mens rea requirement as not requiring mens rea. In S v Arenstein 1967 (3) SA 366 (A) at 381D–E, Van Winsen AJA held as follows:
'In view of such general maximums as nulla poena sine culpa and actus non facit reum nisi mens sit rea, the Legislature, in the absence of clear and convincing indications to the contrary in the enactment in question, is presumed to have intended that violations of statutory prohibitions would not be punishable in the absence of mens rea in some degree or other.'
Strict liability has no place in occupational health and safety legislation where negligence or culpa is the fault element as opposed to intention or dolus. The Consumer Protection Act (CPA) is an example of strict liability where the fault element is omitted. The Supreme Court of Appeal said that the CPA was designed to offer protection to the vulnerable consumer as well as to promote social and economic welfare of the consumers. However, unlike the MHS Act, the CPA is not a criminal statute.
In Pikitup (SOC) Limited v South African Municipal Workers' Union obo members and others  (Labour Appeal Court (LAC) the court stated that '‘Sections 8 and 9 therefore place a duty on the employer to act proactively to avoid any harm or injury to its employees and others. There is no standard as to what is reasonably practicable. Each case will have to be determined on its own facts and circumstances. As can be seen from the definition of reasonably practicable it involves weighing different considerations from risk evaluation, means of removing or avoiding the risk, resource availability and a cost-benefit analysis. In Edwards v National Coal Board, Lord Justice Asquith stated: "Reasonably practicable' as traditionally interpreted, is a narrower term than 'physically possible' and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble involved in the measure necessary to avert the risk is placed in the other; and that, if it is shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon who the duty is laid discharges the burden of proving that compliance was not reasonably practicable."
As you can see from DEL's presentations on the OHS Amendment Bill, the introduction of the much trumpeted "Right to Leave a dangerous Workplace' has been omitted in the Bill? Yet it was introduced in the multitude of Covid-19 DEL Directions. The only explanation can be is that the Bill was simply published it in 2014 'leaked' format without any further thought. There is also a theme of (subliminal) hostility to towards employers with the deliberate deletion of the words 'reasonably practicable' - a 'tempering of the duties of employers / suppliers etc. It is highly improbable that the courts will entertain this move towards strict liability. Lex non cogit as impossiblia. Advocate Looch will expand on this issue in his workshops entitled ' Back to the Drawing Board'.
Contact me at firstname.lastname@example.org if you are interested in hearing this Presentation.
MEMORANDUM ON OBJECTIVES OF OCCUPATIONAL HEALTH AND SAFETY BILL, 2020
1.1 The Occupational Health and Safety Act predates the Constitution of the Republic of South Africa, which provides that any law or conduct inconsistent with the Constitution is invalid and any obligation imposed by the Constitution must be fulfilled. The proposed amendment of the Act therefore became necessary to ensure consistency with the spirit and provision of the Constitution dealing with the right to life, human dignity, right to fair labour practice, access to information and lawful, reasonable and procedurally fair administrative decision making.
1.2 Over and above the fact that the current Occupational Health and Safety Act predated the Constitution, the legislation has not kept abreast with the legal landscape in the Republic of South Africa, technology and Occupational Health and Safety around the world.
1.3 The Act also does not address the Cabinet decision of 1999 in which it was envisaged that the Republic of South Africa moves towards an integrated Occupational Health and Safety framework for South Africa. Such integration was supposed to commence with the integration of the Department of Labour and the Department of Mineral Resources (formerly known as the Department Mineral and Energy). This process was stopped during 2009 on instruction of the Minister of Labour.
1.4 Occupation Health and Safety in South Africa therefore remains fragmented with various Government Departments claiming jurisdiction over various areas, leading to confusion at times for clients. The current Occupational Health and Safety Act therefore still crosses over into the jurisdiction of other Occupational Health and Safety legislation that is administered by other Government Departments.
1.5 The proposed Bill however, seeks to limit its reach in terms of occupational health and safety through its scope to those areas falling outside the jurisdiction of the Department.
2. OBJECTIVES OF BILL
2.1 The Bill seeks to align the Act with the Constitution of the Republic of South Africa and other employment laws and to provide a common framework to guide prevention of accidents and ensure health and safety at the workplace; review and strengthen the enforcement provisions; ensure that the legislation is in line with current international and local industry developments; simplify the administrative system for issuing fines and shorten the enforcement procedures; reinforce the offences and penalties.
2.2 The Bill further seeks to provide a common framework by providing for—
(a) the revision and reviewing of the definitions in order to remove any ambiguities and align them with other employment laws;
(b) appointment of an independent person who is not an employee of the Department of Labour. It also addresses the concerns that were raised by the Portfolio Committee for Labour about the independent chairperson of the Council;
(c) the limitation of the term of office of the members of the Council to two terms in order to give opportunities to new members and prevent comfort zones which could give rise to mediocrity. There is also a restriction on the number of technical committees that members can serve on in order to ensure the effectiveness of committees;
(d) the compulsory risk assessment to be conducted by the employer and a workplace specific risk management plan developed and implemented in order to minimise the exposure of employees to risk;
(e) the development of a safety management system for workplaces by employers;
(f) the conditions on any person who imports, sells or supplies any substances to ensure that an article is accompanied by precautionary measures to be adhered to; This area of the Bill is also expanded to include the current move afoot worldwide towards the implementation of the Globally Harmonised System legislation – currently this is not dealt with in the Act and has limited the Minister in relation to creating regulations protecting employees. The Hazardous Chemical Substances Regulation will be given the necessary legal framework that will allow for the incorporation of certain aspects in order to allow for the incorporation of the Globally Harmonised System;
(g) the empowerment of the Council to play a major role in advising the Minister on listed work;
(h) empowerment of employees to leave a dangerous working place when their health and safety are in danger, without any fear of victimisation by the employer;
(i) the responsibility on the chief executive officer to delegate duties in writing and be accountable for any duties that has been delegated;
(j) self regulation (bargaining tool to engage) that allows employers and employees through a process of negotiation, consultation and appointment of health and safety representatives and health and safety committees. It also makes a provision for a dispute resolution when there are parties having a dispute through the general administrative regulations;
(k) health and safety representatives are given greater responsibilities which they have to exercise – in the past this was optional;
(l) a platform for employees to engage the employer on the health and safety committee and participate in decision making on important issues. The functions of the health and safety committee have always been key to ensuring that health and safety is properly managed. The health and safety committee is given more responsibilities in performing its functions which in the past created problems between the employer and employees;
(m) a mechanism to ensure that the Council is consulted before any notice is published in the Government Gazette;
(n) differentiation between health and safety standards;
(o) the revision and strengthening of the enforcement provisions, simplification of the administrative system for issuing fines and empowers the inspector to issue administrative fines;
(p) the reinforcement of the offences and penalties as a deterrent to other employers; and
(q) the alignment of the period of appeal with other employment laws. The employers are given the right to appeal the decision of the chief inspector in compliance with the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).
3. BODIES CONSULTED
3.1 The Department has already consulted with the Council and consensus has already been achieved on almost all issues. In principle, the content of the Bill reflects the views of the Council. Total consensus was not reached in the area of Administrative fines as well as the proposed penalties.
3.2 The Department went through a process of consultation with other relevant organs of state, most of whom provided comments for consideration.
4. FINANCIAL IMPLICATIONS FOR STATE
4.1 The implementation of the Bill will have financial implications for the Department, in that it will be responsible for the establishment of the sectoral advisory forums.
4.2 The Bill will be subjected to a Regulatory Impact Assessment (RIA) process.
5. PARLIAMENTARY PROCEDURE
5.1 The Department of Labour and the State Law Advisers are of the opinion that this Bill must be dealt with in accordance with the parliamentary procedure prescribed by section 75 of the Constitution.
5.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it contains no provision pertaining to customary law or customs of traditional communities.