The SAIOSH Technical Commitee commented on the Draft OHS Amendment Bill. The Committee and I, in particular, regard the Bill as irrational and unconstitutional.
Click below for the OHS Amendment Bill 2020.
Click here to download the Committee's comments.
As you can see from DEL's presentations on the OHS Amendment Bill, the introduction of the much trumpheted "Right to Leave a dangerous Workplace' has neen 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 / suplliers 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'.
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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.