Occupational Health & Safety Legislation Consultants
No-one is immune to prosecution in terms of the OHS Act, yet it is mostly employers and users of plant and machinery who are exposed to criminal prosecution. The reason for this is to be found in the extensive duties which the OHS Act imposes upon them, thereby creating a host of legal rights for employees sections 8 and 13, persons in general (non employees) section 9, recipients of articles and substances manufactured, imported and supplied and utilised at a workplace, clients for whom articles (including structures) are designed, erected or installed. (Section 10) read with the Construction Regulations). Criminal liability emanates from the infringement of these statutory rights by employers or users. Juristic persons or corporate bodies along with natural persons such as the CEO and his or her team of section 16(2)“Assigned Persons’ are regarded as employers and users for prosecution purposes. Employers can also be held vicariously liable for wrongdoings of contractors in terms of section 37.
The duties placed upon employers & users are not absolute but are tempered with reasonability and practicability. What the Labour Court says in this regard:
‘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." Pikitup (SOC) Limited v South African Municipal Workers' Union obo members and others  (LAC)
The broad duties of employers (mines & works) in the Mine Health & Safety Act is contained in sections 5 to 19
Employers have OHS rights too. How does an employer earn such rights?
Start by training your employees into their duties. The opposite of a 'Right' is a "Duty'. If employees have duties, employers have rights. They are not automatic rights as those enjoyed by employees but must be earned. By training employees into their duties, employers earn rights! In the OHS Act section 14 is a good point of departure. Similarly in the MHS Act start with section 22
In brief, you should know the following about us: our company was established in 1986 and had been responsible for providing outstanding legal advice, legal representation and OHS legislation workshops ever since. Our business is located in Johannesburg.
Klass Looch Associates is proud to be associated with Comprac Holdings
I am also proud to be associated with a body which has been established for Occupational Health & Safety Professionals. The South African Institute of Occupational Safety & Health (SAIOSH) has been established by dedicated safety practitioners for whom I tremendous respect and with whom I have been associated for decades. I encourage you to visit their website. Visit www.saiosh.co.za
Saiosh launch new OHS Legal Advice Forum
Saiosh is pleased to announce that it has secured the services of Advocate Raynard Looch to provide opinion on member's Occupational Health and Safety legal queries. The OHS Legal Advice Forum is now live and members are invited to post their OHS legal queries. This free service is only available to paid up Saiosh members.
Opinions expressed on the Saiosh OHS Legal Advice Forum reflect the personal opinion of Advocate Raynard Looch. It is accepted that other individuals may differ with his opinion or interpretation of OHS legislation which remains untested by the courts. Advocate Raynard Looch will not accept liability for any loss, including reputational damage or costs, however caused, arising from the use or reliance upon, in any manner, the opinion provided on this forum and does not warrant the truth, accuracy or completeness of the opinion provided.
The OHS Legal Advice Forum can be found on the "Professional Registration" drop down page on the Saiosh website www.saiosh.co.za