Health and Safety for Body Corporates / Sectional Titles and Chairperson
Sectional Title living has become increasingly popular over the past decade for a wide range of reasons, including increased security and a more communal way of life, thus placing health and safety for a sectional title in the spotlight. Because sectional titles are less expensive, young people have an easier time purchasing their first home. This has made the sectional title health and safety an imperative consideration in modern times.
Units in a complex or development are referred to as "sectional titles" when distinct owners own them. In a sectional title complex, you are buying an undivided piece of the common property, which is referred to as a "unit," together with a section or sections.
From a townhouse to a duet house, sectional title units include anything with a smaller footprint than a single-family home. Many factors are involved in the ownership of sectional title property, given that the unit is a section and an undivided interest in the common property.
The section is the first and most important part, since it belongs only to the person who owns it. As a result, you become a joint owner of the common property of the sectional title scheme, which is held by all the owners in equal portions.
Health and safety for body corporates and for sectional title living becomes an extremely important topic of discussion, to ensure all who are involved know what their responsibilities are, what they are liable for in certain circumstances, and so on.
Sectional title complexes offer both benefits and drawbacks. Instead of being solely accountable for all aspects of a property's ownership, a person who invests in a sectional title scheme owns just a portion of the property, making the owner part of a smaller community.
Consequently, they will have to adhere to the body corporate's management and behaviour regulations. Before a problem or conflict emerges, the regulations should be thoroughly analysed to identify any areas of incompatibility or concern. Verifying ahead of time there are no tough regulatory constraints to comply with, is quite vital.
Health and Safety for Body Corporates and Trustees
Health and Safety in the workplace are addressed under the Occupational Health and Safety Act No. 85 of 1993, which establishes the obligations of employers toward their workforce and is thus applicable in health and safety for trustees of a body corporate.
Several sectional title body corporates employ workers like managers, supervisors and other general labourers to accomplish their day-to-day duties.
There is a widespread belief that the contractor has the primary responsibility for ensuring that workers engaged in repairs are protected from harm. In principle, this may be true, yet the trustees cannot disregard certain responsibilities.
This is what construction work is described as in the Construction Regulations 2014, section 1:
- A building or comparable structure's construction; maintenance; modification; renovation; repair; demolition; or dismantling.
Any individual who has construction work done for them is referred to as a "client," and its obligations are outlined in section 5 of the Regulations: A few mentioned below
- Prepare a baseline risk assessment for an intended construction work project;
- For the building project, a health and safety specification must be drawn up.
- Any health and safety information that might impact everyone working on the project, should be given to the contractor.
- To formally designate each subcontractor.
- To guarantee that the health and safety plan of the contractor is executed and maintained fairly.
- To ensure that work that does not adhere to the health and safety plan, is halted.
- To provide more information and resources, as necessary.
- All contractors must be registered with a compensation fund or an authorised compensation insurer before any work is performed.
- To ascertain that all contractors have budgeted for health and safety measures throughout the construction process at the tender stage.
As a compendium of all health and safety standards relevant to the planned construction activity, the health and safety specification is a must-have for each construction project. A health and safety plan is a written document that outlines how to minimise, lessen or manage the dangers that have been identified.
In addition, each body corporate in South Africa must ensure that a health and safety policy is in place, effectively outlining the commitment of employers and employees to health and safety as indicated in Section 7 of the OHS Act.
Health and Safety standards are often addressed at the tender stage by reputable contractors, who then implement the necessary procedures to assure compliance. Subsequently, the trustees should take proactive measures to guarantee that the remodelling contractors and their personnel adhere to the health and safety requirements and plans that are created, and that they do not ignore them.
Contractors who enter the premises for work must ensure that they have sufficient proof of their compliance with all applicable health and safety legislation, standards, and all other regulations. In addition, the client and specific contractor must sign a Section 37.2 Agreement.
This is a legally binding agreement, but it does not exempt either party from applying and adhering to the necessary legislative requirements.
It should be a common practice to hire a certified Health and Safety company to conduct annual Health and Safety Compliance Audits to verify health and safety compliance with legislation, municipal by-laws and building regulations. This should also be sent to all members of the body corporate and as well as the insurance companies. Furthermore, third-party verification also creates the perfect opportunity to further improve the current health and safety practices.
Most sectional titles could at some point carry out construction work as outlined in the Construction Regulations. In addition, other contractors may also be needed, including cleaners, maintenance personnel, electricians, tree fellers, painters, and others.
According to the work needed, procedures, safety files, policies, competence certificates and other health and safety components are required. Therefore, health and safety compliance is not just encouraged, but required in all situations where employees, contractors, third parties and the public are concerned and exposed to risk.
Where contractors are employed by sectional titles, the Section 37.2 Agreement must be used. It is a legally binding agreement between the client and their contractor in terms of either work or services that are provided by the contractor, regardless of the type of work or services, subject to the terms and the conditions of the Mandatory Agreement.
The work that is covered under this agreement will be according to the contractor’s unique services and can include:
- Building and construction
- Electrical and/or installation work
- CCTV Maintenance
- Electric Fencing
- Tree Felling
- Roof Repair Contractors
- Servicing of machinery and/or equipment, and more.
Various prerequisites must be met before the contractor may begin working. Per Section 37(2) of their agreement, contractors are required to set up and submit a safety file. Several documents must form a part of this file, according to the nature of the work or services that the contractor provides.
- A detailed scope of work
- Risk Assessment
- The Occupational Health and Safety Policy as well as Plan
- The supervisor appointed according to Section 8.2 of the OHS Act
- The written letter of appointment to offer first aid (under General Safety Regulation 3.4)
- Construction Regulation 2014, where it is applicable
- Contractor control
- Letter of Good Standing, and several other documents according to the contractor.
Proper Vetting of Contractors and Suppliers should also be done.
This should include and not limited to:
- Qualification of Contractor for the scope of work
- At least 3 referrals
- WCA Registered
- SARS Registered
- UIF Registered
- Safety File
- OHS Training
- Risk Assessment
- Health and Safety Compliance Certificate (Company)
While these requirements must be met by the contractors, it is the responsibility of the chairperson (16.1) to ensure that all health and safety practices are applied and that they are adhered to by all stakeholders. It is also important to ensure the the appointed Chairperson is regarded as a Competent Person.
The Health and Safety Obligations of the Chairperson
It is important to review the definition of a body corporate chairperson's duties and obligations when it comes to sectional title health and safety, to better comprehend the role they play.
A chairperson or CEO refers to the person in charge of overseeing and controlling the entire administration and operations of a corporation or other state-sponsored entity. Thus, the responsibilities of a chairman of a body corporate can be akin to any other employer as the 16.1 Appointee.
Thus, is the chairperson liable for health and safety? According to law, the 16.1 of any organisation remains accountable and liable for all matters concerning health and safety. A CEO may transfer responsibilities to managers and a 16.2, but remains accountable and liable.
In the case of sectional title and chairperson, it would be advisable to ensure that the appointed chairperson be made aware of his/her responsibilities and accountability/liability as per the OHS Act, and is highly recomened that he/she attend the OHS Act For Management course to understand what the Law expects of him/her and what the consequesnces would be if found guilty of non-compliance. A 16.1 letter of appointment must be signed by the chairperson.
If an owner of a section employ any person to do any work on their behalf, whether a cleaner or other, that owner becomes an employer and as such must comply with health and safety legislation. (This also applies to all of us who have persons working in and around our homes.)
Thus, according to the Occupational Health and Safety Act 85 of 1993, the employer is responsible to ensure:
- The health, safety, and well-being of workers, customers, partners, and anyone else who may be impacted by the body corporate operations are evaluated.
- The employer must plan both preventative and protective measures and ensure that they are organised, controlled, monitored and reviewed.
- Insist on the presence of clearly visible health and safety guidelines in the form of documents.
- Health and safety information should be readily available to them.
- As well as taking preventive and protective measures to avoid, limit or control risks, employers should ensure that workers are consulted about any workplace hazards and dangers.
The body corporate should verify that the contract with a contractor mandates compliance with occupational health and safety legislation. In addition, trustees should know their OHS obligations as well. The trustees should also provide contractors with a health and safety plan for the common property, while the contractor should be compelled to deliver a copy to the construction company.
Make sure there is a plan in place to reduce falls from ladders and roofs and to address any safety problems that may arise. When high-risk work is required, the corporation must make a reasonable effort to ensure that the contractor has complied with the Occupational Health and Safety Act.
In addition, all high-risk work that is regulated must be completed with the use of a permit system.
Contractor Management - Section 37.2 Mandatory Agreements and Permits to Work
No one, including body corporate trustees and management agents, is exempt from on-site accident liability under the Occupational Health and Safety Act.
When an employee is injured on their property, even if the trustees of the sectional title or homeowners' association were uninformed that work was going place, they are now held accountable.
In terms of sectional titles and contractors, by hiring a contractor without considering the Occupational Health and Safety Act 85 of 1993, COIDA (Compensation for Occupational Injuries and Diseases Amendment Act, No 61 of 1997), BCEA and Labour Relations Act (LRA), trustees are now likely to be held responsible, and non-compliance can lead to fines and imprisonment.
To protect themselves and the business from claims arising from injuries or fatalities caused by any work or service carried out by contractors, the body corporates and contractors must adhere to health and safety rules. Aside from that, they must abide by laws that ensure their safety, and this includes the provision of a safety file and all other relevant documentation.
The health and safety file's objective is clear. It is a file containing information that must be followed to safeguard those involved in initiatives, both present and future. Subsequently, the health and safety file is an essential aspect of all health and safety management systems required for the project.
Companies must have health and safety policies and procedures in place to guarantee proper planning, organisation, control, monitoring and evaluation of actions to protect the health and safety of their employees.
Section 37 of the Occupational Health and Safety Act, which deals with criminal culpability for an employer's employees or contractors' actions or omissions, is found in the Occupational Health and Safety Act 85 of 1993. Alternatively, the vicarious responsibility clause can be used to refer to this concept.
Vicarious responsibility applies in the following situations according to common law:
- There is an inherent link that exists between the employer and the employee.
- The employee committed an unsafe act.
- The employee committed wrongdoing while operating within the limits of their job.
When it comes to contractors, the rules of section 37(1) apply, unless both parties agree in writing to other arrangements for the contractor's compliance with the Occupational Safety and Health Act. The 37.2 Agreement is a common name for this arrangement in practice. The 37.2 Agreement's main goal is to:
- Confirm the contractor's status as an independent employer.
- Clearly state the contractor's legal duties under the OHS Act and any other relevant regulations.
- Indicate that the contractor is responsible for following all health and safety regulations on-site.
As an umbrella contract, the agreement may also incorporate additional provisions that obligate the contractor to:
- Require audits for compliance
- Do inspections
- Do checklists for the commencement of work.
Employees' health and safety must always be protected. To avoid vicarious criminal culpability, the employer took reasonable precautions. A part of this involves the necessary permits to work (PTWs), and every employer must consider the importance of contractors and PTWs in maintaining workplace health and safety.
Controlling some forms of labour that might be hazardous, requires the use of a formal, written system known as a permission to work system. The permission to work is a document that outlines the work to be done, the dangers recognised (whether prospective or present), and the actions to be followed to avoid an accident or incident.
Permits to work are an essential component of many safety systems of work. Until safe processes have been determined, they will not allow any work to begin. In addition, they give a comprehensive record of all anticipated dangers and the steps taken to minimise or manage them.
In situations when a high level of expertise is necessary, contractors are often called in to do a dangerous job that might result in significant injury or death. Formalising agreed-upon work practices is essential because of this.
This ensures that instructions are not overlooked, misunderstood or ignored. Additionally, it acts as a checklist for the assigned contractor and their personnel to verify that all dangers, protective measures, work processes and general requirements are adhered to, reviewed, and understood.
The work permit also acts as a record of the activity or work's authorisation and completion. If the essential and needed requirements have been satisfied, a competent person must issue the authorisation.
The different types of permits to work that may apply with health and safety for sectional titles, may include:
- Hot work such as cutting and welding operations
- Cold work, such as handling hazardous substances, painting, heavy lifting, building or dismantling scaffolding, and so on
- Working at heights
- Electrical work
- Confined spaces
- Isolation certificates
Building Regulations / Fire Safety
A board of trustees led by a chairperson is entrusted with the monitoring and maintenance of health and safety rules under sectional title schemes and body corporates. The Owners are responsible for the upkeep of the interior of their units and private gardens.
While body corporates are responsible for all common areas and their facilities, pool area, parking. Subsequently, a coordinated effort is needed to ensure that health and safety requirements are maintained.
Health and safety rules are the responsibility of property owners under the OHS Act and Sectional Title. Signage, lifts, pools, firefighting equipment, compliance certificates, cleaning contractors, other contractors, and public liability insurance are all examples of areas where compliance is critical.
Concerns have been raised about fire safety. In the event of a fire in a building, the lives of the occupants and the loss of property may quickly devolve into tragedy. Who is responsible for the health and safety of those who live in these buildings, particularly in terms of fire danger?
The Trustees are responsible for fire equipment outside the units. Each owner has the responsibility for safe use of any fire-related activities such as cooking on an open, controlled flame or “braai”.
- Equipment used for firefighting should be housed in an inventory at a complex to guarantee that all equipment is serviced every year.
- If there is a fire and the firefighting equipment fails, everyone in the building is in danger and the body corporate will be held responsible for any damages. Should any owner/person interfere with or tamper with any fire equipment, such as using a hose for cleaning a car, that owner is accountable for the repair of the equipment and may also be liable to a fine.
- All service dates should be recorded on a label that is connected to the equipment.
The following are some examples of high-risk structures for fire:
- Buildings with many tenants or visitors are more dangerous, since they are more difficult to evacuate in emergencies.
- When a building's fire safety systems are out of date, it may pose a significant danger.
- High-risk buildings are those whose owners have not implemented a formal approach for managing risk.
Constant awareness of building safety, including regular inspections, and training of key employees, is essential for property owners and managers alike. As a result, a reliable and well-structured system is an absolute need.
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With sectional titles, various major role players have responsibility for health and safety. While the body corporate and trustees are responsible for ensuring that contractors adhere to all applicable rules while doing work, the chairperson bears overall accountability and liability as the 16.1 appointee.
Additionally, though contractors are accountable for their workers' health and safety as independent employers, the Trustees retains duty for monitoring contractors to guarantee compliance on all levels.
The Section 37.2 Agreement is critical, since it protects the employer (chairperson), the body corporate, the trustees, as well as the contractor and their staff. The sectional title is like any other workplace or work environment in which actions may endanger the health, safety or well-being of tenants, owners, contractors, visitors, or any other person who accesses the premises.
Thus, all applicable health and safety legislation, policies, procedures, risk assessment, SOP’s, training and inspections must be in place, and all preventive measures must be reviewed regularly to guarantee they remain effective. This should be kept in a Safety File.
In terms of building regulations and fire safety, the body corporate is responsible for areas outside the property, while unit owners are liable for the inside, necessitating collaboration between all parties involved in the sectional title.
Outside the units, the body corporate is responsible for firefighting equipment, which must be examined regularly to ensure it is in good working condition. Additionally, emergency plans must be in place, and unit owners and contractors must be informed on how to respond in the event of an emergency.
Unit owners are responsible for ensuring that cooking activities and any other activities that may pose a fire risk are minimised and regulated, as well following safe operating procedures of appliances and equipment, ensuring that the health and safety of the occupants, neighbours and any other persons are not at risk.
Consequence for Non-Compliance in the current Occupational Health and Safety Act 85 of 1993, Section 38, shall be a fine not exceeding R100.000.00, or two years imprisonment, or both.
As per the OHS Act Amendment Bill approved by Cabinet still to be promulgated, these fines could reach R 5 000 000.00 or more.
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