South African employers are expected to maintain a healthy and safe work environment. The OSH Act, is a self-regulatory Act but, inspectors of the Department Labour have the duty to inspect whether employers are compliant. Inspectors of the DOL do have a lot of authority but, remember that you have rights too.
The legal consequences of the South African Occupational Health and Safety Act (Act 85 of 1993) should never be underestimated. The Act is the only Labour Act where persons considered to be non-compliant are presumed guilty until proven innocent. Company owners stand a chance of being sent to prison for two years, to receive a fine of up to R 100 000 or both when found guilty. It is impossible for company owners to relieve themselves of their responsibility and liability. Even if theCEO (16.1) had assigned these duties to one of the employees, the so-called 16.2.
In accordance to Section 29 of the OHS Act, Inspectors of the Department of Labour can make unannounced site-visits and inspections to determine whether the company is adhering to the Act. The section states that the inspector can request to review all relevant documentation or thoroughly inspects (parts) of the premises. He can also request to interview any person who is on the premises at the time of the inspection. These requests cannot be ignored or rebuffed as, according to Section 30 of the Act, the inspector has the power immediately cease operations or even have the site evacuated.
While the worst-case scenario can be dire, the company owners have some rights too. They, first and foremost, have the right to request all members of the inspecting team to identify themselves by means of their appointment letter as well as their ID documents. Employers should also insist that the inspectors adhere to the OHS rules in the company which have been laid down in the OHS Policy in accordance to Section 7 of the OHS Act. Please don't forget that this policy needs to be displayed prominently.
Inspectors who want to inspect premises should be equipped with the relevant Personal Protective Equipment before they will be allowed to further enter the site. Companies are allowed to accompany the inspecting team during such inspection. The accompanying employee can be the 16.1, the 16.2 and / or any manager or person deemed fit to do so, as designated by the employer. Employers have the right to receive any opinion of the inspector in writing as well as a written motivation for the actions they take. The inspector will also have to acknowledge in writing that he removed or seized articles, substances, plant, machinery, books, records or documents.
Being a self-regulatory Act, the OHS Act places a lot of responsibility and pressure on the company but, the OSH Act clearly states the basics. The general duties of employers to their employees are laid down in Section 8 while the duties of employers to contractors are stipulated in Section 9. Don't forget, whoever is on site will become your responsibility in terms of Health and Safety! Additional helpful sections of the Act are section 12, which explains the duties regarding work of which the Minister of Labour believes it is 'dangerous ' work, section 17 which describes when health and safety representatives are required and how they should be nominated and appointed. Their functions are described in section 18 of the Act. Special attention can also be given to section 19 which describes the rules for the establishment of a Health and Safety committee. The scope of their responsibilities and activities is included in section 20 of the Act.
Reading those sections is only a start. Adhering to them is the important aspect. MAKROSAFE Health and safety consultants deal with these, and many more sections and regulations every day. Don't try to re-invent the wheel. Rather have specialists assisting you.
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