General Health and Safety

Roles and Responsibilities for Health and Safety in the Workplace

Health and Safety is not only the duty of the designated appointments. We are all responsible for health and safety! Although the employer is accountable if he/she does not comply with the Act, an employee may be the cause of an incident or accident, and then the employee will be held accountable for that action. Let us understand the difference between being “responsible” and “accountable”.

You can delegate responsibility, but you can’t delegate accountability to anyone.

Accountability is accepting responsibility and being answerable for your actions.

The Occupational Health and Safety Act 85 of 1993 sets a clear guideline of the roles and responsibilities of those in the workplace.

Duties of the CEO

According to the Occupational Health and Safety Act 85 of 1993 Section 16, the Chief Executive Officer (CEO) has the following duties:

Every Chief Executive Officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act are properly discharged.

Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or liability under this Act.

For the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department. In relation to a body corporate or an enterprise conducted by the State, means the person who is responsible for the overall management and control of the business of such body corporate or enterprise;

According to the Occupational Health and Safety Act (85 of 1993) Section 8, the general duties of employers to their employees is as follows:

Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

Without derogating from the generality of an employer's duties under subsection (1), the matters to which those duties refer include in particular:

The provision and maintenance of systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health.

Taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment.

Making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances.

Establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures.

Providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees.

As far as is reasonably practicable, not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery, unless the precautionary measures contemplated in paragraphs (b) and (d), or any other precautionary measures which may be prescribed, have been taken.

Taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used.

Enforcing such measures as may be necessary in the interest of health and safety.

Ensuring that work is performed and that plant or machinery is used under the General supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented.

Causing all employees to be informed regarding the scope of their authority as contemplated in section 37(1)(b).

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Duties of the Employer

Functions, duties and responsibilities include:

Employers are subject to the provisions of subsection (2), which state that every employer who has more than 20 employees in his employment at any workplace, shall, within four months after the commencement of this Act or after commencing business, or from such time as the number of employees exceeds 20, as the case may be, designate in writing for a specified period Health and Safety Representatives for such workplace, or for different sections thereof.

An employer and the representative of his employees recognised by him or, where there are no such representatives, the employees shall consult in good faith regarding the arrangements and procedures for the nomination or election, period of office and subsequent designation of health and safety representatives in terms of subsection (1): Provided that if such consultation fails, the matter shall be referred for arbitration to a person mutually agreed upon, whose decision shall be final: Provided further that if the parties do not agree within 14 days on an arbitrator, the employer shall give notice to this effect in writing to the President of the Industrial Court, who shall in consultation with the chief inspector designate an arbitrator, whose decision shall be final.

Arbitration in terms of subsection (2) shall not be subject to the provisions of the Arbitration Act, 1965 (Act No. 42 of 1965), and a failure of the consultation contemplated in that subsection shall not be deemed to be a dispute in terms of the Labour Relations Act, 1956 (Act No. 28 of 1956): Provided that the Minister may prescribe the manner of arbitration and the remuneration of the arbitrator designated by the President of the Industrial Court.

Only those employees employed in a full-time capacity at a specific workplace and who are acquainted with conditions and activities at that workplace or section thereof, as the case may be, shall be eligible for designation as health and safety representatives for that workplace or section.

The number of health and safety representatives for a workplace or section thereof shall in the case of shops and offices be at least one health and safety representative for every 100 employees or part thereof, and in the case of all other workplaces at least one health and safety representative for every 50 employees or part thereof: Provided that those employees performing work at a workplace other than that where they ordinarily report for duty, shall be deemed to be working at the workplace where they so report for duty.

If an inspector is of the opinion that the number of health and safety representatives for any workplace or section thereof, including a workplace or section with 20 or fewer employees, is inadequate, he may by notice in writing direct the employer to designate such number of employees as the inspector may determine as health and safety representatives for that workplace or section thereof in accordance with the arrangements and procedures referred to in subsection (2).

All activities in connection with the designation, functions and training of health and safety representatives shall be performed during ordinary working hours, and any time reasonably spent by any employee in this regard shall for all purposes be deemed to be time spent by him in the carrying out of his duties as an employee.

From the above it is clear that the employer has many responsibilities and this is quite correct because the employer is the party which creates the workplace. Therefore, they must carry the greatest responsibility.

Duties of the Employee

According to the Occupational Health and Safety Act (85 of 1993) Section 14, the general duties of the employees at work is to:

Take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions.

As regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with.

Carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety.

If any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer, or to the health & safety representative for his workplace or section thereof, as the case may be, who should report it to the employer.

If he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.

However, it is important to remember that an employee has the common law right to refuse to work in a dangerous or unsafe environment.  Such refusal to work will not be regarded as a breach of contract by the employees.

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The Health and Safety Representative

What are Health and Safety Representatives?

They are full-time workers nominated or elected and designated in writing by the employer after the employer and workers consulted one another and reached an agreement about who will be health and safety representatives.

They must at least be familiar with the circumstances and conditions at that part of the workplace for which they are designated.

Agreement must also be reached on the period of office and functions of the health and safety representative and must be settled amongst the employer and the workers.

How many health and safety representatives must be designated?

One Health and Safety Representative must be designated for every workplace consisting of 20 or more workers. Therefore, where only 19 workers are employed full time, it is not necessary to designate a representative. In the case of shops and offices, one representative must be designated for every 100 workers or part thereof for instance.

For example, one representative must be designated in the case of 21 to 100 workers. But two representatives must be designated where 101 to 200 workers are employed, etc.

All activities regarding the designation, function and training of representatives must be performed during normal working hours.

Health and safety representatives are entitled to do the following:

Health and Safety Inspections.

Representatives may check the effectiveness of health and safety measures by means of health and safety inspections.

Functions, duties and responsibilities of health and safety representatives

A health and safety representative may perform the following functions, duties and responsibilities in respect of the workplace or section of the workplace for which he has been designated, namely:

Review the effectiveness of health and safety measures.

Identify potential hazards and potential major incidents at the workplace.

In collaboration with his employer, examine the causes of incidents at the workplace.

Investigate complaints by any employee relating to that employee's health or safety at work.

Make representations to the employer or a health and safety committee on matters arising from inspections etc.

Make representations to the employer on general matters affecting the health or safety of the employees at the workplace.

Inspect the workplace, including any article, substance, plant, machinery or health and safety equipment at that workplace with a view to, the health and safety of employees, at such intervals as may be agreed upon with the employer: Provided that the health and safety representative shall give reasonable notice of his intention to carry out such an inspection to the employer, who may be present during the inspection.

Participate in consultations with inspectors at the workplace and accompany inspectors on inspections of the workplace.

Receive information from inspectors as contemplated in section 36 in the Act.

In his capacity as a health and safety representative attend meetings of the health and safety committee of which he is a member, in connection with any of the above functions.

A health and safety representative shall, in respect of the workplace or section of the workplace for which he has been designated be entitled to:

• Visit the site of an incident at all reasonable times and attend any inspection.
• Attend any investigation or formal inquiry held in terms of this Act.
• In so far as it is reasonably necessary for performing his functions, inspect any document which the employer is required to keep in terms of this Act.
• Accompany an inspector on any inspection.
• With the approval of the employer (which approval shall not be unreasonably withheld), be accompanied by a technical adviser, on any inspection.
• Participate in any internal health or safety audit.

An employer shall provide such facilities, assistance and training as a health and safety representative may reasonably require and as have been agreed upon for the carrying out of his functions.

A health and safety representative shall not incur any civil liability by reason of the fact only that he failed to do anything which he may do or is required to do in terms of this Act.

The Health and Safety Committee (HSC)

The committees only deal with health and safety matters at the workplace or sections thereof for which such committees have been established. Generally, health and safety committees have the following:

A committee must make recommendations to the employer about the health and safety of workers. Where these recommendations do not lead to solving the matter, the committee may make recommendations to an inspector.

The persons nominated by an employer on a health and safety committee shall be designated in writing by the employer for such period as may be determined by him, while the health and safety representatives shall be members of the committee for the period of their designation.

A health and safety committee shall hold meetings as often as may be necessary, but at least once every three months, at a time and place determined by the committee: Provided that an inspector may by notice in writing direct the members of a health and safety committee to hold a meeting at a time and place determined by him/her.

A health and safety committee or a member thereof shall not incur any civil liability by reason of the fact only that it or he failed to do anything which it or he may or is required to do in terms of this Act.

An employer shall take the prescribed steps to ensure that a health and safety committee complies with the provisions of section 19(4) and performs the duties assigned to it by subsections (1) and (2).