Beware changes to the OHS Act

The eighth Saiosh conference took place alongside the A-OSH Expo in May. Billed as the largest occupational health and safety (OHS) conference in Africa, it attracted some of the industry’s brightest thought leaders.

Each of the 11 speakers at the 2018 Saiosh conference presented on the most pertinent topics to the industry and, once again, the more than 200 delegates certainly got their money’s worth – even benefiting from the expertise of four international exhibitors.

It would be ideal to sum up each of the topics presented on the following pages, if it were practical… Two of the topics have been summed up in this issue’s editor’s letter, and more of the presenters’ thoughts can be found in the next issue. Here we discuss the future of the Occupational Health and Safety Act and Regulations.

Future legislation

Tibor Szana, chief inspector, inspection and enforcement services at the Department of Labour (DoL), was the keynote speaker on the first day of the conference.

“This being the 100th year of OHS in South Africa, the 2018 amendment seeks to develop OHS into a fully fledged industry. We will see a very different professional landscape in five to ten years’ time,” he began.

Questioning whether, after 100 years of OHS in South Africa, the country is in a better space, Szana outlined the revised Bill: “The OHS Act as we know it has been in existence for 25 years. Our biggest concern was that we needed to address small, medium and micro enterprises, the informal sector and township businesses. They form a big component of the economy and the same rules need to apply. Health and hygiene forms a major part of industry and the regulations will address that going forward, too.”

Why the need for the changes? 

“There are always companies that want to comply, but there are those that don’t care about their workers. The purpose of the amended Act is to prevent people from getting injured. Compliance costs less than non-compliance – in both money and time…” Szana warned, adding that the DoL is working towards placing another 500 inspectors on the ground.

In outlining the key changes, Szana discussed the following:

• Risk assessment

The amended Act will, among other things, focus on conducting a workplace-specific risk assessment and, thereafter, developing and implementing a risk-management plan in writing, in respect of every risk identified. This will ensure that the workplace-specific risk assessment is conducted by people who are competent to pronounce on all the risks associated with that workplace.It will also ensure that the workplace-specific risk-management plan is in place and is available at the workplace when requested by an inspector.

“This is a key document for an inspector. A decent risk assessment means someone has done something worthwhile,” Szana commented.

• Safety management system

A health and safety management system for the workplace will need to be developed and implemented by employers.

“There will be major changes that provide further guidance,” Szana said.

• Section 10

“The old Section 10 is a problem area. It will change and these changes need to be noted,” Szana commented.

• Globally Harmonised System (GHS)

The revised Act will now provide the necessary legal framework to allow for the incorporation of certain aspects that will align South African legislation with the current worldwide programme towards the implementation of the GHS.

• Listed work and employees’ right to leave the workplace

On listed work, Szana commented that this has never been used before, but it is significant enough to be left in the amended Act. “There is a chance we might use it in the future and it may impact on certain sectors. Very specific requirements of industries need be considered under listed work,” he explained.

The amendment also seeks to empower employees to leave a dangerous workplace when their health and safety are in danger, without any fear of victimisation by the employer.

• Section 16(2)

“Section 16(2) is a contentious aspect of the Act. It is a management issue that needs direct control. It is the responsibility of the CEO to delegate duties in writing and be accountable for any duties that have been delegated. Big organisations will have to match their management structure to Section 16,” he noted.

• Health and safety reps

Representatives have been given greater responsibilities, which they have to exercise. This is no longer optional.

“Health and safety representatives have clear functions that must be carried out. If a company’s health and safety isn’t working, something is not being done properly … representatives are part of the health and safety structure; they are there to assist and advise. If an organisation operates without them we recommend immediate prosecution,” Szana commented.

• Health and safety committee

The functions of the health and safety committee have always been key to ensuring that health and safety is properly managed within the workplace. The health and safety committee will be given more responsibilities in performing its functions.

“The health and safety committee is another key structure that needs to work, not just be there. It has specific duties to prevent further accidents from happening,” Szana noted.

• Offences and penalties

In the new regulations, the enforcement provisions will be revised and strengthened; the administrative system for issuing fines will be simplified; and the inspector will be empowered to issue administrative fines. Offences and penalties have now been unilaterally increased, and the period of appeal has been aligned with other employment laws.

“This is the onerous part … the major change that impacts greatly on businesses. We implore companies to just do it right the first time,” said Szana.

Szana commented that further workshops are planned to take place during the course of the year, so that employers can be sufficiently prepared when the revised Act is passed.

He also listed other future changes in legislation, which include:

• Ergonomics Regulations – finalised.

• General Safety Regulations – combined with changes to Environmental Regulations for Workplaces and Facilities Regulations.

• Asbestos Regulations – review complete.

• Hazardous Chemical Substances Regulations – may be combined with Lead Regulations.

• General Administration Regulations – to be presented and finalised in the near future.

• A greater focus of occupational health and hygiene. Workshops have and will be conducted to lay the foundation for the future.

Other special projects the department is working on include:

• Global Programme for the elimination of Silicosis (2030)

• Elimination of Noise Induced Hearing Loss

• Voluntary Protection Programme

• General Accord

• Sector Accords: Construction, Iron and Steel, Chemical