Observations on the alterations

Saiosh established a Saiosh Technical Committee (STC) to provide technical and legal input into the draft Occupational Health and Safety (OHS) Amendment Bill 2020. After extensive deliberations, the committee has proposed various amendments, essentially to align the Bill with the more constitutionally acceptable Mine Health and Safety Act (MHS), 1996, the Promotion of Administrative Act, 2000, and the Constitution.

The STC consist of two OHS advocates, three chartered members, two graduate members and one technical member. Saiosh also opened an online platform where all Saiosh members were able to submit comments on the Bill.

The committee’s comments contain various proposals accompanied by appropriate motivation. In some instances, the committee proposes that certain provisions of the current OHS Act be retained while other provisions be brought into alignment with similar internationally accepted OHS legislation as well as the South African High Court’s precedents.

The proposed introduction of section 16(3) relating to managerial, supervisory or agent appointment will fill an appointment vacuum currently experienced by employers. The retention of the “reasonably practicable” element, pertaining to various duties, is extensively motivated. The committee is also of the view that the provision pertaining to administrative fines be scrapped in view of its limited applicability and departure from the MHS Act where only the principal inspector of mines is empowered to impose fines.

The committee proposed a definition of a “competent person” as follows: “a person determined by the employer to have the relevant knowledge, experience and skill to carry out a particular task, or has a relevant qualification, which may be defined further in a regulation under this Act, or there is evidence demonstrating that the person has the required knowledge, experience and skill, and for all persons requisite levels of knowledge, experience and skill shall be commensurate with levels of risk”.

It was also important for the STC to propose the inclusion of a definition for an “occupational health and safety
practitioner”. This is “a person who is registered with a South African Qualifications Authority recognised professional body who has the knowledge, training, skills, experience and the required qualification in the field of occupational health and safety, to assess and evaluate health and safety hazards that an employee is or may be exposed to at work”. The motivation provided by the STC, for the definition of an occupational health and safety practitioner – as prescribed by proposed section 7(3), is to assist the employer to develop a health and safety management system.

The STC proposes that section 7(3) reads: “when directed to develop and implement a health and safety management system in terms of subsection (1), the employer may appoint a part-time or full-time occupational health and safety practitioner in writing to assist in the development of the health and safety management system”.

The committee also noted that “The Right to leave a Dangerous Workplace” has been omitted despite its introduction in the Covid-19 Directions.

The committee’s comments on the Bill were submitted to the chief inspector, Department of Employment and Labour, on July 21, 2021, and the chief inspector acknowledged receipt of it on July 23, 2021.

The Saiosh comments on the OHS Amendment Bill are available on the Saiosh website as well as the Saiosh Facebook page.