Are you aware of the proposed changes to the OHS Act as published in the OHS Amendment Bill, 2020? Although it may be confusing to begin with, the nuanced changes of the new OHS bill is significant as it places greater onus on the employer to be compliant through stricter liabilities.
For that reason, it’s important to understand the implications of the draft OHS Amendment Bill, 2020 (“The Bill”) and why it’s so important. Occupational Health and Safety (“OHS”) is designed to create a safe, healthy work environment. In simple terms, safety covers the risk factor in your workplace, and potential safety hazards that could possibly cause injury and health addresses potential health concerns and wellbeing, including mental health.
The OHS Act and its Regulations are primarily based on the following five pillars:
- identifying hazards in the workplace that could cause harm and risk e.g., the chance that the hazard will cause harm and how serious that harm could be;
- identifying effective measures for the mitigation of such risks;
- providing information and training to employees (and others) that may be affected by such risks and the control measures implemented;
- implementing a maintenance system to inspect, service and maintain systems of work, plant and machinery as well as control measures implemented for the mitigation of risks, to ensure that it remains in safe working condition and does not present any risk of harm to employees or other persons’ health and safety;
- providing resources to fulfil the above.
These pillars are fundamental in the development, implementation and success of any Health and Safety Management System and must continuously be monitored and reviewed to ensure that the duties of the employer are carried out.
The Bill is intended to amend the OHS Act by deleting, substituting and inserting certain definitions, to effect technical corrections and to make further provision in respect of the health and safety of persons and work (and others) who may be exposed to hazards arising from dangerous machinery, dangerous work, hazardous substances etc.
In this blog, we will only focus on two significant changes proposed in The Bill, which if enacted, will have a massive impact on an employer’s ability to be compliant and will expose an employer to the risk of strict liability.
Omission of the words “reasonably practicable” from various sections in The Bill
Now “Reasonably practicable” means practicable having regard to-
- the severity and scope of the hazard or risk concerned;
- the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;
- the availability and suitability of means to remove or mitigate that hazard or risk; and
- the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.
The words “reasonably practicable” is a term commonly accepted as a measure to judge whether an employer has properly discharged his or her duties. As per the comments raised by the South African Institute of Occupational Safety and Health (“SAIOSH”) Technical Committee, by deleting the words “reasonably practicable” from various sections in the OHS Act, “…the Bill appears to venture into the area of strict liability which, in turn, has been consistently rejected by criminal courts including the Constitutional Court and Supreme Court of Appeal. Strict liability implies that an employer may be convicted of contraventions in the absence of the fault element (culpa or negligence).
Furthermore; “Strict liability has no place in occupational health and safety legislation where negligence or culpa is the fault element as opposed to intention or dolus”. By removing the language of reasonably practicable the DoEL is changing to a standard which is not aligned to the standards that are upheld in the courts, where this would be tested against the “reasonable person” / “negligence” definitions / thresholds. Rather this change makes it absolute and impossible for the employer to comply with. This has removed any potential for the employer to obtain compliance. If this section is enacted, it would be practically impossible for the employer to ever achieve compliance.
The Bill proposed several changes to the General duties of employers to their employees in terms of Section 8. In this regard, the revised Section 8(2)(a) reads as follows:
“(a) conducting a workplace specific risk assessment and thereafter developing and implementing a Risk Management plan in writing, in respect of every risk identified”
In practice, an employer would typically conduct a baseline risk assessment in the workplace based on activities, processes, tasks etc., which will then be regarded as raw risks. Measures to mitigate such risks will then be identified and the residual risk will be calculated which typically shows if the risk is high, medium or low. From there, the employer usually develops a risk management plan which may include issue-based risk assessments, safe operating procedures, work instructions, specific competency training etc. and information and training will be provided to affected employees. In essence, the employer will develop a risk management plan to mitigate medium – high risk activities which is closely monitored.
As per SAIOSH’s Technical Committee’s comments, the scope of the proposed section 8(2)(a) is so wide which makes it impractical. It provides an example of an employer employing a domestic worker, who in terms of The Bill, must have a written risk management plan for every risk identified, this means for ironing, sweeping, washing dishes, vacuuming, housekeeping etc. Should a DoEL Inspector decide to visit the employer of the domestic worker and found him/her to be non-compliant, then under Section 38 Penalties Schedule 1, the employer may be fined up to R5 000 000-00 or and imprisonment for up to 5 years. This section has application to millions of employers, keeping in mind the “work from home” which is now one of the COVID-19 risk mitigating measures. The implication of this proposed section if enacted, would be catastrophic.
In addition, revised section 8(2)(b) in The Bill reads as follows:
“(b) ensuring that the Workplace Specific Risk Assessment is conducted, by a person or persons who are Competent to pronounce on all the risks associated with that workplace”
The OHS Act made it possible for employers to self-regulate compliance to health and safety requirements without intervention from external bodies, except where explicitly required in terms of the Regulations to the OHS Act.
The suggested change interferes with the employer’s ability to self-regulate. It is also not clear who would be regarded as a “competent” person as there is no definition in this regard.
The expectation that a “competent” person would be able to pronounce on all the risks associated with workplace is unrealistic and impossible to meet. Ariscu agrees with SAIOSH’s view that there is no person at any professional level who is competent to pronounce on all risks within a workplace.
Significant changes have also been introduced to Section 37 of the OHS Act by the insertion of sections 37A to 37F which deals with Administrative Fines; Criminal Liability; Hindering of Administration of Justice; Furnishing false information; Failure to attend meeting, inspection, investigation, inquiry when directed or summoned; and Failure to comply with the provisions of the Act. SAIOSH submitted an extensive motivation for the removal of Administrative Fines as per Section 37A, which is not included in this blog. Clients can request a copy of the complete document from SAIOSH directly.
The Bill offers greater protection for employees and others in the workplace. It introduced section 16(3) that regulates managerial, supervisory and agent appointments which, if enacted, will address the current issues with “legal” appointments in terms of the OHS Act experienced by employers. There are however new proposed requirements that the employer must meet, as highlighted in this blog, that are of great concern and must be addressed.
Ultimately, the intention of OHS should be to look after both employer and employees.
The OHS team at Ariscu are extremely well positioned to assist your organisation to meet the requirements of The Bill, explain exactly what OHS involves, and why the benefit of compliance is so significant. Contact Ariscu today to find out how we can assist you in keeping your staff productive and, most important of all, safe and healthy.