Health and Safety and the Duties of the CEO

Tinus Boshoff
 

In South Africa, health and safety issues are extensively governed by legislation. The Occupational Health and Safety Act (OHS Act) create minimum standard legislation that needs to be complied with. Individual responsibilities apply to every employee in the workplace, including the Chief Executive Officer.

Section one defines the CEO as:

''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''. In the case of a company with a board of directors, the board has to decide amongst themselves which of the directors will be considered as the person with the most authority or the person with the final say. The last mentioned person will be ''responsible for the overall management and control of the business of such body corporate or enterprise'' and deemed to be the CEO.

In the case of a company without a board of directors or a close corporation, the owner of such company or corporation will be deemed to be the CEO. In the case of the State, the head of a department (Director General) is regarded as the CEO.  There can only be one CEO, the act appoints this person as the ''accountable person'' for health and safety. We refer to this appointment as the section 16(1) appointee and he or she is charged with certain legal duties or responsibilities.

According to the prescriptions of section 16, these responsibilities include: 

• 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, 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 this section shall not, subject to the provisions of section 37, relieve an employer of any responsibility or liability under this act.
• The head of any state department shall be deemed to be the chief executive officer of that department. 

When we read through this section it is clear that the legislator wants to ensure proper delegation of health and safety duties within the organisation. The legislator starts with the person ''who is responsible for the overall management and control'' of the business or body corporate, the CEO.

Evidently it will be impossible task for the CEO to be present and to manage over each and every work task or activity. Section 16(2) provides guidance in this regard; it makes provision for the delegation of responsibilities. According to this subsection the CEO may delegate responsibilities to the employer.

Please note that the section 16(2) appointee shall not, subject to the provisions of section 37, relieve an employer of any responsibility or liability. Sections 16(1) place the responsibility and liability on the CEO to ensure, that the duties imposed by this act on the employer, are properly discharged.

The persons to whom duties have been assigned must be under the direction and control of the CEO. The CEO is basically allowed to delegate responsibilities but cannot delegate accountability. Section 16 should be should also be read in conjunction with section 37 - ''Acts or omissions by employees or mandataries''. Section 16(3) makes provision for the CEO to be relieved of his or her responsibility and liability under certain circumstances as stipulated in section 37.

Section 37 basically regulates who is liable in the case where an employee or mandatory (including contractors) does not comply with the requirements of the act. Another key section that needs to be incorporated in our discussion is section 8 – ''General duties of employers towards employees''. According to this particular section, the employer is duty bound to ensure 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.

The implementation and maintenance of a proper occupational health and safety management system will largely give effect to the provisions of this act. To reflect on our discussion, the following questions could be used to evaluate your organisations current state of compliance.

Section 16(1)

• Has the Chief Executive Officer been identified?
• Has the Chief Executive Officer been made conversant of his/ her legal duties?

Section 16(2)

• Did the Chief Executive Officer assign and delegated the duties contemplated in the said subsection, to persons under his or her control?
• Did all appointed persons receive the necessary training and information, empowering them to perform their legal duties?
• Are all assignments by the Chief Executive Officer in writing and included in job descriptions?
• Have all assignees accepted their responsibilities in writing?

Section 8:

• Did your organisation implement a health and safety management system in order to ensure proper control

I trust that you find the content of our newsletter useful and a good point of reference for future use.

For more information contact Tinus Boshoff This e-mail address is being protected from spambots. You need JavaScript enabled to view it