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The aim and scope of the OHS Act

The aim of the OHS Act is to provide for the safety and health of persons at work and in connection with the use of plant and machinery. It further provides for the protection of people other than people at work from hazards arising out of or in connection with the activities from people at work.

 

The main objective of the Act could be described as a pro-active attempt by government to prevent and avoid work related injuries and illness. The Act governs the health and safety for the diverse industry of South Africa. It regulates and control health and safety in all organisations, from a normal office environment to more hazardous environments like industrial plants and construction sites.

 

Mine, or mining areas, ships, fishing boats and floating cranes are the areas that are not governed by the OHS Act and fall outside the scope of the Act.

 

Sections of the Act

The Act consists of 50 sections as approved by parliament. These sections different sections address different aspects of the Act.

 

1

Definitions

2

Establishment of Advisory Council for Occupational Health and Safety

3

Functions of Council

4

Constitution of Council

5

Period of office and remuneration of members of Council

6

Establishment of technical committees of Council

7

Health and safety policy

8

General duties of employers to their employees

9

General duties of employers and self-employed persons to persons other than their employees

10

General duties of manufacturers and others regarding articles and substances for use at work

11

Listed work

12

General duties of employers regarding listed work

13

Duty to inform

14

General duties of employees at work

15

Duty not to interfere with, damage or misuse things

16

Chief executive officer charged with certain duties

17

Health and safety representatives

18

Functions of health and safety representatives

19

Health and safety committees

20

Functions of health and safety committees

21

General prohibitions

22

Sale of certain articles prohibited

23

Certain deductions prohibited

24

Report to inspector regarding certain incidents

25

Report to chief inspector regarding occupational diseases

26

Victimization forbidden

27

Designation and functions of chief inspector

28

Designation of inspectors by Minister

29

Functions of inspectors

30

Special powers of inspectors

31

Investigations

32

Formal inquiries

33

Joint inquiries

34

Obstruction of investigation or inquiry or presiding inspector or failure to render assistance

35

Appeal against decision of inspector

36

Disclosure of information

37

Acts or omissions by employees or mandatories

38

Offences, penalties and special orders of court

39

Proof of certain facts

40

Exemptions

41

This Act not affected by agreements

42

Delegation and assignment of functions

43

Regulations

44

Incorporation of health and safety standards in regulations

45

Serving of notices

46

Jurisdiction of magistrates' courts

47

State bound

48

Conflict of provisions

49

Repeal of laws

50

Short title and commencement

 

Significant terms and definitions

Definitions of an act help the reader to understand and interpret that part of legislation clearly and correctly. Without clear definitions the reader could not have a proper understanding of the legislator’s intention.

 

What happens when there is no definition for a specific word? The dictionary meaning will automatically apply. It is also significant to read what is not addressed in legislation, for example when legislation does not prohibit a person from doing something, then such person is, as far as this Act is concerned, allowed to do so, as long as it falls within the reasonable person principle. With the above mentioned in mind, lets have a look at certain of the OHS Act definitions as listed in Section1 of the OHS Act:

 

Employer: Means, any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes to remunerate him, but excludes a labour broker as defined in section 1(1) of the Labour Relations act, 1956 (Act no. 28 of 1956).

 

Employee: Means, any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person.

 

Premises: Includes any building, vehicle, vessel, train or aircraft.

 

Workplace: Means any premises or place where a person performs work in the course of his employment.

 

Machinery: Means any article or combination of articles assembled, arranged or connected and which is used or intended to be used for converting any form of energy to perform work, or which is used or intended to be used, whether incidental thereto or not, for developing, receiving storing, containing, confining, transforming transmitting, transferring or controlling any form of energy

 

User: In relation to plant or machinery, means the person who uses plant or machinery for his own benefit or who has the right of control over the use of plant or machinery, but does not include a lessor of, or any person employed in connection with, that plant or machinery.

 

Properly used: Means used with reasonable care and with due regard to any information, instruction or advice supplied by the designer, manufacturer, importer, seller or supplier.

 

Based on Legislation in Section 1, of the Occupational Health and Safety Act

 

Reasonably practicable principle: Means ‘‘practicable’’ having regard to:

 

  • The severity and scope of the hazard and risk concerned
  • The state of knowledge reasonably available concerning the hazard and 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
  • The cost of removing or mitigating that hazard or risk in relation to the benefits deriving there from

 

Based on Legislation in section 1, of the Occupational Health and Safety Act

 

Legislation requires the employer to do everything ‘‘reasonably practicable’’ to protect people from harm. With this in mind, let’s start with the first mentioned, the ‘‘severity and scope of the hazard and risk concerned’’.

 

Employers need to look at their particular work situation and ask questions like:

 

  • Did we identify hazards, what can go wrong?
  • Did we look at who might be harmed?
  • How can people be affected?
  • What could be done about it?

 

Risk assessment could prove to be valuable in this regard. A risk assessment is basically a careful examination of what, related to the work activities of an organisation, could course harm to people or damage to property. During the risk assessment process we identify the hazards associated with an activity (physical task, or process at hand ect), to assess the seriousness of these hazards and to formulate systems of work, training or other methods (controls) to reduce the associated risks to a minimum or at least to an acceptable level.

 

After evaluating these work related hazards, risks and dangers the employer should determine the severity of the hazards or risks concerned. This mainly refers to ‘‘seriousness of these hazards’’ as previously mentioned. During the risk assessment process, the risk will be given a ‘‘risk value’’ in order to determine the severity of the risk involved (Example: high-, medium- or low risk level).

 

The main aim should be to ‘‘removing or mitigating that hazard or risk’’. If the hazard or risk cannot be removed, the next potion would be to apply appropriate steps or measures to mitigate it. The dictionary defines mitigate as ‘‘lessen or to try to lessen the seriousness or extent of’’. In the case where an employer can not remove or eliminate a hazard or risk, steps should be taken to lessen it (lessen the seriousness or extent of the hazard or risk concerned).

 

‘‘state of knowledge and means available’’ - When dealing with this aspect, both the severity of the risk involved (risk level), as well as the ‘‘removing or mitigating that hazard or risk’’ should be taken into consideration. In the case where something has to be done in order to remove or reduce the risk to an acceptable level, the employer should obtain knowledge or means in order to take the necessary steps or precautions. It implies that employers need to make informed decisions based on knowledge that is reasonably available. Existing knowledge could be gained either locally or internationally. Knowledge or means must firstly, be aimed at removing and secondly, at mitigating the hazard. In the case where such knowledge or means does exist the following aspects should be taken into consideration.

 

‘‘the availability and suitability or means’’ – Do we have access to it? How suitable or appropriate is it for our specific circumstances?

 

‘‘The cost of removing or mitigating that hazard or risk in relation to the benefits deriving there from’’ In general this implies that the employers need to take reasonable measures to safeguard employees and other persons wherever possible, but without stretching to excessive costs over health and safety gains. What amount of money will employers have to spend in order to lower the unacceptable risk to an acceptable one? Imagine a pair of scales with cost on one side and risk on the other.

 

If the risk from a hazard outweighs the cost of reducing the risk, action must be taken. If costs substantially outweigh risks, take less costly action or no action if there are no alternatives. Example, spending R5 000 to prevent the occasional bruised finger would not be reasonable, but spending R 50 000 on a machine guard to stop an arm amputation would be. Employers have to use their discretion in order to establish whether the amount of money that will be spent is justifiable in relation to the benefits deriving from it.

 

 

But what happens in the case where it is not ‘‘reasonably practicable’’ to take action against an unacceptable risk? Remember that the employers are still obligated to deal with the risk at hand. In other words it cannot just be disregarded; the employer still needs to take reasonable steps to ensure that a workplace is safe and without risk to the health and safety of their employees and others involved. Reasonable steps exercised by the employer could for example include the following:

 

  • inform the employees of the decision and measures taken to protect them
  • what type of instruction, training, supervision, personal protective equipment etc. are needed to protect them
  • Assess if the reasonable steps actually works in order to provide a safe and healthy workplace.

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