Health and Safety

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(''Draft Amendment to the Construction Regulations, 2003'')


On 11 May 2010 the new ''Draft Amendment to the Construction Regulations, 2003'' was published through the Government Gazette (Notice 391 of 2010). One of the key principles embodied in the draft regulations is that the ''client'' will primarily be responsible for Occupational Health and Safety.

                      
But what is meant by the term ''client''? According to definition a "client" is any person for whom construction work is performed. Various persons like property owners, landlords, body corporate(s), most business owners etc could thus be classified as clients.

                        
According to scope, these regulations will apply to all persons involved in construction work. Construction work on the other hand means any work in connection with:

  • the construction, erection, alteration, renovation, repair, demolition or dismantling of or addition to a building or any similar structure; or
  • the construction, erection, maintenance, demolition or dismantling of any bridge, dam, canal, road, railway, runway, sewer or water reticulation; or the moving of earth, clearing of land, the making of excavation, piling, system or any similar civil engineering structure or any similar type of work.

                     

Based on Regulation 1&2 of the Construction Regulations (OHSA)

                     
Our news letter will largely focus on the proposed amendments of the responsibilities of the client, again the person for whom construction work is performed.

                  
Regulation 4(1) stipulates that the client will be obligated to prepare a baseline risk assessment for the intended construction work project. The type of assessment is basically performed to obtain a benchmark of the types and size of potential hazards, which could have a significant impact on the whole project. The client needs to identify the major and significant risks, then prioritise these risks and evaluate the effectiveness of current systems for risk control.

                              

The baseline is an initial risk assessment that focuses on a broad overview in order to determine the risk profile to be used in subsequent risk assessments. The assessment focuses on the identification of risk that applies to the whole project and site. This type of assessment could be performed on a site, region or even on a national basis concerning any facet of the organisation operations or procedures. The assessment needs to be comprehensive and may even lead to other and more in-depth studies.

                                  

According to the proposed regulations the client will also be obligated to prepare the ''health and safety specifications''. Health and safety specification means a site, activity or project specific document of all health and safety requirements pertaining to the associated works on a specific construction site, so as to ensure the health and safety of persons on or near the site. According to regulation 4 the client should ensure that specs is suitable, sufficiently documented and site specific for the intended construction work and it should be based on the above mentioned baseline risk assessment.

                             
The specifications must then be provided to the designer, the client will even be obligated to ensure that the designer takes the prepared health and safety specification into consideration. Similarly the client must ensure that as far as reasonably practicable the services of an approved inspection authority is utilized to give into input at the early design stage and where such an authority has not been appointed at that stage, he or she must be given the opportunity to make an input at a later stage.

                                   
The ''health and safety specification'' must be included in the tender documents; and the client must ensure that potential ''principal contractors'' submitting tenders have made adequate provision for the cost of health and safety measures. ''Principal contractor" means an employer who performs construction work and is appointed by the client to be in overall control and management of a part of or the whole of a construction site.

                                        

The client should ensure the following concerning the principle contractor:

  • that potential principal contractor to be appointed has the necessary competencies and resources to carry out the construction work safely.
  • ensure prior to work commencing on site that every principal contractor is registered and in good standing with the compensation fund or with a licensed compensation insurer prior to work commencing on site as contemplated in the Compensation for Occupational Injuries and Diseases Act (Act No. 130 of 1993);
  • ensure prior to work commencing on site that every principal contractor is registered and in good standing with the Unemployment Insurance Fund, as contemplated in the Unemployment Insurance Act (Act No. 63 OF 2001);
  • appoint each principal contractor in writing for the project or part thereof on a construction site;
  • discuss and negotiate with the principal contractor the content of the principal contractor's health and safety plan and must thereafter finally approve that plan for implementation. Health and safety plan means a documented plan which addresses identified hazards and includes safe work procedures and other measures to mitigate, reduce or control the identified hazards (addressed in regulation 5(1) of the draft regulations);
  • ensure that no construction work commences until the principal contractor's health and safety plan has been approved;
  • ensure that a copy of the principal contractors' health and safety plan is available on request of an employee, inspector or contractor;
  • ensure that the principal contractor's health and safety plan is implemented and maintained on the construction site;
  • the steps taken must include periodic health and safety audits at intervals mutually agreed upon between the client and principal contractor, but at least every 14 days;
  • ensure that a copy of the audit report (contemplated in regulation 29(3)(d)) is provided to the principal contractor within seven days after the audit;
  • stop any contractor from executing construction work which is not in accordance with the clients health and safety specifications and the principal contractors health and safety plan for the site or which poses a threat to the health and safety of persons;
  • ensure that where changes are brought about to the design or construction, sufficient health and safety information and appropriate resources are made available to the principal contractor to execute the work safely; and
  • ensure that the health and safety is kept as maintained by the principal contractor (contemplated in regulation 5(1)(b)).

                         

Based on Regulation 4(1) of the Construction Regulations (OHSA)

Where the client requires additional work to be performed as a result of a design change or as a result of an error in construction due to the actions of the client, the client must ensure that sufficient safety information and appropriate additional resources are available to execute the required work safely.

                       
Based on Regulation 4(2) of the Construction Regulations (OHSA)

Where a fatality or permanent disabling injury occurs on a construction site, the client must provide the provincial director with a full report as directed by the inspector who is conducting the investigation under section 24 of the Act, and must include the measures that the client intends to implement within 30 days to ensure a safe construction site as far as is reasonably practicable.

                                     
Based on Regulation 4(3) of the Construction Regulations (OHSA)

A client may, without derogating from his responsibilities or liabilities, appoint a ''competent person'' in writing as an ''agent'' to act as his or her representative, and where such an appointment is made the duties that are imposed by these regulations upon a client, shall as far as is reasonably practicable apply to the agent so appointed. An "agent" means any competent person who acts as a representative for a client in managing the overall construction work performed for that client.

                            

Remember that the agent must be a competent person. According to definition a ''competent person" means any person having the knowledge, training, experience and/or where applicable qualifications specific to the work or task being performed: Provided that where appropriate qualifications and training are registered in terms of the provisions of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995), those qualifications and training must be regarded as required qualifications and training; or declared competent by an accredited assessor or institution.

Based on Regulation 4(4) of the Construction Regulations (OHSA)

                                       
I trust that the above mentioned information would be helpful.

Safety greetings

Tinus Boshoff

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