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	Maintenance as Construction Work Maintenance as Construction Work in terms of the Construction Regulations Compiled by: Adv. Hendrik Terblanche The Construction Regulations are applicable whenever “construction work” as defined in the Regulations are performed. OCCUPATIONAL HEALTH AND SAFETY ACT, ACT 85 OF 1993 Construction Regulations, 2014 – GN R84 of 2014 section 2 Scope of application Maintenance as Construction Work in terms of the Construction Regulations Compiled by: Adv. Hendrik Terblanche The Construction Regulations are applicable whenever “construction work” as defined in the Regulations are performed. OCCUPATIONAL HEALTH AND SAFETY ACT, ACT 85 OF 1993 Construction Regulations, 2014 – GN R84 of 2014 section 2 Scope of application (1) These Regulations are applicable to all persons involved in construction work. In order to determine whether certain maintenance activities constitute “construction work”, one needs to examine certain definitions in the regulations. section 1 definitions 'construction work' means any work in connection with- (a) the construction, erection, alteration, renovation, repair, demolition or dismantling of or addition to a building or any similar structure; or (b) the construction, erection, maintenance, demolition or dismantling of any bridge, dam, canal, road, railway, runway, sewer or water reticulation system; or the moving of earth, clearing of land, the making of excavation, piling, or any similar civil engineering structure or type of work; 'structure' means- (a) any building, steel or reinforced concrete structure (not being a building), railway line or siding, bridge, waterworks, reservoir, pipe or pipeline, cable, sewer, sewage works, fixed vessels, road, drainage works, earthworks, dam, wall, mast, tower, tower crane, bulk mixing plant, pylon, surface and underground tanks, earth retaining structure or any structure designed to preserve or alter any natural feature, and any other similar structure; (b) any falsework, scaffold or other structure designed or used to provide support or means of access during construction work; or (c) any fixed plant in respect of construction work which includes installation, commissioning, decommissioning or dismantling and where any construction work involves a risk of a person falling; 'fall risk' means any potential exposure to falling either from, off or into; Compare the above with the 2003 Construction Regulations definition of Construction work: “construction work” means any work in connection with¾ (a) the erection, maintenance, alteration, renovation, repair, demolition or dismantling of or addition to a building or any similar structure; (b) the installation, erection, dismantling or maintenance of a fixed plant where such work includes the risk of a person falling; (c) the construction, maintenance, demolition or dismantling of any bridge, dam, canal, road, railway, runway, sewer or water reticulation system or any similar civil engineering structure; or (d) the moving of earth, clearing of land, the making of an excavation, piling, or any similar type of work; It is firstly evident that where the 2003 definition included “maintenance” to a building (or similar structure) as construction work, the 2014 definition does not. It is our interpretation that this was done to address concerns raised by many organisations that day-to-day maintenance on industrial facilities should not be regarded as construction work as it raises hardship in terms of notification to the Department of Labour, approval of health and safety plans, auditing, etc. However, whether this aspect was truly changed is open to debate, due to the newly included paragraph under the definition of “structure”, namely “any fixed plant in respect of construction work which includes installation, commissioning, decommissioning or dismantling and where any construction work involves a risk of a person falling”. The following aspects of the current definitions of “construction work” and “structure” are relevant: The definition of construction work must be read together with the definition of structure to determine the scope of application of the Construction Regulations. Construction work is not restricted to buildings, but include other structures. Structures include fixed vessels, surface and underground tanks and similar structures, as well as fixed plant under certain conditions. Combining paragraph (a) of the definition of “construction work” with paragraph (c) of the definition of “structure”, construction work is the construction, erection, alteration, renovation, repair, demolition or dismantling of, or addition to, any fixed plant, which includes installation, commissioning, decommissioning or dismantling and where such work involves a risk of a person falling. We interpret “risk of a person falling” to read as “fall risk” as defined in the regulations. We further interpret the last “and” to mean that the fall risk must be present to qualify as construction work, or in other words installation of fixed plant where there is no fall risk would not be regarded as construction work. Maintenance as such is therefore still excluded, but will be included if such work requires installation, commissioning, decommissioning or dismantling and where such work involves a risk of a person falling. Another question arises, namely what is meant by “maintenance”, and how is it different to “renovation” and “repair”? For example, is painting a building maintenance, or is it renovation? The legislation does not define these words so one has to use legal interpretation principles such as giving effect to the intention of the legislature, and interpreting words according to their ordinary meaning in the context which they are used. Many people may say that painting is maintenance, but at the same time will say “I am renovating my bathroom” when they give it a new coat of paint and maybe change the tiles. The Oxford dictionary offers the following definitions: Maintenance: the process of keeping something in good condition. Renovation: restore to good condition. Repair: restore to sound condition; renovate or mend. From these definitions, it seems that renovation and repair basically mean the same, while the difference between maintenance and renovation depends on the condition of the thing being maintained or renovated. Maintenance keeps something in a good condition, so it is already in a good condition, while renovation means that it has deteriorated and needs to be restored to a good condition. Painting a wall that is still in fairly good condition can then be seen as maintenance, while painting a wall where the paint is all but gone, would then be renovation. Is this however a reasonable interpretation where the health and safety risks are the same for both? Some tasks are fortunately less problematic, and it will be easy to classify as construction work. In respect of existing industrial facilities and plants, “maintenance” to existing fixed plant would be construction work if there is any installation or un-installation of equipment in such a position that it poses a risk that a person can fall off something, from something or into something. Another way of putting it is to say that the installation of any equipment or machinery can only be said *not* to be construction work if: it is not a structure as defined; and it is not fixed plant; or it is fixed plant, but the installation thereof does not involve the risk of a person falling. Where there is doubt as to interpretation of legislation, a court can refer to the intention of the legislator as an interpretation rule. The intention of the legislator is mainly ascertained from referring to the purpose of the legislation concerned. The Construction Regulations do not contain its own purpose, but the main purpose of the Occupational Health and Safety Act is: To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery; the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work; to establish an advisory council for occupational health and safety; and to provide for matters connected therewith. The courts should ask the question whether applying the Construction Regulations to a specific task will contribute to protecting the health and safety of persons at work without imposing undue hardship on the person who has to comply with the legislation. It must be noted that this is an opinion, and other persons, including a court, could come to a different conclusion. The question that remains is who will make the final decision for the project concerned, and who will carry the associated legal risks? I am further of the opinion that there will be less legal risks if the decision is made that work do fall within the scope of the Construction Regulations than the other way around.
	HOW TO HAVE MEANINGFUL HEALTH AND SAFETY COMMITTEE Section 19 of the Occupational Health and Safety Act 85 of 1993 requires the following pertaining to the Health and Safety Committee: An employer shall in respect of each workplace where two or more health and safety representatives have been designated, establish one or more health and safety committees and, at every meeting of such a committee as contemplated in subsection... *Section 19* of the *Occupational Health and Safety Act 85 of 1993* requires the following pertaining to the Health and Safety Committee: An employer shall in respect of each workplace where two or more health and safety representatives have been designated, establish one or more health and safety committees and, at every meeting of such a committee as contemplated in subsection (4), consult with the committee with a view to initiating, developing, promoting, maintaining and reviewing measures to ensure the health and safety of his employees at work. A health and safety committee shall consist of such number of members as the employer may from time to time determine: Provided that- if one health and safety committee has been established in respect of a workplace, all the health and safety representatives for that workplace shall be members of the committee; if two or more health and safety committees have been established in respect of a workplace, each health and safety representative for that workplace shall be a member of at least one of those committees; and the number of persons nominated by an employer on any health and safety committee established in terms of this section shall not exceed the number of health and safety representatives on that committee. The persons nominated by an employer on a health and safety committee shall be designated in writing by the employer for such period as may be determined by him, while the health and safety representatives shall be members of the committee for the period of their designation in terms of section 17 (1). A health and safety committee shall hold meetings as often as may be necessary, but at least once every three months, at a time and place determined by the committee: Provided that an inspector may by notice in writing direct the members of a health and safety committee to hold a meeting at a time and place determined by him: Provided further that, if more than 10 per cent of the employees at a specific workplace has handed a written request to an inspector, the inspector may by written notice direct that such a meeting be held. The procedure at meetings of a health and safety committee shall be determined by the committee. … A health and safety committee may co-opt one or more persons by reason of his or their particular knowledge of health or safety matters as an advisory member or as advisory members of the committee. An advisory member shall not be entitled to vote on any matter before the committee. If an inspector is of the opinion that the number of health and safety committees established for any particular workplace is inadequate, he may in writing direct the employer to establish for such workplace such number of health and safety committees as the inspector may determine. Let’s explain these requirements by answering the following practical questions: *Is it necessary to establish a Health and Safety Committee at my workplace?* If you have designated two or more Health and Safety Representatives for your workplace (or any section thereof), you should establish one or more Health and Safety Committees, depending on the scale of the operations and the amount of people involved. Furthermore, it is not enough to merely establish a Health and Safety Committee. The employer should engage with the Health and Safety Committee on matters relating to the health and safety of the employees at the workplace. *Who should form part of this Health and Safety Committee then?* The following persons should serve on the Health and Safety Committee at the workplace: All the Health and Safety Representatives that have been designated at the workplace; All Employer Representatives that have been designated by the employer for a specified period; and One or more advisory members that have been co-opted to the committee by reason of his/her/their particular knowledge of health or safety matters. *Is there any procedure that should be followed during Health and Safety Committee Meetings?* The Health and Safety Committee itself should determine the procedure(s) that should be followed during the committee’s meetings. *How often should meetings take place for the Health and Safety Committee?* Health and Safety Committee Meeting should take place as often as is necessary for the workplace, but at least every three months. An Inspector from the Department of Labour may also give instruction for such meetings to take place. *What is the function of this Health and Safety Committee?* *Section 20* of the *Occupational Health and Safety Act 85 of 1993* stipulates that- A health and safety committee- may make recommendations to the employer or, where the recommendations fail to resolve the matter, to an inspector regarding any matter affecting the health or safety of persons at the workplace or any section thereof for which such committee has been established; shall discuss any incident at the workplace or section thereof in which or in consequence of which any person was injured, became ill or died, and may in writing report on the incident to an inspector; and shall perform such other functions as may be prescribed. A health and safety committee shall keep record of each recommendation made to an employer in terms of subsection (1) (a) and of any report made to an inspector in terms of subsection (1) (b). A health and safety committee or a member thereof shall not incur any civil liability by reason of the fact only that it or he failed to do anything which it or he may or is required to do in terms of this Act. An employer shall take the prescribed steps to ensure that a health and safety committee complies with the provisions of section 19 (4) and performs the duties assigned to it by subsections (1) and (2). To put it in plain language, the Health and Safety Committee must: Make recommendations to the employer in relation to any matter that affects the health and safety of persons (employees and other persons) at the workplace; Discuss all incidents where persons were injured, became ill or died at the workplace; Perform any function that have been prescribed by either legislation, the committee itself or an Inspector from the Department of Labour; and Keep record of each recommendation that has been made to the employer. *What are the advantages of serving on the Health and Safety Committee?* There are also some advantages to being a member of the Health and Safety Committee at the workplace. Apart from playing an important and honourable role in ensuring that your colleagues and other affected persons are safe and free from harm, you can also not be held civilly liable for the damages suffered by these persons due to you performing your functions or failing to perform your functions as a Health and Safety Committee Member. *What role does the employer him-/herself play in terms of the Health and Safety Committee?* The employer should ensure that the Health and Safety Committee have the necessary meetings as required and also ensure that the Health and Safety Committee performs the functions it has been prescribed to perform as discussed above. *What is the point of all this then?* The point is that, although the establishment of a Health and Safety Committee is a legal requirement to which most organisations must comply, such Committee can be a powerful tool in the organisation through which a safe workplace can be created and maintained. This can only be achieved if the following steps are followed, which will ensure the rare phenomenon of meaningful health and safety committee meetings. *HOW TO HAVE MEANINGFUL HEALTH AND SAFETY COMMITTEE MEETINGS* *COMMITMENT* Committed Health and Safety Representatives – Let employees nominate and elect the Health and Safety Representatives that truly represent the health and safety interest of their colleagues. Health and Safety Representatives that want to be there and feel appreciated, will prove to be more valuable that Health and Safety Representatives that are forced by either the employer or employees. Being a Health and Safety Representative should be a privilege and not a burden or a joke. These individuals are sometimes required to influence life or death decisions. Committed Employer Representatives – Designate employer representatives that will assist in making good decisions, that will improve the health and safety of the employees and other persons in the workplace. Avoid designating employees that will serve their own interest and does not understand the responsibility and accountability of being an employer. Such representatives could cause serious liability issues for the business and/or the employer. An employer that is serious about the health and safety of its employees, would want an honest person to represent its interest in such matters with integrity. *PASSION* Persons that serve on a Health and Safety Committee in the workplace should be individuals that want to make a difference in other people’s lives. Looking after your own health and safety is one thing, but considering other people’s wellbeing in the workplace is something totally different. Any person serving on a Health and Safety Committee that has no regard for his own health and safety or that of other persons in the workplace, will surely not be able to contribute to the purpose of a Health and Safety Committee in a meaningful way. *SUFFICIENT RESOURCES & SUPPORT* For a Health and Safety Committee to perform its functions properly, it should be allowed and encouraged through the provision of sufficient resources and support. In some cases, this is easily achieved through the provision of adequate meeting facilities and/or the allocation of sufficient time to have such meetings. In other cases, the provision of proper education or training should be considered, where the designated employees are not acquainted or adequately conversant on specific topics or in relation to their duties and responsibilities. Knowledgeable individuals tend to make more valuable contributions that individuals that have no clue about the issue at hand. The opinion of a person with knowledge on the matter is also more respected that the opinion of someone with no knowledge. *FOCUS* It is important to understand that a Health and Safety Committee is established to address and discuss matters that affect the Health and Safety of persons in the workplace. Caution should be taken not to let these meetings be hijacked by production or revenue related matters, unless those issues have a direct impact on the health and safety of persons in the workplace. Through experience it has been found that many organisations use the forum created by the Health and Safety Committee Meeting to discuss all other matters, except those matters that really affect the health and safety of persons in the workplace. A meaningful Health and Safety Committee Meeting will include only those matters that affect the health and safety of employees and other persons that is exposed to the organisation’s business endeavours. These matters will normally include discussions around the results of Health and Safety Representative Inspections; discussions around incidents where persons have been injured, became ill or died in the workplace; making recommendations to the employer to improve health and safety measures in the workplace; and following up on the implementation of previous recommendations that have been considered by the employer. *RESULTS* The end purpose of the Health and Safety Committee should always be the driving force behind the Health and Safety Committee: To ensure that the workplace is safe and free from risk to the health and safety of employees and other persons in the workplace. There is no place in the Health and Safety Committee for any one individual’s self-interest or hidden agendas. The only result of a successful Health and Safety Committee, is a safe and risk free workplace. *LIABILITY* The effective functioning of an established Health and Safety Committee is one of the most significant tools for an employer to proof that he/she is acting reasonable practicable in relation to health and safety in the workplace. Legal Compliance in this regard is sometimes underestimated due to preconceived perceptions and ideas. The Department of Labour and the South African Legal System hold legally prescribed designations in regard, as these individuals (especially Health and Safety Representatives) have the right to engage directly with the Department of Labour should the employer not comply with the obligations imposed by the legislation as discussed above. Non-compliance in relation to the health and safety obligation imposed by legislation could lead to the risk of the employer facing criminal charges.
	THE DESIGNATION OF EMPLOYER REPRESENTATIVES TO THE Section 19 of the Occupational Health and Safety Act 85 of 1993, states: (3) The persons nominated by an employer on a health and safety committee shall be designated in writing by the employer for such period as may be determined by him, while the health and safety representatives shall be members of the committee for the period of their designation in terms of section 17 (... *Section 19* of *the Occupational Health and Safety Act 85 of 1993, states: (3) The persons nominated by an employer on a health and safety committee shall be designated in writing by the employer for such period as may be determined by him, while the health and safety representatives shall be members of the committee for the period of their designation in terms of section 17 (1). This allows for the employer to designate certain influential employees, most of the time being management members, as Employer Representatives to the Health and Safety Committee. These employees are designated to represent the employer’s interest in relation to health and safety matters in the workplace, effectively becoming the direct link to the employer and should assist with the solving of health and safety related concerns with the best interest of the employer and employees’ health and safety requirements in mind. These representatives are designated for a specified period, and should be replaced and/or reappointed when such designation period expires. Another requirement highlighted by the Section 19 of the Occupational Health and Safety Act 85 of 1993: (2) A health and safety committee shall consist of such number of members as the employer may from time to time determine: Provided that-* (c) the number of persons nominated by an employer on any health and safety committee established in terms of this section shall not exceed the number of health and safety representatives on that committee. This sections restricts the employer to designate a number of Employer Representatives that is equal to- or less than the amount of Health and Safety Representatives that have been designated for the workplace. This will ensure that, although the employer’s interests are well represented, the employees’ health and safety interests are always considered as the main interest. Who should be appointed as Employer Representatives? Although there are no specific guidelines in the OHS Act to guide the employer in making the decision as to whom should be designated as those employees that should represent him/her on the Health and Safety Committee at the workplace, there are some assumptions that could be made in this regard. One such assumption is that such an employee should have some *interest* or *influence* in relation to health and safety in the workplace. He/she should be able to make or at least be able to assist in the making of health and safety policy- or procedural decisions in cooperation with the employer. Another assumption is that such an employee should be involved with- or at least be able to influence the *implementation* of measures that is implemented in the workplace in the interest of health and safety. For example, executing or implementing control measures in relation to hazards and/or risks that have been identified at the workplace. One more assumption it that such a designated employee should be able to *engage* with the employer directly in relation to the matters discussed at the Health and Safety Committee, as he/she has been designated to represent the employer on the Committee. Should a designated Employer Representative not be able to at least take one of the actions as assumed above, the employer might find it very difficult to prove that such a person truly represents the employer on the Health and Safety Committee. A designated Employer Representative acts as an extension of the employer. Where the employer is a company and do not designate such employees, the CEO or his or her delegate (16(2)) will have to attend the Health and Safety Committee Meetings in person. Why is it important for the employer to be represented on the Health and Safety Committee? The Health and Safety Committee is a legal forum where employees can highlight specific health and safety concerns through their elected health and safety representatives (employee representatives). This is then also the legal forum where the employer can take note of such concerns through his designated representatives (employer representatives). During the Health and Safety Committee Meetings the Employer Representatives (Employer) can also provide feedback to the Health and Safety Representatives (Employees) regarding health and safety matters. Without representation on the Health and Safety Committee, the Employer would not be able to comply with his/her legal duties and responsibilities as stipulated by the *Section 8* of *Occupational Health and Safety Act 85 of 1993: “General duties of employers to their employees-* Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees. Without derogating from the generality of an employer's duties under subsection (1), the matters to which those duties refer include in particular- 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; taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment; making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances; establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures; providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees; as far as is reasonably practicable, not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery, unless the precautionary measures contemplated in paragraphs (b) and (d), or any other precautionary measures which may be prescribed, have been taken; taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used; enforcing such measures as may be necessary in the interest of health and safety; ensuring that work is performed and that plant or machinery is used under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented; and causing all employees to be informed regarding the scope of their authority as contemplated in section 37 (1) (b). The Health and Safety Committee can play a valuable role in the health and safety of employees at the workplace, if correctly implemented and utilised. Having passionate and competent people representing the employer on the Health and Safety Committee will most definitely prove useful to both employees and the employer in future.
	THE NOMINATION AND/OR ELECTION OF HEALTH & SAFETY Section 17(2) of the Occupational Health and Safety Act 85 of 1993 stipulates that: “An employer and the representatives of his employees recognized by him or, where there are no such representatives, the employees shall consult in good faith regarding the arrangements and procedures for the nomination or election, period of office and subsequent designation of health and safet... *Section 17(2) of the Occupational Health and Safety Act 85 of 1993* stipulates that: “An employer and the representatives of his employees recognized by him or, where there are no such representatives, the employees shall consult in good faith regarding the arrangements and procedures for the nomination or election, period of office and subsequent designation of health and safety representatives in terms of subsection (1): Provided that if such consultation fails, the matter shall be referred for arbitration to a person mutually agreed upon, whose decision shall be final: Provided further that if the parties do not agree within 14 days on an arbitrator, the employer shall give notice to this effect in writing to the President of the Industrial Court, who shall in consultation with the chief inspector designate an arbitrator, whose decision shall be final.” It is clear from this legal reference that the employer must consult with employees, either with representatives of the employees or with employees directly, regarding: How Health and Safety Representatives are to be nominated and/or elected (e.g. voting process, number of nominations, etc.); The time period for which a Health and Safety Representative should be serving on the Health and Safety Committee (e.g. 2 years); and How Health and Safety Representatives should be designated (e.g. how many designations for each section at the workplace, appointment letters, areas of responsibility, etc.) *Regulation 6(1) of the General Administrative Regulations, 2003 of the Occupational Health and Safety Act 85 of 1993* further stipulates that: “The employer shall, in any workplace where there must be a health and safety representative in terms of section 17(1) of the Act and within four months after the commencement of these Regulations or after commencing business, meet with the registered trade unions of that workplace in order to consult or bargain in good faith and conclude an agreement concerning the nomination or election of health and safety representatives; terms of office of health and safety representatives and the circumstances and the prescribed manner in which they may be removed as health and safety representatives; manner in which vacancies are to be filled; manner in which health and safety representatives must perform their functions in terms of the Act; and facilities, training and assistance that must be provided to a health and safety representative in terms of section 18(3) of the Act. Provided that, where there is no registered trade union, the employer shall enter into consultation with all employee representatives in that workplace in order to conclude an agreement with regard to subregulation (1).” This regulation further emphasises what a Collective Agreement with employees should contain: A procedure for how Health and Safety Representatives must be nominated or elected, inclusive of all required documentation; An indication of the time period for which Health and Safety Representatives will be expected to serve on the Health and Safety Committee: The conditions under which Health and Safety Representatives may be discharged from their designated responsibilities, as well as the way they must be discharged (i.e. prescribed manner); How the designated Health and Safety Representatives must perform their functions (i.e. how and when); and What facilities, training and assistance must be provided to designated Health and Safety Representatives (as contemplated by section 18(3) of the Act – as discussed in previous discussion). *Regulation 6(3) of the General Administrative Regulations, 2003* further requires that “The conditions applicable to collective agreements in terms of the Labour Relations Act, read with the changes required by the context, shall apply to agreements concluded in terms of subregulation (1).” The intention is thus that the Collective Agreement contemplated by regulation 6(1) of the General Administrative Regulations and section 17(2) of the OHS Act should comply with the conditions applicable to all collective agreements that is and should be made in terms of the Labour Relations Act. Basically *Section 23 of the Labour Relations Act 66 of 1995* describes the *Legal effect of collective agreements* as follows: A collective agreement is binding for the parties to the collective agreement, the members of each party to the agreement, the management members of the employer and all employees at the workplace. A collective agreement binds all parties to the agreement for the whole period of the collective agreement. Where applicable, a collective agreement varies any contract of employment between an employee and employer who are both bound by the collective agreement. Unless the collective agreement provides otherwise, any party to a collective agreement that is concluded for an indefinite period may terminate the agreement by giving reasonable notice in writing to the other parties. Although this requirement in the Occupational Health & Safety Act and General Administrative Regulations seems to be very straight forward, it has been observed from experience that very little organisations comply with this requirement, and tend to dictate the process for the nomination/election, validity and designation of Health and Safety Representative Appointments. Employers sometimes prefer to pick potential health and safety representatives candidates themselves for a number of reasons. These reasons may or may not include one or more of the following: The employer feels that when money is spent in relation to activities at the workplace, for example on training, he/she has the right to choose the receivers of such privileges; The employer wants to have total control over who has insight and influence in the workplace, even regarding health and safety matters; The employer does not trust that employees’ judgement will be sound in relation to the nomination of effective candidates; The employer does not consider the process of ensuring the workforce is represented in a serious light; etc. Whatever the reason, the employer should understand that Health & Safety Representatives must be designated in accordance with the arrangements and procedures that have been stipulated in the Collective Agreement that have been entered into between himself/herself and either the employees directly or with the employees’ recognised representatives. *Five reasons why a Collective Agreement regarding the election of Health & Safety Representatives are important:* *The labour force feels truly represented on matters related to health and safety in the workplace* – employees will therefore be more willing to contribute to and cooperate with health and safety initiatives; *Employees will be motivated to assist the employer in monitoring the workplace in the interest of health and safety* – employees tend to accept responsibility better if they are held accountable by their peers (e.g. the co-employees who elected them), in comparison with being forced (e.g. adding to the workload) by the employer to do something; *Employees’ personal development can be enhanced and improved* – designated employees receive training to enable them to perform their functions as Health & Safety Representatives, which ultimately assist them in acquiring new skills and knowledge; *It allows for the employer to identify potential leadership within the organisation* – various supervisors and managers have been developed from being designated as Health & Safety Representatives, as it affords employees the opportunity to showcase their ability to accept responsibility, be creative and display interpersonal communication capabilities; and *Legal Compliance* – such legal requirements must be complied with by the employer as required by various sets of Legislation, in this case the Occupational Health and Safety Act 85 of 1993, the General Administrative Regulations (2003) and the Labour Relations Act 66 of 1995.
	THE ROLE OF THE HEALTH AND SAFETY REPRESENTATIVE I A basic issue that almost all organisations struggle with in relation to health and safety matters in the workplace is to implement and integrate requirements into the organisation’s business system that is forced upon the organisation by legislation. The designation and integration of Health & Safety Representatives into any Business Structure are sometimes perceived exactly to be such ... A basic issue that almost all organisations struggle with in relation to health and safety matters in the workplace is to implement and integrate requirements into the organisation’s business system that is forced upon the organisation by legislation. The designation and integration of Health & Safety Representatives into any Business Structure are sometimes perceived exactly to be such an instance. This can be caused by various factors, but in most cases it is caused by a misperception of the intention of the requirement. From experience, the designation of Health & Safety Representatives is seen as an unnecessary and costly exercise that will not in any way add value to the business and the business objectives of the organisation. It is totally incorrect to assume that this requirement is intended to complicate matters for employers and is only intended to cost the employer money. The opposite is actually true in this case. Yes, it might take some time for the organisation to implement the requirement 100% effectively, but experience has proven that having effective Health & Safety Representatives can save an organisation money and time in the long run. The advantages of appointing competent and effective Health & Safety Representatives outweigh any negative argument on the matter. What are Health & Safety Representatives? Section 17 of the Occupational Health and Safety Act 85 of 1993 (as amended) deals with the designation and appointment of Health & Safety Representatives at the workplace. In essence, all employers that have more than 20 employees in his/her employment at any workplace, must designate in writing (for a specified period) Health & Safety Representatives for such workplace or different sections thereof. This requirement is however subject to the provision that an employer and the representatives of his employees recognized by him/her shall consult in good faith regarding the arrangements and procedures for the nomination or election, period of office and subsequent designation of health and safety representatives (Note: where there are no such representatives, the employees themselves must be consulted). If the consultation indicated above should fail, the matter must be referred for arbitration to a person mutually agreed upon between the parties, whose decision shall be final. If the parties do not agree within 14 days on an arbitrator, the employer shall give notice to this effect in writing to the President of the Industrial Court, who shall in consultation with the chief inspector designate an arbitrator, whose decision shall be final. Who can be designated as Health & Safety Representatives at the workplace? Only full-time employees who are acquainted with the conditions and activities at that workplace or section thereof, can be designated as Health & Safety Representatives for that workplace or section. How many Health & Safety Representatives should be designated at the workplace? In the case of SHOPS and OFFICES, at least ONE Health & Safety Representative should be designated for every 100 employees or part thereof; and In the case of ALL OTHER WORKPLACES, at least ONE Health & Safety Representative should be designated for every 50 employees or part thereof. It should furthermore be noted that any employee that has been designated as a Health & Safety Representative and who is performing work at a workplace other than the one where he/she normally reports for duty, shall be deemed to be working at the workplace where he/she hence reports for duty. This means that it must be assumed that the designated Health & Safety Representative is designated in terms of the area he/she is reporting for duty, and should not be expected to fulfil the responsibilities and functions of a Health & Safety Representative for an area he/she is not reporting for duty. An Inspector of the Department of Labour may direct an employer by notice in writing that the number of Health & Safety Representatives designated at the workplace is inadequate in his/her opinion, even if the workplace or section has 20 or fewer employees, and indicate an appropriate number of Health & Safety Representatives to be appointed. When should a Health & Safety Representative perform these ‘additional’ Health & Safety related functions? All activities in connection with the designation, functions and training of Health & Safety Representatives shall be performed during ordinary working hours. The time reasonably spent by any employee that has been designated as a Health & Safety Representative shall for all intends and purposes be deemed to be time spent by him in the carrying out of his duties as an employee. What are functions and responsibilities of health and safety representatives in the workplace? Section 18 of the OHS Act stipulates the various functions that a designated Health & Safety Representative may perform in respect of the workplace or section of the workplace for which he/she has been designated. These functions include: The review of the effectiveness of health and safety measures that have been implemented at the workplace; The identification of potential hazards and potential major incidents at the workplace; In collaboration with his employer, the examination of the causes of incidents at the workplace; The investigation of complaints by any employee relating to that employee's health or safety at work; The making of representations to the employer or a health and safety committee on matters arising from the functions above [Where such representations are unsuccessful, the designated Health & Safety Representative may make such representations to an Inspector at the Department of Labour]; The making representations to the employer on general matters affecting the health or safety of the employees at the workplace; The Inspection of the workplace, including any article, substance, plant, machinery or health and safety equipment at that workplace with a view to the health and safety of employees, at such intervals as may be agreed upon with the employer [The designated Health & Safety Representative must provide reasonable notice of his/her intention to carry out such an inspection to the employer, who may be present during the inspection]; Participation in consultations with inspectors (e.g. Department of Labour) at the workplace and accompany inspectors on inspections of the workplace; Receiving information from inspectors as contemplated in section 36 of the OHS Act; and (In his capacity as a Health & Safety Representative) Attending meetings of the health and safety committee of which he is ‘automatically’ a member, in connection with any of the above functions. What is the Health & Safety Representative entitled to in respect to the workplace or section of the workplace for which he/she has been designated? Apart from the functions a designated Health & Safety Representative should perform, section 18 of the OHS Act also stipulates the following privileges a designated Health & Safety Representative is entitled to: He/she may visit the site of an incident at all reasonable times and attend any inspection in loco; He/she may attend any investigation or formal inquiry held in terms of the OHS Act; in so far as it is reasonably necessary for performing his functions, inspect any document which the employer is required to keep in terms of this Act; He/she may accompany an inspector (e.g. Department of Labour) on any inspection; With the approval of the employer (which approval shall not be unreasonably withheld), he/she may be accompanied by a technical adviser, on any inspection; and He/she may participate in any internal health or safety audit. What is the employer then responsible for in relation to the designation of Health & Safety Representatives? In good faith the employer should allow and encourage all designated Health & Safety Representatives to fulfil their functions as stipulated above. An employer must furthermore also provide any such facilities, assistance and training a Health & Safety Representative may reasonably require for the carrying out of his/her functions. Can a Health & Safety Representative be held responsible for anything that goes wrong in relation to the health and safety of employees or other persons at the workplace? A designated Health & Safety Representative cannot be held liable in a civil capacity for acting or omitting to act on anything he/she may do or is required to do in terms of the OHS Act. This does not however indemnify the designated Health & Safety Representative to be prosecuted in a criminal case for acting or omitting to act in relation to anything he/she may have done or have been required to do in terms of the OHS Act. Why should an organisation designate Health & Safety Representatives? Just by evaluating the functions and responsibilities of Health & Safety Representatives the advantages of having designated Health & Safety Representatives in the workplace should be clear by now. If it is still unclear, consider the following points: Health & Safety Representatives are already full-time employees, meaning that additional personnel do not need to be appointed to look after your business’ health and safety; These employees are designated due to their knowledge and experience, and are therefore ideally placed to warn the employer of potential danger or loss (this includes injuries, fatalities, property damage or production problems), bearing in mind that the employer himself/herself might not spend a lot of time being physically involved in the operational side of the business; Providing the necessary resources (e.g. training, time, meeting place, etc.) for designated Health & Safety Representatives are relatively inexpensive, and if properly planned and managed, could last for a long period of time; Individual Employees are developed and improved through the acquisition of new skills that could prove beneficial for both the organisation and the individual; Extra ears and eyes are deployed in the workplace to make it safer and manage risk more effectively; Employees develop a sense of involvement and responsibility; and The employer, apart from having to make or assist with the making of decisions, can spend more time focussing on other parts of the business, without having the stress of monitoring and evaluating the health and safety of employees all the time. These are just some of the advantages related to the effective designation of competent Health & Safety Representatives. This is in no way limited to what has been discussed above. Having the correct employees assisting you with managing health and safety compliance in the workplace is certainly not a negative thing. Let’s put some thought into the value of the Health & Safety Representative in the workplace. You might just surprise yourself…
	Occupational Health and Safety in Buildings and Of Building safety, office safety, office occupational health and safety, call it what we will - ensuring occupational health and safety (OHS) in buildings and offices are not always receiving the attention it should due to the perception that occupational health and safety in buildings and offices pose a low risk to employees and more focus is placed by employers on OHS in factories, warehouses... Building safety, office safety, office occupational health and safety, call it what we will - ensuring occupational health and safety (OHS) in buildings and offices are not always receiving the attention it should due to the perception that occupational health and safety in buildings and offices pose a low risk to employees and more focus is placed by employers on OHS in factories, warehouses, construction sites and related work environments. This aspect was also reflected in the media due to the various building fires in 2018. There are however far more to this aspect than anticipated by employers. Employers are legally required to comply with the following occupational health and safety related pieces of legislation, amongst others: Occupational Health and Safety Act, Act 85 of 1993 and Regulations; Basic Conditions of Employment Act, Act 75 of 1997 and Regulations; Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993 and Regulations; Consumer Protection Act, Act 68 of 2008 and Regulations; Employment Equity Act, Act 55 of 1998 and Regulations; Fire Brigade Services Act, Act 99 of 1987 and Regulations; Firearms Control Act, Act 60 of 2000 and Regulations; Foodstuffs, Cosmetics and Disinfectants Act, Act 54 of 1972 and Regulations; Medicines and Related Substances Act, Act 101 of 1965 and Regulations; National Building Regulations and Building Standards Act, Act 103 of 1977 and Regulations; and Various municipal bylaws. In accordance with the applicable legislation employer, facility managers and building owner, must ensure that the following aspects are managed (this list is not conclusive): Basic risk management requirements; Management structures and related legal appointment structures; Workhours and overtime; Occupational hygiene requirements, such as illumination, ventilation, ergonomics, etc; Security OHS requirements including security dog management, firearm management; Fire fighting installations, detection installation, fire fighting equipment installation, and maintenance; Other emergency events; Statutory inspections on structures, lifts, escalators, and passenger conveyors, air conditioning installations, emergency equipment, etc; Transport and vehicle management; Food premises compliance; Electrical installation, transformers, generators, etc; Contractor interface management; General building requirements – facilities to be provided; Third party liability – tenants management; and Equipment used and other related aspects. Legricon developed a legal compliance audit protocol which includes all the above mentioned aspects and more. The legal compliance assessment could also be extended to include all the related environmental legislation which would cover aspects such as waste management, resource conservation, etc. An occupational health safety and environmental (HSE) / (SHE) compliance assessment is then the answer. So if you are not sure if your employees are protected in the office environment, if persons entering your buildings are protected, if you have manged your HSE Legal Liabilities, contact Legricon to conduct an OHS Office Legal Compliance audit or an OHS Building Legal Compliance audit which will provide you with clarity on if all the aspects are satisfactory managed, not managed, which high risk aspects must immediately to be addressed and recommendations on how to resolve the issues. *Avoid “remembering fallen colleague” – comply*