What are the duties of the Employer in terms of Health and Safety?
In the most basic of explanations from a ‘reasonable man’ point of view the Employer must provide a work environment that is free from risk or harm. Should this not be possible the employer must identify those risks, formulate mitigation measures and inform all employees of the risks and mitigation measures.
OHS Act Section 8: 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).
What are the duties of the Employer in terms of Health and Safety?
In lay mans terms the Employees of a company have a duty to follow all instructions given by the employer that are reasonable and will not impact on their or someone else’s health and safety. An Employee must ensure that they take care of for their own health and safety and must report any situations they deem to be unsafe.
OHS Act section 14: General duties of employees at work.
Every employeeshall at work:
a. take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;
b. as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;
c. carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety;
d. if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer, or to the health & safety representative for his workplace or section thereof, as the case may be, who should report it to the employer; and
e. if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.
Mine Health and Safety Act
MHS Act section 23. Employees’ right to leave dangerous working place.
(1) The employee has the right to leave any working place whenever: –
(a) circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee; or
(b) the health and safety representative responsible for that working place directs that employee to leave that working place.
(2) Every employer, after consulting the health and safety committee at the mine, must determine effective procedures for the general exercise of the rights granted by subsection (1), and those procedures must provide for –
(a) notification of supervisors and health and safety representatives of dangers which have been perceived and responded to in terms of subsection (1);
(b) participation by representatives of employer and representatives of the employees in endeavouring to resolve any issue that may arise from the exercise of the right referred to in subsection (1);
(c) participation, where necessary, by an inspector or technical adviser to assist in resolving any issue that may arise from the exercise of the right referred to in subsection (1);
(d) where appropriate, the assignment to suitable alternative work of any employee who left, or refuses to work in, a working place contemplated in subsection (1); and
(e) notification to any employee who has to perform work or is requested to perform work in a working place contemplated in subsection (1) of the fact that another employee has refused to work there and of the reason for that refusal.
(3) If there is no health and safety committee at a mine, the consultation required in subsection (2) must be held with –
(a) the health and safety representatives; or
(b) if there is no health and safety representative at the mine, with the employees.
Under the OSH Act which incidents need to be reported to the Compensation Commissioner?
Serious injuries on Duty must be reported to the Department of Labour, if you are in doubt as to whether the Injury on Duty (IOD) fall into the below outlined parameters it is best practice to report the IOD and allow the Department to make the judgement call.
Injuries on Duty
Section 24: Each of the following incidents must be reported to the Inspector:
– If a person dies, may die, or suffer permanent disability, becomes unconscious, suffers loss or partial loss of a limb, or after 14 days cannot come back to work to do the same job he was doing prior to the accident.
– Any major incident that has occurred.
– The health and safety of a person was endangered when a dangerous substance was spilled, there was uncontrollable pressure release of any substance, and machine failure resulted in flying, falling or uncontrolled movement of objects.
Section 24 of the Act.
1. Each incident occurring at work or arising out of or in connection with the activities of persons at work, or in connection with the use of plant or machinery, in which, or in consequence of which –
any person dies, becomes unconscious, suffers the loss of a limb or part of a limb or is otherwise injured or becomes ill to such a degree that he is likely either to die or to suffer a permanent physical defect or likely to be unable for a period of at least 14 days either to work or to continue with the activity for which he was employed or is usually employed;
a major incident occurred; or
the health or safety of any person was endangered and where –
a dangerous substance was spilled;
the uncontrolled release of any substance under pressure took place;
machinery or any part thereof fractured or failed resulting in flying, falling or uncontrolled moving objects; or
machinery ran out of control,
shall, within the prescribed period and in the prescribed manner, be reported to an inspector by the employer or the user of the plant or machinery concerned, as the case may be.
2. In the event of an incident in which a person died, or was injured to such an extent that he is likely to die, or suffered the loss of a limb or part of a limb, no person shall without the consent of an inspector disturb the site at which the incident occurred or remove any article or substance involved in the incident there from: Provided that such action may be taken as is necessary to prevent a further incident , to remove the injured or dead, or to rescue persons from danger.
3. The provisions of subsections (1) and (2) shall not apply in respect of:
a traffic accident on a public road;
an incident occurring in a private household, provided the householder forthwith reports the incident to the South African Police; or
any accident which is to be investigated under section 12 of the Aviation Act, 1962 (Act No. 74 of 1962).
4. A member of the South African Police to whom an incident was reported in terms of subsection (3)(b), shall forthwith notify an inspector thereof.
Reporting of incidents and occupational diseases:
1) An employer or user, as the case may be, shall-
within seven days of any incident referred to in section 24(1)(a) of the Act, give notice thereof to the provincial director in the form of WCL1 or WCL2; and
where a person, in consequence of such an incident, dies, becomes unconscious, suffers the loss of a limb or part of a limb, or is otherwise injured or becomes ill to such a degree that he or she is likely either to die or to suffer a permanent physical defect, such incident, including any other incident contemplated in section 24(1)(6) and (c) of the Act, shall forthwith also be reported to the provincial director by telephone, facsimile or similar means of communication.
2) If an injured person dies after notice of the incident in which he or she was injured was given in terms of sub regulation (1), the employer or user, as the case may be, shall forthwith notify the provincial director of his or her death.
3) Whenever an incident arising out of or in connection with the activities of persons at work occur to persons other than employees, the user, employer or self-employed person, as the case may be, shall forthwith notify the provincial director by facsimile or similar means of communication as to the-
name of the injured person;
address of the injured person;
name of the user, employer or self-employed person;
address of the user, employer or self-employed person;
telephone number of the user, employer or self-employed person;
name of contact person;
details of incident: [What happened; where it happened (place); when it happened (date and time); how it happened; why it happened; and names of witnesses.]
4) Any registered medical practitioner shall, within 14 days of the examination or treatment of a person for a disease contemplated in section 25 of the Act, give notice thereof to the chief inspector and the employer in the form of WCL22.
5) Any other person not contemplated in this regulation may in writing give notice of any disease contemplated in section 25 of the Act, to the employer and chief inspector.
Recording and investigation of incidents:
An employer or user shall keep at a workplace or section of a workplace, as the case may be, a record in the form of Annexure 1 for a period of at least three years, which record shall be open for inspection by an inspector, of all incidents which he or she is required to report in terms of section 24 of the Act and also of any other incident which resulted in the person concerned having had to receive medical treatment other than first aid.
An employer or user shall cause every incident, which must be recorded in terms of sub regulation (1), to be investigated by the employer, a person appointed by him or her, by a health and safety representative or a member of a health and safety committee within 7 days from the date of the incident and finalised as soon as is reasonably practicable, or within the contracted period in the case of contracted workers.
The employer or user shall cause the findings of the investigation contemplated in sub regulation (2) to be entered in Annexure 1 immediately after completion of such investigation.
An employer shall cause every record contemplated in sub regulation (1) to be examined by the health and safety committee for that workplace or section of the workplace at its next meeting and shall ensure that necessary actions, as may be reasonable practicable, are implemented and followed up to prevent the recurrence of such incident.
It bears noting that according the hierarchy of controls PPE is deemed to be final and last form of defence against Harm and should not be seen as a solution to mitigate risk. PPE must be supplied by the employer to the employees free of charge, although it is the employee’s duty to ensure they use the Personal Protective Equipment correctly, do not tamper with it and report if it is faulty –the PPE remains the asset of the company. Employers therefore are encouraged to control the distribution of PPE, have companie policies and procedures in place regarding PPE and to ensure employees know how to use the PPE correctly –manufacturers of PPE are required to provide training free of charge on how to correctly use their equipment.