Health Safety Legal Liability
- June 22nd, 2010
It is 17 years since the promulgation of the Occupational Health and Safety Act (Act 85 of 1993), yet there are many organisation who have not yet complied with the content of this act. Why?
At this stage, what excuse does management have for not nominating and electing Health and Safety representatives, for not doing Risk Assessments or for not communicating Health and Safety within the organisation to employees?Whose rules are you following?
Health, Safety and Liability
“Unless you break the rules, you can’t win.”
Robert Polet CEO Gucci Group quoted in Fortune Magazine
Although the above comment by Robert Polet was made some time ago and not directly related to Health and Safety, one cannot help but feel that this attitude is quite common amongst business managers here in South Africa when it comes to Health and Safety.
People will only be inclined to break the rules if they feel there is a strong possibility that they will get away with it. When it comes to Health and Safety, could it perhaps be that the State do not have the manpower or knowledgeable resources to put effective pressure on the culprits?
Health and Safety Compliance
When it comes to Health and Safety we have three groups of role-players:
- The leaders who, irrespective of what the minimum standard in the law is, ensure that a “world’s best practice” standard is maintained.
- Those who wait for the changes to occur and then follow the rules, and
- The chancers who try and get away with it is long as possible.
Common errors the last group makes include:
- Not wanting to sign the 16.1 or other appointments (the law is clear – if you have performed this function you are deemed to have been appointed in this position)
- Not nominating and electing Health and Safety representatives, but appointing managers to assist with the duties. The law emphasizes that a representative is representing the employees and therefore needs to be elected from its peers. A supervisor is a management representative and does not represent the employees.
- Using a contractor to update the Health and Safety files on their behalf once a month.
- Thinking that if something goes wrong then the Health and Safety contractor will have to explain. The CEO has accountability for Healthy and Safety and the next level of management has the responsibility to see it implemented in the workplace.
- No Risk Assessments performed. It is a legal requirement to do Risk Assessments and it is the foundation of any Safety Health program.
- Hiding or incident cover-ups. The classical case of using a “light duty” system to “hide” injured employees.
Health Safety Management The Ethical Way
The word “management” is defined as a person who has the task to implement and maintain the day-to-day activities of the organization to ensure the vision and mission is met.” This includes the Health and Safety vision, mission, objectives and targets as well.
“Our mission statement about treating people with respect and dignity is not just words but a creed we live by every day. You can’t expect your employees to exceed the expectations of your customers if you don’t exceed the employees’ expectations of management.”
Howard Schultz CEO Starbucks
Ask yourself:
- How are we treating our employees in terms of Health and Safety?
- Is this how you would like to be treated?
- Would you expect to be positive if you were on the receiving end of the current Health and Safety management style?
- Do you need a law to guide you on the basic principles of SHEQ management?
- Do you need to be reminded of your legal liability should something go wrong in the future on your site?
Breaking the rules to get ahead in Health and Safety is almost the same as if you are playing with fire – only worse. You are playing with the lives of your employees and the quality of life of their immediate families.
Health and Safety is not about winning through cheating (window-dressing is cheating). It is about responsible, mature and ethical management.
You should actually not need the Occupational Health and Safety Act or a competent law enforcement function to get this right.
19 Responses to “Health Safety Legal Liability”
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Hello Christel! I was recently appointed the SHE Adminstrator and my expertise in ISO9001, 14001 and BRC/IOP. Is it okay if the company appoints almost half of the employees as 16.2s? and last which of the systems to do I implement (NOSA or OSHAS18001)?
Hi Christel, I agree with your sentiment. However, In our country at the momemnt, with the Dept Labour’s Health and Safety department being so “watered down” there is literally no enforcement and I do believe that to get health and safety on an even keel in SA, enforcement is waht is required. It need not remain this way, only until such time that all of big business in the country sit up and take notice of health and safety and start actively implementing their systems……or face stiff penalties. One only needs to look at the system in the UK or other countries where companies and inviduals face stiff penalties ( new legislation in UK is a Manslaughter at Work Act) where CEO’s and top executives could face culpable homicide charges if found guilty from a health and safety perspective by the Health and Safety Executive (HSE).
Why such a fuss about samtrac and short courses on the industry? because a diploma in safety is not respected.
Hi
I agree. The question that needs to be asked is why do the diploma’s not receive the recognition in the market place as per the expectation of the graduates? Regards Christel.
Hi
I agree, but with the draft proposed changes to the NOSH Bill where it is proposed to increase the current penalty from R100 000.00 or two years in jail to R1 million AND 10 years in jail I think we are making SLOW progress. Regards Christel.
Thank you for your enquiry. No – the law indicates that only a 16.1 may appoint 16.2′s first of all. Then a 16.2 must have the necessary authority and control to be in this position. Having half of your managers appointed as 16.2′s does not make sense with the info you have provided. If you could give me an organogram I will be able to give you a better indication.
Please do OHSAS18001 – it is internationally recognized more than any other system and is the route that most (95%) of other companies have followed. Regards Christel.
Hi, Christel,
I fear that our profession as SHEQ Managers might go the same way as the old, initially well respected, Car Salesmen!
The profession is not respected as it does happen that ,in cases, the OHSAct is blantantly flouted by top managers.They then see that NOTHING is done to correct the situation as “nobody polices the system.” What are your thoughts about a fully integrated SHEQ Institute that represents us and not just Safety Management?
If we can uplift the SHEQ Managers profession, and we can prove to the powers that be, we night overcome the old car saleman syndrome.
Kind regards, Geoff.
Geoff has hit the nail on the head. I do not know when this was posted but this action is still going strong!
I have oersonally seen it while working on a large project almost complete. The appointed site manager states that it is the safety officer/managers duty to do all work regarding safety; risk assesments, tbts’, ptos’ swps’ sops’ etc etc etc.
And then when one does the SO duties as per legislation with regard to conformance reports (deviations in old terminology) then the SO gets accused of not supporting management!
What is more disturbing is the fact that the corporate management travelling to the sites then asks the Safety Man what he sees his responsibilities as and, when the reply is given ” Can you tell me rather what the company sees the safetys’ duties to be” the reply is given: I will get back to you. Also comments get made that the safety department is ‘ victmising’ people by submitting these conformance reports.
It is really scary to see and hear these kinds of behaviour and comments coming from top companies in different fields, especially since their are hundreds of staff under their authority at each site.
Good day Christel.
I have recently changed companies and am no longer working in the safety field. What a pitty. But, I’m an ever faithfull visitor to your site. You really make the world of safety a better place.
In my personal point of view, you set the standard and forever keep our ladders leaning against the right walls.
I have come accross an interesting question at the new work pace. I am employed by a consutling engineers company. We have directors and engineers as the main people. One of the clients requested that the company signs an agreement with mandatary. The director would prefer that the engineer who works on that specific project should sign the agreement. The director argues that he himself does not visit the site and that he can not gaurantee that the engineer will comply to all the requirements. May one have the engineer sign the agreement on behalf of the company, since he handles almost everything on that project?
I look forward to your response!
Hi Christell
Can you please explain to me what is the Line function concept of occupational health and safety – one of the requirements of OHSAS 18001
What does the law says about keeping of training records? Were do I find this in the regulations?
Hi Johann
Interesting question. The standard indicates that at each and relevant function you need to identify the requirements to adhere to the OHSAS18001 principles. This means your key positions (organogramme) from top to bottom. Regards Christel.
Hi Hannes
There is generally three formats for keeping records: 40 years for medical records; 20 years for electronic records (Electronics Act) and the rest between 3-5 years. Hope this helps. Regards Christel.
Hi Christel,
There is a huge gap, in my opinion regarding the “competency” of a 16.2 regarding the OHS Act. It is fair to understand that if a CEO appoints a 16.2 for a specific area of responsibility, that he/she “accepts” that the person knows what he/she is doing! My question: When is a person a “competent” 16.2 ? How can I proof in a court of Law, that this 16.2 is Competent?
Kind regards, Johann
HI Christel,
Where can i get more info on the employer and employee’s responsibility with regards to travelling for work purposes.
The true story is already been said the state is weack on that department of safety enforcement,
Hi Johann
Thank you for your comment. Yes – I agree with you. I am currently mainly daily busy with legal liability sessions for 16.1 and 16.2 appointees for blue chip companies and it is shocking how little they know about what they signed on for!!! The term “competency” relies on three aspects namely: knowledge followed by skill followed by experience. Remember the 16.2 is actually responsible for ensuring that Section 8 of the OHSAct is complied with. So – what do they know about risk assessments and training which are just two of the requirements in this section that needs to be implemented. How do you prove this in a court of law? Paper work – qualifications; followed by actual work experience followed by the application of the theory into an actual working environment. Also, do not forget about the “reasonably practicable” phrase in the law. The judge would ask: Was it reasonably practicable to expect this person with their competency level to be appointed as a 16.2? If you can proof this as correct – then you are safe; if not – BIG problems!!
I hope this can help? Christel.
Hi
Apologies for the delay. You can go to Google and to “acts-online” or the Government Gazette website and then look at the Road Transport Act as well as the Dangerous Goods Digest.
Hope this will help.
Regards
good articles. i woul need to share with my co workers.