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Chapter 8 - Labour Law

The Occupational Health and Safety Act of (No 85 of 1993)

The 1994 Occupational Health and Safety Act (OHSA) replaced the 1983 Machinery and Occupational Safety Act.

The OHSA gives workers some rights in health and safety at work. It tells management to set up safety representatives and safety committees in the workplace. The regulations in the Act give guidelines on things like toilets, change rooms, first aid, drinking water, washing facilities, protective clothing, machinery, stacking and packing, ladders, fire, ventilation, lighting, temperature, noise, asbestos. Inspectors have wide powers in terms of the Act to make sure that employers and workers follow the Act.

As a paralegal, you may want your own copy of the Occupational Health and Safety Act. You can get a summary of this Act from the Department of Labour.

See the following website for an easy guide to OHSA and the Regulations: www.labour.gov.za/docs/legislation/ohsa/ohsbooklet.html

Who does the OHSA cover?

The Act excludes workers in mines and on ships, where other laws apply. The OHSA covers all other workers, including farmworkers, domestic workers and state workers.

The workers' duties

Workers must take reasonable precautions over their own health and safety at work. They must follow any precautions and rules about safety and health. They must report any unsafe circumstances or accident as soon as possible to the safety representative. Anyone who acts in a reckless way or damages any safety measures can be charged. Also, if the worker does this damage on purpose, then the employer can claim damages from her or him.

The employer's duties

The employer must make sure that the workplace is safe and healthy, and must not allow any worker to do work which is potentially dangerous. The worker must know what the dangers of the work are. But it is always employer who decide on what is a threat to workers' safety.

The general duties of the employer are to:

• choose safety representatives
• consult with the workers' organisation about the safety representatives
• inform workers of the dangers in the workplace
• reduce any dangers to a minimum before issuing protective clothing
• issue protective clothing where necessary
• give necessary training to workers who use dangerous machines or materials, to make sure they know the safety precautions
• prevent workers from using or working with dangerous materials or machines, unless all the necessary safety rules have been followed
• ensure that dangerous machines are in good working order and are safe to work with
• make sure that dangerous machines carry warnings and notices
• make sure that someone who knows the work is supervising the operations to ensure the safety of the workers
• keep the workplace open so that workers can escape from danger if necessary
• not move any evidence of an accident before an inspector has given permission, unless someone has been badly injured and needs treatment

The Chief Inspector can ask any employer for a report of the safety precautions.

An employer cannot take action against any workers who do the following:

• give information about their conditions at work or that the Act says they have to give
• give evidence in court
• respond to any request of an inspector
• refuse to do anything that is against the law

Reporting accidents or incidents

The employer must keep a report of all accidents and safety or health incidents in the workplace. The employer must report certain accidents or incidents to the safety representative and to the Department of Labour. For example, the release of any dangerous materials that are normally kept under cover.

Safety Representatives and safety committees

The employer must appoint one safety representative for every 20 workers. There must be at least one representative for every 50 workers. The employer must explain to the workers' organisation what responsibilities the safety representatives will have and how the representatives will be selected.

In every workplace where there are two or more safety representatives there must also be a safety committee. This committee must meet at least every three months. The committee must deal with all safety and health issues that affect workers. The safety committees have certain functions and powers. You can find out more about these in the Act or by contacting the Department of Labour.

Enforcement of the OHSA

OHSA falls under the administration of the Department of Labour. Inspectors from the Department have wide powers to search the workplace, question people, ask for explanations from an employer, and so on.

An inspector can fine a person for breaking the Act. If that person wants to appeal against the inspector's decision, they can appeal to the Chief Inspector. They can appeal against the Chief Inspector's decision in the Labour Court.

If a worker is hurt at work as a result of the employer not following a safety regulation, then that employer can be fined up to R100 000 and /or two years in prison.