Construction health and safety registration snags

SACPCMP construction health and safety registration of 3000 Officers could be fast-tracked in six months, unless the Competition Commission rules it as unfair.

Another snag in registration is that the blanket exemption amending the Construction Regulation Amendment (see the report on postponement on Sheqafrica.com), was circulated by DOL, Master Builders and other bodies, but could not be found among the notices in the Government Gazette.

UPDATE; Chief inspector Thobile Lamati circulated a stamped and signed version, dated 7 March, on 13 March.

Consulting body Nioccsa executive member Rudy Maritz commented; “The SACPCMP registration process will be bypassed or short-cut internally. Given the anticipated number of applications and the window of 6 months, it is unlikely to happen on time, thus preventing construction CS Officers and companies to comply. The regulation then becomes null and void.

A law can only be enforced if it can be achieved by a reasonable person. It is like asking for a driving license and nobody issues it. Not even a reasonable person can comply.

Construction Agents have been given 18 months to get registered, at this stage only with the SACPCMP. Designers and Engineers already have their own statutory councils under their umbrella body, the CBE. In essence what needs to happen within the 18 month period is for the Chief Inspector to approve the remainder of the CBE councils to enable their members to comply with the requirements of CR5(7), which comes into effect in August 2015.

Construction Managers / Officers; At this point in time, these individuals have 6 months to apply for registration, submit two reports and write a competency exam.

So if the SACPCMP does not want to make an ass of their construction industry partners they have to get 3000 registrations done and dusted within 6 months, 500 per month, 25 per day. The only way is to reject the majority or gyppo the system.

Or, even worse, accept IOSM and SAIOSH registration. Scary thought. If this should happen, the registration should be publicly questioned and exposed as a scam.

Regulatory gaps

Because the registration categories are not linked to the Construction regulations, clients will use the loophole to appoint Officers as [acting] agents. It is cheaper. And the [appointed] Agent will be the engineer. Just like it has been in the former regs.

No CHS Officer can accept an assignment as agent in the full scope of the law. Not even a registered agent can apply the full scope. There will always be an Agent in the form of a resident engineer and the designer.

Competition Commission Evaluation

The CBE submitted on behalf of 5 councils, excluding ECSA, an application for exemption from the requirements of Section 2 of Schedule 1 Part A relating to professional rules as a prohibited practice in terms of Chapter 2 of the said Act. Part of the process was a letter from the Compcom to the councils to circulate a questionnaire to their members as it does not accept the application and motivation from stakeholders sufficient to make a proper assessment.

It stated “We acknowledge that we have received submissions from your voluntary associations or stakeholders namely, supporting granting of the exemption. However, the Commission deems it appropriate that in order to give weight to you submission, we also have input from the individual members. Therefore, in furtherance of such evaluation, the Commission hereby requests this letter be sent to your members for them to directly communicate with us in writing and express their opinion whether they support or object to the Exemption Application being granted in respect of the rules relating to the Reservation of Work (IDOW’). Please request that they provide us with the requested information by close of business on 30 May 2013.”

Comments closed 3 months prior to the start of the SACPCMP registration process for CHS Agents, managers and officers.

The CBE did not in its application include the IDOW rules for health and safety practitioners within the three categories under the CHS scope of services.
In terms of this process, the SACPCMP as the only DOL approved council, did not circulate the letter to its “CHS members” as it did not have H&S members and cannot speak on behalf of the H&S profession.

It did post on its own member area a declaration to be completed by its existing members, being the Construction project managers and construction managers and about 100 H&S practitioners.

The bulk of the registrations in terms of H&S are still being processed. In effect it means that the Compcom may grant an exemption that will affect people who did not have the opportunity to participate in the process.

By implication any company wanting to appoint a CHS practitioner in any of the roles required in the new Construction Regulations from August 2014 can only comply if the CHS person is a Pr.CPM, Pr.CM or Pr.CMe.

As for the rest, the regulation is in direct contradiction with the Competitions Act. This is obviously also only if the Compcom grants the exemption before August 2014.

In essence the SACPCMP should lodge a new application for exemption for the IDOW rules for CHS practitioners. The currently application if granted will not include CHS, and the enforcing the rules will be against the law.

Clearly people do not realise the implications thereof, but in terms of the various Professions Actsp;
“A person, who is not registered in terms of this Act, may not—
(a) perform any kind of work identified for any category of registered persons;
(b) pretend to be, or in any manner hold or allow himself or herself to be held out as a person registered in terms of this Act;
(c) use the name of any registered person or any name or title referred to in section 18 or 21; or
(d) perform any act indicating, or calculated to lead persons to believe, that he or she is registered in terms of this Act.

Already a few people are guilty of an offense in terms of the (d) paragraph above just by virtue of the fact that they cannot get a job because every tender document already insist on proof of registration and employers and recruitment agencies making it a condition to shortlisting.

Government, local authorities and employers will have to change their requirements when it comes to CHS registration to avoid acting against the Competition Act.

The SACPCMP and all other subsequent councils when they are eventually approved by the Chief Inspector, should not be held to ransom by the DOL, its Construction stakeholders and other individuals to push a system into existence.

It should stand firm on its own code of ethics and refuse to enforce its own registration until the Compcom have granted the exemption, and tell the DOL to allow them the time to follow the proper process.

We are busy with proposed amendments to the 2014 regs to forward to DOL. This comes from a revision of the original report DASH SA wrote on the draft in October last year. We want them to address the competency issue, stopping of work for petty reasons, as well as the safety file syndrome.

We also want some definitions added, such as Qualification, to exclude units of learning. This is particularly an issue with the competency of risk assessors.”

Which agent?

Hannes  Kellerman commented; “The Agent has to perform the client’s duties, and if so mandated, also the designer’s duties relating to inspection and certification of structures. The SACPCMP will be on a suicide mission if they approve HS practitioners to perform the duties of an agent.

An HS practitioner registered as an Agent will be in a civil court within days unless he or she is competent to perform these functions. In my view, they are hardly competent in their own field, let alone structural and civil engineering or construction in general.

I think the DOL must specify what type of SACPCMP registration is required for which type of Agent.”

Peter Shields commented; “There is nothing in the regulations that prohibits a client to appoint an engineer as agent, provided he is registered as a Pr CPM, Pr CM or Pr C Mentor. The agent must manage the HS on site. HE does not have to be a safety practitioner.

Manage means, planning, leading, coordinating, controlling and resourcing. Then you can appoint any Dick or Tom and Jerry to be the safety guy, as long as you do not call him the Agent.

The regulations have more holes in it than a rice strainer, and getting past the loopholes only requires good understanding of English. Whoever believed this to better the industry, probably believes in the Easter bunny too.

As those who created the fiction start enforcing it, they will realise that the Construction Regulations 2018 is due for promulgation.”

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Edmond Furter

Editor at Sheqafrica.com
Edmond Furter is the editor of Sheqafrica.com. He is a freelance technical journalist, and has won six journalism awards. He specialises in industrial, business, and cultural content in web, journal, and book formats.

14 thoughts on “Construction health and safety registration snags

  1. So in essence the DOL is acting against the Competitions Act in the hope the exemption is granted before August? Nice way to put the commission (also government) under pressure. But the question I have is this: Would the other councils like SACAP, SAQCP SACLAP and ECSA also be accredited as suggested?
    I cannot see why we should pay our own council and SACPCMP to do the same job on the same site just because one regulation is not properly structured.

  2. I find this whole process problematic as there is no support for anyone interested in applying. On top of that is it not even a requirement by major organisations like ESKOM, ANGLO etc.
    I also find it cumbersome that the strict deadline for applications is in no way communicated properly and was the first I heard of it on SHEQAfrica.
    How can anyone take part in a system that is already failing at the roots?

  3. Yes Ilse, I agree, there is no support. But, it has been offered to “teach” you how to apply if you pay the people offering these “workshops”. So it is spending money to learn how to spend money, to have a license to practice your constitutional right to a decent job.
    And the reason this process is failing at the roots is that it was calculated, designed, promoted, supported and implemented by people with absolutely nobody else’s interest at heart except their own little empires. It is already reported that ISOM and SAIOSH are worming their way into the “assessment” process to “assist” the SACPCMP. Really?
    These bodies representing less than 10% of the affected people? Are we back in the old days where the minority dictates what the masses may or may not do?
    Did we get the opportunity to air our views? No, we were painted into a corner by those who claim to represent the professions.

    1. Peter, I had a chat with our legal department. It appears you are correct. The Agent defined in the regulations and appointed by the client is in fact not the H&S agent. The words Health and safety is not part of the definition of “agent” The latter is appointed in terms of CR 5(5) or (6) and specifically for H&S management on site.
      So from August a client can appoint a consulting engineering firm as agent to do all the work, who only have to employ a SACPCMP registered person (Pr.CM / CPM) to assist the engineer if the client do not have its own H&S Officer. Our legal department also advised that the regulation cannot prescribe to the client to appoint a certain category of H&S practitioner. They have the right to appoint the lowest bidder provided they are qualified and have the resources to do the work required. The question now still remains, would an ECSA registered person have to register with SACPCMP as the editor suggested? Or are ECSA going to be accredited too as Rudy suggested?

      1. Gents, I am afraid the process is more complex than it appears.
        CR 5(7) states the agent must be registered by a statutory council approved by the Chief Inspector – currently the SACPCMP ONLY – as qualified for the work to be done.
        Currently Pr.CHSA, CHSM, and CHSO.
        The SACPCMP have not been approved for Pr.CPM or Pr. CM categories. These persons, although registered the Pr.CM’s are appointed by the PC and CR5(7) does not apply to them as they are not AGENTS as defined. Yet, there is no regulation that say the CM has to be registered. Refer the definition of competent person.
        Last year I warned that the process is going to fail industry – they still have time to prove me wrong.
        Now we have a deadlock – August 2014 – nobody would be able to comply.
        You will be asked for a licence nobody is legally authorised to issue.

  4. I really do not see the point of this article. You are only stirring the people up and to go against the stream. I am a consultant and I am very thank full for these registration. It will take all these “Fly-by ” consultants or safety officers that know nothing about the act and making their own rules go away. Just my 5 cents

  5. So even if the process is going against the stream – being against laws most of you do not understand, you will support it? Even if those fly-by people you think registration will make go away, are the ones pushing it to go through?
    Oh man, you seriously need a reality check.
    This rediculous process cannot be enforced in a country where all the political parties are promising jobs and the labour department (the one responsible for the people) are fed a load of bull, that will (like you put it) make people go away – out of food, out of school fees – into unemployment, into crime.
    Come now! seriously – where is YOUR ethics?

    The point of this article is to demonstrate the wrongs about to be done.
    Or did you only see the cash at the end of the rainbow? Fear not, you are not alone – many are banking on it – some even have their opposition voting for them.

    The point of this article is to discuss the practical issues facing YOU and all the other like you, who will find it difficult to comply in August, when you realise you are still waiting for a registration number. When you suddenly realise you have been taken for a ride. You suddenly find that those that were supposed to go away, have undercut your rates and are still working where you thought you could cash in?

    Sorry Gideon, but you really need to get some advice other than from the H&S professional bodies. A year ago, they told you that THEY are going to be the competent body to register you. They even told you the SACPCMP is NOT SAQA accredited like they are. They took your money too, and promised you IOSH UK registration, as a little “thank you” gift. NOW? They are offering the very same body they denied, their assistance to assess YOUR competency? And in the same sentence admitting, they cannot assess your CONSTRUCTION experience? Why not? They know too little about the construction process?
    They are silent!!! Haven’t said a word since 7 Feb 2014, when their mess came to light???
    Yes, there are incompetent people out there, but believing a registration process klapped together on a whim and a promise, will fix it, is a bit sad.
    Why do you think it took so looooong to get the regulations drafted? Did you know that other industries are consulting with their employer bodies and legal advisors to apply for exemption from this whole mess? They were not consulted!
    Spend a few more hours on this site, and read the history. It opens up a whole new world of deceit.

  6. Calm down Hannes lol
    Your heart!!!

    The sad thing is that smaller contractors are the ones prevented from entering the main stream as principals – they can hardly afford a safety officer – let alone a registered one.
    I can tell you now, nobody has made that calculation yet.
    How many consultants when they get their license to practice, are going to up their rates?
    And it is estimated that there are about 200 H&S Practitioners that will make it at agent level.

  7. Hannes, So the people that will be out of work as a consultant would be the guy Charging paving contractor R10000 for a generic safety file that has got NO specific risk assessment,Safety Plan etc for the site. Draining the Contractor of his profits as he was not allowed by a Client to show safety costs etc.. You must just remember you are honest and even in your area of safety people you mix with, South africa is big with a lot of construction companies from small to big. There are like all industries the people that sees a chance to make money quick but does not last. This registration will assist in making sure if a Contractor appoints a Safety officer or Consultant that they have the piece of mind that this person is registered and now Consultants / Safety officers can be held liable and be taken to court for not doing their requirements as a Professional person.

    As for the Cash at the end of the rainbow, I have to be honest I have not thought of that as my concern with the new regulations is that I think by far this new regulations are better than the 2003 version, however as a Consultant I think it will be difficult representing Contractors as the new requirements will take more time and as we all know contractors are not always keen on safety and once the consultant is off site they go to their own ways. Now the safety officer / consultant should report an unsafe site to department of labour or could be de-registered if not. Changing the business ethics from representing the employer to actually representing DOL. I wonder if I will have contractors left after reporting them to DOL?

    As for Construction experience, you must remember there are a lot of people that have done for 4 years supervising a certain section on a construction site but have not done anything in terms of safety except giving the Safety talk document to the workforce once a week. Now decides due to remuneration that the Safety officer earns more than him and talks to the boss and he is then a safety officer, with absolutely no idea what to do and only if they have a strict Client or have a fatality on site , will they see oops, maybe I should have gone for a Safety management course.

    Lastly Hannes, In no way have I taken you on as a person and I am sure I can place my opinion on these pages.

    Peter, As for the Consultants, just remember not all consultants represent Client’s. I have confirmed with the registrar that a Consultant can also apply for the Safety manager or Safety officer registration but then by law may not represent a Client.
    Regards, Gideon

    Editor comments; Let the buyer of files beware. The buyer of files is guilty of more offences and ethical breaches than the seller.

    About the fly by night practitioners that are apparently so difficult for employers to spot, for the DOL to identify, and so expensive and onerous for us to block, they are among the first to register and to thus become become camouflaged.

    1. Gideon

      I promised I will get back to you – and we have not received the mail – no complaint – no action.

      There are two things you need to understand.
      1. The SACPCMP functions under the department of public works, via the CBE. As a government entity responsible for “property management and provision of infrastructure for the State(Country), they cannot dictate to the private sector who and who not to appoint for what function.
      2. The Construction Regulations however, do apply to both the State and the private sector.
      The private sector thus have to follow the requirements of the OHSACT and the Construction Regulations.
      At this point, the Construction Regulations are only interpreted by the people who created it to give affect to the initial goals they set to achieve.
      The powers of the SACPCMP to register people has been granted to them by the PCMPAct under authority of the DPW.
      The duty of employers to appoint people are given by the DOL under the Construction Regulations.
      And there is the stick in the mud. The client employer is not explicitly instructed to appoint a CHSA as an agent. In fact, Hannes is correct in his comment above. The agent could be a consulting engineering firm.
      Secondly, the PC or contractor have no duty to appoint an agent at all. CR5 applies to clients only.
      CR8(6) is the only other regulation requires the appointment of a CHS person.
      The principal contractor and contractor have seperate definitions, which means that there is an intentional difference in the meaning of the two terms.
      CR 8(5) A contractor must, after consultation with the client and having considered the size of the project, the degree of danger likely to be encountered or the accumulation of hazards or risks on the site, appoint a full-time or part-time construction health and safety officer in writing to assist in the control of all health and safety related aspects on the site:
      Note the “must” ; appointment is not negotiable.
      The only negotiable part is the full or part time capacity of the appointee, which will be upon agreement between the contractor and the client (somewhat skipping the PC’s opinion)
      Then 8(6) places a prohibitory condition on the appointment in that the person can only be appointed if registered by the SACPCMP.
      Another issue is what category of registration is intended in CR8(6)?

      I realise the DOL interprets the regulations the way some people would like to see it.
      But the DOL still needs to convince the justice system their interpretation is correct.
      There are a whole set of laws that apply in determining if their interpretation is in fact the correct one. Criminal law, law of evidence and case law are only the three major issues in consideration. Then there are other rules and superior Acts and laws to take into consideration, the Constitution being the highest.
      I do not believe H&S practitioners are properly informed how this process will affect their lives in future – and I simply highlighted some of the hoops the process still have to jump through before we can be trusted. There is nothing wrong in theory with the process – if applied as presented. Nobody is stirred or enticed to swim up stream. People do however have the right to make informed decisions for themselves. And a lack of communication deprives people of their right to make that informed decision.
      When SACAP sent out their letters, it was all over the social media. I am on the SACPCMP register and have to date not received any communication in this regard.
      I found the declaration by accident on their website and completed it.
      As you may have noticed, the article above was updated, so you may want to read it again to fully understand the implications and also the reason why we never received any communication.

    2. Gideon, about your comment; (“Peter, As for the Consultants, just remember not all consultants represent Clients. I have confirmed with the registrar that a Consultant can also apply for the Safety manager or Safety officer registration but then by law may not represent a Client. Regards, Gideon”);

      They will welcome it if you register as agent, manager and also officer. Then they get application fees, annual fees, and registration fees x 3.
      Not even an ECSA engineer can register without paying again. It is a money making racket.
      The South African Council’s Personal Cash Manufacturing Plant, or what do you think SACPCMP stands for?

      It should be derailed!

  8. Gideon
    I will respond to your post later, but I need you to send the name of the consultant and the contractor you mentioned to legal@nioccsa.org.za.
    If that is the case we will take action against the consultant? He or she will have to justify the costs. That is one of the many reasons I joined NIOCCSA. I am also in the consulting industry and have the same experience on a daily basis. People are being ripped off.
    But bare in mind, the whole matter of safety files have been taken out of context Not only by consultants, but also by employers. It is firstly not needed from the start of a project or to approve a contractor.
    As for your other concerns, I will get back to you if the editor keeps the comments open.

  9. Hi Rudi,

    Thank you very much for the in depth explanation. My initial comment on this page is only based on the fact that I am very passionate about Health and Safety and in my opinion if in theory the new regulations is a much more detailed regulation than the previous one and if implemented properly by competent people it should make a difference but like all things in South africa it will take time problem is we do not really have time.

    As for the details of the consultancy firm , I do not have it as it is not a familiar firm, I will try and source it.

    As for the Contractor definition it is confusing as it stands 4.1- Must all contractors that intends to build have to send Notification of Construction work? P/C or Sub contractor?

    What do you mean by “Let the buyer of files beware. The buyer of files is guilty of more offences and ethical breaches than the seller”?

  10. Ok okes, I’ve got a good idea to make some big bucks. I will be making the koosinator lucky packets. Inside some of these lucky packets will be free registration as agent, YES AGENT, you read correctly. for the SACPCMP. But remember it is a lucky packet, so the more you buy the more chances you get to win.

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