Construction Regulations exemption postpones registration

A Construction Regulations exemption postpones the whole amendment to August 2014, and postpones health and safety Agents’ SACPCMP registration to August 2015.

Construction Clients have to appoint a health and safety Agent, required by the amended Construction Regulation 5 (7) (a) to “manage the health and safety on a construction project for the client, and (b) be registered with a statutory body approved by the Chief Inspector [the SACPCMP] as qualified to perform the required functions.” Their registration is postponed to August 2015.

The exemption also postpones the new Construction Regulation 3 (Application for a construction work permit) to August 2015, and re-instate the previous regulations.

The amended regulations were “pushed through by stakeholders” and to “fulfill performance requirements” of the minister and DOL officials. Among the stakeholders are the Council for the Built Environment (CBE), civil engineering body Safcec, registrar SACPCMP, Master Builders, and three voluntary health and safety associations offering voluntary registration.

The voluntary bodies and Master Builders were instrumental in drafting the amendment during the last four years. SAIOSH registrar Neels Nortje is also a member of the Labour minister’s advisory council, ACOHS, and works at Master Builders.

IOSM leader Ray Strydom met with DOL officials 50 times to “represent” health and safety practitioners, and IOSM executive member Joep Joubert is a consultant to the SACPCMP.

SACPCMP is the only statutory construction health and safety registrar, but it “recommends” and grants 5 CPD points for membership of the three voluntary associations, among which ACHASM is dedicated to construction health and safety.

Distinction between the legally sanctioned SACPCMP, and the voluntary bodies could become blurred. SAIOSH have offered to assist with assessment of the health and safety skills of applicants, while SACPCMP could then only do the final construction-related skills assessment.

The health and safety bodies want to register practitioners working in other industries, in anticipation of a similar blanket requirement for registration to be enforced, or at least supported by the DOL, under an OHS Act amendment in future.

A string of objections against the initial draft of the Construction Regulations Amendment two years ago, and against recognition of IOSM, managed to postpone but not avert the sectoral, partial, duplicated and expensive registration enforcement, that now appears to have encountered practical or administrative problems as well.

Construction health and safety officers are supposed to have registered with SACPCMP already since last year, but have not. Construction health and safety managers may have to register later. Legal opinions on the amendment and the DOL’s letter apointing the SACPCMP, indicate that they do not have to register.

No other industry requires health and safety registration. Most employers evaluate and appoint practitioners on their training qualifications and experience.

Subject to these legal grey areas, clients and principal contractors now require proof of registration of OHS practitioners in tenders and contracts, but do not specify the level of registration required. Some appointees register at the lowest level just to meet new tender requirements.

Consultants comment on CR postponement

Consulting body Nioccsa executive member Rudy Maritz commented in his private capacity; “The postponement comes as no surprise. The DOL was led by the nose into the promulgation of a set of regulations that is riddled with compliance issues. They could fix the mistakes with proper advice.

“The SACPCMP now has six months to get construction HS Officer and HS Manager registrations sorted. The permit system and HS Agent registration is unaffected, the deadline remains 18 months after promulgation.

“Current construction projects could run until completion under the former regulations, up to 6 August 2015. We will now see a dual system of compliance at companies who have projects on both sides of the deadline.

“The 2014 regulations needs quite a bit of panel-beating to align it to the market. It applies not just to the construction Industry, but to construction work within any industry.

“The DOL should revisit some of the regulations, such as the definition of Construction work, the Scope of application, and the definition of Competent person. There no need to make a fool of yourself twice.

“The DOL needs new advisors. IoSM still clings to the traditional parallel system, running health and safety as a separate management function.

“There is also possible conflict of interest with the SACPCMP code of conduct in that Neels Nortje serves SAIOSH and Master Builders and ACOHS. Which cap does he wear when advising the Labour minister on the ACOHS?

“NIOCCSA adopted a policy document after DASH received a number of complaints from contractors on the conduct of consultants, which resulted in the decline of 1300 applications for NIOCCSA Accredited Professional status.

“Part of the problems identified is the consultant’s lack of understanding of their authority in terms of the new regulations as appointed Agents. This policy document also incorporates the requirements of two international standards; EN16114 and CWA16275.

“The SACPCMP criteria for Agent registration are not completely aligned to the OFO 2013 for professionals. There is also misalignment of the SANQF with the European EQF and the UK’s NVQ.

“With more foreign involvement in infrastructure development, and entities such as the Green Building council coming to the party, the 2014 Construction Regulations does not adequately address the issues of Agents and their required competencies. SACPCMP registration should be the minimum, not the ultimate.”

Construction Regulations exemption 2015 text

Department of Labour Government Notice R [unnumbered] of March 2014, titled “NOTICE REGARDING APPLICATION OF THE CONSTRUCTION REGULATIONS 2014, under the OCCUPATIONAL HEALTH AND SAFETY ACT, regarding the CONSTRUCTION REGULATIONS of 2014” reads;

“Under the Occupational Health and Safety Act, Thobile Lamati, chief inspector, grants these temporary exemptions in terms of section 40 of the Act:
1. All construction works where physical construction started after 7 February 2014, must comply with the Construction Regulations 2003, and are exempted from the Construction Regulations 2014 until 7 August 2014. Thereafter the Construction Regulations 2014 shall apply, with the exception of Regulation 3 and 5 (7)(b) which will come into effect on 7 August 2015, 18 months after the commencement of the Regulations.

“2. All construction works where physical construction had started on or before 7 February 2014 must comply with the Construction Regulations 2003, and are exempted from the Construction Regulations 2014 until 6 August 2015 and thereafter the Construction Regulations 2014 shall apply.”

• See the full text of the Construction Regulations 2014, and several articles and comments about its implications, on Sheqarica.com

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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.

13 thoughts on “Construction Regulations exemption postpones registration

  1. Could somebody just assist me with something. 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. Everybody seems to focus on H&S practitioners, but the SACPCMP will be on a suicide mission if they approve H&S practitioners to perform the duties of an agent. A H&S practitioner registered as an agent will be in a civil court within days unless he/she is competent to perform these functions.
    Are they? 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. How many Tongaat enquiries do we need?

  2. 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.CMentor. The agent must manage the H and S on site. HE does not have to be a safety practitioner. MANAGE means, planning, leading, coordinating, controlling and resourcing. Any person with management training can tell you that. 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. Who ever believed this to better the industry, probably believes in the Easter bunny too. So fear not Hannes, this is just the start. As those who created the fiction starts enforcing it, they will realise that the construction regulations 2018 is due for promulgation.

  3. I was under the impression that the “agent” CR 5 (5) & CR 5 (6) is someone in terms of OH&S that gets appointed to perform duties on behalf of the Client (work permit/notification of construction work), which is different from the Consulting Engineer who may be the Designer CR 6 who takes into consideration the specification and hazards relating to maintenance?

  4. There seem to be a lot of confusion with the “agent” appointment. In any complex project, there may be more than one agent acting on behalf of the client. The regulations do not specify what type of agent should be appointed, only that he/she should be registered as “qualified”. However, the comment of Peter above is totally correct. There is no specific requirement that says the agent must be a H&S practitioner by trade. Not even if managing health & safety on site. The argument is that one should apply common sense and appoint a person in a position for which he/she is qualified. However, a client can legally get away with appointing a CHS Officer as agent. Obviously this raises the question if registration as agent is worth the additional expenses. According to the SACPCMP Scope of work, you only need to appoint your agent at phase 3 to get past the officer registration. And there is no requirement that says you have to appoint the H&S agent from phase 1. Although this is the “idea”, the courts will not work on the idea but on the letter and spirit of the law; something the authors of the regulations seem to have forgotten. It now appears that a ‘How to comply’ guide will be published to clarify the “misinterpretations”.

  5. The purported exemption does not reference a GNR number and is undated, thus not properly constituted in terms of Section 40(3)(b) OHSA. Can anyone provide an officially published copy?

    1. Jaco, As far as I know it has not been gazetted yet, so CR2014 at this point still applies. We are keeping eyes on the Gazettes being issued 4 times daily, and will update this when it happens. (It would be fun if it doesn’t)

  6. I read an interesting comment elsewhere. The new regulations have been labelled as the “builders only” regulations as it only applies to the construction industry.

    1. I cannot entirely agree with that. Although the scope of application states it only applies to construction work, the purpose of the Act overrides it and certain requirements could be applied during legal proceedings. The title and headings in the regulations are for the benefit of the reader (for ease of reference) and not part of the law itself.
      Where a regulation provides for the safety of persons, it should be applied, regardless of the application. However, in certain cases there may not be a client / contractor relationship and this would make application difficult to argue.

  7. Have to agree with Rudy. The definition in Reg. 1 is sufficiently broad to not only apply to a client/contractor “construction” situation.

    The law of interpretation would also apply, meaning that where no other arrangement is made for for example scaffolding, the CR would apply even where the work to be performed is not construction work as defined.

    If you also take into account Section 103 MHSA (please disregard the heading), the scope of the CR is very wide indeed. (Don’t want to open a can of worms here re. the CR and mining…)

  8. The new regulations require a medical certificate of fitness for every construction worker- that is not only very costly, but it is difficult to find relevance in the medical testing.
    The medical testing may be done by a nurse (provided her competence is ‘recognised’ by the Nursing Council), but the Nursing Council’s recently published scope of nursing limits the nurse to perform this type of medical examination only when under control of a doctor in a designated unit setting.
    There is a defined format for the medical certificate of fitness but no defined duration of validity.

  9. Dear dr Jan, the Act defines an OCC medicine practitioner or a person who holds a qualification in occupational health recognized as such by the South African Medical and Dental Council as referred to in the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974), or the South African Nursing Council as referred to in the Nursing Act, 1978 (Act No. 50 of 1978).
    Regarding your comment on the recently published scope of practice which limits a nurse to working under control of a doctor, could you please let me know where this found, as GNR786 dated 15 October 2013 does not mention this. A staff nurse must work under supervision of a professional nurse – not a doctor.
    A professional nurse may also own a private practice provided (s)he is issued with a licence by the SANC and complies with Section 56 of the Act. This then would by implication remove the “control” of the doctor in the private practice.
    Would this be in the previous version?
    If this is case, it makes the requirement of the regulations ultra vires as the nurse cannot comply with the one rule without breaking the other.
    As far as relevance goes I do have to agree that it is extremely limited. Current tests done includes the same tests required by other regulations, inclusive of spirometry, audio screening, and the general medical exam – BP, sugar etc.
    The requirements of Section 7(1)(a) of the Employment Equity Act, further prevents medical testing unless legislation requires or permits it. In this case the criteria for medical testing required or permitted in the construction regulations are “specific to the construction work to be performed”.
    For this reason the employer should provide an individual “exposure profile” referred to as Form Annexure 3. Having this information as baseline, the OHP should be able to determine the “specific tests needed to be declared fit. So, if the worker is to push a wheelbarrow around all day, it would be rather pointless to do a lung function test and he may not be declared “unfit” to push the wheel barrow around just because he smokes like a chimney and have a few liters of air less to exhale than the average person. But, if he works as a painter in enclosed spaces all day, it would be a valid test, right? It all depends on the exposure profile.
    I previously objected to “blanket” medicals, and was told in no uncertain terms by some readers here, that one should not always only look at the minimum legal requirements. Yet, in doing so, we tend to break a few other laws instead? How is that good business?
    And how do you test a person that simply walks on site with a checklist and clipboard and shout at contractors for not having a medical certificate? What medical test would there be for this person?
    But a GP is not good enough.

  10. I can do all the health tests for a quarter of the price. Everyone can be healthy, there is no excuses. In fact, there is no physical checkup needed. Just submit me a latest photo of you, and I can do my checks then I will issue the paper you does need. All money owed must be submitted in a brown envelope titled “donation”. I channel this donation through the church that I did setup called the “The Agents of Heaven”.

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