Competition Commission could stop construction safety registration

SACPCMP Registrar Nomvula Rakalote said the Competition Commission could stop reservation of health and safety work, and thus render construction safety registration voluntary.
SACPCMP Registrar Nomvula Rakalote.

SACPCMP Registrar Nomvule Rakolote told a Public Works committee that Competition Commission rulings could stop construction safety registration.

In the same committee, Public Works and the built environment councils said construction safety registration was too expensive for practitioners, despite heavy subsidies via the CBE.

Deputy minister of Public Works, Jeremy Cronin, and the Council for the Built Environment (CBE), umbrella body of six professional councils, reported to the Public Works parliamentary portfolio committee on several problems in construction safety registration. There are many de-registrations due to high fees.

Ms Priscilla Mdlalose, acting CEO of the CBE, noted seven “challenges experienced by SACPCMP”:

  • CBE funding is limited, while it had decided to “heavily subsidise application and registration fees for Construction Health and Safety Managers, and Construction Health and Safety Officers, due to their relatively low earning incomes, according to a salary survey”;
  • Few mentors and institutions available to construction health and safety candidates;
  • Lack of funding [the SACPCMP alone has a staff of 21, nine council members, contracts with various examiners and interviewers, a series of roadshows, and a student programme];
  • Some universities have a maximum intake of only 35 students, resulting in low through-put rate. The faculty promised to improve future intakes [relevant also to the Unisa National Safety Management, or Nadsam Degree and Diploma];
  • Resistance by recognised voluntary associations [including IOSM /Ohsap and IOSH SA /Saiosh] to co-operate on transformation issues, especially recording of interviews;
  • Costs of transformation projects;
  • Environmental Protection Act restrictions.

Construction safety registration transformation problems include “a lack of support from employers, and difficulty in the Portfolio of Evidence [to prove construction health and safety experience], as an onerous and highly involved process”.

SACPCMP blames employers

Ms Nomvula Rakolote, Registrar of the SACPCMP, said some black students were not graduating due to lack of experiential learning.

“There is often a gap between graduation and experience. SACPCMP started a programme with the University of Johannesburg (UJ) and Gauteng provincial government, to place students in jobs. Some students also lack business skills.”

Rakolote said: “There is a possibility that health and safety registration could be halted by gazettes introduced by the Competition Commission”.

Professional de-registrations due to high fees

The CBE reported about 9230 de-registrations, mainly due to defaulting on annual fees; and due to failure to comply with continuous professional development [CPD, for which practitioners also have to pay to either watch videos, or attend expensive conferences].

Competition Commission prohibits price-fixing

Rudy Maritz unpacks the legalities involved in the quick rise, and slow demise of health and safety registration.
Rudy Maritz unpacks the legalities involved in the quick rise, and slow demise of health and safety registration.

The Competition Commission has already rejected the second set of exemption applications relating to professional services in the built environment early last year, commented Cygma Sheq CEO, Rudy Maritz.

“Arguing for the importance of the Identification of Work (IDoW), and for guideline professional fees, the CBE and its councils lodged exemption applications to the Competition Commission.

“The Comp Comm investigated, but rejected these applications for identification of work, and for publication of guideline professional fees.”

The ruling determined that the publication of fee guidelines by professional councils, amounts to indirect price-fixing, in contravention of section 4(1)(b)(i) of the Act.

“The Commission also found fee guidelines out of line with international best practice,” said Maritz. “Building industries overseas are moving away from fee guidelines, to increase market competition.

“I already noted this legal problem two years ago, as published in previous comments and articles on construction safety registration issues on Sheqafrica.com.”

Construction health and safety scope too broad

“The Commission’s rulings have opened a can of professional worms. Is the PCMP Act, which requires the SACPCMP to publish construction health and safety fee guidelines, unlawful? Did the SACPCMP misinterpret “guideline” as a price list, instead of a guide to calculating professional fees?

“The Comp Comm ruling disables enforcement of registration, since construction health and safety work may not be reserved for registered persons only,” commented Maritz.

“The construction safety work Scope of Services is so broadly termed, that many people could be out of work if they did not register. And the bar has been set so high, that only a few have managed to clear it.

“Some practitioners with many years of experience and degrees remain at CHS Candidate level. Some left construction health and safety, or left South Africa (small wonder there are few CHS mentors).

“But some people have already made CHS a career, and are kept out of the job market by employers advertising for registered people,” said Maritz.

Too few construction safety registrations

“The straw that will break the construction safety registration camel’s back is Construction Regulation 5(5). After two years in force, less than 50 Professional Construction Health and Safety Agents have been registered, and some are already working outside SA.

“The value of projects requiring permits have been officially lowered to R40-million from 7 February 2017, which means the demand for registered agents could rise three-fold.

“Tenders are now structured just to get the job done without these permits, since “works” is not defined in the Construction Regulations. A R500-million development is artificially broken up into fractions of R39.5-million,” said Maritz.

[Sheqafrica.com invites comments on health, safety and construction safety registration, in the Comment window below this report.]

Legal review to accelerate black empowerment

Ms Mandisa Fatyela-Linde, acting Deputy Director-General of Policy at Public Works, last year told the Public Works committee that laws governing the construction professions councils (Architects, Landscape Architect, Engineers, Property Valuers, Quantity Surveyors, Construction Managers including Construction health and safety officers), were under review.

“There is a need for a closer monitoring of fees charged by councils for membership of registered professionals and candidates, to ensure that they remain affordable,” she said.

“The minister should be consulted prior to publishing these fees. The domination of the councils in the CBE board, renders the CBE ineffective.”

The CBE itself was under threat of closure for not furthering transformation [see a report of two years ago, on Sheqafrica.com].

State dissolves construction professions council to drive BEE

Now the CBE and the six councils, including the SACPCMP, “have begun establishing a Transformation Steering Committee… to drive the Transformation Agenda in a top-down approach”. This black empowerment committee first met on 27 September 2016.

Transformation initiatives include interns, as well as “supporting and mentoring of students” in student chapters, including those of the SACPCMP.

DPW said the CBE “had experienced governance challenges over several years”, leading to training of council members to prevent “strains between the boards and senior administrative staff”. DPW is still reviewing the CBE Act.

SACPCMP council and board issues

Under chairperson B Martins (ANC), the construction-related authorities and registrars said they were implementing a policy on board appointments, vetting, induction, and performance reviews of the entities, including the SACPCMP. (See an earlier report on the DPW’s SACPCMP council, on Sheqafrica.com)

The relevant Acts do not require the various councils’ strategic plans to be approved by the minister, and tabled in Parliament.

In 2017, the six councils will each make presentations to the parliamentary committee.

Universities must deliver construction skills

The CBE has partnerships with several departments to strengthen its technical capacity: Defence; Eastern Cape Roads and Public Works; Water and Sanitation; Transnet; Independent Development Trust (IDT); as well as Universities: Tshwane University of Technology, Mangosuthu University of Technology, Durban University of Technology, and Central University of Technology in Bloemfontein.

Mr M Filtane (UDM) asked why the private sector was not included in the composition of the TSC, as it was mainly focused on government institutions: Treasury; DST; and DHET.

It was unclear to him “how the public would benefit from the mandate of the CBE, as the main focus seemed to be on transformation”, which “seemed to have taken a precedence over development”.

Another member of parliament asked why the Competition Commissioner was “reluctant to give CBE adequate funding”.

Ms Mdlalose noted: “there are many professionals not registered with the councils”. However there are only about 482 cases of non-registered architects or unprofessional conduct, based on public complaints.

The CBE said it was proud of successful conviction of one unregistered person who was undertaking work in architecture. [see several allegations of “many fly by night construction health and safety practitioners”, in earlier reports on the safety registration tussle. Their number tends to be exaggerated by the pro-registration lobby.]

Ms Patience More, Registrar of SACQSP, said transformation should move away from skin colour, to how the councils conducted themselves.

Ms Kohler-Barnard (DA) asked for a separate meeting with the Portfolio Committees on Basic Education; Higher Education and Training; and Labour, to look at the issue of [health and safety skills] not feeding into public entities.

Sources

Here are links to some earlier reports on construction safety registration issues:

Construction professions ask to reserve work

Construction health and safety registration snags

Construction professions applied for health and safety job reservation

 

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8 thoughts on “Competition Commission could stop construction safety registration

  1. I hope that the SACPCMP construction health and safety registration is cancelled, as it has affected many people financially, and also cost us as a small company a lot of money.
    I have not gained any knowledge or benefits from registration.
    I have gained more from being a member of voluntary Saiosh.

  2. Well now… THE COSTS ARE TOO HIGH? Surprise, surprise! Asbestos AIA companies do a course and register at the Department of Labour for R150! But Safety consultants, managers and officers… well we all know what the costs are don’t we? AND WE SHOULD BE GENERATING WORK IN SOUTH AFRICA. Think again dear sirs, think again!

  3. Apart from the costs… there is no proper control at the the SACPCMP, and documentation is always being misplaced.
    They need to employ more staff, and also need to train them to be efficient and competent.
    They also need to make the registration process a bit more user friendly.

  4. You report that: “The CBE said it was proud of successful conviction of one unregistered person who was undertaking work in architecture.” Well, hurray and a little peep.
    Let’s rattle the closet of legal skeletons. Case law implying that unregistered persons worked as architects, for example, dates back to 1927. In the High Court of the Witwatersrand Local Division, in case A5039/06, the judgement considered the validity of a contract with an unregistered architect. Despite criminal sanction in the Architects Act, 35 of 1970, the current Act makes it clear that the intention is not to declare such contracts null and void.
    I could find no record of the CBE’s claim of a ‘conviction’ in recent case law. Even if a fly by night architect was ‘convicted’, it does not serve the purpose or intention of professional registration; merely of enforcement. Hurray for law and order.
    The CBE’s claim of a conviction does not stipulate the charges they brought. The court would not find a person guilty of an intentional offense for diligent work. In 1927, the court referred to the purpose of the Act to protect the public from improper conduct. Where an unregistered person performs diligent work, the public is not at risk, and the purpose of the Act is not nullified by failing to hire a registered person.
    In construction health and safety registration, enforcement is only on employers, who are supposed to hire registered people in terms of the Construction Regulations. Unregistered people cannot be ‘convicted’.
    Let’s also rattle the closet of Labour case law, on employers creating restrictive job specifications. The Competition Commission is against indirect price-fixing and inflated professional fees based on IDOW rules, and the Labour Court would probably also rule against it.
    It seems the Department of Labour legislated an anti-competitive agreement via Public Works /SACPCMP. At the request of construction employers, who are no strangers to facing charges, convictions and fines for price-fixing.
    Instead of counting registered chickens, the Construction Regulations Amendment is hatching more case law. And egg on the lawmaker’s face.
    The bones of case law rattles the letter and the spirit of unfair regulation. Booooo!

  5. I wasted my time and money doing ohs course. Now I can’t get a job cause I have to buy a job to work as a ohs officer even if I wanted to biy the job price is too high. What is the use of studying this profession if you can’t work im disappointed in the south African government to me it seems money is more important if you don’t have it you are not invited.

  6. The SACPCMP is not doing their job. I had a huge argument with a safety officer of our principal contractor. He does not accept the legally required Annexure 3 for our staff medical certificates. What do these people learn to get qualified? We are not allowed to work until this “person” says its ok. It makes them a dispicable crowd.
    We are a HDD contractor and spend less than 2 days on site. It takes us more then three weeks to get these people to understand what HDD is, then another three weeks to get them to approve a safety plan.

  7. SACPCMP Registrar Nomvule Rakolote told a Public Works committee that the Competition Commission rulings could stop construction safety registration, so why are they not stopping registrations?. We all can make out in the above mentioned report that SACPCMP is in the wrong. A lot of people are loosing jobs because of the registrations not just because they cant afford it but also because company’s only like to hire you these days if you are already registered, I thought the Government’s main aim is to create work not helping to take it away from the everyday breadwinner by forcing people to register with SACPCMP. This is not good for the construction industry where most people ends up seeking employment .

  8. I think saiosh was more understandable and friendly than SACPMP when comes to costs, they can halt the registration and do their price check and level of employment

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