Health and safety law update April 2015

This South African health and safety law update of April 2015 includes a Thongathi Mall Inquiry twist, construction contract forms, and OHS Act compliance.

Thongathi Mall Inquiry questions safety officer
Parties involved in the Thongathi Mall construction collapse presented their heads of argument to the commission of inquiry in late March.

A representative of the subcontractors, Ramlakhan Omprakash, said that Ismael Van Zyl, who was employed by both Gralio Precast and Rectangle Properties, was a competent safety consultant.

He said there was no evidence that the safety officer contributed to the collapse of the mall, because of his outstanding competencies.

Ian Topping, who represented Ethekwini Municipality, said that the contractor failed to comply with the provisions of the National Building Regulations, and the Building Standard Act.

“Rectangle is accordingly obliged, at present date, to do all things necessary to demolish whatever remains of the mall, and then start afresh, and seek the municipality’s approval for the construction of any new structure on site,” Topping said.

A representative for the design engineer, Richard Hoal, said a conclusion was reached by all investigating engineers that a failure was caused by a combination of;
[] weak concrete;
[] lack of reinforcing in the beam;
[] failure to ensure the pile could sustain the designed pile load;
[] alleged deficiency in the load-carrying capacity.

Questioning of the skills of the health and safety officer could be seen in the context of several initiatives by construction employers to share liability with professional employees, such as the SACPCMP ‘professional’ health and safety registration process; internal investigation formats; and human resources checklists of OHS officers’ functions.

A representative of the Department of Labour ‘could not present at the session due to other pressing matters’.

The commission is a sequel to the fateful event which took place on November 19, 2013, where two people died and 29 others were injured.

The commission “aims to establish the factors that may have led to the incident and the possible negligence on the part of the contractor”.

The Thongathi Mall construction collapse site during the search for trapped workers. Forensic investigators have identified the risk of secondary collapses.
The Thongathi Mall construction collapse site during the search for trapped workers. Forensic investigators have identified the risk of secondary collapses.

Construction contract formats outdated

The JBCC Agreement version 6.1 of March 2014, and similar forms of contractof contract, are all dependent on the position of risk and the responsibility for the design function, said construction consultant Rudy Maritz.

The JBCC by default is a ‘design by employer’ contract. The employer carries full responsibility as Client in the Construction Regulations, and has to ensure the Designer (normally the architect) is properly informed about the requirements of Regulation 6 and the Report required regarding Additional Costs.

Regardless of the form of contract, there are Special Conditions that must be used to add “line items for health and safety” specifically related to the BoQ.

For general H&S expenses, provision must be made in the P&G’s of the contract documents.

The Health and Safety Specification must be referred to, and included in the contract, as well as the design risk report related to costs identified by the designer.

Most tender documents are not fully compliant with the new Regulations, said Maritz.

Standard forms of contract all differ. Clauses are referenced in the tender documents, therefore parites should have the latest additions of these documents.

Most PCs are still working on the older version of the JBCC as the 6.1 version has removed the forfeiture of claims.

Only the GCC 2010 refers to the appointment of a health and saety consultant. The terminology is not yet aligned to the definitions in the construction regulations amendment.

It is up to the Construction OHS Agent to ensure the H&S requirements are included in the Optional clauses. Reference should by made to SANS 294 in preparing tender documents.

FIDIC, GCC and NEC3 were not written for SA exclusively. The JBCC is SA-based, but only for buildings, and not ideal for other projects, said Maritz.

Disaster Management Act amended
The Department of Cooperative Governance briefed MPs on proposed changes to the Disaster Management Act.

In many municipalities, little or no capacity for disaster management currently exists. The changes aim to rectify this by establishing capacity to implement disaster management.

The National Disaster Centre will become a state component.

Cosatu alleges municipal health and safety law breach
Labour umbrella body Cosatu asked the Department of Labour (DoL) to prosecute municipalities that are not complying with the Occupational Health and Safety Act.

“It has been reported that all the municipalities in North-West province are not complying with the OHS Act.

“Workers have no protective clothing or PPE, and we have lost many lives due to non-compliance of those employers who happen to be ANC councillors,” said Cosatu.

HIV testing campaign for students
First Things First is a voluntary HIV testing, counselling and education campaign aimed at public higher education institutions. The initiative encourages students to know their HIV status and live positively. Read more about the campaign here http://heaids.org.za/programmes/first-things-first/

Firehose reel standard amended
The firehose reel standard SANS 543: 2015 will soon be published.

The SANS 543 110314 (firehose reels with semi-rigid hose) draft review proposes some changes that could compromise quality and safety;
[] Reducing the maximum diameter of firehose reel discs from 800mm to 700mm, allowing shorter hoses.
[] Allowing a minimum reel disc diameter of 570mm, that could require greater force to turn, and shorter hoses, thus more reels in some areas.
[] Allowing 19mm or 20mm hose bore, while fitting shanks of connectors, nozzles and taps are mostly 19mm. Thus fittings may be loose, and clamps are more important.
[] Clamps are not specified, and hose crimping is no longer required, despite pressure specified at 1.2 MPa.
[] Nozzles may be short and thin. The ideal of 105mm length and 38mm diameter is not specified.
[] Nozzle setting to Spray is optional.
[] Lever-operated nozzles are allowed, despite being cumbersome and incapable of spray settings.
[] Water supply pipes may be a T-connection or bent at a radius. The bend allows wear on the bush, and slipping allows misalignment with the front end of the axle where the gooseneck connects.
[] Goosenecks may have only one rib and one clamp.

Auditor Johann Cillliers alleged that no firehose reels in South Africa complied to the current standard; that the revision will relax the standard, compromise quality, and raise emergency exposure risk.

Construction health and safety manager registration changed
The SACPCMP construction health and safety manager registration interview was changed to an exam, without notice to applicants.

According to SACPCMP board notice 114, contained within board notice 113 in Government Gazette 36525 of 31 May 2013, the scope of services for CHS Manager included Clause 1.4.1, to attend and pass a professional interview. An exam is now required.

However construction health and safety Managers are not required by law to register anywhere, and employers are not required by law to appoint registered CHS Managers. Some construction and membership bodies have been accused of misrepresenting the law.

The August deadline for registration applies only to construction health and safety Agents and Officers, and only on certain projects. The deadline is expected to be modified by some further terms, conditions, or exemptions.

Employers who advertise for registered health and safety practitioners outside the scope of the law, may contravene aspects of labour law or business law, such as competition provisions.

• Sources; DOL. Cosatu. PMG. Rudy Maritz. SABS. Johan Cilliers.
* This health and safety law post is only and update, not comprehensive, and does not constitute legal advice.
* South African environment law updates are posted in a separate series on Sheqafrica.com.

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4 thoughts on “Health and safety law update April 2015

  1. I have debated the issue of “standard” contract wordings with Rudi on a different post but not the subject of:
    “It is up to the Construction OHS Agent to ensure the H&S requirements are included in the Optional clauses.”

    Unfortunately, there are a number of Clients who can’t even spell Construction Regulations so how are they to know that they need to appoint an H&S Agent for “3.1” work >180days>1800 person hours>R13 million so that the Agent can give the necessary input to the tender clauses? And if it’s “only” “4.1” work, then there may well be no H&S Agent to give such advice!
    Perhaps there might be a wide awake Architect or other “Designer” who can point out to the Client the error of his ways. But, one might ask, what is the role of the “Principal Agent”/QS in this regard? Will they all allow the Client to proceed with an illegal tender by the omission of a baseline risk assessment and H&S spec from the tender documents?

    IMHO the only real solution is for the JBCC to be amended to meet the requirements of the Construction Regulations

  2. Hi Richard,

    Thanks for your valid comments. I agree. What has always bothered me is hat the AGENT will be checking for compliance and especially as related to the SPECIFICATIONS. Now, the AGENT cannot write these specifications and then audit them?, bad practice as a third party. However, this is what I fear, as the agent should be as independent as possible, and should have input into the specifications, but not own them. I fear that this ” may” be the case in many future contracts. Essentially the HSE Manager and practitioner has very little or nil accountability. Am I barking up the wrong tree? perhaps.
    My own experience is that I do a QRA on the design, often together with process engineers etc.(Petro-chemical industry), or I come in mid project, and redo the HAZOP, QRA and Safety Case, because they are dynamic in nature. In my last role, I discovered that the QRA was under estimated, that resulted in the QRA being redone in Korea, the Process Hazard analysis had to change, the Pre-start-up and start-up had to be reviewed, and in many cases due to changes of design during construction, the HAZOPS had to be redone.
    I understand that this is a different industry, but this refinery is built for ” fit and safe for use” , it would be the same in any process, manufacturing construction build in South Africa, e.g. a production line for building a new car.
    Now my Question – Does the Agents Role stop when plant is handed over – or is he/she also responsible for the fit to use part. I know what is my answer, and this goes back to the Specifications on both the physical construction and hardware, but in many cases the process safety requirements (not only chemical), at start-up

    Specifications / Procedures / Standards / HSE File / Ergonomics / Design …. mmmm

    Have a great day
    Shane

  3. In response to Richard’s comments. The regulations do not mention it, but if one looks at the Annexure 1, (Permit application) and the detail required that supports this application, clients will have to provide a BRA and Specification with the application, as well as a list of other documents.
    If clients do not know this, they will find out when the permit application is rejected. This is however only required for R3.1-m plus projects.

  4. In response to Shane’s comment. The agent does not have to “audit” the specification. The agent assists in the development of the specification and then “audits” the principal contractor’s compliance to the specification, based on the approved H&S plan for the project submitted during tender stage.
    Regulation 6 only places responsibility on the agent for ensuring “fit and safe for use”, if so mandated by the client. IF no such mandate is given, the client is responsible for this requirement.

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