Health and safety law update May 2015

This South African health and safety law update of May 2015 includes mobile equipment, refuge bays, construction appointments, and medical certificates.

Mining health and safety law update

Mobile mining equipment must ‘fail to safe’. On 27 February 2015, the DMR in the Government Gazette promulgated regulations relating to machinery and equipment, in addition to Regulation 8 of the Mine Health and Safety Regulations.

Some regulations will come into operation on 27 May 2015. Regulations 8.10.1.2(b) and 8.10.2.1.(b) require that, unless action is taken to prevent potential collisions, employers must provide means to “retard” diesel-powered trackless mobile machines to a safe speed where the brakes are automatically applied.

Trackless mobile machines must fail to safe without human intervention, or have a ‘dead man’s switch’ in common terminology.

Trackless mobile machines are re-defined. Regulation 8.10 is added, requiring prevention of collisions with machines and people.

Mobile equipment are among the most frequent risks, with the most severe potential consequences, in many underground and opencast pits.
Mobile equipment are among the most frequent risks, with the most severe potential consequences, in many underground and opencast pits.

Pieter Colyn and Celeste Coles, directors at ENSafrica Mine and Occupational Health and Safety Department, said some of these regulations were onerous, and may have a number of unintended consequences (see http://www.mondaq.com/x/388724/employee+rights+labour+relations/Mine+And+Occupational+Health+And+Safety+A+Changing+Landscape+By+Pieter+Colyn+And+Celeste+Coles+Directors+At+Ensafrica).

In November last year, regulations were promulgated regarding underground refuge bays.

The Government Gazette of 19 December 2014, published two guidelines relating to the compilation of mandatory codes of practice; for risk-based fatigue management, and safe use of conveyor belt installations.

Pressure Equipment Regulations guide

On 27 February 2015, the Department of Labour issued guidance notes, in Government Gazette 38505, regarding the Pressure Equipment Regulations.

Construction Regulations appointments list

A health and safety manager in the metals industry, Bonginkoski Hlela, drafted a summary guideline for legal appointments required by the Construction Regulations 2014.

The list below notes first the WORK CONSIDERATIONS, then the APPOINTMENT REQUIRED, then the CONSTRUCTION REGULATION SECTION;

Any Construction work undertaken; Client/ project manager/ agent. Sec 5

Contractor(s) required; Principal contractor/s.Sec 5(1)k

Principal contractor requires services of sub-contractors; Appoint sub- contractors. Sec 7(1)v

Supervision of construction work required; Principal contractor to appoint construction manager and alternate. Sec 8(1)

Size of the project; Principal contractor to appoint assistant construction manager/s. Sec 8(2)

None or too few assistant construction manager/s; Inspector may issue a directive for assistant manager/s to be appointed. Sec 8(2)

Size of the project; Principal contractor to appoint a full/part time construction health and safety officer. Sec 8(5)

Any construction work; Construction manager must appoint construction supervisors. Sec 8(7)

Size of the project; Contractor may appoint competent employee/s to assist in supervision. Sec 8(7)

Fall hazards; Contractor must designate a competent person to prepare a fall protection plan. Sec 10(1 (a)

Temporary works; Contractor must appoint temporary works designer. Sec 12(1 )

Excavation; Contractor must appoint excavation supervisor. Sec 13(1 )(a)

Demolition work; Contractor must appoint demolition work supervisor. Sec 14(1 )

Scaffold use; Contractor must appoint scaffold supervisor. Sec 16(1 )

Suspended platforms; Contractor must appoint suspended platform supervisor. Sec 17(1 )

Rope access work; Contractor must appoint rope access supervisor. Sec 18(1 )

Bulk mixing plant; Contractor must appoint bulk mixing plant supervisor. Sec 20(1 )

Stacking and storage; Contractor must appoint stacking supervisor. Sec 28(1 )

Material hosts use; Contractor must appoint inspector. Sec 19(8 )(a)

Risk assessment; Contractor may appoint risk assessor. Sec 9

Design work; Contractor may appoint risk designer in writing. Sec 6.

Laws relevant to occupational health

Occupational Health and Safety Act, 85 of 1993
Compensation for Occupational Injuries and Diseases Act, 130 of 1995
Basic Conditions of Employment Act, 75 of 1997
Labour Relations Act, 66 of 1995
Mine Health and Safety Act, 29 of 1996
Occupational Diseases in Mines and Works Act, 78 of 1973
National Health Act, 61 of 2003
Nursing Act, 33 of 2005
Employment Equity Act, 55 of 1998
Medicines and Related Substances Act, 101 of 1965 (as amended)
Road Traffic Act, 93 of 1996.

Occupational medical certificate changes

All construction employees require an occupational medical certificate of fitness from 6 August 2015. Certain occupational health nurses may perform and sign the medicals.

Steam Sheq legal consultant Shavanya Subramoney said the Construction Regulations require that an occupational health practitioner, either a specialist doctor, OR an occupational health nurse, perform and sign occupational medicals.

The definition of an Occupational Health Practitioner in the OHS Act includes “a person who holds a qualification in occupational health recognised as such by the Health Professions Council SA; or the South African Nursing Council (SANC) as referred to in the Nursing Act.”

The Construction Regulations form in Annexure 3 provides for an OH nurse to perform the examinations, and sign medical certificates.

The Construction Regulations Amendment of February 2014 requires the certificate of fitness to be in a specific format as per Annexure 3.

The exemption issued for construction applies to projects that started before 7 February 2014k and expires on 6 August 2015.

The Health Professions Act in Section 17 provides for non-HPCSA registered health care practitioners to perform examinations, diagnosis, and prescribe medicines, provided it is done in terms of another Act, such as the Nursing Act.

Occupational medical test context

Assessment of medical fitness to work impacts directly on health and safety risk, and has to take industrial, site, and job factors and assessments into account.

Employers have to assess occupational health stressors such as heat, noise, dust, ergonomics, and shift hours; as well as requirements such as visual acuity, colour perception, hearing, lung function, and other health factors.

Occupational health practitioners work with site and job information from employers, from employees, from medical history, and from their direct examinations. Among the functions are patient confidentiality and record-keeping.

DOL advisors may be changed

The Minister of Labour appoints 20 people in terms of Section 2 of the OHS Act to represent organised labour, organised business, state, and specialists in the field of occupational health, hygiene and safety, to the Advisory Council for Occupational Health and Safety (ACOHS).

Appointed specialist Neels Nortje said he was appointed as an occupational safety specialist, a position that had been vacant for two years in the past.

Every three years the minister appoints a new council. Nortje said “the term of office of the council is up and DOL is calling for new nominations.” However the relevant notice has not been published by 24 April.

• Sources; Government Gazette. DOL. DMR. ENSafarica.
• This post refers to some Sheq legislation. It is not a legal register, and does not constitute legal advice.
• South African environment law updates are posted in a separate series on Sheqafrica.com.

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3 thoughts on “Health and safety law update May 2015

  1. Where can one get the file or book on OHS Act OR MHS Act amendments, instead of buying a new book when there are amendments on the laws.

    ==== Editor notes; Based on your ‘baseline’ legal register, you may subscribe to a legal update service. Or use the Search function on this site to find reminders of health and safety law Amendments and Notices, then buy or download the cited numbers of the Government Gazette, which are posted free on the state website.
    You could subscribe to our email newsletter for free, using the large green Subscribe button.
    Or visit the DOL and DMR websites, or the PMG website, each offering legislation updates.
    You could also set up free email notification on Google, asking for OHS Act Amendment Notice South Africa, or similar terms.

    1. Legislation on the government websites is usually up to date, but the most reliable way is to subscribe to a legal database. Their updates effect automatically, and you can get access to almost every piece of legislation. Many lawyers use it as an online legal library, but it is only available through paid subscription.
      Steam LCS also has its own legal register, in which we effect updates on a quarterly basis, that organisations can subscribe to.

  2. When you have to pay just to READ the legislation… then you know things are not right. I mean, surely, in order to implement the requirements of the legislation, it must be easy to access it? Case law is one thing, but just the legislation… it’s all freely available in the UK. Up to date too. No messing about with gazettes. It means people can move on to more important things.

    ==== Editor notes; Gazettes are posted on the state website free of charge, as the report says.
    Many companies, compliance officers, and lawyers use a legal update service, to avoid wasting time on searching through every Gazette, and to get summaries of the changes relevant to their legal registers, and some interpretation.
    Our problem in SA is particularly in interpretation, since our legislation is often burdened with contradictions. And some are rushed through to meet political ‘service performance targets’ (and consulting budgets). Then the departments issue elaborate guidances on what they thought they should have meant. Don’t do as we do, do as we say we should have said.
    SA Labour legislation in particular is riddled with contradictions, grey areas, and hidden agendas, as a leading advocate and legal incident investigator said of the Construction Regulations Amendment draft Three.
    We how have to live with draft Four and a Half, with its exemptions and impracticalities. The 30-odd problems that OHS practitioners have with just one aspect of this Amendment, are listed in an earlier post.
    Access to the law is not a problem. The quality of law, and of enforcement, are problematic. Some employers, consultants, politicians, inspectors, and voluntary bodies seem to like it this way.
    Incidentally, the SA OHS Act (copied from the international error of lumping health and safety together in practice and training, while they remain separate in academia), and its Construction Regulations is a good case study of why the same laws in different countries should differ. Some state, business, trade, labour and workplace elements are not better or worse, just different.
    The results should be identical; safe, sustainable, affordable buildings with a very low toll of injuries, and a low carbon footprint. The shortest route to that goal differs between SA, UK, Saudi, Switzerland, India, China, Australia, and elsewhere. SA legislation, despite its British, Dutch, and Roman roots, is a different mule from the UK donkey.

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