Health and safety law 2015 March update

This South African health and safety law 2015 March update includes construction OHS registration law arguments, and DOL Labour law awareness roadshow meeting dates.

Consultants challenge DOL threats
The DOL, DPW, and SACPCMP issued a joint statement in February; “We encourage construction health and safety practitioners to apply to the SACPCMP early, as registration is mandatory in order to practice in the field of CHS.”

Consulting body NIOCCSA commented; “It is not mandatory, it is a choice. If you do not register, chances are you will not get employed in construction, as employers are prohibited of employing an unregistered person on projects where a Construction Permit is required.

“Where a construction permit is not needed, the appointment of a registered person is optional. At the current rate of registration, the August deadline is just an empty threat.

“There will probably be another extension of time as the SACPCMP does not have the capacity to supply in the demand for registered agents by August 2015. Sadly, if the truth is known, the SACPCMP will lack the required revenue to sustain itself.

“Note Construction Regulations section 42. (1); Any person practising in any of the categories contemplated in section 18, may continue to practise as such and is deemed to be a registered person until a date determined by the Minister by notice in the Gazette.

“44. This Act is called the Project and Construction Management Professions Act, and commences on a date fixed by the President by proclamation in the Gazette.” No proclamation has been made to commence registration in terms of this act. Only section 4(1), 4(2) and 26 are in force.”

Master Builders expand the threats
Rudy Maritz of NIOCCSA also challenged the Master Builders Safebuild forum; Construction Employers must pay for CHS registration and CPD. Insist on it! The Construction Regulations places a prohibition on a contractor to employ an unregistered person. If the contractor fails, it is his/her own liability. Not yours as construction OHS.

Nobody in SA is required to register with the SACPCMP. If they tell you so, they are lying. There is no strict prescriptive duty that says something like “No person may practice CHS unless registered with the SACPCMP”. If you have a different copy, please show me where it says a CHS person must register.

Not even the PCPM Act says it. Section 42(1) of the PCMP Act says “Any person practising in any of the categories contemplated in section 18, may continue to practise as such and is deemed to be a registered person until a date determined by the Minister (not the council) by notice in the Gazette”.

It must be issued under the signature of the Minister, Mr Nxesi, of Public Works, not Labour. No such date has been gazette.

So, Employers PAY UP! Registration, Exam Fee, Annual Fee total cost R3 864 per CHSM and R2 585 per CHSO. And clients can pay R7 585 upon appointment of the CHSA.

This way employers get their registered persons, and CHS practitioners can travel the country side attending the CPD workshops and conferences. Wake up SA! It is not the H&S people that want this, it is the employers!

Or you can threaten to fire people if they do not register. It makes you a shining example of companies not to work for. Fairness in business – that is what it takes.

Master Builders KZN OHS official Neels Nortje responded; Construction employers are paying for CHS registration and CPD. The Master Builders Association KwaZulu Natal has some 700 Members most of which are Construction Employers.

Not one of them has indicated that they are going to fire their safety officers if they do not registered. In fact they have put programmes in place to assist and pay for their employees registrations.

They are doing this because of their moral duty to their employees. No need to insist with explanation marks, employers are doing it for their employees.

About OHS consultants, your argument that Construction Employers must pay for health and safety consultants’ professional registration fees and CPD is absurd. If a Contractor requires the consulting services of a part time health and safety officer to be appointed in terms of CR 8(5) he/she will seek the services of a registered CHS officer.

Likewise, if a Client requires the consulting services of a health and safety agent to be appointed in terms of CR 5(5) he/she will seek the services of a registered CHS agent. SA Construction Employers are more awake than you might think.

Rudy Maritz of NIOCCSA replied; Then I guess you are not awake, or Group 5 is not a member? And your members are not the only employers in SA that performs construction work, contrary to what you might think.

I suggest you do some research on how many employers there are and how many of them are forcing their employees to pay for registration.

As far as consultants go, their costs are directly added to their rates, so employers pay for it. As it should be. Cost management, one of the 9 knowledge areas for registration.

Any project, requiring a permit, would automatically be escalated by R30 to R40 000 over a 12 month period. However, experience thus far tells us that clients will not engage H&S Agents until Stage 4, to save costs. I actually like the way you ignore the real issues.

Nortje responded; Confirmation obtained from Group 5 that they are assisting their H&S staff to apply for registration with SACPCMP, and paying for it.

Master Builders Association KZN is one of nine MBAs affiliated to MBSA, who together with SAFCEC, represents construction employers of 400 000 employees.

Both these employer organisations support the SACPCMP registration process. Not only for CHS, but for all professions.

Maritz replied; I recall you sarcastically doubted there would be a second exemption, when I wrote to the DOL regarding the mess they had made. The second exemption was issued three days later.

DOL and CCMA labour law meetings continue
The Department of Labour and the Commission for Conciliation, Mediation and Arbitration (CCMA) will educate stakeholders on the implications of some new amended labour laws now in force.

The Labour Law Amendments roadshows are from 9am to 1pm on;
26 Feb; Umbali Lodge, Cromdale, Nelspruit (Mbombela)
2 March; Kat Leisure Osner Hotel, Kennaway Esplanade, East London
_? March; Spondo Street, Struandale in Port Elizabeth
5 March; Safari Lodge Hotel, 1 Donkerhoek Road, Rustenburg
6 March; CSIR Conference Centre, Meiring Naude Road, Pretoria.

The roadshows are aimed at employer organisations, trade unions, academics, human resource practitioners and the public at large. The key labour laws that were recently reviewed, and were now in force include:

• Basic Conditions of Employment Amendment Act (no 20 of 2013) – which was assented and gazetted on 9th December 2013 and promulgated on 1st September 2014.
• Employment Equity Amendment Act (no 47 of 2013) assented and gazetted on 16th January 2014 and promulgated on 1st August 2014.
• Labour Relations Amendment Act (no 6 of 2014) assented and gazetted on 18th August 2014. Promulgation to follow.
• Employment Services Act (no 4 of 2014) assented and gazetted on 7th April 2014. Promulgation to follow.

The brief of the presentations during the national roadshows will focus on aspects such as broad changes on the protection of employees earning up to the BCEA threshold of R205 433; regulation of temporary employment which is now limited to a period not exceeding three months; unionisation in vulnerable sectors; improving the functioning of labour market institutions such as the CCMA, bargaining and statutory councils; addressing current problems in industrial disputes and dispute resolution; enforcement and enhancing compliance; disputes concerning discrimination and issues of pay for work of equal value.

The review of the labour laws was initiated four years ago. This was subsequently followed by an impact assessment study.

Key to the amendments was to;
[] Respond to increased informalisation of labour to ensure that vulnerable categories of workers receive adequate protection and are employed in conditions of decent work;
[] Enhance the effectiveness of the primary labour market institutions such as the Labour Court, the CCMA, the Essential Services Committee and the labour inspectorate;
[] Strengthen implementation of Employment Equity and enhance equal treatment in the workplace;
[] Re-position the public employment service.

• Sources for this health and safety law update include; DOL. DPW. SACPCMP. Master Builders KZN Safebuild. Nioccsa.
• South African environment law updates are posted in a separate series on Sheqafrica.com

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8 thoughts on “Health and safety law 2015 March update

  1. An interesting statement Rudi = “Where a construction permit is not needed, the appointment of a registered person is optional.”
    As I read the ConRegs, 5 Client’s duties say the Client MUST appoint an Agent for 4.1 work >R13 million/>180 days>1800 person hours (5.5) (let’s not forget the duration and workforce requirements) and MAY appoint an Agent for 3.1 work (5.6), i.e. the appointment of an Agent in the latter case is optional.
    However, in terms of 5.7(b) the obligatory or optional Agent must be registered with a statutory body approved by the Chief Inspector and 5.8 requires the gazetted approval of such statutory body.
    So far as I know, the DoL Minister (for whom the Chief Inspector works) has gazetted the SACPCMP as the statutory body.
    As I see it, the appointment of “a person” is optional in 5.6 but if a “person” is appointed, the registration of that person is not optional – 5.7b and 5.8 read together. Thus I am a little confused by your assertion and would welcome your enlightenment. Thanks

  2. I’m a firm believer in miracles not fairy tales.
    Could please hand me the Magic “Registration” Wand that automatically fixes contractor non-compliance, incidents etc.,
    Contractors are in the business of making money and spending as little on SHE to seem/be compliant.
    Besides Clients who don’t appoint SHE Agents or supply specifications, there is a serious lacking from inception to commencement.
    This is the same Load-shedding, lack of management that has the smallest point in the chain bearing the brunt of adequate planning.
    I’m seriously beginning to distrust all affiliates aligned with this “Registration business” as it is costly and ineffective at solving the root causes.
    Not to shower accolades on the institution, but I think the MBA is a really good starting point in terms of getting contractors into SHE management systems.
    Controls: Eliminate, Engineer, Admin…
    Of the 60% effective Administration control, “Registration” looks at the competency, which is another area with much disagreement.
    In a country with great income inequality further low-end CHS & contractors are further stretched to pay + CPD pay, while they aren’t getting the basic costs of implementation right.
    If the intention is to cripple the little contractors, then they shall meet their target.
    I have no hard feelings against anyone, but we need to get real.
    We are the smartest bunch of people, we offer solutions on a daily basis and push competency via education/training of “contractor personnel” and we all know that this is where we can maximize a better “SHE culture”
    Best regards,
    Vincent Holloway

  3. It is correct to say nobody is required to register. To this end, the media statement [by the DOL /DPW /SACPCMP] was incorrect and should have stated that practitionrs are encouraged to register as employers will not be allowed to employ unregistered persons. By imlication, it means the same thing, but it fudges the real truth. And therein lies the lack of credibility. It is similar to SAIOSH telling the world they are the “SAQA accredited body” while SAQA only “recognise” their existence.
    The original article that appeared on Safebuild referred to who must pay for the registration. In this regard, the fact that nobody “has” to register, makes it an obligation of the employer to pay the fees, as it is their duty to engage a registered person. Henceforth, the argument that registration is expensive is only valid to the unemployed. Which, in the light of the current developments will remain just that. Unemoloyed!

  4. If the client decides not to appoint an H&S Agent, but a safety Officer or safety Manager, the registration would not be required, as the Client does not have to appoint any of these categories. And nothing requires them to do so. So, the current people working as client Agents can continue to work as client Agents without having to register as long as a Construction Permit is not required.
    All those working for Eskom, Telkom and non-construction industry employers performing construction work as ‘Clients’ are exempted.
    Or rather, you can work as an unregistered client agent, but may not be appointed in terms of CR5(6). A client needs to appoint you in terms of Section 16(2) or 8 of the Act as a voluntary additional safety precaution.
    Therefor, when you develop a property, appoint company A for the first phase and Company B for the second phase. Then you do not need a permit at all, even if it is R24 million in total

  5. Interesting questions being asked here and discussed elsewhere. According to Mr Pieter Steinmann of LabourNet on LinkedIn;
    “It is my opinion (with a little inside info) that the decision was already made by DOL and various other role players to keep [the] thing as is. The other thing to remember, current non members signing the petition is in breach of the SACPCMP code of conduct so should the decision be upheld those non members might not be considered because of breach in conduct.”

    Firstly, the SACPCMP does not have members. It only has a register of registered persons.

    Secondly, the code of conduct only applies to “registered persons” and not the general public voicing their concerns as enshrined in the Bill of rights under freedom of speech, expression and association.

    Thirdly, it will be unwise for the SACPCMP and their assessors to “victimise” any person where they themselves do not disclose all relevant information.

    And where does he get “a little inside info”, whereas the rest of the profession has to live in darkness like mushrooms?

    1. The code of conduct of the SACPCMP states:
      4.6 not unless required by law or by this code, divulge any information of a confidential nature which they obtained in connection with an appointment.

      Does this also apply to “a Little inside info”?????
      I just downloaded the Complaint Affidavit. Let’s see how much teeth this council has.
      Who shall be first?

  6. “Then I guess you are not awake, or….
    I actually like the way you ignore the real issues.”

    This part has been deleted from the Safebuild Forum??? hehe
    Sensitive Viewers!!!

  7. Interesting article, still a lot to be addressed in our profession and unfortunatly these changes are impacting many employees.
    While some employers are paying for registration, a larger portion unfortunatly are not.

    Looking forward to response from DOL on new dates as I doubt the August dates can be met by SACPCMP.

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