Professional registration invites health and safety liability and malpractice claims. DOL is leading you in way over your heads, warns a consultant.
Consultant Rudy Maritz writes on Media 24 (Voices.news24); Despite opposition from practitioners, the Department of Labour seems set to implement professional registration for health and safety practitioners via the Construction Regulations Amendment.
The chief inspector has approved the South African Council for Project and Construction Management Professions (SACPCMP) as the custodian for health and safety professionals and practitioners working in the construction industry, set to be enforced on employers in August 2015.
While some practitioners and supporters of this registration process are of the opinion that it will prevent workplace accidents and increase the value of the profession, others are dead against it as it creates a false sense of reality and puts a damper on the need for a proper curriculum for training in this discipline.
Another concern seems to be ignored by proponents and opponents of the scheme; health and safety liability of practitioners, for negligent acts or omissions.
Employees carry only accountability. With the SACPCMP registration in force [potentially from August 2015], employers will no longer have the freedom to appoint whomever they deemed adequately trained for the position, but will have to pick from a “list” of “registered persons” from the SACPCMP register.
Section 35(1) of the Compensation for Occupational Injuries and Diseases Act, 1993, employees and their dependants cannot institute legal action against employers for injuries and illnesses sustained at work, but the new professional registration could pave a new avenue for these actions.
The majority of health and safety officers, who will be registered and issued a “licence” of competence by the SACPCMP, does not have any medical training required to function within the Occupational Health arena.
Any oversight of an occupational health risk which subsequently result in an illness would thus be a failure of the registered person to perform their legal duties as a registered person.
This failure per se, would be sufficient grounds to lodge civil actions against the professional or practitioner whose duty it is to identify sources of injury and illnesses and implement appropriate mitigating measures.
The duties of registered persons are prescribed in the registration rules of the SACPCMP, and it must be accepted that once a person has gone through the proficiency examinations, the Council will deem the person competent to be registered.
Failing any such duty will result in accidents and illnesses at work and practitioners stand the risk of being “de-registered” or criminally charged for this breach under the Project and Construction Management Professions Act, 48 of 2000.
Once found guilty by the Council, it opens the door for civil claims by injured persons against the registered person concerned. In the event of fatalities, these claims could run into millions.
A countermeasure to these claims will be Professional Indemnity Insurance, which will cover the practitioner in the case of negligence, but not in failure to perform their legally required duties as prescribed in the registration rules.
With less than 8 months before the registration becomes enforceable, even the supporters of registration is now questioning the ability of registered persons to perform the duties prescribed by the Council.
Time will tell, and the courts could find themselves very busy in future as more and more people are turning to the judiciary for negligent conduct of regulated professionals.
Opposition to the registration scheme, some of whom are highly qualified professionals in Occupational Health, Medicine and Law, are of the opinion that the registration is not going to have the desired result, but will only discourage addressing failing education standards within the profession.
* Rudy Maritz is a director of consulting body NIOCCSA. This post was first published on Media 24 (Voices.news24).
==== Editor comments; Most professions set up insurance funds to cover registered members against civil claims, and take various steps to manage legal processes in the interest of themselves and their members.
The result is a ‘pot of gold’ for the profesional body and its legal and financial contactors to manage, and to charge for expenses.
Professionalisation therefore incidentally privatises and ‘contracts out’ some employer liability, and responsibility for recruitment, training, OHS management, and legal defence measures.
Are these some of the unintended, or perhaps intended consequences of occupational health and safety professionalisation? Some of the statements of state officials confirm the warning by the consulting body. They represent a range of consultants, some of whom are already professionalised, and they know the costs and hidden costs of liability insurance.
Employers who are tempted to support professional registration of non-profesisonals, should bear in mind that the principle of employer criminal liability, and civil liability, and the non-transferrability of liability, is firmly entrenched in South African law.
The state should not allow business to chip away at, and to ‘share’ some health and safety liabilities and costs.
There is a contrary and more ethical initiative in the organised built environment, and among its already entrenched professions, to move some of the criminal and civil liability for loss incidents where it really belongs; to developers and Clients.
Some African law and standards are adopted from the UK (as Koos Duvenhage and others have pointed out), and some fail in Africa since the preconditions and assumptions inherent in the legislation do not apply here.
Work at height and fall protection legislation, technology, and training, are among the examples of misfits, requiring a range of additional measures that could have been prevented by localised legislation.
Health and safety legislation and registration are prime examples of misapplications of isolated components of UK models in Africa. -Edmond Furter
* For an example of a UK criminal case against a health and safety consultant, see the post ‘Health and safety law update December 2014’.
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