Registration brings health and safety liability

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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4 thoughts on “Registration brings health and safety liability

  1. professional Indemnity insurance (or PI cover) is par for the course in the UK. It comes with “professionalising” the industry – if you give poor advice and somebody suffers a loss as a result of following said advice, there should be recourse.

    Those who have registration will be rubbing their hands together – more fee for registered “skills” that will likely be in low supply.

    So my tjommies, get wif da programme ek se. Register today and your streets might be paved wif da tender gold.

    ==== Editor notes; I agree that Construction Health and Safety Agents (typcially engineers or consultants such as yourself Koos) must be appointed by Clients as such, and should carry insurance. The number of sites they serve must be limited. They should take a standardised CHS Agent tertiary diploma course, ideally developed by NMMU or TUT or both (until academia eventually makes it part of the engineering and chemicals courses), and work under an experienced Agent for a year; two simple pieses of paper (on top of their engineering and managerial courses), to which the Client must add documented reference checks. If the DOL insists, they may as well register, but by an added designations from their existing registrars, who already have them stapled and filed.

    CHS Managers likewise, but at Certificate level; probably a QCTO-registered course based on the new OHS Practitioner Curriculum Standard, that all the Sheq trainers are likely to offer. The SACPCMP could merely add the course, and the designation, to that of Construction Manager (CM, CHSM). Whether they should register, or carry professional liability, is arguable. The law may recognise that some of them represent Agents, who carry the liability, and who should contract out that liability.

    CHS Officers, our tjommies, whom you advise to line up on the conveyor belt and pay for band-aid and blame, should not register. Their ideal career path is a Sheq Rep course, and a short course relevant to their main risk, and a year of practice; then a short course in either OHS Act, MHS Act, Meetings, Reports, Incident Investigation, Internal Audit, Hygiene Exposures, BBS, Work at Height, Confined Spaces, First Aid, Emergency Response, Process Safety, Explosives, or one of the four ISO standards; and further training in the directly relevant industrial process, and some years or practice; then a managerial course and a QCTO course linked to a chosen OHS specialisation and a chosen industry. We should not expect these valued employees to ‘also register meanwhile’.

    I want the DOL to save the SACPCMP, and CHS Officers (and by implication eventually all OHS Officers), the mutual cost and embarressment of enforced ‘professionalisation’ and the resulting CPD, mentoring, designations, ‘free points’ and RPL muddle (for which Oom Ray, Oom Joep, Oom Neels, Auntie Nomvula, members of boards, volunteers, and their contractors, are wringing their hands in anticipation).

    Some tjommies, and some consultants with as much training, experience and wisdom as yourself, have less patience than I with the excesses of bureaucracy. They are also good at writing slogans, such as ‘We don’t need no registration, we don’t need no stamp control, no dark sarcasms in the interview, Labour leave those tjommies alone, all in all you are a brick missing in the wall’. Or ‘Humpty Dumpty sat on a board, etc, all the state’s Setas, and all the state’s men, could not put Thongathi together again’. Or ‘Scrap the crap’.

    The tjommies want vocational and tertiary training, and some who call around for options, call me too. I have no answers for most of them, and partial answers for some of them.

    We have a lot of systemic, legal, and business baggage (including construction systemic and process baggage) to fix before we get general OHS training courses, or ideally health or safety or hygiene courses, directly aligned to OHS Agent, OHS Manager, and even OHS Officer jobs.

    The UK IOSH model (which has some flaws) could not be implemented here, as IOSH recognises. We have to reject band-aid on top, as the Ooms and some employers want, and rather fix OHS from the bottom up. -Edmond Furter

  2. Important topic indeed. To my mind a related problem is the SHEQ proffesion where one idividual attempts to straddle four fields of expertise at once. No one can argue that the four fields are not related, be it to various degrees.
    My question is, how many specialities can be rolled into one until such time that the cigar becomes to thick to smoke?

  3. I have registered an NGO, named the Association for Events Safety Officers, and are awaiting registration documents from the Department of Social Development. The events industry also needs to be in some way be regulated with regards to safety officers because clients (sporting bodies, private companies, etc) are asking the questions: How much do we need to pay an Event Safety Officer, and what should his/her qualifications (minimum) be.

    Some of these clowns charge R40 000 per event, and ten to one they do not even have a recognised qualification! We will also tie up with SAIoSH to provide professional status. Hopefully I will get all the municipalities and OHS organisations and DoL to support me in this instance to sort of regulate the event safety industry. Any comments would be welcomed.

    What is the newest take on professional liability for safety officers? There are event organisers insisting on Event Safety Officers having personal liability insurance (PLI)! Where this comes from, nobody knows.

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