Some construction clients avoid health and safety specification

Some clients follow loopholes in the Construction Regulations 2014 to avoid compiling a Baseline Risk Assessment and Health and Safety Specification.

In terms of the amendment promulgated in February 2014, the Construction Baseline Risk Assessment and Health and Safety Specification have to be “sufficiently documented, coherent, and site specific”, writes Rudy Maritz in comment to the Department of Labour.

Some aspects of definitions, notification of work and permits require review. There are always those seeking ways around compliance to minimise their work, and passing it down their management line.

Companies operating in a dynamic environment, and in particular local authorities, utility companies like Eskom, road maintenance and ITC network operators run a many short-term projects falling within definition (b) of “Construction Work”.

The Construction Regulations (CR) define a health and safety specification as a Site or Activity or Project-specific document, contradicting the text in CR5(1)(b) which states in has to be site specific, leaving out the activity and project portion of the definition.

This loophole invites opportunity for construction clients to issue a form of “blanket” specification, based on an “overarching” or “activity -baseline risk assessment, while insisting that their appointed contractors maintain site-specific documents.

Some principals refuse to accept contractors’ Health and Safety Plans if not in accordance with the definition.

Due to the dynamic nature of most smaller infrastructure projects, few projects will invoke the need to notify the DOL, allowing these activities to occur below the radar, and defeating the objectives of the new regulations to minimise fatalities.

Fatalities on infrastructure projects

One company falling within this sphere of operation suffered 12 fatalities during 2012-2013, involving road traffic incidents, electrocution, falls from height, and a fall through unsound flooring, clearly indicating the hazardous nature of this type of “construction work”.

After careful analysis of the regulations, I am of the opinion that clients opting for the ‘shortcut’ invoke the requirements of CR3, and requires a construction permit. A collection of short and similar projects treated under a blanket HS specification will exceed 1800 person-days and will most certainly equate to a total value in excess of R13m.

A similar process is already in force under the National Environmental Management Act (Nema) where a collection of activities (not exceeding the threshold individually) requires Environmental Authorisation to proceed.

Application period proposal

Industries opting to treat a collection of sites as one project must therefore apply for a Construction Permit, regardless of the individual projects falling outside the criteria for permit application. The DOL should insist on these companies presenting an application for a period, perhaps 12 months, renewable annually.

No person could determine the risks associated with multiple projects over a widespread area such as South Africa. I believe it is a blatant attempt to circumvent the legal requirements of the changed regulations, a means to overcome the appointment of registered CHS Agents, Managers and officers, and defiance of the law.

The work performed by these companies often involves excavation work, working on structures and performing rope access work or other work at height.

Height access permits

Another industry benefiting from the changed regulations are the commercial cleaning industry, performing rope access from rooftops as high as 30 storeys and abseiling to clean windows.

As most of these tasks will never exceed the threshold, neither a permit or a notification is required, allowing them to go on without the DOL being aware of the extent of their activities. Sadly, the DOL will be notified where a serious or fatal accident occurred, but then it is too late.

I am of the opinion that the Construction Regulations 2014 require review. The first changes should be to the definition of construction work, to include a collection of smaller projects to require annual permits.

Sadly, the drafting of the new regulations was dominated by the Construction Industry, and excluded other industries performing “construction work”.

• Rudy Maritz is the validation manager at the consulting membership body NIOCCSA. He writes to the Department of Labour in his personal capacity and invites comment.

* See various comments on this post, on on posts regarding SACPCMP registration.
• DOL said it would publish guidelines on interpretation and enforcement by August 2014.

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9 thoughts on “Some construction clients avoid health and safety specification

  1. Thanks Rudy for highlighting the shortfall. I am in the telecommunication construction industry and we normally have multiple sites at the same. Another area of concern is the Construction Manager, whom can only manage one site, unless he appoints assistants. In our case, that is not affordable as a single PM or Implementation Manager manage multiple sites as the same time. Lastly, the issue of a Construction Manager being given the powers to appoint a Construction Supervisir, do we need to regard a Construction Manager as an 16.2 appointee?

    1. Hi Frans.
      Interesting point on the Construction Manager is that even with the appointment of assistants, he/she can only manage one single site. The assistants are only appointed for sections of the same project on which the manager is appointed.
      If you read the prohibition of CR8(4), No construction manager may….it includes assistants and the alternate managers.
      Also if you read the part on the construction supervisor, it clearly indicates that more than one site can be supervised where assistants are appointed. CR8(10). This is not the case with the Manager, indicating the intention of the law to make the appointment site bound.
      What is also interesting is that the Construction Manager must appoint Supervisors, but the Contractor (16.2?) must appoint the assistant supervisors.
      In essence the Construction Manager has the same liabilities as the Section 16(2) appointee, but the duty to comply is given by regulation (strict liability). For a 16(2) the duty to comply is only given by the CEO, and the appointee has no obligation in law to comply whilst the CEO remains liable subject to Section 37(1).
      The reason for this, is that generally, the 16(2) appointee has little if any knowledge or experience of construction work. The regulations have thus created joint-liability with the CEO and the Construction Manager carrying the duty to comply.

      We are currently looking into this matter and will provide more feedback later.

  2. I agree with Rudy that there is some loop holes and even with the definition of Construction Work under (a) maintenance has been excluded now and it appears that the regulations is trying to focus more on physical construction work (building).
    We are not a construction industry and do a lot of projects in house that require alteration, renovation; repair on cooling towers or pipelines and in the previous CR it was referred to as Maintenance. Pipelines will be fall under the definition of structures, I do not know if cooling towers and condensers will be covered under the definition of structures. In most cases this will now be a notifiable project due to the fact that that we have to work at heights and we have identified a fall risk in our Risk ass and fall protection plan.
    I ask our local Dept. of Labour (DOL) and they stated that they have not received any training as yet.
    This will be ridiculous if we have to notify DOL,7 days in advance if we do any work at heights where a fall risk have been identified. This will almost be daily.
    I was looking forward to the changes however now I feel different as the notification is now so vague.
    Thanks for your input Rudy.

    1. Hi Mike
      I had a close look at CR 4 – It appears that the intention is to seperate Construction work into two parts – the Structural work as (a) of the definition, and the Civils as the (b) part.
      Regarding the fixed plant – it refers to fixed plant in relation to construction work. This would thus include fix plant during construction like a bulk mixing plant directly related to construction activities, and during/after construction (of the structural work) like the installation of elevators, escalators, HVAC systems etc directly related to the end product being constructed. In the latter case it only applies to the installatiion and commissioning before use, and the demolition or dismantling thereof, at the end of its life cycle or prior to demolition of the structure in / on which it was installed.
      The maintenance of the fixed plant upon handover to the client or owner, fall back to the regulations applicable to the plant itself.

      As far as cooling towers goes, if it a reinforced steel or concrete structure, it would be included.

  3. I run a medium sized business, manufacturing and installing swimming pools. We install on average 14 pools a week during the peak season – December to Feb – each year.
    The pools vary in size, but the average depth is around 1,6 meters.
    In terms of the new regulations, digging a hole is notifiable, regardless of the depth. The Old regulation stipulated a 1 meter depth, but only where exceeding 30 days.
    Does the DOL have the capability to handle the volumes of notifications coming from the Swimming Pool industry, or will it become piles of paper that ends up being shredded?
    I have been running my operation for the last 15 years and only had one inspection by the DOL after a complaint from a neighbour regarding odours from the resin we use.
    This is madness!

    1. Ja I do. My Oom Fritz has both a paper making business and a paper recycling operations. He just make the paper, then recyle the paper, then make toilet paper. Business is booming, it are like he may as well just print the money straight. Everybody does need to go to the toilet, and when you does have to swallow the nonsense (k*k) coming from DOL, it will always give you a upset stomach. I am looking at beconming his Chief Safety Officer then I can have access to all the paper I need to make all the health and safety files I can sell on gumtree and ebay.

  4. Rudy, If you want to include window washers in the CR then you must certainly include engine builders as well and then go on to include the general industry and then remove the all the other regulations in the OHSact because everything will fall under the CR.

    There are other industries in this country other than the construction environment.

    Editor comments; The intention of the legislator was to include building maintenance and facilities management in the Construction Regulations. Window cleaning is more directly relevant to work at height, where General Safety Reg 6 and Construction Reg 8 (see the legal post by Gerrit Augusteyn), and SANS standards apply, however flawed they may be in terms of applying EU assumptions to South Africa.
    Two institutes have already informally professionalised work at height (see posts on, and one of them, probably IWH led by Brian Randall and others, which is linked to a specialist UK body and to access equipment suppliers, may gain some legal status in future.

    1. andre
      “There are other industries in this country other than the construction environment.”
      And that was exactly my point.
      Assuming your window washers are not those annoying individuals at traffic lights, the Fall protection and Rope Access regulations applies to your industry. Sadly, due to oversight, you are not obliged to comply with it, as you do not perform construction work as defined.
      On the other hand, if a new building’s windows are cleaned before handing it over to its owner, you are performing construction work, as the cleaning of newly installed windows are “work in connection with construction”.
      Perhaps the DOL had a valid reason, as the cleaning industry represents a smaller group of businesses than the construction industry.
      But the drafting of the regulations were dominated by individuals in the construction industry, leaving a major gap, as well as compliance issues for other industries including yours.

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