The OHS Act Amendment Bill proposes health and safety admin fines of up to R50 000, but fails to improve on incident investigation measures.
The draft OHS Amendment Bill will only amend some provisions that are either outdated or unconstitutional, and drastically increase penalties that Labour inspectors may impose.
The bulk of the Amendment Bill repeats the current Occupational Health and Safety (OHS Act). Some innovations are borrowed from the Mine Health and Safety Act.
Labour inspectors would be empowered to fine employers on OHS administration provisions, and payment of the fine would negate a court appearance, writes Adv Raynard Looch (www.klasslooch.com). He criticizes some aspects of the OHS Amendment Bill, in view of the low standard of OHS incident investigations and of DOL Formal Inquiries.
DOL Section 32 Inquiries remain problematic
The OHS Act in section 32(5) affords interested parties the right to participate in section 32 inquiries.
However the DOL has been reluctant to release reports of some investigations (see a report on the Paarl fire investigation, and the court’s criticism of the DOL, on Sheqafrica.com).
If the reports are not made available to interested parties, they could not be aggrieved. “It would be absurd to confer on interested parties a right of appeal against the finding of a report and at the same time deny them access to the report”, said a Gauteng High Court judge in a finding against the DOL last year.
Justice Mtojane said, inter alia; “The interpretation of the Minister of Labour /Chief Inspector /National Prosecuting Authority, and others, of section 32, in my view, undermines the constitutional values of transparency, openness and accountability, in that it deprives interested parties their right to information held by the state.
“The refusal to disclose section 32 reports, violates the right to human dignity provided for in section 10 of the Constitution, in that families and next of kin of workers killed in industrial accidents do not receive an authoritative report on the cause of their loved one’s death to enable them to find psychological closure.
“Without access to the reports, employers and trade unions are hampered in their ability to ensure health and safety in the workplace.
“It is also not possible for unions to adequately protect their members’ interest by advocating for reform and improvement of safety in the workplace which infringes the workers’ right to fair labour practice provided for in section 23 of the Constitution.”
Industrial Health Resource Group and others won the case against the DOL.
(See reports on repeated postponements of current formal inquiries of fatal incidents, such as the Thongathi Mall inquiry, and the Greytson Drve /M1 bridge collapse inquiry, on Sheqafrica.com).
OHS Act Amendment does not improve Formal Inquiries
The Draft OHS Amendment Bill, in section 32, would provide for a formal inquiry in these terms, inter alia;
(10) The evidence given at any inquiry under this section shall be recorded, and a copy thereof shall be submitted by the presiding inspector together with his or her report to the chief inspector, and in the case of an incident in which or as a result of which any person died or was seriously injured or became ill, the presiding inspector shall submit a copy of the said evidence and the report to the chief inspector;
(10)(A) The chief inspector shall submit the report to the National Prosecuting Authority within whose area of jurisdiction such incident occurred, within 90 days of the conclusion of the inquiry;
(12) Upon receipt of a report referred to in subsection (10), the National Prosecution Authority shall deal therewith in accordance with the provisions of the Inquests Act… or the Criminal Procedure Act…”
Adv Looch commented: “Section 32(10)(A) above is, in my view, unlawful and must be amended to align with the verdict in the Industrial Health Resource Group matter, which has not been appealed by the Minister and thus stands.
“Perhaps the Justice Portfolio Committee will address this issue?
“I propose that section 32(10(A) read in part as follows: ‘…the presiding inspector shall, within 90 days, submit a copy of the said evidence and the report to the chief inspector, and to the employer, and upon request to any interested party or aggrieved party, or health and safety representative, or health and safety committee, or registered trade union.’
“This proposal would be in line with the similar provision in the MHS Act, “Section 72: Inquiry records and reports;
(1) A person presiding at an inquiry must –
(a) record the evidence given at the inquiry, including any evidence given with the assistance of an interpreter;
(b) at the conclusion of the inquiry, prepare a written report of the findings, recommendations and any remedial steps;
(c) submit a copy of the report and the record of the inquiry to the Chief Inspector of Mines,
(d) supply a copy of the report and the record of the inquiry to the employer and to any health and safety representative, health and safety committee or registered trade union that requested the inquiry; and
(e) on request, supply a copy of the report and the record of the inquiry to any person who has a material interest in the inquiry.
(2) An inspector may instruct the employer of the mine concerned to prominently and conspicuously display a copy of the report or any portion of it for employees to read…”
Fatal incident investigations are inadequate
Adv Looch criticizes “the deplorable manner in which DoL investigates incidents, particularly fatal incidents, using the lamentable section 31 Investigation.
“I have banged on about this cop-out procedure for decades now, and perhaps it will take another trial before DoL is compelled to align itself with the MHS Act, where fatal incidents can only be investigated via the Formal Inquiry (equivalent of section 32 of the OHS Act).
“I personally have more than 17 fatal workplace incidents on my books dating back to 2006 which have not been properly investigated by DoL.
“The pattern seems to be that DoL inspectors arrive relatively soon after a fatal incident has been reported, take statements, throw their weight around, and disappear into thin air.
“I can assume that these matters have actually been concluded and that the ‘visit’ by DoL constituted a section 31 Investigation.
“Imagine the quality of the reports, based on untested evidence that is sent to the NPA. It is no wonder that a tiny fraction of prosecutions occur.
“In my previous life as an OHS Court prosecutor, I would never have placed an untested version of a fatal incident on the court’s roll with the aim of obtaining a culpable homicide conviction.
DOL Inquiries of a low standard
Adv Looch further wrote: “As campaigning lawyer Richard Spoor has said; there are seldom any prosecutions. More worrying is the fact that the DPP is on record as having expressed ‘serious concern’ about the standard of these reports. The poor quality apparently makes further action difficult, if not impossible’.
“He was referring to reports complied after a section 32 Formal Inquiry, not just reports generated by a section 31 Investigation!
“You may ask why there is once again a discrepancy between the OHS Act and the MHS Act. The MHS Act has been hailed as a positive post-constitutional piece of OHS legislation with an emphasis on human rights and transparency.”
- Source; klasslooch.com
- The OHS Act Amendment was expected last year, but was delayed. It may expand the controversial, heavily criticised, and ineffective measures for construction health and safety officer registration, to other sectors; or bring OHS registration in line with the electrical profession, where the DOL itself is the registrar; or follow the example of the Department of Environmental Affairs, and use the construction Permit or other project processes to verify OHS appointments and competency; or enforce registration only of construction health and safety Agents. Given the lack of public consultation on OHS skills, training, appointments, research, and other issues relevant to professionalisation, and some legal challenges against the SACPCMP, the registration agenda may be on hold. -Edmond Furter
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