Section 37(2) agreements bring many employers under the misconception that once such an agreement has been concluded the Employer/ Principal is indemnified from any potential criminal liability which may emanate from the provisions of section 37. Firstly there is no such thing as a criminal indemnity.
A Question often asked is what is the responsibility of an employer with regards to contractors or sub-contractors performing a particular task on their site/premises.
The first matter of importance is Section 9 of the Occupational Health & Safety Act 85 of 1993.
Section 9 General duties of employers and self-employed persons to persons other than their employees-
- Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety,
- Every self-employed person shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that he and other persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety”.
It is clear that an employer is responsible for every person on their site, which includes employees, contractors, sub-contractors, visitors etc. Therefore it is important to ensure that this duty is looked at in detail to ensure compliance. One means of addressing this is by doing Health and Safety induction.
The content and focus of the induction will be determined by the function the party will perform and the time they will spend on site performing it. Should the person be on site for a prolonged period performing for instance construction work, then the induction must be in depth. Should the party merely be on site for a meeting of two hours the induction will not be that in depth, but would focus on the procedures in the event of an emergency.
Important is to ensure that people understand the induction and this can be determined by letting them write a test after the induction which they must pass with a certain mark before they are allowed on site.
It is then equally important to ensure that a Health & Safety file is build up and approved by the SHEQ Department before such a contractor is allowed on site. The content of the file will also be determined by the time spent on site and the work performed.
Section 37(2) Agreements
Section 37(2) of the Act mentioned above comes into play. This section is commonly known by the fact that a contract is concluded between a client and a contractor or contractor and sub-contractor whereby liability is contracted to the other party.
The content of the section is as follows: “Section 37 Acts or omissions by employees or mandatories, (2) The provisions of subsection (1) shall mutatis mutandis apply in the case of a mandatory of any employer or user, except if the parties have agreed in writing to the arrangements and procedures between them to ensure compliance by the mandatory with the provisions of this Act”.
By means of 37(2) agreements the client informs the contractors of his Health & Safety Policy, Health & Safety Specifications, Health & Safety Requirements and that all applicable legislation (National, Provincial and Local bylaws) must be adhered to. Lastly the responsibility is placed on the contractor to look after the Health and Safety of his employees on the client’s site.
The mistake a lot of companies make is to solely rely on this agreement to protect them against incurring liability in the event that a person other than an employee is injured on their site.
This agreement is more or less the same as indemnity. Indemnity in South African law is very controversial. One cannot indemnify yourself against willful misconduct or negligence. The fact that the general public at large is uninformed of this is the only reason that not more legal action is taken.
The 37(2) agreement and Health and Safety file in itself is not sufficient if it is not checked and also tested on a regular basis to ensure that the contractor has a system of Health and Safety that is implemented and maintained. This is emphasized by section 4 (d) of the Construction Regulations. Inspections must be done to continually ensure that documents are in place, that they are correct and still sufficient, but also visual inspections to ensure the documents corroborate with the actual work performed.
Section 4 (4) of the Construction Regulations places the legal duty on the client to ensure that when someone comes to work on their site that they can do so in a competent manner and most important in a safe manner.
Do you have control over contractors and sub-contractors on your site as to ensure that they do not create risks that could lead to issues of liability?