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Author of Draft HCA regulations loses the plot

The Department of Labour has published draft regulations on 14 September 2018 to replace the current Hazardous Substances Regulations and invited the public to comment within 90 days.

[UPDATE] 1 October 2018 at 21:00 – An anonymous reader brought it under our attention that there are currently two Gazettes circulating. The comment form; Annexure A, which you need to use for comments, differ in each of these Gazettes.

Below is an extract from each of these forms:

Annexure A from PMG.org.za

Annexure A From the www.gov.za website:

A certain part of the public will thus only comment on certain provisions, while others will comment on the whole.

With the standard practice of copy and paste, this draft not only follows the trend to be full of errors, incorrect numbering sequence and references to repealed Acts of Parliament; it also limits the comment to a single sentence.

“Recall the publication, read it, fix the obvious errors and republish it.”

It appears the author of the regulations have lost the plot.

Besides the patent defects in the draft, there are some other underlying implications which causes us to believe the DOL does not have confidence in their own processes.

One obvious example is the requirement to engage the services of an Approved (by the DOL) Inspection Authority to perform Air monitoring of exposure. But this person may not be competent, so employers will need to engage a second AIA to verify the results of the work of the first one.

This can be read in Regulation 6(1) that the measurement of airborne concentrations of the HCA to which an employee is exposed, is carried out by an approved inspection authority.[(6(1)(c)]

It then goes on in regulation 6(3) saying “In order to comply with the provisions of subregulation (1)(e) an employer shall obtain the service of an approved inspection authority who shall, verify, by examining the measurement and analysis equipment of the employer and questioning the person referred to in subregulation (1)(c), [the AIA] regarding the carrying out of the measurement programme. [Note the incorrect reference to 6(1)(e), as it does not exist. It should read (c).]

This “double expense” is not what employers need. Who will now verify the competence of the second AIA?

Another problem is the “employer’s measurement and analysis equipment”.

It appears the author comes from a Mining background, as the Mine Health & Safety Act allows employers to perform their own Occupational Hygiene measurements and do not need AIA’s to do so.

The DOL needs to make up its mind and decide which is which.

APPA?

The National Environmental Management Air Quality Act has repealed the previous Act, called the Atmospheric Pollution Prevention Act, 1965 (Act No. 45 of 1965).

It seems the DOL is unaware of this and references it in Regulation 10(3).

Numbering

Regulation 11 has two subregulations 5.

The second subregulation 5 refers to subregulation 4(b). Now the question is, should we reference the actual 4(b) or the first 5(b)? And how does this mistake influence references in subsequent subregulations?

Subregulation 5 (the first one)

An employer shall as far as is reasonably practicable, ensure that all contaminated personal protective equipment is cleaned and handled in accordance with the procedures in (a) to (d).

Subregulation 5 (the second one)

Subject to the provisions of subregulation (4)(b) [or is it 5(b)?]an employer shall ensure that no person removes dirty or contaminated personal protective equipment from the premises: Provided that where contaminated personal protective equipment has to be disposed of, it shall be treated as HCA waste as contemplated in regulation 15.

Subregulation 4(b) (the real one)

An employer shall, as far as is reasonably practicable, provide separate containers or storage facilities for personal protective equipment when not in use.

It should thus be read as the second subregulation 5(b) as 4(b) is not relevant. The second 5 should be changed to 6 and the subsequent numbering continued from there.

These are obvious mistakes which any person who can count from 1 to 10 would be able to see. Why can the DOL not ensure the same? Does the DOL not doubt the competence of Safety Practitioners and have introduced exams and registrations? Why does the DOL not lead by example and also write these exams?

Scope of Application

According to Regulation 2(3), these regulations shall not apply where the Asbestos Abatement Regulations are applicable. This makes sense indeed as the Asbestos Regulations are in the process of being replaced. In the definition and the annexed guidelines, it however still refers to the Asbestos Regulations.

It also mean that this draft cannot be published as law before the Asbestos Abatement Regulations comes into operation.

What does not make sense however is the requirement of Regulation 11(2) relating to asbestos fibres and asbestos work, and the reference to Regulation 10(2)(d) referring to substitution of an HCA.

Regulations 14, 14A, 14B and 14C?

It is standard practice in lawmaking that regulations are numbered with the addition of a capital letter whenever an amendment requires the insertion of a new regulation. This is done in order not the alter the subsequent numbering and the references to other regulations.

As this draft regulation does not seem to amend the existing Hazardous Chemical Substances Regulations, but to replace it entirely, the use of A, B and C in regulation 14 is irregular.

We believe that once the draft is gazetted, these errors would be rectified, but it still leaves a bad taste in one’s mouth that the DOL publish a document for the public to read, with basic legislative drafting errors.

Redundant and irrelevant

Regulation 15 is another waste of effort to comment on (pardon the pun) as it deals with Hazardous Chemical Agent waste and attempts to incorporate the Waste Act of 2008 and its own regulations promulgated thereunder.

If a chemical is hazardous to health and the environment its waste is already classified as hazardous waste as defined in the Waste Act and it needs to be disposed of in terms of the Waste Act.

The Waste Act however does not apply to radioactive waste that is regulated by the Hazardous Substances Act. 1973 (Act No. 15 of 1973), the National Nuclear Regulator Act, 1999 (Act No. 47 of 1999), the Nuclear Energy Act, 1999 (Act No. 46 of 1999) or the disposal of explosives that is regulated by the Explosives Act, 2003 (Act No. 15 of 2003).

It is therefore not possible for these employers to comply with the requirements of the proposed duty to comply with an Act that is not applicable to them and the DOL cannot enforce a law over which they have no authority.

We do however accept that the current HCS regulations were written before the Waste Act, and therefore includes a requirement for the disposal of the waste. Under the current legislation this requirement is unnecessary as hazardous waste is already regulated.

RECALL

Sheqafrica is not going to offer any further comments on the draft. It is not the public’s function to teach the DOL how to draft regulations in a professional manner.

We do however offer a warning to employers that your comments are imperative to put an end to the cycle of impractical laws relating to health and safety. Once it is published, we will be stuck with the mess just like the construction industry is now.

Sheqafrica
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