We previously reported on the OHS Bill and predicted it will be released for comment early this year, but it seems Government is not in too much of a hurry to get this Bill passed. The Bill, was approved for tabling in Parliament on the 7th of May 2018, but since then, nothing happened.
The Bill has been tagged as an ordinary Bill not affecting the provinces under Section 75 of the Constitution as was originally proposed. Bills are tagged by the Joint Tagging Mechanism (JTM), a Committee consisting of the Speaker and the Deputy Speaker of the National Assembly and the Chairperson and Permanent Deputy Chairperson of the National Council of Provinces. They are advised by the Parliamentary Law Adviser. The JTM decides on the classification of the Bill by consensus.
This means that the Bill does not have to be debated by the National Council of Provinces, but the NCOP representatives can individually propose amendments. The National Assembly can either accept the amendments or pass it without same. The NCOP cannot prevent a Section75 Bill from being passed, but it can delay its promulgation.
The entire process can take anything up to a full year, but with the elections coming in May, there is no reason why the Bill will be passed by this Parliament whose term ends on 6 May 2019. Interestingly enough the OHS Bill was approved for tabling on 7 May 2018.
At a presentation done by the Chief Inspector at the A-OHSExpo on the 1st of June 2017, he indicated that the new OHS Bill is almost at the point where it can be circulated for comment and although a similar message was circulated earlier, it should happen sooner rather than later.
The delay is however no longer at the Chief Inspectors office, but a the lawmakers themselves.
Employers can relax for a while as our prediction is that it will not be released for public comment in the first half of 2019. From experience we have learnt that ground-breaking labour law changes takes at least 4 years, and we have seen this with the Construction Regulations which came out for the first time in 2010, but only became law 4 years later. And this was only a regulation which the Minister of Labour could sign into law.
When it comes to the OHS Bill, it needs to go from the National Assembly, to the NCOP and back, and then to the State President for signature before employers need to rewrite their OHS Manuals and Policies. It is thus unlikely that the OHS Bill will be released in 2019.
What can be expected?
A few good things will likely come out of the new OHS Act, like getting rid of the Safety Policy and replacing it with a OHS Management System under section 7.
The issue-based risk assessment will become a legal requirement and the adoption of a risk based inspection program will follow.
We also predict the OHS Bill to become a tri-partite Act, like the Mine Health & Safety Act, and will give OHS Representatives more powers.
It is also expected that the USA format of incident reporting will be a new addition and the biggest change would be the introduction of “spot fines” of R25 000 and up for failing to comply with an administrative requirement like keeping a copy of the Act at the workplace etc.
If the post-election government continues to clamp down on corruption, the DOL inspectorate may not be able to abuse this new Bill like the MHSA inspectorate do, but the introduction of these administrative fines will create a breeding ground for supplementary income initiatives.
Bad news for Small Business is that a fine or two could mean the difference between shutting down an unsafe operation or closing shop altogether. And with the bundle of regulations currently in the pipeline like the Ergonomics regulations, the Hazardous Chemical Agents, and the Asbestos Abatement regulations (in draft for almost a year now), the risk of an administrative fine is sure to increase.
Industry Sectors could provide input
One of the DOL’s key changes in the past decade is industry participation. We have seen this in the Construction Industry, and we are most likely to see this for all industries going into 2020.
It is highly possible that Industry Forums could become the new participation mechanism on white and green papers or draft regulations before it gets submitted to the lawmakers.
This is a necessary change as we expect the OHS Bill to go beyond the workplace and include the protection of the health and safety of the general public directly affected by an undertaking in South Africa.
ISO45001 may become law
In 1994, the OHS Act attempted to introduce a document similar to the Codes of Practice under the Mine Health & Safety Act, but it was called a Safety Policy. Needless to say, the industry advisors decided it to be a one page document signed by the CEO and hung at reception in a nice frame for the cleaner to keep in good state of repair.
We can expect this to become undone when the OHS Bill introduces a Safety Management System to replace the OHS Policy. And as most “systems” are privately owned, the only “open source” documented system that can possibly be written into law is ISO 45001. This could then also negatively affect the Star-grading systems of private companies, which could see them down-sizing in future.
The end of the Section 16 debate
One of the oldest debates in South African OHS Law is the implications of Section 16(2) and how it is applied. This would likely not progress when the new Bill is signed into law.
We believe that the intention never was to have multi-level appointments and the Bill will correct it by making it unlawful to delegate further down.
Want to learn more about the changes in OHS Law? Click here