In a recent article on Sheqafrica.com, it was reported that the Department of Labour invited SAIOSH members to report unsafe conditions and acts to them. Going this route is filled with dangers in itself and it is doubtful that it was initiated by the DOL.
The information of the employer is protected under Section 36 of the Occupational Health & Safety Act. If any information which may contain reports of unsafe working conditions is disclosed to a third party, like a OHS Consultant or advisor, and this is then released to the Department of Labour, it in itself would be a criminal offense. The exception here is naturally the administration of the Act.
This “administration of the Act” phrase only kicks in once the Department performs an official function, like an inspection, investigation or prosecution. The administration of the Act is also regulated by the Promotion of Administrative Justice Act which were promulgated after the OHS Act. Practitioners need to understand the difference between the “administration of the Act” and “compliance with the Act”. The former is only a function of a law enforcement officer defined in the Criminal Procedures Act, 1955.
The powers of the minister, the chief inspector or inspectors under the OHS Act do not allow them to enter into Memoranda of Understanding, and it appears to be a phrase more popular among professional bodies seeking “legal recognition” which begs the question. “What is SAIOSH up to this time?” It is unheard of for State law enforcement agencies to sign agreements with private entities without putting it out on public tender. But SA is known for not doing things “above board”, hence the establishment of the Zondo Commission and others.
We all know from experience that an OHS Practitioner does not have much clout in a company that does not use tax-payers’ money to survive, like SOE’s (Sourcing Other Earnings aka State Owned Enterprizes). Private entities struggle to survive at best and supporting unneccesary and out-dated philosophies are not part of the strategic vision for most companies. As a result, there is a dire need for these individuals to gain a bit more “power” to protect employees. Globally speaking, OHS practitioners have one “issue” in common.
“Management do not support us”.
The DOL/SAIOSH co-operation initiative is also likely the result of SAIOSH having now reached saturation point and while costs are going up, membership numbers and fees remain under pressure. It is obvious that a sustainable alternative would be to gain more “legal standing” than just a mere voluntary association with a SAQA stamp of recognition. Who knows, even becoming the DOL inspectorate themselves? It might be an avenue worth exploring.
See a related article below.
With the Construction Industry still in ICU and the SA economy on its way, chances are many SAIOSH Members are not renewing their membership fees and nobody can enter the economic main stream of the profession thanks to the SACPCMP and the Construction Regulations. At the moment we have more “Candidates” than fully registered professionals, and this escalates business costs and feeds the Business Rescue Monster. Many OHS practitioners desperately wants out, but sadly, lacks the skills to venture into other industry sectors like Mining, Maritime, Event Safety or Aviation.
If the Chief Inspector really wants SAIOSH members to become “whistle blowers”, a more important aspect would be to look at the Protected Disclosures Act aka the Whistleblowers Act. There are a few categories of whistle blowing that is protected under this act, and one of them is the employer’s failure to comply with Health & Safety requirements. But the Act only protects the whistle blower from “occupational detriment”. In the recent BOSASA testimony at the Zondo Commission, whistle blowers already learned that lesson as they were all prosecuted for their participation in the corrupt activities of Bosasa.
As an OHS consultant, blowing the whistle might follow the same route.
A summary of the PDA can be found here. https://www.whistleblowing.co.za/legal/the-protected-disclosures-act/
The disclosure is however only protected if made to certain persons; i.e.
- A Legal Advisor; (legal privilege)
- The Employer;
- A Member of Cabinet/ Executive Council of Province, where relevant; where the employer is a Public Sector body;
- The Public Protector;
- The South African Human Rights Commission
- The Commission for Gender Equality
- The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
- The Public Service Commission
- Auditor-General; and
- Any Person, prescribed in certain circumstances. (currently only prescribed by separate statutes which does not include the current OHS Act)
It does not include the Department of Labour.
The Act also states that “disclosure” means any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee…”
A SAIOSH Member who is not an employee of the employer is thus not protected as an “independent contractor” is excluded from the definition of employee.
Civil Claims for damages
Any disclosure made by a OHS Consultant to the Department of Labour may result in a civil claim against that consultant or at the very least, the consultant’s contract will be terminated.
Consulting professional suicide
This whole idea borders on the suicide of the profession, and why a professional body who claims to act in the interest of the profession, wants to team up with a law enforcement agency does not make any sense.
Is it in the interest of the profession to disclose unsafe work for the sake of the Zero Harm Strategy?
And what other laws are going to be flaunted for the sake of compliance? We recently published an article on Disclosure of Medical information by employers who most likely employ SAIOSH Members as well. How safe are your business in their hands really? Zero Manhours Lost to injury as everyone was on Strike? Or even worse, Zero Harm achieved due to business closure?
Would finding the Kruger Millions or the Pot of Gold at Rainbow’s End not fall into the same category as Zero Harm?
And the DOL is then also acting against the Competition Act, a piece of legislation we have cited since the Health & Safety File Syndrome was diagnosed in 2014. How can one “privately owned” association get involved in “projects” without it going out to tender as required in the Public Finance Management Act.
This “invitation” to report unsafe work, however conceived, begs for further investigation and the outcome could prove very “state capture like”.
As good as the idea may seem, it is up to OHS practitioners to make an ethical decision. If an employer’s actions is such that it warrants reporting to the DOL, why are you still working for them? Or does your own financial security override the lives you claim to protect?