OHS Act and Legal Liability
Occupational Health and Safety Act, 85 of 1993
Course objective
Objectives of this course
The Objectives of this course is to provide you
with:
▪ An overview of the requirements imposed by the
Occupational Health and Safety Act and
Regulations,
▪ Guidelines for critical actions that must be
implemented and maintained by management
▪Legal liability that is imposed on the employer.
Course Outline
1. Introduction to OHS Act
2. Statutory assignments
3. Duties of Employers
4. Duties of Employees
5. SHE Representatives and Health & Safety
Committees
6. Incident Management
7. Documentation
8. Liability, offences & penalties
Introduction to the OHS Act
(Act 85 of 1993)
1. Why an Act?
2. Objectives of the Act
3. Themes underlying the Act
4. Structure of the Act
Objectives of the OHS Act
Society demands Act
Why an Act? Act creates Health & Safety
standard
To provide for the health and safety
Objectives of of persons at work
the OHS Act To provide for the health and safety
of persons in connection with the use
of plant and machinery
To protect persons other than
persons at work against hazards to
health and safety arising out of or in
connection with the activities of
persons at work
To establish an advisory council for
occupational health and safety;
Themes Underlying the Act
Legislation sets out requirements, i.e.
what must be done
Self Regulation Company left to develop method for
how the requirement will be discharged
Reasonable” is subjective, and a grey
guide
Reasonableness
Acting as a reasonable person would,
in any given circumstance, at any time.
What is reasonable is circumstantial,
and would differ with any given
situation, at any time.
Norms of industry” is not a fully
reliable guide as to what is reasonable
conduct
Composition and Structure of
OHS Act
1. Act - 50 sections
2. Regulations - 21
Structure of the Act
Main sections / principles of the Act
Tier 1 (Duties of employer & duties of employees)
Secondary sections of the Act
Tier2 (Various sections dealing with specific obligations of employer,
powers & functions of inspectors and offences & penalties)
Regulations to the Act
Tier 3 (19 Major Regulations governing specific issues, operations etc.)
Codes / standards incorporated as part of the regulations into
Tier 4 the Act
OHS Act Statutory Assignments
1. Duties of CEO (Section 16) &
Senior Managers ( Section 16.2)
2. Principles behind statutory
assignments
3. Section 8 Assignment
4. Other assignments
Structure of Responsibility
Section 16 (1):
The Chief Executive Officer shall Employer
ensure the duties of the employer
are properly discharged in terms
of this Act.
Section 16 (2): Section 16.1 CEO (MD)
(Board Resolution)
Without derogating from
responsibility or liability in terms
of Section 16 (1) the Chief
Executive Officer may assign any Section 16.2
duty of any person under his
control, which person shall act General Manager
subject to the control and
directions of the Chief Executive
Officer.
Section 8
The Provisions of Section 16 (1) Junior / Section Manager
shall not, subject to the provisions
of Section 37, relieve an employer
of any responsibility/liability.
SECTION 8 –Junior Manager
Assigned specific workplace/process including all
related activities
Assigned to enforce compliance
Authorised to enforce compliance
Translate vague directions from the managerial level
into specific instructions
Must have to have a good working knowledge of
the Act
Trained to understand the risks and how to deal
with it
Duties of Employers
1. Who is an Employer
2. Who is an Employee
3. Duties of employer (Section 8)
▪ Main duty
▪ Systems, plant & machinery
▪ Risk management
▪ Information & training
▪ Supervision
▪ Enforcement & control
Employer & Employee
Person who employs or
provides work for any person
Section 8 : Employer
Remunerates or undertake to
remunerate that person
Duties of the
employer
Section 14:
Employed by or works for
Duties of another person
Receives or entitled to
employee Employee remuneration
Works under control or
supervision
Duties of Employer (Section 8)
Section 8 deals with duties of employer
Section 8(1) set out general duty of employer in
one sentence
Section 8(2) provides details of duties
* Lists 10 different duties [8.2(a) to 8.2(j)]
* These 10 duties can be grouped in categories:
- Provision of Systems, Plant and Machinery
- Risk assessment and Control
- Information, Training & Supervision
- Enforcement of Act
Duties of Employer [Section 8(1) ]
Working Total working environment
Section 8(1) – Duties Environment
in a nutshell
Every employer
Free from any hazard
shall provide and Safe
maintain, as far as
is reasonably
practicable, a
Source or exposure to danger
working Hazard
environment that is
safe and without
risk to the health of Probability that incident,
his employees. Risk accident or damage may
occur
Duties of Employer
Scope and severity of
hazard
What
standard Knowledge reasonably
required? available
Practically
having
Available or suitable
“ As far as regard to
means
reasonably
practicable”
Costs
Section 8(2) (a) – Systems, plant & machinery
Key points
Section 8.2(a)
The employer shall Provide and maintain
ensure the provision
and maintenance of
Systems of work
systems of work,
plant and
machinery that, as Plant and machinery
far as is reasonably
practicable, are safe
and without risks to Safe and without risk
health.
Section 8(2) (b,c,d,f) – Risk assessment and
control
Section 8.2.(d): Section 8.2.(d): Section 8.2.(b):
((The employer shall further establish what (The employer shall
ensure) as far as is precautionary measures ensure) taking such steps
reasonably practicable, should be taken with as may be reasonably
establish what hazards respect to such work, practicable to eliminate
to the health or safety of article, substance, plant or mitigate any hazard or
persons are attached to or machinery in order to potential hazard to the
any work which is protect the health and safety or health of
performed, any article or safety of persons, and he employees, before
substance which is shall provide the resorting to personal
produced, processed, necessary means to protective equipment
used, handled, stored or apply such precautionary
transported and any measures;
plant or machinery which
is used in his business,
Section 8(2) (b,c,d,f)– Risk assessment and
control
Section 8.2.(f): Section 8.2.(c):
(The employer shall (The employer shall
ensure) as far as ensure) making
reasonably practicable, arrangements for ensuring
not permitting any as far as is reasonably
employee to do any work practicable, the safety and
or to produce, process, absence of risks to health
use, handle, store or in connection with the
transport any article or production, processing,
substance or to operate use, handling, storage or
any plant or machinery, transport of articles or
unless the precautionary substances;
measures contemplated
in paragraphs (b) and (d)
or any other
precautionary measures
which may be prescribed,
have been taken;
Section 8(2) (b,c,d,f) – Risk assessment and
control - Summary
Applicable to any work which is performed, any article or
substance which is produced, processed, used, handled, stored or
transported and any plant or machinery which is used.
1
• Establish hazards & risk to safety & health
2
• Establish/identify precautionary measures
3
• Eliminate/mitigate hazard/risk -provide means
• Ensure absence of risks to health
4
• Do not allow work if precautionary measures not in place
5
• Supervision trained to understand hazards
6
• Supervision authorized implement and enforce measures
7
Risk Assessment Types
• Initial assessment of risk in a workplace.
• Broad assessment and includes all activities taking place on site.
Base Line • Done to establish a risk profile
• Used to prioritise action programs for issue-based risk assm.
• Same type of task is carried out at different workplaces in the same
Task way (e.g. risk assessments of a number of warehouses storing similar
(Generic) goods).
• Group of tasks , i.e transporting goods with forklift
• An informal risk assessment performed on an on-going basis in the
workplace.
Continuous • Performed by a supervisor and team as part of his daily responsibility.
• Risk related to the specific performance of the task is assessed &
(Mini) discussed
• Supervisor will stop the employee from continuing the task should it
present too high a risk.
HIRA Process
Identify any situation, object, work practice,
machinery, environmental condition that has
Spot the hazard potential to cause injury or damage
▪ What is potential impact?
▪ How severe could injury be?
▪ What is worst possible damage?
Assess the risk ▪ How likely will it cause somebody harm?
▪ Can it happen any time?
▪How frequently are workers exposed to it?
▪How many people exposed to it?
Remove hazard totally if possible.
▪I.E -Remove material in you way.
Remove hazard ▪ Do not use broken tools.
or risk ▪ Close openings in floors.
Provide walkways
Limit speed
Control hazard Provide alarms when forklift is moving
or risk Post warning signs
If hazard/risk can not be removed/controlled
Utilize PPE
Provide PPE PPE must be the last resort
Section 8(3)– Information & Training
Section 8.2.(e): Key points
The employer shall
provide such information,
instructions, training and Information/Communication
supervision as may be
necessary to ensure, as
far as is reasonably Instructions
practicable, the health
and safety at work of his
employees
Training
Section 13:
The Employer shall ensure
every employee is made Supervision
conversant with the risk
associated with his work,
and what precautions he
must follow
Training
Levels of Training
• General orientation
• Workplace Specific orientation/induction
• Occupational/task specific
• Specialized/specific Safety
Orientation/Induction
General Workplace Specific
• Generic health and safety work
rules • Specific safe work procedures
• Emergency procedures • Emergency procedures
• Incident reporting • Incident reporting
• General health and safety • Specific site hazards
responsibilities • Specific PPE requirements
• General site hazards
• General PPE requirements
• General legal requirements
• Health and safety policy
• Management health and safety
objectives
Safety Specific Training
Supervisors to be trained to be able to discharge
responsibility :
▪ Knowledge of OHS Act
▪ Role & responsibility i.t.o SHE
▪ Risk Assessment
▪ Incident Investigation
▪ Toolbox talks
Employees to be trained to full fill assigned roles
in Safety structure:
▪ SHE Representatives
▪ Fire Fighting
▪ First Aiders
Supervision
Section 8.2.(i):
Ensure Supervisor role &
The employer shall ensure
responsibility i.t.o safety clearly
that work is performed
defined & understood
and that plant or
machinery is used under
the general supervision of Train Supervisor to understand
a person trained to hazards & precautionary measures
understand the hazards
associated with it and
who has the authority to Empower Supervisor to take action
ensure that precautionary and give instructions against
measures taken by the hazardous situations
employer are
implemented;
Supervision
Why the Supervisor ?
The supervisor plays a vital role in the health and
safety programme as s/he:
▪ Is involved in the company,
▪ Interacts with employees directly,
▪ Knows and understands the employees,
▪ Knows and understands the hazards associated with
his/her area of responsibility
▪ Has the authority to enforce discipline, is the ideal
person to conduct on the spot risk assessment.
▪ Is an extension of management.
Enforcement and Control
Section 8.2.(g):
(The employer shall
ensure) take all necessary Ensure all requirements of Act
measures to ensure that complied with by every person:
the requirements of this • In his employment
Act are complied with by • On premises under his control
every person in his
employment or on
premises under his control
where plant or machinery Enforce measures that may be
is used; necessary
Section 8.2.(h):
(The employer shall
ensure) enforce such
measures as may be
necessary in the interests
of health and safety;
Duties of Employees
Duties of Employees
Every employee shall at work-
▪ take reasonable care for the health and safety of himself and of other persons
who may be affected by his acts or omissions;
▪ as regards any duty or requirement imposed on his employer or any other
person by this Act, co-operate with such employer or person to enable that duty
or requirement to be performed or complied with;
▪ carry out any lawful order given to him, and obey the health and safety rules
and procedures laid down by his employer or by anyone authorized thereto by
his employer, in the interest of health or safety;
▪ if any situation which is unsafe or unhealthy comes to his attention, as soon as
practicable report such situation to his employer or to the health and safety
representative for his workplace or section thereof, as the case may be, who
shall report it to the employer; and
▪ if he is involved in any incident which may affect his health or which has caused
an injury to himself, report such incident to his employer or to anyone
authorized thereto by the employer, or to his health and safety representative,
as soon as practicable but not later than the end of the particular shift during
which the incident occurred, unless the circumstances were such that the
reporting of the incident was not possible, in which case he shall report the
incident as soon as practicable thereafter.
Duties of Employees
▪ Take reasonable care for the health and safety of himself and
of other persons
▪ Co-operate with employer to enable him perform duty or
comply with requirements
▪ Carry out any lawful order given to him, and obey the health
and safety rules and procedures
▪ Report any situation which is unsafe or unhealthy
Report any incident – immediately or at least the same shift
Duties of Employees
Section 15:
Duty not to interfere
with, damage or misuse
things
Intentionally or recklessly
No person shall
intentionally or ▪ Interfere
recklessly interfere with, ▪ Damage
damage or misuse ▪ Misuse
anything which is
provided in the interest
of health or safety.
SHE Representatives &
Health & Safety Committees
1. Election, Select & Appointment of SHE Representatives
2. Duties & Rights of SHE Representatives
3. Establishment of Health and Safety Committees
4. Duties of Health & Safety Committees
SHE Representatives
What is a SHE Representative?
Person elected to :
▪ Represent staff in workplace/designated group in SHE
matters
▪ Liaise with staff and management on SHE matters
▪ Monitor SHE in the work place
SHE Representatives
Is it compulsory to have SHE Representatives?
Section 17:
▪ SHE Representative if 20 or more
In terms of the OHS
Act ( Section 17) it is employees employed / workplace
compulsory to have ▪ Number of SHE representatives
SHE Representatives * Shops & offices – 1:100 employees
depending specific * Other workplaces – 1:50 employees
conditions. The section
also specify conditions ▪ SHE Rep. to be nominated and elected
applicable to SHE ▪ Full-time employee acquainted with
Representatives conditions & activities at workplace
Section 18 : ▪ To be designated for specific period
▪ SHE activities to be performed in
Deals with functions
and rights of SHE ordinary work time
Representatives
Functions of SHE Representatives
(Section 18)
▪ Review effectiveness of Health and Safety measures.
▪ Identify potential hazards and potential major incidents.
▪ Examine causes of incidents.
▪ Investigate complaints by employees.
▪ Make representations to employer regarding the above.
▪ Make representations regarding general matters.
▪ Inspect the workplace (reasonable notice of intention).
▪ Participate in consultations with Inspectors.
▪ Receive information from Inspectors.
▪ Attend Health and Safety committee meetings.
Rights of SHE Representatives
(Section 18)
▪ Visit the site of an incident and attend any inspection in
loco
▪ Attend any investigation or formal inquiry held in terms of
the Act.
▪ Inspect any document which the employer is required to
keep in terms of this Act.
▪ Accompany an inspector on any inspection within his
section.
▪ With the approval of the employer, be accompanied by a
technical adviser on any inspection.
▪ Participate in any Health and Safety audit with regard to
his section
SHE Representatives
Activity 2
Complete activity 2 in your workbook
Health and Safety Committees
Is it compulsory to establish Health & Safety
Committees?
▪ Establish Health and Safety committee if
Section 19: more than one Representative.
Section 18 of the ▪ Health and Safety Representatives are
OHS Act deals with automatically members.
the obligations of
the employer i.t.o
▪ Employer nominees not more than number
Health and Safety of Representatives.
Committees ▪ Members to be appointed in writing for
Section 20: specific period.
▪Meetings to be held at least every three
Deals with Functions
of the Health and months.
Safety Committee ▪ Committee to establish procedure of
meeting.
▪ Advisory members may be co-opted, but
not entitled to vote.
Health and Safety Committees
Section 20 : Functions
▪ Make recommendations to employer or Inspector.
▪ Discuss incidents relating to injury, illness or death at
the workplace.
▪ Perform functions as may be prescribed.
▪ Keep records of each recommendation.
Employer to ensure committee performs duties.
Classification of Incidents
Environmental
Injuries
▪ Major Environmental
▪ Near Miss
Incident
▪ First Aid
▪ Reportable Environmental
▪ Medical Treatment /Non
Incident
disabling Injury
▪ Minor Environmental
▪ Lost Time Injury
Incident - An incident limited
▪ Fatality
to the immediate area of
▪Occupational Disease
occurrence
Classification of Incidents
INJURIES:
• Near Miss - an unplanned event that did not result in injury, illness, or
damage – but had the potential to do so
• First Aid - is an immediate and temporary care given to a victim of an accident
or sudden illness before the services of a physician is obtained.
• Medical Treatment Injury or Non-disabling Injury – is an injury which does
not result in death, permanent impairment or temporary total disability, but
which requires medical treatment at a medical centre (does not include first aid
treatment).
• Restricted Work – is an injury which does not result in death, permanent
impairment or temporary total disability, but which requires medical treatment.
The employee returns to work, not in his normal work capacity – no time is
taken off work.
Classification of Incidents
▪ Lost Time Injury – The term lost workday case is also used. The employee
is as a result of the injury or disease unable to carry on with all the normal
duties on the next day or shift. This is initiated/verified by a medical
practitioner.
▪ Fatality - is defined as and includes any death occurring as a result of an
incident, which arose out of and during an employee’s normal course of
duty and the execution of designated work-related responsibilities
▪ Occupational Disease – is a disease caused by environmental factors, the
exposure to which is peculiar to a particular process, trade or occupation,
and to which an employee is not ordinarily subjected or exposed outside of
or away from such employment.
Classification of Incidents
ENVIRONMENTAL INCIDENT:
▪ Major Environmental Incident - A reportable environmental incident
associated with widespread, long term or irreversible ecological or social
impacts with a high risk of legal liability.
▪ Reportable Environmental Incident - An incident leading to public
danger, pollution of or detriment to the environment, whether
immediate or delayed, and which should be reported to relevant
authorities and/or affected parties; or a transgression of a permit
requirement.
▪ Minor Environmental Incident - An incident limited to the immediate
area of occurrence
associated with short-term ecological disturbance or environmental
nuisance or a transgression of an internal standard. (Including number
complaints from interested and affected parties)
Liability, offences & penalties
▪ Types of liability
▪ Legal presumptions
- Reasonable man test
- Section 37 of OHS act
▪ Offences & penalties
Liability concerns, offences &
penalties
Three types of liability:
▪ Criminal
▪ Civil
Legal liability
Criminal Liability
• State versus accused
• Basis in non-compliance or crime
• Purpose of proving guilt
• Beyond reasonable doubt
Legal liability
Civil Liability
▪ Person to person (no state involvement)
▪ Company and employees
▪ Basis of loss / damages suffered
▪ Purpose of establishing liability
▪ Balance of probabilities
Legal Presumptions
Section 37.1:
If an employee commits a violation,
the employer is presumed to have
committed the violation, and he
will be liable for prosecution, unless Employer guilty if employee
he can prove the following: commits violation unless:
(a) the employee did not have
permission to do, nor was his ▪ Employee had no permission
employer aware of what he was ▪ Employer not aware
doing. ▪ Employee acted outside job
(b) the employee was acting description/scope of authority
outside of his job description or ▪ Employer took reasonable steps
scope of authority
(c) The employer took
reasonable steps to prevent the
contravention from taking place.
Legal Presumptions
Section 37.3:
Whenever any employee
or mandatory commits an Employee can be convicted &
act which would be an sentenced if he/she commits
offence if committed by offence
the employer, he shall be
liable to be convicted and
sentenced as if he were
the employer.
Section 37.5:
Any employee may be
convicted and sentenced
in addition to the
employer or user.
Offences/Penalties
Section 38.1:
• Substantive offences
• Procedural offences
R50 000, or 1 year imprisonment or both
Section 38.2
“an employer who causes injury to a person
such that the person could have died….”
R100 000, or 2 years imprisonment or both.
Annexures
1. Copy of section appointment
2. Toolbox talk manual
3. Toolbox talk manual
4. Toolbox talk example
5. TMS Incident investigation report