Health and Safety Representative Training

Legal aspects and considerations Dr Graham Chin

Occupational Medicine Practitioner

National Institute for Occupational Health (NIOH)

National Health Laboratory Service (NHLS)

GrahamC@nioh.ac.za

9 March 2021

(With thanks Michelle Morgan, David Jones and Mmashele Kgole)

NIOH SHE and Training Departments

Outline • Why Health and Safety Representatives?

• What are the functions of a Health and Safety Representative?

• Basics on how to appoint a Health and Safety Representative?

• OSHA Act

• COVID-19

NIOH SHE and Training Departments

Why have Health and Safety

Representatives?

NIOH SHE and Training Departments

Occupational Health and Safety Act No. 85 of 1993

NIOH SHE and Training Departments

How does a HSR fit into the legal framework of the OHSA?

NIOH SHE and Training Departments

What are the functions of a Health and

Safety Representative?

NIOH SHE and Training Departments

Section18: Functions of the HSR

Review the effectiveness of health and safety measures

Identify potential hazards and major incidents

Examine the cause of incidents in collaboration with the employer

Investigate complaints by the employee relating to health and safety at work

Make representations to the employer or health and safety committee on general matters affecting the Health or Safety of employees at work

Inspect the workplace with a view to health and safety of employees (Quarterly Safety Inspections)

Participate in consultation with inspectors at the workplace and accompany inspectors on inspections

Attend meetings of the health and safety committee of which he / she is a member

NIOH SHE and Training Departments

What are the HSR entitled to do ?

Visit the site of an incident at all reasonable times

Attend any investigation or formal inquiry

If necessary to perform his functions, inspect any document which the

employer is required to keep in terms of the OHS Act

Accompany an inspector on an inspection

Participate in any internal health and safety audit

A HSR shall not incur any civil liability

Section18: Functions of HSR continued.....

NIOH SHE and Training Departments

Basics on how to appoint a Health and

Safety Representative?

NIOH SHE and Training Departments

Section 17: Health and Safety Representatives (HSR)

Who should have a HSR?

Employers who have more than 20 employees in his employment at any workplace

must appoint a HSR

How many HSR`s should there be?

Shops and offices must have at least 1 representative for every 100 workers

All other workplaces must have at least 1 representative for every 50 workers

However an inspector may order an employer to appoint more

Who is eligible to be a HSR?Full-time workersEmployees familiar with the workplace

NIOH SHE and Training Departments

Section 17: HSR Continued...

How must HSR be appointed?

Must be a process to nominate and elect

Consultations within the process are made in good faith

This appointment must be made in writing for a specified period

When must HSR duties be carried out?

All activities in connection with the designation, functions and training of HSRs

shall be performed during ordinary working hours

(includes all reasonable time spent executing HSR duties)

NIOH SHE and Training Departments

Within the Health and Safety Structure,

where do HSR communicate and

report? Health and Safety Committees

NIOH SHE and Training Departments

Section 19: Health and Safety Committee (HSC)

If there are 2 or more HSR`s, then a HSC needs to be established.

The person nominated by an employer on a committee shall be designated in

writing by the employer for a specific period.

The committee shall hold meetings at least once every 3 months

The committee may co-opt one or more persons as an advisory member, however

the advisory member is not entitled to vote.

An inspector may request an additional number of HSCs for a workplace.

NIOH SHE and Training Departments

Section 20: Functions of the HSC

A HSC may make recommendations to the employer regarding any

matter affecting the H&S of persons at the workplace.

If the recommendations are not taken seriously by the employer, the

HSC can escalate to an inspector.

A HSC must discuss any incident at the workplace where a person

was injured, became ill or died.

The HSC may report the incident in writing to an inspector.

The HSC must keep records of recommendations to employers and

inspectors.

A HSC or its members shall not incur any civil liability

NIOH SHE and Training Departments

NIOH SHE and Training Departments

Healthy and Safe working environment

CEO

OHS Department

HS Committee

HS Representative

Management

What should a HSR know?

Occupational Health and Safety Act

(Act No. 85 of 1993)

NIOH SHE and Training Departments

NIOH SHE and Training Departments

Occupational Health and Safety Act (Act 85 of 1993)

The Occupational Health and Safety Act aims to:

Provide for the health and safety of persons at work;

Provide for the health and safety of persons in connection with the use of plant and machinery;

Provide for the protection of 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

Application

The Occupational Health and Safety Act applies to all employers and workers but not to :

• mines, mining areas or any mining works (as defined in the Minerals Act);

• load line ships, fishing boats, sealing boats, whaling boats (as defined in the Merchant Shipping

Act)

• floating cranes; whether in or out of the water

• people in or on these areas or vessels.

NIOH SHE and Training Departments

What is the main purpose of the OHS Act?• Quod ii legue

As far as reasonably

practical

NIOH SHE and Training Departments

Reasonably practicable "Reasonably practicable" means practicable having regard to-

- the severity and scope of the hazard or risk concerned;

- the state of knowledge reasonably available concerning that hazard or risk

and of any means of removing or mitigating that hazard or risk;

- the availability and suitability of means to remove or mitigate that hazard or

risk; and

- the cost of removing or mitigating that hazard or risk in relation to the

benefits deriving there from;

NIOH SHE and Training Departments

Important Sections of the OHS Act

The OSH Act gives employers and employees the general guidelines which are

needed in the workplace to protect the employees from occupational hazards and

risks associated with the hazards which may cause them physical or physiological

harm.

Sections of the OHS Act that HSR should be aware of:

7: H&S policy

8: General duties of employers to their employees

9: General duties of employers to persons other than their employees

14: General duties of employees at work

16: Chief executive officer charged with certain duties

17: Health and Safety Representatives (HSR)

18: Functions of HSR

19: Health and Safety Committees (HSC)

20: Functions of HSC

24: Report to inspector regarding certain incidents

25: Report to the chief inspector regarding occupational disease

NIOH SHE and Training Departments

Section 7: Health and Safety Policy

The chief inspector may direct any employer to have a written policy

concerning the protection of H&S of his employees at work, description

of the organization and arrangements to review the policy.

An employer should prominently display the policy which must be

signed by the CEO of the company

Advised to print this and prominently display at all workplaces

NIOH SHE and Training Departments

Section 8: General duties of employers to their employeesEvery employer shall provide and maintain, as far as reasonably practicable, a working

environment that is safe and without risk to the health of his employees:

The duties include:

Provide systems of work, plant and machinery that are safe;

Eliminate or control any hazard or potential hazard before resorting to personal

protective equipment (PPE);

Establish what hazards are present at the workplace

Take precautionary measures to protect workers from the identified hazards

Provide information, instruction, training and supervision

As far as is reasonably practicable not permit any employee to do any work unless

precautionary measures have been taken;

Take measures to ensure that the requirements of the Act are complied with;

Ensure that work is done under general supervision;

All employees to be informed regarding the scope of their authority

NIOH SHE and Training Departments

Section 9: General duties of employers to persons other than their employees

Every employer shall ensure as far as reasonably

practicable, that persons other than those in his

employment, who may be directly affected by his

activities, are not be exposed to hazards to their

health and safety.

NIOH SHE and Training Departments

Section 14: General duties of employees at workEvery employee shall at work:

take reasonable care for the health and safety of himself and of other persons

co-operate and comply with OHS instructions form the employer

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;

Report unsafe or unhealthy situations when they become aware of it or as soon as

practicable possible to his employer or to the health and safety representative

Report an OHS incident which may affect health or which has caused an injury to

himself, to the employer, or to his health and safety representative, as soon as

practicable

NIOH SHE and Training Departments

Section 16: Chief executive officer charged with certain duties

Every CEO shall ensure as far as is reasonably practicable, that the

duties of his employer are properly discharged

Without derogating from his responsibility the CEO may assign any

duty to any person under his control

NIOH SHE and Training Departments

Section 24: Report to inspector regarding certain incidents

Each of the following must be reported by the employer to the inspector:

1. Incidents occurring at work whereby:

any person dies,

becomes unconscious,

suffers a loss of a limb or part of a limb

injured or becomes ill to such a degree that he/she is either going to die

to suffer a permanent physical defect

likely to be unable for a period of at least 14 days to work.

2. Any major incident occurs

3. If the health or safety of any person was endangered where:

a dangerous substance was spilled

uncontrolled release of substance under pressure took place

failed machinery resulted in flying, falling or uncontrolled movement of objects.

Machinery ran out of control

NIOH SHE and Training Departments

Section 25: Report to the chief inspector regarding occupational disease

Any medical practitioner who examines or treats a person for a disease described

in the Second Schedule of the Workmen’s Compensation Act,

or any other disease which could arise out of that persons employment

shall within the prescribed period report the case to the person’s employer

and to the Chief inspector

NIOH SHE and Training Departments

COVID-19

NIOH SHE and Training Departments

Try and stay informed

• Almost 1 year into COVID-19

• New information (COVID-19 Vaccine, new variant (501Y.V2), etc.)

• Somethings stay the same (Precautions –masking, social distancing, etc.)

From NICD Website: https://www.nicd.ac.za/diseases-a-z-index/covid-19/surveillance-reports/national-covid-19-daily-report/

• Risk assessment and plans for

protective measures

• Administrative measures

• Social distancing measures

• Symptom screening

• Sanitizers, disinfectants and washing of

hands

• Cloth masks

• Measures in respect of workplaces to

which public has access

• Ventilation

• Specific personal protective equipment

• Small businesses

• Worker obligations

• No deduction from employees

remuneration

• Monitoring and enforcing

• Sectoral protocols and guidelines

• Amendment of footnotes Annexure A

• Withdrawal of guidelines

• Commencement of Directions

NIOH SHE and Training Departments

NIOH SHE and Training Departments

• HSR play a critical role in ensuring workplaces are kept healthy and safe

NIOH SHE and Training Departments