Working is often dangerous. Some types of work, naturally, are more dangerous than others – there is no comparison between the risks involved in working in a relatively safe office environment and being exposed to high risks in a nuclear power station or a factory in which explosives are manufactured. But no matter what type of work is being done, sooner or later, something goes wrong, and the workplace – a place where a person spends the largest part of his or her entire life – suddenly becomes a threat to health or endangers the safety of employees.

But the law, ever trying to protect those deserving protection, stepped in, and in many countries (ours included), systems of rules and regulations have been developed that deal directly with the safety and wellbeing of persons at the workplace.

There are various sources of law in South Africa with regards to the health and safety of employees that this module will deal with. First, there is Section 24 of the Constitution as well as Common Law, in terms of which an employer is duty bound to provide safe working conditions. Second, health and safety is extensively regulated in terms of legislation, and it is the concept and content of ‘legislation’ that will, in the course of this manual, become so extremely important.

Understanding Legislation Governing Occupational Health and Safety

In terms of common law, a duty rests on the employer to provide his or her employees with safe working conditions. But what is common law? The concept of common law is relatively complex, but simply put common law can be described as a system of legal rules developed by the courts. This Common law has thus developed over time in the courts and is not passed by Parliament (Parliament passes legislation) or any other body.

The employer’s common law duty is to provide safe working conditions.

The common law requires an employer to take reasonable care for the health and safety of his or her

employees. The principle motivating the duty is quite clear – the employer is engaged in a profit-making enterprise, and because he or she controls the systems of production (the machines, the tools and the production process), the legal convictions of the community demand that the employer also take care of the people who do the work.

The common law duty on the employer to take care of his or her employees is often divided into three categories:

- The employer must provide safe premises: This means that generally, the place where the work is done must be safe. It includes entrances and exits to and from the place of work.

- The employer must provide safe machinery and tools: The employer must have his/her employees use only safe machinery. Machines and tools need to be maintained properly.

- The employer must provide a safe way of doing the work: The methods and procedures used in the production process must be of such a nature that the employees are not unnecessarily exposed to unreasonably high risks. It includes supervision by competent persons. The employer should also ensure that the employees receive safety training in what they are doing, so that an employee does not, due to a lack of safety training, expose him- or herself (or others) to risks unnecessarily.

An employer’s conduct is measured against the standard of a ‘reasonable person’. To determine whether or not an employer took ‘reasonable care’ of his or her employees, the court asks a number of questions: ‘Would a reasonably prudent person in the position of that employer foresee the possibility that a person may be injured? Would the ‘reasonable person’ take steps to guard against the accident-giving rise to the injury? Did the employer in question fail to take the steps a ‘reasonable person’ in the position of that employer would take?”

Introduction to the Occupational Health and Safety Act (No. 85 of 1993)

Act’ or ‘OHS Act’) is to establish rules and structures for healthy and safe places of work. But the Act goes much further than this.

- The primary aim of the Act is complemented by other aims, such as the importance of safety of the public at large. It is important to remember that what employees and employers do at work may have an effect on members of the public, and the Act lays down some rules in this regard.

- Another basic principle of the Act is the realisation that all efforts to promote health and safety at work will be doomed from the outset if the machinery used in the workplace is defective to begin with. Because the focus of this lies in the rules relating to health and safety at the workplace, you will need to first turn your attention to the scope and application of the Act as it relates to the employment situation.

Section 8 of the OHS Act

Section 8(1) of the OHS Act imposes a general duty on employers to provide for and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health and safety of employees. Section 8(1) of the Act is, in effect, an affirmation of the duty imposed by the common law.

Section 8 then continues to provide a number of specific duties that must be understood to refine this

duty. It has to be noted that the first seven of these duties are subject to the requirements of reasonable practicability, while the last four are not – they create their own standards, which must be complied with.

General duties subject to reasonable practicability:

- The provision and maintenance of systems of work, plant and machinery that are safe and without risks to health;

- Taking steps to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;

- Making arrangements for ensuring the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances;

- Establishing –

o What hazards to the health or safety of persons are attached 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 in his/her business,

o What precautionary measures should be taken with respect to the above-mentioned work, article, substance, plant or machinery in order to protect the health and safety of persons, and

- Providing the necessary means to apply such precautionary measures;

- Providing information, instructions, training and supervision as may be necessary to ensure the health and safety of his/her employees at work;

- Not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery unless the precautionary measures mentioned above, or any other prescribed precautionary measures have been taken.

Our Conclusion

As you can see, from a legal standpoint, it is quite essential that you comply with the law in terms of health and safety. But let’s not forget the basic intent of the law, and that is ensure the safety of yourself, fellow workers and the public. 

But before you encourage or allow the first thought of, “this is a waste of time and money”, remember that next time you’re out and about with your family, remember the responsibility that is required of us to ensure the safety of all from our business operations, remember the law’s intent, to protect you, your family and others. So next time you have to provide safety training to an employee, or implement a new safe operating picture, know that the other companies where your family will be, are doing the same.

 

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