Companies have a duty to comply with all company related legislation. This legislation includes various Acts of Parliament, including, but not limited to:
- Basic Conditions of Employment
- Labour Relations
- Occupational Health and Safety
- Compensation for Occupational Injuries and Diseases
- National Environmental
- Atmospheric Pollution Prevention
- National Building Standards Act
As with any legislation that is enforceable, the OHS Act carries heavy penalties for non-compliance. In general, a fine of R 50 000.00 or one year imprisonment, or both a fine and imprisonment can be given and where there is, or could have been, a charge of culpable homicide, then a fine of R 100 000.00 or two years imprisonment, or both can be given.
OHS Act Sect 8. General duties of employers to their employees:
(1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees
(2) Without derogating from the generality of an employer’s duty under subsection (1), the matters to which those duties refers include in particular:
(a) the provisions and maintenance of systems of work, plant and machinery that as far as is reasonably practicable, safe and without risks to health
(b) taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment
(c) making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances
(d) establishing, as far as is reasonably practicable, 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 business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance plant or machinery in order to protect the health and safety of persons and he shall provide the necessary means to apply such precautionary measures
(e) providing such information, instructions, training and supervision as may be necessary to ensure as far as is reasonably practicable, the health and safety at work of his employees
(f) as far as is reasonably practicable, 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 contemplated in paragraphs (b) and (d) or any other precautionary measures which may be prescribed, have been taken
(g) taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used
(h) enforcing such measures as may be necessary in the interest of health and safety
(i) ensuring that work is performed and that plant or machinery is used under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented and
(j) causing all employees to be informed regarding the scope of their authority as contemplated in section 37 (1)(b).
To identify all hazards in the workplace, assess the risks associated with the hazards, determine what precautionary measures are needed to protect the health and safety of employees and others, implement those precautionary measures and train employees to work safely, following the health and safety systems, procedures and rules.
OHS Act Sect 14. General duties of employees at work
Every employee at work should:
- 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 authorised 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 authorised 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.
Yes. An employer is defined by the Compensation for Occupational Injuries and Diseases Act as “any person, including the State, who employs an employee”. A closer look at the definition of an employee in terms of the Act includes casual employees (i.e. a person employed for less than 24 hours in a month). The contractor must also be registered with the Department of Labour in terms of the UIF, with SARS and where necessary, the Metal and Engineering Industries Bargaining Council.
OHS Act Sect 24. Report to inspector regarding certain incidents
(1) Each incident occurring at work or arising out of or in connection with the activities of persons at work or in connection with the use of plant or machinery in which, or in consequence of which :
(a) any person dies, becomes unconscious, suffers the loss of a limb or part of a limb or is otherwise injured or becomes ill to such a degree that he is likely either to die or to suffer a permanent physical defect or likely to be unable for a period of at least 14 days either to work or to continue with the activity for which he was employed or is usually employed
(b) a major incident occurred or
(c) the health or safety of any person was endangered and where
(i) a dangerous substance was spilled
(ii) the uncontrolled release of any substance under pressure took place
(iii) machinery or any part thereof fractured or failed resulting in flying, falling or uncontrolled moving objects or
(iv) machinery ran out of control, shall, within the prescribed period and in the prescribed manner, be reported to an inspector by the employer or the user of the plant or machinery concerned, as the case may be
(2) In the event of an incident in which a person died, or was injured to such an extent that he is likely to die, or suffered the loss of a limb or part of a limb, no person shall without the consent of an inspector disturb the site at which the incident occurred or remove any article or substance involved in the incident therefrom: Provided that such action may be taken as is necessary to prevent a further incident, to remove the injured or dead, or to rescue persons from danger
(3) The provisions of subsections (1) and (2) shall not apply in respect of –
(a) a traffic accident on a public road
(b) an incident occurring in a private household, provided the householder forthwith reports the incident to the South African Police or
(c) any accident which is to be investigated under section 12 of the Aviation Act , 1962 (Act No. 74 of 1962)
(4) A member of the South African Police to whom an incident was reported in terms of subsection (3)(b), shall forthwith notify an inspector thereof.
OHS Act General Administrative Regulations Sect 8. Reporting of incidents and occupational diseases
(1) An employer or user, as the case may be, shall:
(a) within seven days of any incident referred to in section 24(1)(a) of the Act, give notice thereof to the provincial director in the form of WCL1 or WCL 2; and
(b) where a person, in consequence of such an incident, dies, becomes unconscious, suffers the loss of a limb or part of a limb, or is otherwise injured or becomes ill to such a degree that he or she is likely either to die or to suffer a permanent physical defect, such incident, including any other incident contemplated in section 24(1)(b) and (c) of the Act, shall forthwith also be reported to the provincial director by telephone, facsimile or similar means of communication
(2) If an injured person dies after notice of the incident in which he or she was injured was given in terms of subregulation (1), the employer or user, as the case may be, shall forthwith notify the provincial director of his or her death
(3) Whenever an incident arising out of or in connection with the activities of persons at work occur to persons other than employees, the user, employer or self-employed person, as the case may be, shall forthwith notify the provincial director by facsimile or similar means of communication as to the :
(a) name of the injured person
(b) address of the injured person
(c) name of the user, employer or self-employed person
(d) address of the user, employer or self-employed person
(e) telephone number of the user, employer or self-employed person
(f) name of contact person
(g) details of incident:
(i) What happened
(ii) where it happened (place)
(iii) when it happened (date and time)
(iv) how it happened
(v) why it happened and
(h) names of witnesses
(4) Any registered medical practitioner shall, within 14 days of the examination or treatment of a person for a disease contemplated in section 25 of the Act, give notice thereof to the chief inspector and the employer in the form of WCL 22
(5) Any other person not contemplated in this regulation may in writing give notice of any disease contemplated in section 25 of the Act, to the employer and chief inspector
A delay to report an accident or an alleged accident is a criminal offence and the Commissioner may impose a penalty on the employer which could be equivalent to the full amount of the claim.
The employer is liable to pay the employee 75% of his/her earnings for the first three months from the date of the injury. The employer will then be reimbursed by the Compensation Fund. Many employers still pay their employees 100% of their earnings for this period. However, keep in mind that the Fund will only reimburse 75% of monies paid to the employee.
A certified copy of the employee’s identity document must accompany the registration of a claim with the Fund. If a copy of the ID is not submitted, the claim will not be registered and will be returned to the employer. All other documentation submitted to the Fund must also reflect the employee’s ID number.
Employers will need to report the incident on a W.CL.2 form. “Part A” of the form (pages 1 and 2) must be completed as comprehensively as possible, including the date of the incident and a signature and then forwarded to the Compensation Commissioner without delay. “Part B” must be detached from the form and given to the injured employee to take to the doctor or hospital concerned.
The Fund will consider the claim when it receives the W.CL.2 form and a First Medical Report (W.CL.4). If liability is accepted, a postcard (W.CL.56) will be forwarded to the employer by mail reflecting the claim number. The employer will not be able to follow up on the progress of the claim until a claim number has been allocated.
To expedite the finalisation of a claim, employers have the option to report injuries to the Compensation Fund telephonically. However, an employer must register to enable the company to report incidents telephonically. Documentation known as the TR2 Form and TR2 Card must be completed.
The advantage of reporting telephonically is that a claim number is allocated when you report the incident, long before any documentation has been mailed.
Yes. The reasonable expenses incurred for conveying an employee injured in an accident to a hospital or to his residence will be refunded by the Compensation Fund. The employer can agree to pay the travelling costs to the employee and then claim it back from the Fund
(1) An employer or user shall keep at a workplace or section of a workplace, as the case may be, a record in the form of Annexure 1 for a period of at least three years, which record shall be open for inspection by an inspector, of all incidents which he or she is required to report in terms of section 24 of the Act and also of any other incident which resulted in the person concerned having had to receive medical treatment other than first aid
(2) An employer or user shall cause every incident which must be recorded in terms of subregulation
(1), to be investigated by the employer, a person appointed by him or her, by a health and safety representative or a member of a health and safety committee within 7 days from the date of the incident and finalised as soon as is reasonably practicable, or within the contracted period in the case of contracted workers
(3) The employer or user shall cause the findings of the investigation contemplated in subregulation
(1) to be entered in Annexure 1 immediately after completion of such investigation
(4) An employer shall cause every record contemplated in subregulation
(1) to be examined by the health and safety committee for that workplace or section of the workplace at its next meeting and shall ensure that necessary actions, as may be reasonable practicable, are implemented and followed up to prevent the recurrence of such incident.