Statistics from the Federated Employer’s Mutual Assurance Company reports that the construction industry suffers 400 accidents a year, of which the total of fatalities amounts to about 150, excluding motor vehicle
accidents. Although there has been a slight decline in the number of accidents over the last three years, statistics nevertheless, suggest that fatalities in the construction industry have well overtaken that of the mining industry.
The Department of Labour spends approximately R2.5 billion each year on compensation claims related to health and safety in the construction sector alone.
According to the Department of Labour’s Senior Inspector and Forensic Investigator, Mr. Lennie Samuel: “A lack of supervision and commitment by management and poor workmanship are some of the biggest causes of incidents that lead to injuries and fatalities in the South African construction industry” he continued to state that, “when employers start to comply with health and safety legislations, you will save workers’ lives.” Samuals believes the root of the problem is not H&S legislation but the behavior and attitudes of Employers toward the legislation.
During a “Blitz” inspection conducted in Aug 2007, 1 415 construction sites were visited fifty-three percent
of the construction employers were non- compliant with the OHSA and Construction
Regulations. The inspectors issued 1 388 notices, that included, 86 improvement notices, 1 015 contravention notices, and 287 prohibition notices.
The cost of accident includes both direct (cost of treatment, compensation) and indirect costs (lost time, clean-up, over-time, administrative, investigation, lost wages, etc.). Research conducted suggests that in SA, indirect costs can be 14 times that of direct costs.
Following the above it is evident that the Construction Industry requires regulation. But how do Contractor Companies and the Employers of the sites where they conduct work protect themselves from attracting unnecessary liability, ensure legal compliance, and avoid penalty?
Construction Regulations, 2014:
The Construction Regulations, 2014 was published on 7 February 2014 and repealed the previous regulations, Construction Regulations, 2003. The Construction Regulations, 2014 (CR) commenced on 7 August 2015, 18 months after promulgation, safe for regulations 3 and 5(7) thereof.
Although, the CR provide a good guide for Contractors Management, it does not apply to all Contractors.
Therefore, it is important to first establish the scope of the CR to determine to whom it applies.
Regulation 2 of the CR states that the regulations will apply to all persons involved in construction work.
“Construction work” has been defined by the CR. Moreover, on 2 June 2017, the Minister of Labour published a guideline to the CR.
In terms of these Guidelines, construction work in these regulations are limited to building work and civil engineering works and should be read with the definition of “structure”.
The below questionnaire has been designed to assist in determining if the proposed work to be performed is regarded as construction work:
Question Y N
Will the company be doing any construction, erection, alteration, renovation, repair, demolition
or dismantling of a building?
Will the company be doing any work to any fixed that includes installation, commissioning, decommissioning or dismantling or any construction work that involves a risk of a person
Will the company be doing any falsework,
scaffold or other structure designed or used to provide support or means of access during work?
Will the company be doing any construction, erection, maintenance, demolition or dismantling of any bridge, dam, canal, road, railway, runway,
sewer or water reticulation system?
Will the company be doing any work that include the moving of earth, clearing of land, the making of excavation, piling, or any similar civil
engineering structure or type of work?
Will the company be doing any building, steel or reinforced concrete structure (not being a building), railway line or siding, bridge, waterworks, reservoir, pipe or pipeline, cable, sewer, sewage works, fixed vessels, road, drainage works, earthworks, dam, wall, mast, tower, tower crane, bulk mixing plant, pylon, surface and underground tanks, earth retaining
Will the company be altering any natural feature
or any other similar structure?
If any of the above questions is answered YES, applicability is established. All participants to the project must conform to the provisions of the CR.
Client v Contractor Obligations:
When a Principal Contractor appoints a Sub Contractor he assumes the responsibilities of the Client in respect of those Contractors appointed by him.
Occupational Health and Safety Act
In the event that Contractors (i.e. a company contracted to do work but does not fall within the ambit of the definition “construction work”), conducts work on an Employer’s site, the provisions of OHSA and other relevant regulations will apply.
In terms of Section 37(2) of the OHSA, an Employer will assume liability of any action taken by any person conducting work on his site, regardless of whether he/she is a “contractor employee” or not, unless, the parties have specifically agreed in writing to the arrangements and procedures between them to ensure compliance by the Contractor with the provisions of the OHSA and its regulations. This agreement is usually referred to as a Section 37(2) agreement.
It is assumed that the provisions of a Section 37(2) agreement will exempt Employers of any liability, if a contractor employee is involved in an incident on site, however, Employers must ensure that the agreement is worded in such a way that the specific scope of work and authority to conduct specific work, as well as the arrangements regarding equipment, procedures and/or other precautionary measures to be taken whilst performing the work are clear.
Accordingly, a duty of care still exists on the Employer to ensure that the Contractor Company brought on site is able to comply to the provisions of the OHSA and its regulations. As such, it is advised that Contractor Companies are categories according to the type of work that they will be conducting and that minimum requirements are set out for each of these categories in accordance with the risk associated with the work to be conducted.
As a minimum, however, the Employer should retain the following documentation:
- A certificate of Good Standing issued by the Compensation Commissioner;
- A signed copy of the Section 37(2) agreement;
- A register of all Contractor Employees including proof of induction for such employees.