by Hannes Baard
IN October, we looked at the responsibilities of employees with respect to personal safety equipment as well as all the equipment made available for general and/or specific use by the employer. We also touched on the responsibilities of the CEO of an organisation with respect to the appointment of safety officers or representatives.
This month, we'll explore the duties of the appointed representatives.
The Occupational Health and Safety Act (Act 85 1993) states in Section 17:
17. Health and safety representatives.
(1) Subject to the provisions of subsection (2), every employer who has more than 20 employees in his employment at any workplace, shall, within four months after the commencement of this Act or after commencing business, or from such time as the number of employees exceeds 20, as the case may be, designate in writing for a specified period health and safety representatives for such workplace, or for different sections thereof.
For all intents and purposes the "commencement of this Act" is long gone and forgotten, thus there are two instances when a safety representative must be appointed. The first instance is when a business starts out with more than 20 employees; then the representative referred to must be appointed within four months of the business starting up.
In the second instance, the start-up business sets up shop with five or six employees. The business then becomes successful and, over time, employs more people. Therefore, within four months after the business employs its twentieth employee, a safety representative must be appointed in terms of the above Section 17 (1).
(2) An employer and the representatives of his employees recognised by him or, where there are no such representatives, the employees shall consult in good faith regarding the arrangements and procedures for the nomination or election, period of office and subsequent designation of health and safety representatives in terms of subsection (1): Provided that if such consultation fails, the matter shall be referred for arbitration to a person mutually agreed upon, whose decision shall be final: Provided further that if the parties do not agree within 14 days on an arbitrator, the employer shall give notice to this effect in writing to the President of the Industrial Court, who shall in consultation with the chief inspector designate an arbitrator, whose decision shall be final.
As can be seen from the above, the appointment of safety representatives is a consultative process. Whether or not there are elected or recognised representatives, the consultations in terms of the appointment of health and safety representatives will still be conducted in consultation. In extreme cases or disputes, the appointment of the health and safety representatives can be facilitated by ether an arbitrator or ultimately by the Labour Court.
I personally am not aware of any Labour Court actions that have led to the appointment of safety representatives and I cannot believe that people would be so narrow-minded as to pick a fight over such representatives.
(3) Arbitration in terms of subsection (2) shall not be subject to the provisions of the Arbitration Act, 1965 (Act 42 of 1965), and a failure of the consultation contemplated in that subsection shall not be deemed to be a dispute in terms of the Labour Relation s Act, 1956 (Act 28 of 1956): Provided that the Minister may prescribe the manner of arbitration and the remuneration of the arbitrator designated by the President of the Industrial Court.
Our ‘sparkies' better keep clear of this legal speak... right? We might just provide the spark that ignites the powder keg... Better let's leave this to those better qualified. Just reading it makes my head spin.
(4) Only those employees employed in a full -time capacity at a specific workplace and who are acquainted with conditions and activities at that workplace or section thereof, as the case may be, shall be eligible for designation as health and safety representatives for that workplace or section.
This section is also worth noting - especially the fact that only permanent employees can be appointed as health and safety representatives. This could be an issue when additional personnel are employed for a specific contract.
(5) The number of health and safety representatives for a workplace or section thereof shall in the case of shops and offices be at least one health and safety representative for every 100 employees or part thereof, and in the case of all other workplaces at least one health and safety representative for every 50 employees or part thereof: Provided that those employees performing work at a workplace other than that where they ordinarily report for duty, shall be deemed to be working at the workplace where they so report for duty.
This subsection basically refers to a fulltime health and safety representative. This does not exclude a healthy safety representative looking after the relevant aspects on a small job, for example. It is logical that a small specialised team of automation specialists consisting of say five people working on a project lasting perhaps a week might not need a fulltime safety representative hanging around doing nothing. However, someone who is conversant with the safety procedures of the site and who can take responsibility for same is still needed.
(6) If an inspector is of the opinion that the number of health and safety representatives for any workplace or section thereof, including a workplace or section with 20 or fewer employees, is inadequate, he may by notice in writing direct the employer to designate such number of employees as the inspector may determine as health and safety representatives for that workplace or section thereof in accordance with the arrangements and procedures referred to in subsection (2).
With reference to subsection (5), the situation described in subsection (6) can present itself, for example, when work has to be carried out in extremely hazardous circumstances or when work has to be done on live apparatus.
(7) All activities in connection with the designation, functions and training of health and safety representatives shall be performed during ordinary working hours, and any time reasonably spent by any employee in this regard shall for all purposes be deemed to be time spent by him in the carrying out of his duties as an employee.
The fact that any designated person or representative spends part of his working day as a safety representative in addition to his normal daily duties cannot be ignored and should be treated as part of his daily tasks and the time spent on health and safety issues cannot be deducted from his remuneration.
Stay healthy and safe till next time.
