OSH Act 16.2 Explained

 

Most CEO’s and managers have at some time opened their Occupational Health and Safety Act and read Section 16 and then perhaps not given it another thought?

In order to prevent unfortunate incidents which may lead to criminal or civil liability, let’s unpack what the Act says to really understand.

The OHS Act states:

16. Chief Executive Officer charged with certain duties

16.1. Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act are properly discharged.

16.2. Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

16.3. The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or liability under this Act.

16.4. For the purpose of subsection (1), the head of department of any department of State shall be deemed to be the chief executive officer of that department.”

Safety issues in our workplaces are governed by South African legislation which must be complied with.  Regardless how, important the CEO is, even the CEO has to comply with this legislation.

So what if we have a board of directors, or if we have a body corporate? Who will be responsible for the health and safety in the workplace and might have to face the “long arm” of the law should an unfortunate incident occur?

Section 16.1 defines the CEO as the person who is responsible for the overall management and control of the business.

Therefore, if a company has a board of directors, the board must decide who will be the person with the most authority.  The OHS Act will consider this person to be the 16.1 or the CEO as defined in Act.

According to the Act:

• Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act are properly discharged.

• Without derogating from his responsibility or liability, a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer.

• The provisions of this section shall not, subject to the provisions of section 37, relieve an employer of any responsibility or liability under this Act.

Although there is only one CEO, the Act allows this person to appoint another person or persons as a 16.2. (It is impossible to imagine that the 16.1 will have the time to ensure that all the tasks in the workplace and being performed safely.)  Therefore, the 16.2 shall act subject to the control and directions of the chief executive officer.

The responsibility and liability remains with the CEO who must ensure, that the duties imposed by this Act on the employer, are properly discharged. The legislator clearly wants to ensure that these health and safety duties are properly delegated by the CEO.  The CEO can delegate responsibilities to the 16.2 but can not delegate accountability.

Section 16(3) makes provision for the CEO to be relieved of his or her responsibility and liability under certain circumstances as stipulated in section 37. Section 37 basically regulates who is liable in the case where an employee or mandatory (including contractors) does not comply with the requirements of the Act.

It is therefore, advisable to introduce a 37(2) contract if you have contractors on your site and that your employees fully understand the scope of their duties and that everything reasonably practicable has been done to ensure the health and safety of the workers. Section 37(2) will be dealt with in a later issue. In the mean time ……… stay safe!

Here is a question for all CEO’s:

Is your Health and Safety Policy current, documented and communicated to all workers in the workplace as well as available to those who may visit your workplace?  …If not call SKILLS and we will assist you.