The Minister of Employment & Labour has published for comment the Occupational Health and Safety Amendment Bill (gazette 44572) which sets out proposed changes to the existing Occupational Health and Safety Act (gazette 14918 as amended).
The proposed amendments are open for comment until 31 July 2021, allowing us some time to provide feedback to the Department. For your convenience, please refer to the below sections for a detailed explanation:
Commentary of the Occupational Health and Safety Bill – 24th May 2021
As you know, the current Act is incredibly onerous on business as it stands at present. However, with the considerable number of proposed amendments contained in the Bill it is going to be even tougher – more especially for smaller businesses.
In most cases it is all but impossible to differentiate between small and large business as all employees (and consumers) are protected irrespective of the sector or nature of the business. Most provisions will apply in the same manner to a business with one employee as a business with 800 employees.
In the departments wisdom they have published the proposed Amendment Bill separately rather than combining them with the existing Act. In order to make any sense of many of the amendments one needs to go backwards and forwards between the act and amendments (please see attached both the existing Act dated 1993 and the proposed Amendment Bill 2021).
Examples of some of the key additional responsibilities for employers provided in the Bill:
The definition of ‘risk’ has been broadened – “means the probability that personal injury, illness or the death of the employee or any other person or damage to property will occur”.
The definition of “risk assessment” has been added – “means the process of evaluating the risk to an employee’s health and safety from workplace hazards and is a systematic assessment of all aspects of work that considers a complete hazard identification; identification of all who may be affected by the hazard; how the person is affected; the analysis and evaluation of the risk and prioritisation of risks.
The definition of ‘risk management’ has been added – “means the identification and mitigation of risks by the application of appropriate control measures”.
The definition of ‘safety management system’ has been added – “means a coordinated comprehensive set of interrelated or interacting elements to establish occupational health and safety policy and objectives in order to optimally manage health and safety”:
- The amended and new definitions listed above will add considerably to the existing responsibilities placed on employers.
- The CEO or management or a qualified appointed individual will be required to conduct a workplace specific risk assessment and develop and implement a risk management plan in writing and, if directed, be required to develop, implement and continuously review the health and safety management system.
- In addition, risks posed by identified hazards to persons other than employees (for example consumers) must be managed according to the risk management plan. They will also have to cover “listed work” which is defined as any work which poses a risk to health a safety which required specific precautionary measures to be implemented (Covid). In addition, the employer will need to communicate the relevant components of the risk management plan to every employee.
- A workplace with one or more health and safety representatives will be required to establish one or more health and safety committee(s). This will add very considerably to management’s responsibilities when dealing with the committee in the manner required in the Act.
- The employer will need to provide the department with a copy of incident statistics annually, on the 1st day of March each year.
- A new section headed “Victimisation Forbidden” protects the employee against any form of victimisation as set out in the section.
- A new section headed “Criminal Liability” states that should an employer, CEO, manager, agent or employee commit an offence by contravening or failing to comply with a provision of the act and cause the death of a person, permanent disablement or illness” they may be held criminally liable.
The Act and Amendment Bill are not sector specific nor do they relate to the size of a business (other than H&S committees).
The legislation sets out to protect the health and safety of all employees working in all types of industries and sectors.
We would really appreciate it if you could forward relevant and practical comment to FEDHASA so we can forward an official comment from our Industry Sector – to the Dept of Employment and Labour.
We are planning on running a workshop for members using a qualified service provider which would cover the Amendment Bill and the initial implications and then a second workshop on the final act later in the year. This Act will probably be promulgated in the fourth quarter or early 2022.
The Occupational Health and Safety Amendment Bill sections for reference
Pages 3 to 9 deal with a considerable number of both new and amended definitions:
Pages 9 to 14 deal with the Occupational Health and Safety Council and committees
Pages 14 to 20 deal with general and listed work responsibilities and duties of an employer
Pages 20 to 21 deal with general duties of employees at work
Pages 21 to 22 deal with responsibilities and duties of the chief executive
Pages 22 to 24 deal with health and safety representatives
Pages 24 to 28 deal with functions of a health and safety representative
Pages 28 to 31 deal with health and safety committees
Pages 31 to 33 deal with the sale of prohibited articles
Page 33 deals with prohibited deductions
Pages 33 to 35 deal with reports regarding certain health and safety incidents
Pages 35 to 36 deal with reports regarding occupational diseases
Pages 36 to 37 deal with victimisation
Pages 37 to 38 deal with the responsibilities of the chief inspector
Pages 38 to 52 deal with health and safety inspectors, enquiries, appeals and review
Pages 52 to 53 deal with disclosure of in formation
Pages 53 to 62 deal with offences, penalties, fines, criminal liability, hindering justice, false information, failure to attend meetings, failure to comply with the act and legal proceedings
Pages 62 to 68 deal with ministerial prerogative, regulations and agreements
Pages 68 to 70 deal with approved inspection authorities
Pages 70 to 72 deal with notices and jurisdiction of courts
Pages 73 to 74 deal with amended fines/sentences