Modern Quarrying Jan-Feb 2018

CURRENT ISSUES SAFETY

Are your contractors H&S compliant?

B usiness has responsibility not only towards employees – CEOs can be held culpable for injury or death to contractors too. The fact that the Occupational Health and Safety (OHS) Act can impose fines of up to R100 000 and prison sentences for up to a year for contravention of its provi- sions is fairly well known – what is less well known is that just as a business is respon- sible for employees, it is also responsible for the health and safety of contractors. And the CEO, in terms of Section 16 (1) of the Act, is seen to hold ultimate respon- sibility should something go wrong. “We have very clear legislation in SA regarding this,” says Neels Nortjé, CEO of the South African Institute of Occupational Safety and Health (SAIOSH). “In terms of Section 16 of the OHS Act the employer is ultimately responsible and accountable.” “The exposure is huge,” says Advocate Raynard Looch, once head of the Occupational Safety Court and co-founder of Klass Looch Associates, which has rep- resented employers in criminal matters pertaining to occupational health and safety for three decades. “Section 37 of the Act states that the onus of proof shifts to the accused, which is legal speak for saying that should a contractor be harmed or killed you, as employer would have to prove that you took all possible preventative measures to make sure contractors knew of hazards in your work space. It’s onerous,” Looch says. “Imagine you’d lent a car to someone and they’d got a speeding fine – you’d still be responsible for the fine unless you could prove otherwise. The onus would be entirely on you to do so.” Aside from fines and a risk of prison, an incident could cost a business signifi- cantly in compensation – medical costs, rehabilitation and 75% of wages – if the contractor isn’t registered with the com- pensation commissioner and the business is held liable. There is also the risk of death and a culpable homicide charge, which leaves a criminal record. It’s food for thought in a country where there are 2 643 work-related deaths a year and 2,01-million non-fatal work accidents a year.

“The trouble is that not all employ- ers are aware of the liability risks when it comes to contractors,” says Gavin Wilson, MD of the Safety Pass Alliance SA (SPA), a UK-affiliated business specialising in industry health and safety induction training for contractors. After having successfully completed a two-day, indus- try-specific health and safety training programme, the contractor is issued a SPA Passport. The SPA Passport is proof of induction and serves as site access control too. “It’s not only a legal duty for employ- ers to make their own employees aware of health and safety risks in the work- place through induction, but they have the same legal duties towards non-em- ployees such as contractors entering their workplace. Health and safety has two aspects: you want to prevent injury in your workplace and ensure you have covered your legal liabilities,” he says. With employees, health and safety risks are covered during orientation and induction. This is not always so with con- tractors, and yet when a contractor enters a client’s premises they will be exposed to the same hazards and risks specific to that workplace and the client has a legal duty to inform them of these risks. “The importance of industry-specific contractor health and safety induction, typically funded by the contractor busi- ness, is twofold,”saysWilson.“The contrac- tor is made aware of potential hazards, lowering the risk of an incident, and the employer has proof of induction. If you haven’t trained employees in the basic principles of health and safety, hazards in the environment and precautions around these, the company risks paying the price in accidents, injuries and consequences.” SPA (SA) began rolling out SPA Passports in the petrochemical industry in South Africa three years ago, bringing giants such as BP, Total, Sasol and Engen on board and is looking to extend into large retail spaces such as shopping malls, the food and beverages industry and con- struction, areas. SPA (UK) has been operat- ing in these fields and others since 1999. Contractor health and safety is an area that flies below the radar with little

Gavin Wilson, MD of the Safety Pass Alliance SA (SPA).

attention in the media, and therefore little awareness. “Cases are heard in the lower courts so there are no law reports or press coverage and yet these cases are a reality and come up routinely,” says Looch. The thinking behind the Act is that employers are impelled to take on con- tractors who take health and safety seri- ously. If they don’t, they can be charged along with contractors when things go wrong. So, what do experts recommend? “Adhere to your duties as prescribed by the OHS Act,” says Nortje. “For exam- ple, under Construction Regulation 7(5), no contractor may allow or permit any employee or person to enter any site unless they have undergone health and safety induction training pertaining to the hazards prevalent on the site at the time of entry.” Looch recommends engaging the services of experienced, specialised OHS services such as SPA. “You need tangible proof that people have been trained in the hazards and risks of your workplace. In a criminal matter, being able to show this goes a long way towards mitigating or exonerating your responsibility. Most companies engage the services of experi- enced and specialised OHS providers and provide tangible proof of training.”

www.safepass.co.za

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MODERN QUARRYING

Quarter 1 / 2018