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Marius Scheepers & Company Attorneys |
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Occupational Health & Safety act, 85 of
1993 [ASSENTED TO 23 JUNE 1993] [DATE OF COMMENCEMENT: (except s. 1 (3) (b):
to be proclaimed) (English text signed by
the State President) as amended by Occupational Health and
Safety Amendment Act 181 of 1993 Labour Relations Act 66
of 1995 Regulations [M1]under this
Act[M2] ASBESTOS REGULATIONS CERTIFICATE OF COMPETENCY,
REGULATIONS CONCERNING THE DIVING REGULATIONS DRIVEN MACHINERY REGULATIONS ELECTRICAL INSTALLATION
REGULATIONS ELECTRICAL MACHINERY
REGULATIONS ENVIRONMENTAL REGULATIONS
FOR WORKPLACES FACILITIES REGULATIONS GENERAL ADMINISTRATIVE
REGULATIONS GENERAL MACHINERY
REGULATIONS GENERAL SAFETY REGULATIONS LEAD REGULATIONS LIFT, ESCALATOR &
PASSENGER CONVEYOR REGULATIONS MAJOR HAZARD INSTALLATION
REGULATIONS REGULATIONS FOR HAZARDOUS
BIOLOGICAL AGENTS REGULATIONS FOR HAZARDOUS
CHEMICAL SUBSTANCES VESSELS UNDER PRESSURE
REGULATIONS ACT To provide for the health
and safety of persons at work and for the health and safety of persons in
connection with the use of plant and machinery; the protection of persons
other than persons at work against hazards to health and safety arising out
of or in connection with the activities of persons at work; to establish an
advisory council for occupational health and safety; and to provide for
matters connected therewith. 1 Definitions (1) In this Act, unless the context otherwise indicates- ‘approved inspection
authority’ means an inspection authority approved by the chief inspector:
Provided that an inspection authority approved by the chief inspector with
respect to any particular service shall be an approved inspection authority
with respect to that service only; ‘biological monitoring’
means a planned programme of periodic collection and analysis of body fluid,
tissues, excreta or exhaled air in order to detect and quantify the exposure
to or absorption of any substance or organism by persons; ‘building’ includes- (a) any structure attached to the soil; (b) any building or such structure or part thereof which is in the
process of being erected; or (c) any prefabricated building or structure not attached to the soil;
‘chief executive
officer’, in relation to a body corporate or an enterprise conducted by the
State, means the person who is responsible for the overall management and
control of the business of such body corporate or enterprise; ‘chief inspector’ means
the officer designated under section 27 as chief inspector, and includes any
officer acting as chief inspector; ‘Council’ means the
Advisory Council for Occupational Health and Safety established by section 2; ‘danger’ means anything
which may cause injury or damage to persons or property; ‘Department’ means the Department of Manpower; ‘employee’ means,
subject to the provisions of subsection (2), any person who is employed by or
works for an employer and who receives or is entitled to receive any
remuneration or who works under the direction or supervision of an employer
or any other person; ‘employer’ means,
subject to the provisions of subsection (2), any person who employs or
provides work for any person and remunerates that person or expressly or
tacitly undertakes to remunerate him, but excludes a labour broker as defined
in section 1 (1) of the Labour Relations Act, 1956 (Act 28 of 1956); ‘employers’
organization’ means an employers’ organization as defined in section 1 of the
Labour Relations Act, 1956 (Act 28 of 1956); [Definition of
‘employers’ organization’ inserted by s. 1 (a) of Act 181 of 1993.] ‘employment’ or
‘employed’ means employment or employed as an employee; ‘explosives’ means any
substance or article as listed in Class I: Explosives in the South African
Bureau of Standards Code of Practice for the Identification and
Classification of Dangerous Substances and Goods, SABS 0228; ‘hazard’ means a source of or exposure to danger; ‘health and safety
committee’ means a committee established under section 19; ‘health and safety equipment’
means any article or part thereof which is manufactured, provided or
installed in the interest of the health or safety of any person; ‘health and safety
representative’ means a person designated in terms of section 17 (1); ‘health and safety standard’
means any standard, irrespective of whether or not it has the force of law,
which, if applied for the purposes of this Act, will in the opinion of the
Minister promote the attainment of an object of this Act; ‘healthy’ means free
from illness or injury attributable to occupational causes; ‘incident’ means an incident as contemplated in section 24 (1); ‘industrial court’ means
the industrial court referred to in section 17 of the Labour Relations Act,
1956 (Act 28 of 1956); ‘inspection authority’
means any person who with the aid of specialized knowledge or equipment or
after such investigations, tests, sampling or analyses as he may consider
necessary, and whether for reward or otherwise, renders a service by making
special findings, purporting to be objective findings, as to- (a) the health of any person; (b) the safety or risk to health of any work, article, substance,
plant or machinery, or of any condition prevalent on or in any premises; or (c) the question of whether any particular standard has been or is
being complied with, with respect to any work, article, substance, plant or
machinery, or with respect to work or a condition prevalent on or in any
premises, or with respect to any other matter, and by issuing a
certificate, stating such findings, to the person to whom the service is
rendered; ‘inspector’ means a person designated under section 28; ‘listed work’ means any work declared to be listed work under section
11; ‘local authority’ means- (a) any institution or body contemplated in section 84 (1) (f) of the
Provincial Government Act, 1961 (Act 32 of 1961); (b) any regional services council established under section 3 of the
Regional Services Councils Act, 1985 (Act 109 of 1985); (c) any other institution or body or the holder of any office
declared by the Minister by notice in the Gazette to be a local authority for
the purposes of this Act; ‘machinery’ means any
article or combination of articles assembled, arranged or connected and which
is used or intended to be used for converting any form of energy to
performing work, or which is used or intended to be used, whether incidental
thereto or not, for developing, receiving, storing, containing, confining,
transforming, transmitting, transferring or controlling any form of energy; ‘major hazard installation’ means an installation- (a) where more than the prescribed quantity of any substance is or may
be kept, whether permanently or temporarily; or (b) where any substance is produced, processed, used, handled or
stored in such a form and quantity that it has the potential to cause a major
incident; ‘major incident’ means
an occurrence of catastrophic proportions, resulting from the use of plant or
machinery, or from activities at a workplace; ‘mandatary’ includes an agent,
a contractor or a subcontractor for work, but without derogating from his
status in his own right as an employer or a user; ‘medical surveillance’
means a planned programme of periodic examination (which may include clinical
examinations, biological monitoring or medical tests) of employees by an
occupational health practitioner or, in prescribed cases, by an occupational
medicine practitioner; ‘Minister’ means the Minister of Manpower; ‘occupational health’
includes occupational hygiene, occupational medicine and biological
monitoring; ‘occupational health
practitioner’ means an occupational medicine practitioner or a person who
holds a qualification in occupational health recognized as such by the South
African Medical and Dental Council as referred to in the Medical, Dental and
Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), or the
South African Nursing Council as referred to in the Nursing Act, 1978 (Act 50
of 1978); ‘occupational hygiene’
means the anticipation, recognition, evaluation and control of conditions
arising in or from the workplace, which may cause illness or adverse health
effects to persons; ‘occupational medicine’
means the prevention, diagnosis and treatment of illness, injury and adverse
health effects associated with a particular type of work; ‘occupational medicine
practitioner’ means a medical practitioner as defined in the Medical, Dental
and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), who
holds a qualification in occupational medicine or an equivalent qualification
which qualification or equivalent is recognized as such by the South African
Medical and Dental Council referred to in the said Act; ‘office’ means an office
as defined in section 1 (1) of the Basic Conditions of Employment Act, 1983
(Act 3 of 1983); ‘officer’ means an
officer or employee as defined in section 1 (1) of the Public Service Act,
1984 (Act 111 of 1984); ‘organism’ means any
biological entity which is capable of causing illness to persons; ‘plant’ includes
fixtures, fittings, implements, equipment, tools and appliances, and anything
which is used for any purpose in connection with such plant; ‘premises’ includes any building, vehicle, vessel, train or aircraft; ‘prescribed’ means prescribed by regulation; ‘properly used’ means
used with reasonable care, and with due regard to any information,
instruction or advice supplied by the designer, manufacturer, importer,
seller or supplier; ‘reasonably practicable’ means practicable having regard to- (a) the severity and scope of the hazard or risk concerned; (b) the state of knowledge reasonably available concerning that hazard
or risk and of any means of removing or mitigating that hazard or risk; (c) the availability and suitability of means to remove or mitigate
that hazard or risk; and (d) the cost of removing or mitigating that hazard or risk in relation
to the benefits deriving therefrom; ‘regulation’ means
a regulation made under section 43; ‘remuneration’ means any
payment in money or in kind or both in money and in kind, made or owing to
any person in pursuance of such person’s employment; ‘risk’ means the
probability that injury or damage will occur; ‘safe’ means free
from any hazard; ‘sell’ includes- (a) offer or display for sale or import into the Republic for sale; or (b) exchange, donate, lease or offer or display for leasing; ‘shop’ means a shop as
defined in section 1 (1) of the Basic Conditions of Employment Act, 1983 (Act
3 of 1983); ‘standard’ means
any provision occurring- (a) in a specification, compulsory specification, code of practice or
standard method as defined in section 1 of the Standards Act, 1993 (Act 29 of
1993); or (b) in any specification, code or any other directive having standardization
as its aim and issued by an institution or organization inside or outside the
Republic which, whether generally or with respect to any particular article
or matter and whether internationally or in any particular country or
territory, seeks to promote standardization; ‘substance’ includes any
solid, liquid, vapour, gas or aerosol, or combination thereof; ‘this Act’ includes any regulation; ‘trade union’ means a
trade union as defined in section 1 of the Labour Relations Act, 1956 (Act 28
of 1956); [Definition of ‘trade
union’ inserted by s. 1 (b) of Act 181 of 1993.] ‘user’, in relation to
plant or machinery, means the person who uses plant or machinery for his own
benefit or who has the right of control over the use of plant or machinery,
but does not include a lessor of, or any person employed in connection with,
that plant or machinery; ‘work’ means work as an
employee or as a self-employed person, and for such purpose an employee is
deemed to be at work during the time that he is in the course of his
employment, and a self-employed person is deemed to be at work during such
time as he devotes to work as a self-employed person; ‘workplace’ means any
premises or place where a person performs work in the course of his
employment. (2) The Minister may by notice in the Gazette declare that a person
belonging to a category of persons specified in the notice shall for the
purposes of this Act or any provision thereof be deemed to be an employee,
and thereupon any person vested and charged with the control and supervision
of the said person shall for the said purposes be deemed to be the employer
of such person. (3) This Act shall not apply in respect of- (a) a mine, a mining area or any works as defined in the Minerals Act,
1991 (Act 50 of 1991), except in so far as that Act provides otherwise; (b) any load line ship (including a ship holding a load line exemption
certificate), fishing boat, sealing boat and whaling boat as defined in
section 2 (1) of the Merchant Shipping Act, 1951 (Act 57 of 1951), or any
floating crane, whether or not such ship, boat or crane is in or out of the
water within any harbour in the Republic or within the territorial waters
thereof, [Date of commencement of
para. (b): to be proclaimed.] or
in respect of any person present on or in any such mine, mining area, works,
ship, boat or crane. 2 Establishment of Advisory Council for Occupational Health and
Safety There is hereby
established an Advisory Council for Occupational Health and Safety. 3 Functions of Council (1) The Council shall- (a) advise the Minister with regard to- (i) matters of policy arising out of or in connection with the
application of the provisions of this Act; (ii) any matter relating to occupational health and safety; (b) perform the functions assigned to it by this Act or referred to it
by the Minister. (2) The Council may- (a) with a view to the performance of its functions, do such research
and conduct such investigations as it may deem necessary; (b) make rules relating to the calling of meetings of the Council, the
determining of a quorum for and the procedure at such meetings, and generally
relating to all matters which may be necessary for the effective performance
of the functions of the Council or, subject to section 6, of a technical
committee; (c) advise the Department concerning- (i) the formulation and publication of standards, specifications or
other forms of guidance for the purpose of assisting employers, employees and
users to maintain appropriate standards of occupational health and safety; (ii) the promotion of education and training in occupational health
and safety; and (iii) the collection and dissemination of
information on occupational health and safety. (3) The Council may for the purposes of the performance of any of its
functions, with the approval of the Minister, and with the concurrence of the
Minister of State Expenditure, enter into an agreement for the performance of
a particular act or particular work or for the rendering of a particular
service, on such conditions and at such remuneration as may be agreed upon,
with anybody who in the opinion of the Council is fit to perform such act or
work or to render such service. (4) Subject to the laws governing the Public Service, the Minister
shall provide the Council with such personnel as he may deem necessary for
the effective performance of the functions of the Council, and such persons
shall perform their functions subject to the control and directions of the
chief inspector. 4 Constitution of Council (1) The Council shall consist of 20 members, namely- (a) the chief inspector, ex officio, who shall be the chairman; (b) one officer serving in the Department; (c) the Workmen’s Compensation Commissioner, or his nominee; (d) one person nominated by the Minister for National Health and
Welfare; (e) one person nominated by the Minister of Mineral and Energy
Affairs; (f) six persons to represent the interests of employers from a list
of the names of persons nominated by employers’ organizations or federations
of employers’ organizations; [Para. (f)
substituted by s. 2 of Act 181 of 1993.] (g)
six persons to represent the interests of employees from a list of the names
of persons nominated by trade unions or federations of trade unions; [Para. (g)
substituted by s. 2 of Act 181 of 1993.] (h)
one person who in the opinion of the Minister has knowledge of occupational
safety matters; (i)
one person who in the opinion of the Minister has knowledge of occupational
medicine and who was recommended by the Minister for National Health and
Welfare; (j)
one person who in the opinion of the Minister has knowledge of occupational
hygiene. (2) The members referred to in subsection (1) (b) up to and including
(j) shall be appointed by the Minister. 5 Period of office and remuneration of members of Council (1) The members of the Council referred to in section 4 (2) shall be
appointed for a period of three years, and on such conditions as the Minister
may determine with the concurrence of the Minister of State Expenditure. (2) Any person whose period of office as a member of the Council has
expired shall be eligible for reappointment. (3) A member referred to in section 4 (1) (f), (g), (h), (i) or (j) who
is not an officer may be paid from money appropriated for such purpose by
Parliament such allowances as the Minister may determine with the concurrence
of the Minister of State Expenditure. 6 Establishment of technical committees of Council (1) The Council may with the approval of the Minister establish one or
more technical committees to advise the Council on any matter regarding the
performance by the Council of its functions. (2) A member of a technical committee shall be appointed by the
Council by reason of his knowledge of the matter for which the committee is
established, and such a member need not be a member of the Council. (3) A meeting of a technical committee shall be held at such time and
place as may be determined by the chairman of the Council, and in accordance
with rules approved by the Council. (4) A member of a technical committee who is not an officer may be
paid from money appropriated for such purpose by Parliament such allowances
as the Minister may determine with the concurrence of the Minister of State
Expenditure. 7 Health and safety policy (1) The chief inspector may direct- (a) any employer in writing; and (b) any category of employers by notice in the Gazette, to
prepare a written policy concerning the protection of the health and safety
of his employees at work, including a description of his organization and the
arrangements for carrying out and reviewing that policy. (2) Any direction under subsection (1) shall be accompanied by
guide-lines concerning the contents of the policy concerned. (3) An employer shall prominently display a copy of the policy
referred to in subsection (1), signed by the chief executive officer, in the
workplace where his employees normally report for service. 8 General duties of employers to their employees (1) Every employer shall provide and maintain, as far as is reasonably
practicable, a working environment that is safe and without risk to the
health of his employees. (2) Without derogating from the generality of an employer’s duties
under subsection (1), the matters to which those duties refer include in
particular- (a) the provision and maintenance of systems of work, plant and
machinery that, as far as is reasonably practicable, are safe and without
risks to health; (b) taking such steps as may be reasonably practicable to eliminate or
mitigate any hazard or potential hazard to the safety or health of employees,
before resorting to personal protective equipment; (c) making arrangements for ensuring, as far as is reasonably
practicable, the safety and absence of risks to health in connection with the
production, processing, use, handling, storage or transport of articles or
substances; (d) establishing, as far as is reasonably practicable, what hazards to
the health or safety of persons are attached to any work which is performed,
any article or substance which is produced, processed, used, handled, stored
or transported and any plant or machinery which is used in his business, and
he shall, as far as is reasonably practicable, further establish what
precautionary measures should be taken with respect to such work, article,
substance, plant or machinery in order to protect the health and safety of
persons, and he shall provide the necessary means to apply such precautionary
measures; (e) providing such information, instructions, training and supervision
as may be necessary to ensure, as far as is reasonably practicable, the
health and safety at work of his employees; (f) as far as is reasonably practicable, not permitting any employee
to do any work or to produce, process, use, handle, store or transport any
article or substance or to operate any plant or machinery, unless the
precautionary measures contemplated in paragraphs (b) and (d), or any other
precautionary measures which may be prescribed, have been taken; (g) taking all necessary measures to ensure that the requirements of
this Act are complied with by every person in his employment or on premises
under his control where plant or machinery is used; (h) enforcing such measures as may be necessary in the interest of
health and safety; (i) ensuring that work is performed and that plant or machinery is
used under the general supervision of a person trained to understand the
hazards associated with it and who have the authority to ensure that
precautionary measures taken by the employer are implemented; and (j) causing all employees to be informed regarding the scope of
their authority as contemplated in section 37 (1) (b). 9 General duties of employers and self-employed persons to
persons other than their employees (1) Every employer shall conduct his undertaking in such a manner as
to ensure, as far as is reasonably practicable, that persons other than those
in his employment who may be directly affected by his activities are not
thereby exposed to hazards to their health or safety. (2) Every self-employed person shall conduct his undertaking in such a
manner as to ensure, as far as is reasonably practicable, that he and other
persons who may be directly affected by his activities are not thereby
exposed to hazards to their health or safety. 10 General duties of manufacturers and others regarding articles and
substances for use at work (1) Any person who designs, manufactures, imports, sells or supplies
any article for use at work shall ensure, as far as is reasonably
practicable, that the article is safe and without risks to health when
properly used and that it complies with all prescribed requirements. (2) Any person who erects or installs any article for use at work on
or in any premises shall ensure, as far as is reasonably practicable, that
nothing about the manner in which it is erected or installed makes it unsafe
or creates a risk to health when properly used. (3) Any person who manufactures, imports, sells or supplies any
substance for use at work shall- (a) ensure, as far as is reasonably practicable, that the substance is
safe and without risks to health when properly used; and (b) take such steps as may be necessary to ensure that information is
available with regard to the use of the substance at work, the risks to
health and safety associated with such substance, the conditions necessary to
ensure that the substance will be safe and without risks to health when
properly used and the procedures to be followed in the case of an accident
involving such substance. (4) Where a person designs, manufactures, imports, sells or supplies
an article or substance for or to another person and that other person
undertakes in writing to take specified steps sufficient to ensure, as far as
is reasonably practicable, that the article or substance will comply with all
prescribed requirements and will be safe and without risks to health when
properly used, the undertaking shall have the effect of relieving the
first-mentioned person from the duty imposed upon him by this section to such
an extent as may be reasonable having regard to the terms of the undertaking. 11 Listed work (1) The Minister may, subject to the provisions of subsections (2) and
(3), by notice in the Gazette declare any work, under the conditions or
circumstances specified in the notice, to be listed work. (2) (a) Before the Minister declares any work to be listed work, he
shall cause to be published in the Gazette a draft of his proposed notice and
at the same time invite interested persons to submit to him in writing within
a specified period, comments and representations in connection with the
proposed notice. (b) A period of not
less than three months shall elapse between the publication of the draft
notice and the notice under subsection (1). (3) The provisions of subsection (2) shall not apply- (a) if the Minister in pursuance of comments and representations
received in terms of subsection (2) (a), decides to publish the notice
referred to in subsection (1) in an amended form; and (b) to any declaration in terms of subsection (1) in respect of which
the Minister is of the opinion that the public interest requires that it be
made without delay. (4) A notice under subsection (1) may at any time be amended or
withdrawn by like notice. 12 General duties of employers regarding listed work (1) Subject to such arrangements as may be prescribed, every employer
whose employees undertake listed work or are liable to be exposed to the
hazards emanating from listed work, shall, after consultation with the health
and safety committee established for that workplace- (a) identify the hazards and evaluate the risks associated with such
work constituting a hazard to the health of such employees, and the steps
that need to be taken to comply with the provisions of this Act; (b) as far as is reasonably practicable, prevent the exposure of such
employees to the hazards concerned or, where prevention is not reasonably
practicable, minimize such exposure; and (c) having regard to the nature of the risks associated with such
work and the level of exposure of such employees to the hazards, carry out an
occupational hygiene programme and biological monitoring, and subject such
employees to medical surveillance. (2) Every employer contemplated in subsection (1) shall keep the
health and safety representatives designated for their workplaces or sections
of the workplaces, informed of the actions taken under subsection (1) in
their respective workplaces or sections thereof and of the results of such
actions: Provided that individual results of biological monitoring and
medical surveillance relating to the work of the employee, shall only with
the written consent of such employee be made available to any person other
than an inspector, the employer or the employee concerned. 13 Duty to inform Without derogating
from any specific duty imposed on an employer by this Act, every employer
shall- (a) as far as is reasonably practicable, cause every employee to be
made conversant with the hazards to his health and safety attached to any
work which he has to perform, any article or substance which he has to produce,
process, use, handle, store or transport and any plant or machinery which he
is required or permitted to use, as well as with the precautionary measures
which should be taken and observed with respect to those hazards; (b) inform the health and safety representatives concerned beforehand
of inspections, investigations or formal inquiries of which he has been
notified by an inspector, and of any application for exemption made by him in
terms of section 40; and (c) inform a health and safety representative as soon as reasonably
practicable of the occurrence of an incident in the workplace or section of
the workplace for which such representative has been designated. 14 General duties of employees at work Every employee shall
at work- (a) take reasonable care for the health and safety of himself and of
other persons who may be affected by his acts or omissions; (b) as regards any duty or requirement imposed on his employer or any
other person by this Act, co-operate with such employer or person to enable
that duty or requirement to be performed or complied with; (c) carry out any lawful order given to him, and obey the health and
safety rules and procedures laid down by his employer or by anyone authorized
thereto by his employer, in the interest of health or safety; (d) if any situation which is unsafe or unhealthy comes to his
attention, as soon as practicable report such situation to his employer or to
the health and safety representative for his workplace or section thereof, as
the case may be, who shall report it to the employer; and (e) if he is involved in any incident which may affect his health or
which has caused an injury to himself, report such incident to his employer
or to anyone authorized thereto by the employer, or to his health and safety
representative, as soon as practicable but not later than the end of the
particular shift during which the incident occurred, unless the circumstances
were such that the reporting of the incident was not possible, in which case
he shall report the incident as soon as practicable thereafter. 15 Duty not to interfere with, damage or misuse things No person shall
intentionally or recklessly interfere with, damage or misuse anything which
is provided in the interest of health or safety. [S. 15 substituted
by s. 3 of Act 181 of 1993.] 16 Chief executive officer charged with certain duties (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. (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. (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. (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. 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. (2) An employer and the representatives of his employees recognized 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. [Sub-s. (2)
substituted by s. 4 of Act 181 of 1993.] (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 Relations 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. [Sub-s. (3)
substituted by s. 4 of Act 181 of 1993.] (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. (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. (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). (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. 18 Functions of health and safety representatives (1) A health and safety representative may perform the following
functions in respect of the workplace or section of the workplace for which
he has been designated, namely- (a) review the effectiveness of health and safety measures; (b) identify potential hazards and potential major incidents at the
workplace; (c) in collaboration with his employer, examine the causes of
incidents at the workplace; (d) investigate complaints by any employee relating to that employee’s
health or safety at work; (e) make representations to the employer or a health and safety
committee on matters arising from paragraphs (a), (b), (c) or (d), or where
such representations are unsuccessful, to an inspector; (f) make representations to the employer on general matters
affecting the health or safety of the employees at the workplace; (g) inspect the workplace, including any article, substance, plant,
machinery or health and safety equipment at that workplace with a view to the
health and safety of employees, at such intervals as may be agreed upon with
the employer: Provided that the health and safety representative shall give
reasonable notice of his intention to carry out such an inspection to the
employer, who may be present during the inspection; (h) participate in consultations with inspectors at the workplace and
accompany inspectors on inspections of the workplace; (i) receive information from inspectors as contemplated in section
36; and (j) in his capacity as a health and safety representative attend
meetings of the health and safety committee of which he is a member, in
connection with any of the above functions. (2) A health and safety representative shall, in respect of the
workplace or section of the workplace for which he has been designated be
entitled to- (a) visit the site of an incident at all reasonable times and attend
any inspection in loco; (b) attend any investigation or formal inquiry held in terms of this
Act; (c) in so far as it is reasonably necessary for performing his
functions, inspect any document which the employer is required to keep in
terms of this Act; (d) accompany an inspector on any inspection; (e) with the approval of the employer (which approval shall not be
unreasonably withheld), be accompanied by a technical adviser, on any
inspection; and (f) participate in any internal health or safety audit. [Sub-s. (2) substituted
by s. 5 of Act 181 of 1993.] (3) An employer shall provide such facilities, assistance and training
as a health and safety representative may reasonably require and as have been
agreed upon for the carrying out of his functions. (4) A health and safety representative shall not incur any civil
liability by reason of the fact only that he failed to do anything which he
may do or is required to do in terms of this Act. 19 Health and safety committees (1) An employer shall in respect of each workplace where two or more
health and safety representatives have been designated, establish one or more
health and safety committees and, at every meeting of such a committee as
contemplated in subsection (4), consult with the committee with a view to
initiating, developing, promoting, maintaining and reviewing measures to
ensure the health and safety of his employees at work. (2) A health and safety committee shall consist of such number of
members as the employer may from time to time determine: Provided that- (a) if one health and safety committee has been established in respect
of a workplace, all the health and safety representatives for that workplace
shall be members of the committee; (b) if two or more health and safety committees have been established
in respect of a workplace, each health and safety representative for that workplace
shall be a member of at least one of those committees; and (c) the number of persons nominated by an employer on any health and
safety committee established in terms of this section shall not exceed the
number of health and safety representatives on that committee. (3) The persons nominated by an employer on a health and safety
committee shall be designated in writing by the employer for such period as
may be determined by him, while the health and safety representatives shall
be members of the committee for the period of their designation in terms of
section 17 (1). (4) A health and safety committee shall hold meetings as often as may
be necessary, but at least once every three months, at a time and place
determined by the committee: Provided that an inspector may by notice in
writing direct the members of a health and safety committee to hold a meeting
at a time and place determined by him: Provided further that, if more than 10
per cent of the employees at a specific workplace has handed a written
request to an inspector, the inspector may by written notice direct that such
a meeting be held. (5) The procedure at meetings of a health and safety committee shall
be determined by the committee. (6) (a) A health and safety committee may co-opt one or more persons
by reason of his or their particular knowledge of health or safety matters as
an advisory member or as advisory members of the committee. (b) An advisory
member shall not be entitled to vote on any matter before the committee. (7) If an inspector is of the opinion that the number of health and
safety committees established for any particular workplace is inadequate, he
may in writing direct the employer to establish for such workplace such
number of health and safety committees as the inspector may determine. 20 Functions of health and safety committees (1) A health and safety committee- (a) may make recommendations to the employer or, where the
recommendations fail to resolve the matter, to an inspector regarding any
matter affecting the health or safety of persons at the workplace or any
section thereof for which such committee has been established; (b) shall discuss any incident at the workplace or section thereof in
which or in consequence of which any person was injured, became ill or died,
and may in writing report on the incident to an inspector; and (c) shall perform such other functions as may be prescribed. (2) A health and safety committee shall keep record of each
recommendation made to an employer in terms of subsection (1) (a) and of any
report made to an inspector in terms of subsection (1) (b). (3) A health and safety committee or a member thereof shall not incur
any civil liability by reason of the fact only that it or he failed to do
anything which it or he may or is required to do in terms of this Act. (4) An employer shall take the prescribed steps to ensure that a
health and safety committee complies with the provisions of section 19 (4)
and performs the duties assigned to it by subsections (1) and (2). 21 General prohibitions (1) The Minister may by notice in the Gazette declare- (a) that no employer shall require or permit any employee belonging to
a category of employees specified in the notice to perform work on or in any premises
on or in which an activity specified in the notice is carried out which in
the opinion of the Minister is an activity which threatens or is likely to
threaten the health or safety of an employee belonging to that category of
employees, or that no employer shall require or permit any such employee to
perform any work on or in such premises otherwise than on the conditions
specified in the notice; (b) that no employer shall require or permit any employee to perform
any work in connection with the carrying out of a process specified in the
notice which in the opinion of the Minister is a process which threatens or
is likely to threaten the health or safety of an employee, or that no
employer shall require or permit an employee to perform any work in connection
with the carrying out of such a process otherwise than on the conditions
specified in the notice; and (c) that no employer shall require or permit any employee, otherwise
than on the conditions specified in the notice, to perform any work on or in
any premises where an article or substance specified in the notice is
produced, processed, used, handled, stored or transported which in the
opinion of the Minister is an article or substance which threatens or is
likely to threaten the health or safety of an employee. (2) (a) The Minister shall, before he publishes a notice under
subsection (1), cause a draft of his proposed notice to be published in the
Gazette and at the same time invite interested persons to submit to him in
writing, within a specified period, comments and representations in
connection with the proposed notice. (b) The provisions
of paragraph (a) shall not apply if the Minister, in pursuance of comments
and representations received, decides to publish the notice referred to in
subsection (1) in an amended form. (3) A notice under subsection (1) may at any time be amended or
withdrawn by like notice. (4) A notice shall not be issued under subsection (1) or (3) unless
the Minister for National Health and Welfare and the Council have been
consulted. (5) A notice issued or deemed to have been issued under section 13 of
the Machinery and Occupational Safety Act, 1983 (Act 6 of 1983), and which
was in force immediately prior to the commencement of this Act, shall be
deemed to have been issued under this section. 22 Sale of certain articles prohibited Subject to the
provisions of section 10 (4), if any requirement (including any health and
safety standard) in respect of any article, substance, plant, machinery or
health and safety equipment or for the use or application thereof has been
prescribed, no person shall sell or market in any manner whatsoever such
article, substance, plant, machinery or health and safety equipment unless it
complies with that requirement. 23 Certain deductions prohibited No employer shall in
respect of anything which he is in terms of this Act required to provide or
to do in the interest of the health or safety of an employee, make any
deduction from any employee’s remuneration or require or permit any employee
to make any payment to him or any other person. [S. 23 substituted
by s. 6 of Act 181 of 1993.] 24 Report to inspector regarding certain incidents (1) Each incident occurring at work or arising out of or in connection
with the activities of persons at work, or in connection with the use of
plant or machinery, in which, or in consequence of which- (a) any person dies, becomes unconscious, suffers the loss of a limb
or part of a limb or is otherwise injured or becomes ill to such a degree
that he is likely either to die or to suffer a permanent physical defect or
likely to be unable for a period of at least 14 days either to work or to
continue with the activity for which he was employed or is usually employed; (b) a major incident occurred; or (c) the health or safety of any person was endangered and where- (i) a dangerous substance was spilled; (ii) the uncontrolled release of any substance under pressure took
place; (iii) machinery or any part thereof fractured or
failed resulting in flying, falling or uncontrolled moving objects; or (iv) machinery ran out of control, shall,
within the prescribed period and in the prescribed manner, be reported to an
inspector by the employer or the user of the plant or machinery concerned, as
the case may be. (2) In the event of an incident in which a person died, or was injured
to such an extent that he is likely to die, or suffered the loss of a limb or
part of a limb, no person shall without the consent of an inspector disturb
the site at which the incident occurred or remove any article or substance
involved in the incident therefrom: Provided that such action may be taken as
is necessary to prevent a further incident, to remove the injured or dead, or
to rescue persons from danger. (3) The provisions of subsections (1) and (2) shall not apply in
respect of- (a) a traffic accident on a public road; (b) an incident occurring in a private household, provided the
householder forthwith reports the incident to the South African Police; or (c) any accident which is to be investigated under section 12 of the
Aviation Act, 1962 (Act 74 of 1962). (4) A member of the South African Police to whom an incident was
reported in terms of subsection (3) (b), shall forthwith notify an inspector
thereof. 25 Report to chief inspector regarding occupational disease Any medical
practitioner who examines or treats a person for a disease described in the
Second Schedule to the Workmen’s Compensation Act, 1941 (Act 30 of 1941), or
any other disease which he believes arose out of that person’s employment,
shall within the prescribed period and in the prescribed manner report the
case to the person’s employer and to the chief inspector, and inform that
person accordingly. [S. 25 substituted
by s. 7 of Act 181 of 1993.] 26 Victimization forbidden (1) No employer shall dismiss an employee, or reduce the rate of his
remuneration, or alter the terms or conditions of his employment to terms or
conditions less favourable to him, or alter his position relative to other
employees employed by that employer to his disadvantage, by reason of the
fact, or because he suspects or believes, whether or not the suspicion or
belief is justified or correct, that that employee has given information to
the Minister or to any other person charged with the administration of a
provision of this Act which in terms of this Act he is required to give or
which relates to the terms, conditions or circumstances of his employment or
to those of any other employee of his employer, or has complied with a lawful
prohibition, requirement, request or direction of an inspector, or has given
evidence before a court of law or the industrial court, or has done anything
which he may or is required to do in terms of this Act or has refused to do
anything which he is prohibited from doing in terms of this Act. (2) No employer shall unfairly dismiss an employee, or reduce the rate
of his remuneration, or alter the terms or conditions of his employment to terms
or conditions less favourable to him, or alter his position relative to other
employees employed by that employer to his disadvantage, by reason of the
information that the employer has obtained regarding the results contemplated
in section 12 (2) or by reason of a report made to the employer in terms of
section 25. [Sub-s. (2) added by s.
8 of Act 181 of 1993.] 27 Designation and functions of chief inspector (1) The Minister shall designate an officer serving in the Department
as chief inspector for the purposes of this Act. (2) The chief inspector shall perform his functions subject to the
control and supervision of the Director-General of the Department and may
perform any function assigned to an inspector by this Act. (3) (a) The chief inspector may delegate any power conferred upon him
by this Act, excluding a power referred to in section 35 (1) or delegated to
him under section 42, to any other officer or authorize any such officer to
perform any duty assigned to him by this Act. (b) No delegation
of a power under paragraph (a) shall prevent the exercise of such power by
the chief inspector himself. (4) Whenever the chief inspector is absent or unable to perform his
functions as chief inspector or whenever the designation of a chief inspector
is pending, the Minister may designate any other officer serving in the
Department to act as chief inspector during the chief inspector’s absence or
incapacity or until a chief inspector is designated. (5) Any person who immediately prior to the commencement of this Act
was designated as chief inspector under section 19 of the Machinery and
Occupational Safety Act, 1983 (Act 6 of 1983), shall be deemed to have been
designated as chief inspector under subsection (1) of this section. 28 Designation of inspectors by Minister (1) The Minister may designate any person as an inspector to perform,
subject to the control and directions of the chief inspector, any or all of
the functions assigned to an inspector by this Act. (2) Each inspector designated under subsection (1) shall be furnished
with a certificate signed by or on behalf of the Minister and stating that he
has been designated as an inspector: Provided that if his designation as
inspector is limited to any particular function or functions, his certificate
shall state such limitation. (3) Whenever an inspector designated under subsection (1) performs a
function under this Act in the presence of any person affected thereby the
inspector shall on demand by such person produce to him the certificate referred
to in subsection (2). (4) Any officer who immediately prior to the commencement of this Act
was designated as an inspector under section 20 of the Machinery and
Occupational Safety Act, 1983 (Act 6 of 1983), shall be deemed to have been
designated as an inspector under subsection (1) of this section. 29 Functions of inspectors (1) An inspector may, for the purposes of this Act- (a) without previous notice, at all reasonable times, enter any
premises which are occupied or used by an employer or on or in which an
employee performs any work or any plant or machinery is used, or which he
suspects to be such premises; (b) question any person who is or was on or in such premises, either alone
or in the presence of any other person, on any matter to which this Act
relates; (c) require from any person who has control over or custody of a
book, record or other document on or in those premises, to produce to him
forthwith, or at such time and place as may be determined by him, such book,
record or other document; (d) examine any such book, record or other document or make a copy
thereof or an extract therefrom; (e) require from such a person an explanation of any entry in such
book, record or other document; (f) inspect any article, substance, plant or machinery which is or
was on or in those premises, or any work performed on or in those premises or
any condition prevalent on or in those premises or remove for examination or
analysis any article, substance, plant or machinery or a part or sample
thereof; (g) seize any such book, record or other document or any such article,
substance, plant or machinery or a part or sample thereof which in his
opinion may serve as evidence at the trial of any person charged with an
offence under this Act or the common law: Provided that the employer or user
of the article, substance, plant or machinery concerned, as the case may be,
may make copies of such book, record or document before such seizure; (h) direct any employer, employee or user, including any former
employer, employee or user, to appear before him at such time and place as
may be determined by him and question such employer, employee or user either
alone or in the presence of any other person on any matter to which this Act
relates; (i) perform any other function as may be prescribed. (2) (a) An interpreter, a member of the South African Police or any
other assistant may, when required by an inspector, accompany him when he
performs his functions under this Act. (b) For the
purposes of this Act an inspector’s assistant shall, while he acts under the
instructions of an inspector, be deemed to be an inspector. (3) When an inspector enters any premises under subsection (1) the
employer occupying or using those premises and each employee performing any
work thereon or therein and any user of plant or machinery thereon or
therein, shall at all times provide such facilities as are reasonably
required by the inspector to enable him and his assistant (if any) to perform
effectively and safely his or their functions under this Act. (4) When an inspector removes or seizes any article, substance, plant,
machinery, book, record or other document as contemplated in subsection (1)
(f) or (g), he shall issue a receipt to the owner or person in control
thereof. 30 Special powers of inspectors (1) (a) Whenever an employer performs an act or requires or permits an
act to be performed, or proposes to perform an act or to require or permit an
act to be performed, which in the opinion of an inspector threatens or is
likely to threaten the health or safety of any person, the inspector may in
writing prohibit that employer from continuing or commencing with the
performance of that act or from requiring or permitting that act to be
continued or commenced with, as the case may be. (b) Whenever a user
of plant or machinery uses or proposes to use any plant or machinery, in a
manner or in circumstances which in the opinion of an inspector threatens or
is likely to threaten the health or safety of any person who works with such
plant or machinery or who is or may come within the vicinity thereof, the
inspector may in writing prohibit that user from continuing or commencing
with the use of such plant or machinery or in that manner or those
circumstances, as the case may be. (c) An inspector may in writing prohibit an employer from requiring
or permitting an employee or any employee belonging to a category of
employees specified in the prohibition to be exposed in the course of his
employment for a longer period than a period specified in the prohibition, to
any article, substance, organism or condition which in the opinion of an
inspector threatens or is likely to threaten the health or safety of that
employee or the employee belonging to that category of employees, as the case
may be. (d) A prohibition imposed under paragraph (a), (b) or (c) may at any
time be revoked by an inspector in writing if arrangements to the
satisfaction of the inspector have been made to dispose of the threat which
gave rise to the imposition of the prohibition. (2) In order to enforce a prohibition imposed under subsection (1) (a)
or (b), an inspector may block, bar, barricade or fence off that part of the
workplace, plant or machinery to which the prohibition applies, and no person
shall interfere with or remove such blocking, bar, barricade or fence. (3) Whenever an inspector is of the opinion that the health or safety
of any person at a workplace or in the course of his employment or in
connection with the use of plant or machinery is threatened on account of the
refusal or failure of an employer or a user, as the case may be, to take
reasonable steps in the interest of such person’s health or safety, the
inspector may in writing direct that employer or user to take such steps as
are specified in the direction within a specified period. (4) Whenever an inspector is of the opinion that an employer or a user
has failed to comply with a provision of a regulation applicable to him, the
inspector may in writing direct that employer or user to take within a period
specified in the direction such steps as in the inspector’s opinion are
necessary to comply with the said provision, and are specified in the
direction. (5) A period contemplated in subsection (3) or (4) may at any time be
extended by an inspector by notice in writing to the person concerned. (6) An employer shall forthwith bring the contents of a prohibition,
direction or notice under this section to the attention of the health and
safety representatives and employees concerned. 31 Investigations (1) An inspector may investigate the circumstances of any incident
which has occurred at or originated from a workplace or in connection with
the use of plant or machinery which has resulted, or in the opinion of the
inspector could have resulted, in the injury, illness or death of any person
in order to determine whether it is necessary to hold a formal investigation
in terms of section 32. (2) After completing the investigation in terms of subsection (1) the
inspector shall submit a written report thereon, together with all relevant
statements, documents and information gathered by him, to the
attorney-general within whose area of jurisdiction such incident occurred and
he shall at the same time submit a copy of the report, statements and
documents to the chief inspector. (3) Upon receipt of a report referred to in subsection (2), the
attorney-general shall deal therewith in accordance with the provisions of
the Inquests Act, 1959 (Act 58 of 1959), or the Criminal Procedure Act, 1977
(Act 51 of 1977), as the case may be. (4) An inspector holding an investigation shall not incur any civil
liability by virtue of anything contained in the report referred to in
subsection (2). 32 Formal inquiries (1) The chief inspector may, and he shall when so requested by a
person producing prima facie evidence of an offence, direct an inspector to
conduct a formal inquiry into any incident which has occurred at or
originated from a workplace or in connection with the use of plant or
machinery which has resulted, or in the opinion of the chief inspector could
have resulted, in the injury, illness or death of any person. (2) For the purposes of an inquiry referred to in subsection (1) an
inspector may subpoena any person to appear before him on a day and at a
place specified in the subpoena and to give evidence or to produce any book,
document or thing which in the opinion of the inspector has a bearing on the
subject of the inquiry. (3) Save as is otherwise provided in this section, the law governing
criminal trials in magistrates’ courts shall mutatis mutandis apply to
obtaining the attendance of witnesses at an inquiry under this section, the
administering of an oath or affirmation to them, their examination, the
payment of witness fees to them and the production by them of books,
documents and things. (4) Any inquiry under this section shall be held in public: Provided
that the presiding inspector may exclude from the place where the inquiry is
held, any person whose presence is, in his opinion, undesirable or not in the
public interest. (5) (a) The presiding inspector may designate any person to lead
evidence and to examine any witness giving evidence at a formal inquiry. (b) Any person who
has an interest in the issue of the formal inquiry may personally or by
representative, advocate or attorney put such questions to a witness at the
inquiry to such extent as the presiding inspector may allow. (c) The following persons shall have an interest as referred to in
paragraph (b), namely- (i) any person who was injured or suffered damage as a result of the
incident forming the subject of the inquiry; (ii) the employer or user, as the case may be, involved in the
incident; (iii) any person in respect of whom in the opinion
of the presiding inspector it can reasonably be inferred from the evidence
that he could be held responsible for the incident; (iv) a trade union recognized by the employer concerned or any trade
union of which a person referred to in subparagraph (i) or (iii) is a member; (v) any owner or occupier of any premises where the said incident
occurred; (vi) any other person who, at the discretion of the presiding
inspector, can prove such interest. (6) (a) An inquiry may, if it is necessary or expedient, be adjourned
at any time by the presiding inspector. (b) An inquiry
adjourned under paragraph (a) may at any stage be continued by an inspector
other than the inspector before whom the inquiry commenced, and may after an
adjournment again be continued by the inspector before whom the inquiry
commenced. (7) An affidavit made by any person in connection with the incident in
respect of which the inquiry is held, shall at the discretion of the
presiding inspector upon production be admissible as proof of the facts
stated therein, and the presiding inspector may, at his discretion, subpoena
the person who made such an affidavit to give oral evidence at the inquiry or
may submit written interrogatories to him for reply, and such interrogatories
and any reply thereto purporting to be a reply from such person shall
likewise be admissible in evidence at the inquiry: Provided that the
presiding inspector shall afford any person present at the inquiry the
opportunity to refute the facts stated in such document, evidence or reply. (8) (a) Whenever in the course of any inquiry it appears to the
presiding inspector that the examination of a witness is necessary and that
the attendance of such witness cannot be procured without a measure of delay,
expense or inconvenience which in the circumstances would be unreasonable,
the presiding inspector may dispense with such attendance and may appoint a
person to be a commissioner to take the evidence of such witness, whether within
or outside the Republic, in regard to such matters or facts as the presiding
inspector may indicate. (b) Any person
referred to in subsection (5) (b) may in person or through a representative,
advocate or attorney appear before such commissioner in order to examine the
said witness. (c) The evidence recorded in terms of this subsection shall be
admissible in evidence at the inquiry. (9) At the conclusion of an inquiry under this section, the presiding
inspector shall compile a written report thereon. (10) The evidence given at
any inquiry under this section shall be recorded and a copy thereof shall be
submitted by the presiding inspector together with his report to the chief
inspector, and in the case of an incident in which or as a result of which any
person died or was seriously injured or became ill, the inspector shall
submit a copy of the said evidence and the report to the attorney-general
within whose area of jurisdiction such incident occurred. (11) Nothing contained in
this section shall be construed as preventing the institution of criminal
proceedings against any person or as preventing any person authorized thereto
from issuing a warrant for the arrest of or arresting any person, whether or
not an inquiry has already commenced. (12) Upon receipt of a
report referred to in subsection (10), the attorney-general shall deal
therewith in accordance with the provisions of the Inquests Act, 1959 (Act 58
of 1959), or the Criminal Procedure Act, 1977 (Act 51 of 1977), as the case
may be. (13) An inspector presiding
at any formal inquiry shall not incur any civil liability by virtue of
anything contained in the report compiled in terms of subsection (9). 33 Joint inquiries (1) The provisions of section 32 shall not affect the provisions of
any law requiring and regulating inquests or other inquiries in case of death
resulting from other than natural causes, and in respect of each incident
referred to in that section in which or in consequence of which any person
has died there shall be held, in addition to an inquiry under the said
section, such inquest or inquiry as is required by any such law, but an
inquiry under the said section and an inquest held by a judicial officer
under the Inquests Act, 1959 (Act 58 of 1959), may be held jointly. (2) At such a joint inquiry and inquest the judicial officer shall
preside and thereupon the provisions of the Inquests Act, 1959, shall apply,
but the inspector and the judicial officer shall each make the report
required of them by section 32 (9) and that Act, respectively. 34 Obstruction of investigation or inquiry or presiding inspector or
failure to render assistance No person shall, in
relation to any investigation or inquiry held in terms of section 31 or 32 - (a) without reasonable justification fail to comply with any lawful
direction, subpoena, request or order issued or given by the presiding
inspector; (b) refuse or fail to answer to the best of his knowledge any question
lawfully put to him by or with the concurrence of the presiding inspector:
Provided that no person shall be obliged to answer any question whereby he
may incriminate himself; (c) in any manner whatsoever advise, encourage, incite, order or
persuade any person who has been directed, subpoenaed, requested or ordered
to do something by the presiding inspector, not to comply with such
direction, subpoena, request or order or in any manner prevent him from doing
so; (d) refuse or fail, when required thereto by the presiding inspector,
to furnish him with the means or to render him the necessary assistance for
holding such inquiry; (e) refuse or fail, when required thereto by the presiding inspector,
to attend an inquiry; or (f) intentionally insult the presiding inspector or his assistant or
intentionally interrupt the proceedings thereof. 35 Appeal against decision of inspector (1) Any person aggrieved by any decision taken by an inspector under a
provision of this Act may appeal against such decision to the chief
inspector, and the chief inspector shall, after he has considered the grounds
of the appeal and the inspector’s reasons for the decision, confirm, set
aside or vary the decision or substitute for such decision any other decision
which the inspector in the chief inspector’s opinion ought to have taken. (2) Any person who wishes to appeal in terms of subsection (1), shall
within 60 days after the inspector’s decision was made known, lodge such an
appeal with the chief inspector in writing, setting out the grounds on which
it is made. (3) Any person aggrieved by a decision taken by the chief inspector
under subsection (1) or in the exercise of any power under this Act, may
appeal against such decision to the Labour Court, and the Labour Court shall
inquire into and consider the matter forming the subject of the appeal and
confirm, set aside or vary the decision or substitute for such decision any
other decision which the chief inspector in the opinion of the Labour Court
ought to have taken. [Sub-s. (3) amended
by s. 211 of Act 66 of 1995.] (4) Any person who wishes to appeal in terms of subsection (3), shall
within 60 days after the chief inspector’s decision was given, lodge the
appeal with the registrar of the Labour Court in accordance with the Labour
Relations Act, 1995, and the rules of the Labour Court. [Sub-s. (4)
substituted by s. 211 of Act 66 of 1995.] (5) An appeal under subsection (1) or (3) in connection with a
prohibition imposed under section 30 (1) (a) or (b) shall not suspend the
operation of such prohibition. 36 Disclosure of information No person shall
disclose any information concerning the affairs of any other person obtained
by him in carrying out his functions in terms of this Act, except- (a) to the extent to which it may be necessary for the proper
administration of a provision of this Act; (b) for the purposes of the administration of justice; or (c) at the request of a health and safety representative or a health
and safety committee entitled thereto. 37 Acts or omissions by employees or mandataries (1) Whenever an employee does or omits to do any act which it would be
an offence in terms of this Act for the employer of such employee or a user
to do or omit to do, then, unless it is proved that- (a) in doing or omitting to do that act the employee was acting
without the connivance or permission of the employer or any such user; (b) it was not under any condition or in any circumstance within the
scope of the authority of the employee to do or omit to do an act, whether
lawful or unlawful, of the character of the act or omission charged; and (c) all reasonable steps were taken by the employer or any such user
to prevent any act or omission of the kind in question, the
employer or any such user himself shall be presumed to have done or omitted
to do that act, and shall be liable to be convicted and sentenced in respect
thereof; and the fact that he issued instructions forbidding any act or
omission of the kind in question shall not, in itself, be accepted as
sufficient proof that he took all reasonable steps to prevent the act or
omission. (2) The provisions of subsection (1) shall mutatis mutandis apply in
the case of a mandatary of any employer or user, except if the parties have
agreed in writing to the arrangements and procedures between them to ensure
compliance by the mandatary with the provisions of this Act. (3) Whenever any employee or mandatary of any employer or user does or
omits to do an act which it would be an offence in terms of this Act for the
employer or any such user to do or omit to do, he shall be liable to be
convicted and sentenced in respect thereof as if he were the employer or
user. (4) Whenever any employee or mandatary of the State commits or omits
to do an act which would be an offence in terms of this Act, had he been the
employee or mandatary of an employer other than the State and had such
employer committed or omitted to do that act, he shall be liable to be
convicted and sentenced in respect thereof as if he were such an employer. (5) Any employee or mandatary referred to in subsection (3) may be so
convicted and sentenced in addition to the employer or user. (6) Whenever the employee or mandatary of an employer is convicted of
an offence consisting of a contravention of section 23, the court shall, when
making an order under section 38 (4), make such an order against the employer
and not against such employee or mandatary. 38 Offences, penalties and special orders of court (1) Any person who- (a) contravenes or fails to comply with a provision of section 7, 8,
9, 10 (1), (2) or (3), 12, 13, 14, 15, 16 (1) or (2), 17 (1), (2) or (5), 18
(3), 19 (1), 20 (2) or (4), 22, 23, 24 (1) or (2), 25, 26, 29 (3), 30 (2) or
(6), 34 or 36; (b) contravenes or fails to comply with a direction or notice under
section 17 (6), 19 (4) or (7), 21 (1) or 30 (1) (a), (b) or (c) or (3), (4)
or (6); (c) contravenes or fails to comply with a condition of an exemption
under section 40 (1); (d) in any record, application, statement or other document referred
to in this Act wilfully furnishes information or makes a statement which is
false in any material respect; (e) hinders or obstructs an inspector in the performance of his
functions; (f) refuses or fails to comply to the best of his ability with any requirement
or request made by an inspector in the performance of his functions; (g) refuses or fails to answer to the best of his ability any question
which an inspector in the performance of his functions has put to him; (h) wilfully furnishes to an inspector information which is false or
misleading; (i) gives himself out as an inspector; (j) having been subpoenaed under section 32 to appear before an
inspector, without sufficient cause (the onus of proof whereof shall rest
upon him) fails to attend on the day and at the place specified in the
subpoena, or fails to remain in attendance until the inspector has excused
him from further attendance; (k) having been called under section 32, without sufficient cause
(the onus of proof whereof shall rest upon him)- (i) refuses to appear before the inspector; (ii) refuses to be sworn or to make affirmation as a witness after he
has been directed to do so; (iii) refuses to answer, or fails to answer to the
best of his knowledge and belief, any question put to him; or (iv) refuses to comply with a requirement to produce a book, document
or thing specified in the subpoena or which he has with him; (l) tampers with or discourages, threatens, deceives or in any way
unduly influences any person with regard to evidence to be given or with
regard to a book, document or thing to be produced by such a person before an
inspector under section 32; (m) prejudices, influences or anticipates the proceedings or
findings of an inquiry under section 32 or 33; (n) tampers with or misuses any safety equipment installed or
provided to any person by an employer or user; (o) fails to use any safety equipment at a workplace or in the course
of his employment or in connection with the use of plant or machinery, which
was provided to him by an employer or such a user; (p) wilfully or recklessly does anything at a workplace or in
connection with the use of plant or machinery which threatens the health or
safety of any person, shall
be guilty of an offence and on conviction be liable to a fine not exceeding
R50 000 or to imprisonment for a period not exceeding one year or to both
such fine and such imprisonment. (2) Any employer who does or omits to do an act, thereby causing any
person to be injured at a workplace, or, in the case of a person employed by
him, to be injured at any place in the course of his employment, or any user
who does or omits to do an act in connection with the use of plant or
machinery, thereby causing any person to be injured, shall be guilty of an
offence if that employer or user, as the case may be, would in respect of
that act or omission have been guilty of the offence of culpable homicide had
that act or omission caused the death of the said person, irrespective of
whether or not the injury could have led to the death of such person, and on
conviction be liable to a fine not exceeding R100 000 or to imprisonment for
a period not exceeding two years or to both such fine and such imprisonment. (3) Whenever a person is convicted of an offence consisting of a
failure to comply with a provision of this Act or of any direction or notice
issued thereunder, the court convicting him may, in addition to any
punishment imposed on him in respect of that offence, issue an order
requiring him to comply with the said provision within a period determined by
the court. (4) Whenever an employer is convicted of an offence consisting of a
contravention of a provision of section 23, the court convicting him shall
inquire into and determine the amount which contrary to the said provision
was deducted from the remuneration of the employee concerned or recovered
from him and shall then act with respect to the said amount mutatis mutandis
in accordance with sections 28 and 29 of the Basic Conditions of Employment
Act, 1983 (Act 3 of 1983), as if such amount is an amount underpaid within
the meaning of those sections. 39 Proof of certain facts (1) Whenever in any legal proceedings in terms of this Act it is
proved that any person was present on or in any premises, that person shall, unless
the contrary is proved, be presumed to be an employee. (2) In the absence of satisfactory proof of age, the age of any person
shall, in any legal proceedings in terms of this Act, be presumed to be that
stated by an inspector to be in his opinion the probable age of the person;
but any person having an interest who is dissatisfied with that statement of
opinion may, at his own expense, require that the person whose age is in
question appear before and be examined by a district surgeon, and a statement
contained in a certificate by a district surgeon who examined that person as
to what in his opinion is the probable age of that person shall, but only for
the purpose of the said proceedings, be conclusive proof of the age of that
person. (3) In any legal proceedings in terms of this Act, any statement or
entry contained in any book or document kept by any employer or user or by
his employee or mandatary, or found on or in any premises occupied or used by
that employer or user, and any copy or reproduction of any such statement or
entry, shall be admissible in evidence against him as an admission of the
facts set forth in that statement or entry, unless it is proved that that
statement or entry was not made by that employer or user or by any employee
or mandatary of that employer or user within the scope of his authority. (4) Whenever in any legal proceedings in terms of this Act it is
proved that any untrue statement or entry is contained in any record kept by
any person, he shall be presumed, until the contrary is proved, wilfully to
have falsified that record. (5) (a) Whenever at the trial of any person charged with a
contravention of section 22 it is proved that the accused sold or marketed
any article, substance, plant, machinery or health and safety equipment
contemplated in that section, it shall be presumed, until the contrary is
proved, that such article, substance, plant, machinery or health and safety
equipment did not at the time of the sale or marketing thereof comply with
the said requirements. (b) At any trial
any document purporting to be a certificate or statement by an approved
inspection authority and in which it is alleged that the article, substance,
plant, machinery or health and safety equipment forming the subject of the
charge complies with the requirements prescribed in respect thereof or with
any particular standard, shall on its mere production at that trial by or on
behalf of the accused be accepted as prima facie proof of the facts stated
therein. (6) Notwithstanding the provisions of section 31 (3) of the Standards
Act, 1993 (Act 29 of 1993), whenever in any legal proceedings in terms of
this Act the question arises whether any document contains the text of a
health and safety standard incorporated in the regulations under section 44,
any document purporting to be a statement by a person who in that statement
alleges that he is an inspector and that a particular document contains the
said text, shall on its mere production at those proceedings by any person be
prima facie proof of the facts stated therein. (7) The records to be kept by a health and safety committee in terms
of section 20 (2), including any document purporting to be certified by an
inspector as a true extract from any such records, shall on their mere
production at any legal proceedings by any person be admissible as evidence
of the fact that a recommendation or report recorded in such records was made
by a health and safety committee to an employer or inspector concerned. 40 Exemptions (1) The Minister may, for such period and on such conditions as may be
determined by him, exempt any employer or user or any category of employers
or users, generally or with respect to any particular employee or category of
employees or users or with respect to any matter, from any of or all the
provisions of this Act or the provisions of a notice or direction issued
under this Act. (2) The period for which exemption may be granted under subsection (1)
may commence on a date earlier than the date on which exemption is granted,
but not earlier than the date on which application for such exemption was
made to the Minister. (3) An exemption under subsection (1) shall- (a) in the case of the exemption of a particular employer or user, be
granted by issuing to such employer or user a certificate of exemption in
which his name and the scope, period and conditions of the exemption are
specified; (b) in the case of the exemption of a category of employers or of a
category of such users, be granted by the publication in the Gazette of a notice
in which that category of employers or users is described and the scope,
period and conditions of the exemption are specified: Provided that the Minister may grant exemption- (i) to an organization of employers or an
organization of users in accordance with the requirements of either paragraph
(a) or paragraph (b); (ii) from any health and safety standard
incorporated in the regulations under section 44, in any manner which he may
deem expedient. (4) A certificate of exemption contemplated in subsection (3) (a) and
a notice contemplated in subsection (3) (b) may at any time be amended or
withdrawn by the Minister. (5) An exemption under subsection (1) shall lapse- (a) upon termination of the period for which it was granted; (b) upon withdrawal of the relevant certificate or notice under
subsection (4). (6) Any exemption granted under section 32 of the Machinery and
Occupational Safety Act, 1983 (Act 6 of 1983), to the extent to which it
grants exemption from the operation of a provision similar to a provision in
respect of which exemption may be granted under subsection (1) of this
section, which exemption has at the commencement of this Act not lapsed as
contemplated in subsection (5) of the said section 32, shall be deemed to
have been granted under this section. 41 This Act not affected by agreements Subject to the
provisions of sections 10 (4) and 37 (2), a provision of this Act or a
condition specified in any notice or direction issued thereunder or subject
to which exemption was granted to any person under section 40, shall not be
affected by any condition of any agreement, whether such agreement was
entered into before or after the commencement of this Act or before or after
the imposition of any such condition, as the case may be. 42 Delegation and assignment of functions (1) The Minister may delegate any power conferred upon him by or under
this Act, except the power contemplated in section 43, to an officer. (2) A delegation under subsection (1) shall not prevent the exercise
of the relevant power by the Minister himself. (3) The Minister may authorize any provincial administration or local
authority to perform any function referred to in this Act. (4) An authorization under subsection (3) shall not prevent the
performance of the relevant function by the Minister, the chief inspector or
an inspector, as the case may be. 43 Regulations (1) The Minister may make regulations- (a) as to any matter which in terms of this Act shall or may be
prescribed; (b) which in the opinion of the Minister are necessary or expedient in
the interest of the health and safety of persons at work or the health and
safety of persons in connection with the use of plant or machinery, or the
protection of persons other than persons at work against risks to health and
safety arising from or connected with the activities of persons at work,
including regulations as to- (i) the planning, layout, construction, use, alteration, repair, maintenance
or demolition of buildings; (ii) the design, manufacture, construction, installation, operation,
use, handling, alteration, repair, maintenance or conveyance of plant,
machinery or health and safety equipment; (iii) the training, safety equipment or facilities
to be provided by employers or users, the persons to whom and the
circumstances in which they are to be provided and the application thereof; (iv) the health or safety measures to be taken by employers or users; (v) the occupational hygiene measures to be taken by employers or
users; (vi) any matter regarding the biological monitoring or medical
surveillance of employees; (vii) the production,
processing, use, handling, storage or transport of, and the exposure of
employees and other persons to, hazardous articles, substances or organisms
or potentially hazardous articles, substances or organisms, including
specific limits, thresholds or indices of or for such exposure; (viii) the performance of
work in hazardous or potentially hazardous conditions or circumstances; (ix) the emergency equipment and medicine to be held available by
employers and users, the places where such equipment and medicine are to be
held, the requirements with which such equipment and medicine shall comply,
the inspection of such equipment and medicine, the application of first-aid
and the qualifications which persons applying first-aid shall possess; (x) the compilation by employers of health and safety directives in
respect of a workplace, the matters to be dealt with in such directives and
the manner in which such directives shall be brought to the attention of
employees and other persons at such a workplace; (xi) the registration of persons performing hazardous work or using or
handling plant or machinery, the qualifications which such persons shall
possess and the fees payable to the State in respect of such registration; (xii) the accreditation,
functions, duties and activities of approved inspection authorities; (xiii) the consultations
between an employer and employees on matters of health and safety; (xiv) subject to section
36, the provision of information by an employer or user to employees or the
public on any matter to which this Act relates; (xv) the conditions under
which any employer is prohibited from permitting any person to partake of
food or to smoke on or in any premises where a specified activity is carried
out; (xvi) the conditions under
which the manufacture of explosives and activities incidental thereto may
take place; (c) as to the preventive and protective measures for major hazard
installations with a view to the protection of employees and the public
against the risk of major incidents; (d) as to the registration of premises where employees perform any
work or where plant or machinery is used and the fee payable to the State in
respect of such registration; (e) whereby provision is made for the continuation of any registration
under this Act; (f) as to the registration of plant and machinery and the fee
payable to the State in respect of such registration; (g) as to the establishment of one or more committees for the
administration of a provision of the regulations, the constitution of such
committees, the functions of such committees, the procedure to be followed at
meetings of such committees, the allowances which may be paid to members of
such committees from money appropriated by Parliament for such purpose and
the person by whom such allowances shall be fixed; (h) prescribing the records to be kept and the returns to be rendered
by employers and users and the person or persons to whom such returns shall
be rendered; (i) as to the designation and functions of health and safety
representatives and health and safety committees and the training of health
and safety representatives; (j) as to the activities of self-employed persons; and (k) as to any other matter the regulation of which is in the opinion
of the Minister necessary or desirable for the effective carrying out of the
provisions of this Act. (2) No regulation shall be made by the Minister except after
consultation with the Council, and no regulation relating to State income or
expenditure or to any health matter shall be made by the Minister except
after consultation also with the Minister of State Expenditure and the
Minister for National Health and Welfare, respectively. (3) In making regulations the Minister may apply any method of
differentiation that he may deem advisable: Provided that no differentiation
on the basis of race or colour shall be made. (4) A regulation may in respect of any contravention thereof or
failure to comply therewith prescribe a penalty of a fine, or imprisonment
for a period not exceeding 12 months, and, in the case of a continuous
offence, not exceeding an additional fine of R200 or additional imprisonment
of one day for each day on which the offence continues: Provided that the
period of such additional imprisonment shall not exceed 90 days. (5) A regulation made under section 35 of the Machinery and
Occupational Safety Act, 1983 (Act 6 of 1983), which was in force immediately
prior to the commencement of this Act and which could have been made under
this section, shall be deemed to have been made under this section. 44 Incorporation of health and safety standards in regulations (1) The Minister may by notice in the Gazette incorporate in the
regulations any health and safety standard or part thereof, without stating
the text thereof, by mere reference to the number, title and year of issue of
that health and safety standard or to any other particulars by which that
health and safety standard is sufficiently identified. (2) No health and safety standard shall be incorporated in the
regulations except after consultation with the Council. (3) Any health and safety standard incorporated in the regulations
under subsection (1) shall for the purposes of this Act, in so far as it is
not repugnant to any regulation made under section 43, be deemed to be a
regulation, but not before the expiry of two months from the date of incorporation
thereof. (4) Whenever any health and safety standard is at any time after the
incorporation thereof as aforesaid, amended or substituted by the competent
authority, the notice incorporating that health and safety standard shall,
unless otherwise stated therein, be deemed to refer to that health and safety
standard as so amended or substituted, as the case may be. (5) The chief inspector shall keep a register of particulars of every
publication in which a health and safety standard incorporated in the
regulations under subsection (1), and every amendment or substitution of any
such health and safety standard, was published, and also of the place in the
Republic where such publication is obtainable or otherwise available for
inspection, and he shall make that register or an extract therefrom available
free of charge to persons having an interest, for inspection. (6) The provisions of section 31 of the Standards Act, 1993 (Act 29 of
1993), shall not apply to any incorporation of a health and safety standard
or of any amendment or substitution of a health and safety standard under
this section. (7) Any safety standard which was immediately prior to the
commencement of this Act incorporated under section 36 of the Machinery and
Occupational Safety Act, 1983 (Act 6 of 1983), in the regulations made under
that Act, shall be deemed to be a health and safety standard incorporated
under this section. 45 Serving of notices Unless another
method is prescribed, a notice under this Act shall be served- (a) by delivering a copy thereof to the person upon whom it is to be
served; (b) by leaving such a copy at the usual or last known place of
residence or business of such a person; or (c) by sending such a copy by registered post to the usual or last
known place of residence or business of such a person. 46 Jurisdiction of magistrates’ courts Notwithstanding
anything to the contrary contained in any law- (a) a magistrate’s court shall have jurisdiction to impose any penalty
or to make any order provided for in this Act; (b) no magistrate’s court shall be competent to pronounce upon the
validity of any regulation made under this Act. 47 State bound This Act shall bind
the State. 48 Conflict of provisions In so far as any provision
of the Explosives Act, 1956 (Act 26 of 1956), is repugnant to a provision of
this Act the provisions of this Act shall apply. 49 Repeal of laws The Machinery and
Occupational Safety Act, 1983 (Act 6 of 1983), the Machinery and Occupational
Safety Amendment Act, 1989 (Act 40 of 1989), and the Machinery and
Occupational Safety Amendment Act, 1991 (Act 97 of 1991), are hereby
repealed. 50 Short title and commencement (1) This Act shall be called the Occupational Health and Safety Act,
1993, and shall come into operation on a date fixed by the State President by
proclamation in the Gazette. (2) Different dates may be so fixed in respect of different provisions
of this Act.
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