05/08/2015
review of the new Construction Regulations, 2014 as part of the Occupational Health and Safety Act, 1993
by the occupational health and safety department
On 7 February 2014, Labour Minister Mildred Oliphant published a notice under Section 43 of the Occupational Health and Safety Act, 1993 (“the OHASA”) containing the
new Construction Regulations, 2014 which repealed the old Construction Regulations of 2003.
I have prepared for you a summary of the implications of the new Construction Regulations of the OHASA, as follows:
1. More stringent health and safety obligations
1.1. The new Construction Regulations place more stringent health and safety obligations on a wide range of parties who are involved in construction work, including:
1.1.1. the client (a person for whom construction work is being performed); 1.1.2. the contractor (an employer who performs construction work); 1.1.3. the designer (which includes an architect or engineer); and 1.1.4. the principal contractor (an employer appointed by the client to perform construction work).
1.2. In South Africa, the occupational health and safety environment (outside the mining industry) is primarily regulated by the OHASA and regulations promulgated thereunder. The OHASA and its regulations create obligations on employers, manufacturers, users and mandataries to ensure, as far as is reasonably practicable, the health and safety of, employees (amongst others) while they are working.
1.3. The OHASA also contains the new Construction Regulations which apply to all types of construction work and regulate all construction-related activities outside of the mining industry.
2. Do the new Construction Regulations apply to a mine or mining area?
It is very important to note that the OHASA and its regulations (including the new Construction Regulations) do not apply to a mine or a mining area. The OHASA and its regulations may, however, be made applicable to a mine by the publication of a notice under Section 80 of the Mine Health and Safety Act, 1996 by the Minister of Mineral Resources. This was never done in respect of the old Construction Regulations, and to date, no such notice has been published in respect of the new Construction Regulations.
For more information on the above, please see Willem Le Roux, Mine Health and Safety Law, loose leaf publication, LexisNexis, 2011 at COM 28 – 29.
3. Baseline risk assessment
3.1 A client must now prepare a baseline risk assessment to identify the major occupational health and safety risks, as well as establish priorities and a programme for future risk control for an intended construction work project. A suitable, sufficiently documented and coherent site-specific health and safety specification for the intended construction work, based on such baseline risk assessment, must then be prepared.
3.2 Such baseline risk assessment will ensure a proper analysis of all the activities at the construction site to identify the high-risk activities that must be addressed in the health and safety plans of the principal contractor and other contractors.
4. Notification of construction work
4.1 The old Construction Regulations required, in specified circumstances, that only the relevant provincial director of the Department of Labour be notified before any construction work was to be carried out.
4.2 The new Construction Regulations provide that, in some specified circumstances, it is still required to notify the relevant provincial director, but in other specified circumstances, the client is obliged to apply in writing to the relevant provincial director for a construction work permit to perform the intended construction work. In such circumstances, it would be impermissible for construction work to proceed without a construction work permit.
4.3 It is important to note that the particular regulation dealing with the requirement for a client to apply in writing to the relevant provincial director of the Department of Labour for a construction work permit, will only come into effect from 7 August 2015, 18 months after the commencement date of the new Construction Regulations.
4.4 Similarly, the requirement that an agent must be qualified to perform the required functions and be registered with the South African Council for the Project and Construction Management Professions, will also only come into effect from 7 August 2015, 18 months after the commencement date of the new Construction Regulations.
5. Obligations of a designer (which includes an architect or engineer)
5.1 It is noteworthy that a designer must now also be a competent person and that several specific duties are imposed on such a designer under the new regulations. The designer must, amongst other things:
5.1.1. ensure that the relevant health and safety standards, such as industry best practices, are complied with in a design;
5.1.2. take into consideration the health and safety specifications submitted by a client;
5.1.3. inform a client in writing of any known or anticipated dangers or hazards relating to the construction work;
5.1.4. make available all the relevant information required for the safe ex*****on of the work upon being designed or when the design is subsequently altered; and
5.1.5. refrain from including anything in the design of the structure that necessitates the use of dangerous procedures or materials, hazardous to the health and safety of people (this can be avoided by modifying the design or by substituting materials).
5.2 The new Construction Regulations clearly make designers more accountable, which may expose such designers to criminal liability for non-compliance.
6. Definitions
6.1 The new Construction Regulations amended several definitions which form part of the old Construction Regulations. An important change is that an agent or designer may no longer be any person, but must be a competent person, who is required, amongst other things, to be a person with the required knowledge, training and experience, with the additional requirement that such a competent person must now also be a person who is familiar with the provisions of the OHASA and the applicable regulations thereunder.
6.2 The new Construction Regulations also introduce new definitions. It is now a requirement for a construction manager to be appointed with the duty of managing all the construction work on a single site, including the duty of ensuring occupational health and safety compliance.
7. The biggest challenge
The biggest challenge for the successful implementation of the new Construction Regulations will be to ensure that the offices of the relevant provincial directors are properly equipped to speedily process applications for construction work permits. It is critical during this process that there is a consistent application of the relevant requirements to create certainty in the construction and building industries.
