OHSA

This applies to you if you employ anybody, anywhere in South Africa. There is no size threshold and no turnover threshold. Section 8(1) is written as a duty on every employer, full stop, and it does not wait for an inspector to arrive.

It applies to places you may not think of as a workplace. Section 1 defines a workplace as any premises or place where a person performs work in the course of his employment, and defines premises to include any building, vehicle, vessel, train or aircraft. A delivery vehicle is premises and its cab is a workplace. So is a client's site your people work on, a yard, a container, and a room in an employee's home that the business requires work to be done in.

It reaches your contractors. Section 1 defines a mandatary to include an agent, a contractor or a subcontractor for work, and section 37(2) applies the whole of the section 37 presumption to a mandatary's acts and omissions. The only thing that displaces it is a written agreement with that mandatary on the arrangements and procedures between you to ensure its compliance with the Act.

Two thresholds change what you have to do rather than whether the Act applies. More than 20 employees at a workplace triggers health and safety representatives under section 17(1). Two or more designated representatives at a workplace triggers a health and safety committee under section 19(1). Both counts are per workplace, not per company, so a business with 15 people at each of three branches has no section 17 duty at any of them and a business with 25 at one branch has it there.

If you are a mine, this Act does not apply to you. Section 1(3)(a) excludes a mine, a mining area and any works as defined in the Minerals Act, 1991, and the Mine Health and Safety Act 29 of 1996 governs those instead. The exclusion is about the place, not about the company: a mining group's head office, its off-site workshops, its laboratories and its road transport operation are not a mine or a mining area and this Act applies to them in full. If you operate both, answer this assessment for everything outside the mining area and assess the mining area under the Mine Health and Safety Act.

Load line ships, fishing, sealing and whaling boats and floating cranes are excluded by section 1(3)(b), and the Merchant Shipping Act applies to them.

If you are a labour broker, note that section 1 excludes a labour broker as defined in the old Labour Relations Act from the definition of employer for this Act. That does not make the people safe: whoever controls the workplace they work in owes them the section 8 and section 9 duties, and you should be clear in writing which of you does what.

Answer per workplace where a question is about representatives, committees or a count of employees. A group answer hides the depot with 30 people and no representative.

Section 38 sets two tiers, and the second one is the reason this Act matters more than its fines suggest.

Contravening any of the duty sections in this record is an offence under section 38(1)(a), carrying on conviction a fine not exceeding R50 000 or imprisonment not exceeding one year or both. The sections listed there include 7, 8, 9, 13, 14, 16(1) or (2), 17(1), (2) or (5), 18(3), 19(1), 20(2) or (4), 23 and 24(1) or (2), which is almost everything this assessment asks about.

Section 38(2) is the one that reaches a person rather than a balance sheet. An employer who does or omits to do an act thereby causing any person to be injured at a workplace is guilty of an offence if that employer would have been guilty of culpable homicide had the act or omission caused the death of that person, whether or not the injury could have led to death. On conviction: a fine not exceeding R100 000 or imprisonment not exceeding two years or both. In other words, the test for an injury is the test for a death, and the gap between an injury and a fatality is luck rather than law.

Section 37 decides who is in the dock. Section 37(1) presumes the employer did the act whenever its employee did it, unless the employer proves all three of no connivance or permission, no authority in any circumstance to do it, and that all reasonable steps were taken to prevent it. The section then says expressly that issuing instructions forbidding the act is not in itself sufficient proof that all reasonable steps were taken. Section 37(2) applies the same presumption to a mandatary, meaning an agent, contractor or subcontractor, unless the parties have agreed in writing to the arrangements and procedures between them to ensure the mandatary's compliance. Section 37(3) and (5) mean the employee or contractor can be convicted as well, not instead.

Failing to comply with a direction or notice from an inspector is a separate offence under section 38(1)(b), as is hindering or obstructing an inspector, refusing to answer an inspector's questions to the best of your ability, and wilfully giving an inspector false or misleading information, under section 38(1)(e) to (h).

Section 38(3) lets a convicting court order compliance within a period it fixes, in addition to the sentence. Section 38(4) makes a conviction for an unlawful deduction under section 23 carry an inquiry into the amount and an order to repay it, and section 37(6) directs that order at the employer and not at the employee who made the deduction.

None of these figures has been raised since 1993, which is worth knowing when weighing the real exposure. The real exposure is not the fine. It is the criminal record of a conviction under section 38(2), the compliance order, the time an investigation and a formal inquiry under section 32 take out of the business, and what a customer or an insurer does with the finding afterwards. A conviction under this Act also does nothing to reduce what the Compensation Fund can charge you under COIDA, which is a separate liability under a separate Act.